Abdaly v The King

[2025] NSWCCA 127

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Abdaly v R [2025] NSWCCA 127

Hearing dates:

6 August 2025

Decision date:

22 August 2025

Before:

Bell CJ at [1];
Price AJA at [2];
Ierace J at [3]

Decision:

(1)   Grant leave to extend time to file the notice of appeal.

(2)   Grant leave to appeal.

(3)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant member of organised criminal group — Where applicant spent unusually long period on remand — Where imposition of two discrete aggregate sentences rather than one overall aggregate sentence — Whether sentencing judge failed to take into account certain periods of applicant’s remand period

Legislation Cited:

Crimes Act 1900 (NSW), ss 93T(1), 93X(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 24(a), 45(1)(c), 47, 47(3), 66, 66(1), 66(2), 66(3)

Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases Cited:

Fuller v R [2023] NSWCCA 282

Kaddour v R [2017] NSWCCA 294

Kaderavek v R [2018] NSWCCA 92

Kljaic v R [2023] NSWCCA 225

McMillan v R [2024] NSWCCA 83

Miller v R [2023] NSWCCA 267

RO v R [2019] NSWCCA 183

Category:

Principal judgment

Parties:

Sayed Anush Abdaly (Applicant)
Rex (Respondent)

Representation:

Counsel:
P Lange (Applicant)
S Healy (Respondent)

Solicitors:
One Group Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2016/358130; 2016/381616; 2017/192038

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

24 November 2023

Before:

Whitford SC DCJ

File Number(s):

2016/358130; 2016/381616; 2017/192038

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 24 November 2023, Sayed Anush Abdaly (the applicant) was sentenced by Whitford SC DCJ to two aggregate sentences in respect of the following offences: participate in a criminal group, contrary to s 93T(1) of the Crimes Act 1900 (NSW) (count 1); supply an indictable quantity of a prohibited drug (methylamphetamine), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (count 2); supply an indictable quantity of a prohibited drug (MDMA), contrary to s 25(1) of the Drug Misuse and Trafficking Act (count 3); and supply a small quantity of a prohibited drug (cannabis), contrary to s 25(1) Drug Misuse and Trafficking Act (count 4). The sentencing court also took into account an offence on a Form 1 for count 1, namely, habitually consorting with convicted offenders, contrary to s 93X(1) of the Crimes Act.

In respect of counts 2 and 3, the applicant received a fixed aggregate sentence of 5 years, backdated to commence on 27 December 2017 and expiring on 26 December 2022. The second aggregate sentence was for counts 1 and 4, for which the applicant received a sentence of imprisonment of 2 years and 6 months, to commence on 24 November 2023 and to expire on 23 May 2026, to be served by way of an intensive correction order (the second sentence).

The applicant sought leave to appeal out of time against the second sentence on the following grounds, which relate to the applicant’s unusually long period spent on remand, which was 5 years, 1 month and 4 days, excluding 6 months that was referable to sentence for another matter:

1. His Honour failed to take into account the full extent of the applicant’s pre-sentence custody, as required by s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act);

2. In determining that the sentence of imprisonment should be served [by] an intensive corrections order, his Honour failed, when considering s 66(3) of the Sentencing Act, to take into account the full extent of the applicant’s pre-sentence custody; alternatively,

3. The decision to order that the sentence of imprisonment be served [by] an intensive corrections order was plainly unjust or unreasonable.“

Held (Ierace J, Bell CJ and Price AJA agreeing), granting leave to appeal and dismissing the appeal:

1. A full and fair reading of the remarks on sentence reveals that his Honour expressly acknowledged that the applicant’s entire period on remand would be taken into account: [46]-[47] (Ierace J) (Bell CJ at [1] and Price AJA at [2] agreeing).

Fuller v R [2023] NSWCCA 282; Miller v R [2023] NSWCCA 267; Kaddour v R [2017] NSWCCA 294, cited and applied.

1. It is inappropriate to discretely assess each aggregate sentence rather than consider them in combination, in view of the sentencing judge’s stated objective of adopting a flexible sentencing structure that would take into account the full extent of the applicant’s pre-sentence custody and the desirability of him remaining in the community to strengthen his rehabilitation. The imposition of an intensive correction order was not unjust or unreasonable in all of the circumstances of this case: [50]-[52] (Ierace J) (Bell CJ at [1] and Price AJA at [2] agreeing).

Kaderavek v R [2018] NSWCCA 92, cited and applied.

JUDGMENT

1. BELL CJ: I agree with Ierace J.

2. PRICE AJA: I agree with Ierace J.

3. IERACE J: The applicant seeks leave to appeal out of time against one of two aggregate sentences imposed by Whitford SC DCJ (the sentencing judge) on 24 November 2023, in respect of two of the following offences:

“1 Participation in a criminal group between 9 January 2014 and 29 November 2016, knowing it was a criminal group and that his participation contributed to the occurrence of criminal activity, contrary to s 93T(1) of the Crimes Act 1900 (NSW) (maximum penalty 5 years imprisonment) (the participate offence);

2 Supplying an indictable quantity of a prohibited drug (methylamphetamine) between 18 July 2016 and 2 September 2016, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), (maximum penalty 15 years imprisonment);

3 Supplying an indictable quantity of a prohibited drug (MDMA) between 18 July 2016 and 2 September 2016, contrary to s 25(1) Drug Misuse and Trafficking Act (maximum penalty 15 years imprisonment); and

4 Supplying a small quantity of a prohibited drug (cannabis) between 13 November 2016 and 30 November 2016, contrary to s 25(1) Drug Misuse and Trafficking Act (maximum penalty 10 years imprisonment).”

4. The sentencing court took into account on the sentence for the first count an offence on a Form 1, of habitually consorting with convicted offenders after having been given an official warning, contrary to s 93X(1) of the Crimes Act (maximum penalty 3 years imprisonment) (the Form 1 offence).

5. The two sentences were: for counts 2 and 3, a fixed aggregate sentence of 5 years, backdated to commence on 27 December 2017 and expiring on 26 December 2022 (the first sentence); and in respect of counts 1 and 4, an aggregate sentence of 2 years and 6 months, to commence on 24 November 2023 (that is, on the date of sentence) and to expire on 23 May 2026, to be served by way of an intensive correction order (ICO) (the second sentence).

6. The applicant seeks leave to appeal against the second sentence on three sub-grounds, which all concern an unusually long period of remand in custody that the applicant served. They are as follows:

1. His Honour failed to take into account the full extent of the applicant’s pre-sentence custody, as required by s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act);

2. In determining that the sentence of imprisonment should be served [by] an intensive corrections order, his Honour failed, when considering s 66(3) of the Sentencing Act, to take into account the full extent of the applicant’s pre-sentence custody; alternatively,

3. The decision to order that the sentence of imprisonment be served [by] an intensive corrections order was plainly unjust or unreasonable.

The application for leave to appeal out of time

7. Affidavits by the applicant’s former and current solicitors were read, in which the failure to file the notice of appeal in time was attributed to a combination of factors that did not involve the applicant. It appears that the Crown is not disadvantaged in any way by the delay. I would grant leave to appeal out of time.

The applicant’s offending

8. Agreed facts were tendered into evidence at the sentence hearing and incorporated by the sentencing judge into his sentence judgment. The applicant was arrested on 29 November 2016 arising from his participation in a criminal group led by Abuzar Sultani (the Sultani criminal group), although the precise charges against the applicant at that time were not identified.

9. The agreed facts set out the applicant’s role in the Sultani criminal group over the 2 year and 10-month period of the participate offence, as well as the three other counts and the Form 1 offence. The applicant does not take issue with the sentencing judge’s findings as to the objective seriousness of the offences or his moral culpability, so for the purposes of this judgment an overview of that material will suffice.

10. The Sultani criminal group was involved in serious criminal offences, including assault, drug supply, firearms trafficking, identity theft and fraud. It originated in around 2013 from the ranks of the Burwood Chapter of the Rebels Outlaw Motorcycle Group. Its primary objective was to obtain material benefit from the commission of serious indictable offences, including drug supply. The applicant was the Secretary and Treasurer of the Burwood Chapter and was identified by registered informants as being in the “inner circle” of the group. His responsibilities in the group included the collection of weekly contributions from the group’s members to a fund that was intended to cover their legal fees.

11. The agreed facts state:

“6.   By agreeing to these facts, [the applicant] does not admit that he was involved in or aware of any other serious violence offences or that he was present, involved in, or had first-hand knowledge of, all of the criminal activity of the group.”

12. The agreed facts refer to five properties that were used by the Sultani criminal group: a clubhouse, a meeting place for the inner circle, and three safe houses in which they stored drugs, firearms, money, fake number plates and other items used in the commission of their offences. The applicant was linked to all five premises by seized photographs, fingerprints, DNA swabs and police surveillance. He was observed by police to move items between two of the safe houses, one of which, at Concord, he visited frequently. During the execution of a covert crime scene warrant on the Concord safehouse on 1 September 2016, police located 830.87g of methylamphetamine and 342.7g of MDMA, and two used plastic gloves that had DNA profiles matching the applicant, one testing positive for the presence of methylamphetamine and the other for MDMA.

13. The basis on which the applicant pleaded guilty to counts 2 and 3 was that within the date range of his surveilled attendance at the Concord safe house, he handled (possessed) at least indictable quantities of methylamphetamine and MDMA. Police were unable to fix an upper limit on the amount of these drugs that the applicant possessed.

14. As to other items that were stored in the Concord safe house, the agreed facts state:

“33.   [The applicant] knew of, and was complicit in, the use of the safehouse by Sultani and the Group as part of their drug supply activities and other criminal enterprises. [The applicant] was aware that firearms and ammunition was stored by Sultani in the safe house, but the Crown accepts that [the applicant] did not personally possess, handle, control those items in any way.”

15. The factual basis of count 4 was that the Sultani criminal group purchased a pre-existing cannabis supply operation which was managed by a sub-group, including the applicant (the syndicate). It operated for about a fortnight before the arrest of the applicant and others. The applicant’s responsibility was to record the money made and spent by the syndicate and, with another member of the syndicate, to locate a cannabis supplier and organise a rental vehicle to be used in the enterprise, organise a safe house for the storage of bulk cannabis, people to pack it and supply the drivers and to collect the drivers’ takings.

16. As to the Form 1 offence, on 19 November 2015, police gave the applicant a consorting warning in respect of some members of the Sultani criminal group, including Mr Sultani. The applicant agreed that he continued to consort with those persons until his arrest.

The applicant’s lengthy period of remand

17. On 27 June 2017, the applicant was charged with count 1 and predecessor counts to 2 and 3 that alleged greater quantities of prohibited drugs being supplied (a large commercial quantity and a commercial quantity, respectively). On that date, he was remanded in custody.

18. He was released on Supreme Court bail on 31 January 2023, having been in prison for 5 years and about 7 months. A period of 5 years, 1 month and four days of that period was entirely referable to these offences. The balance of 6 months was served by the applicant for an offence of assault occasioning actual bodily harm in company, which he committed prior to his arrest for these offences. That sentence was handed down on 26 August 2019 and backdated to commence on the date that he entered remand custody. It expired on 26 December 2017, which was the day before the sentence imposed for counts 2 and 3 commenced (the assault sentence).

19. On 9 May 2019, the applicant was arraigned at Parramatta District Court on a multi-count indictment with 11 co-accused arising from their membership of the Sultani criminal group. He entered pleas of not guilty to the three charges. Thereafter, on four successive occasions, a trial date was fixed and vacated.

20. Between April 2020 and April 2023, the applicant and the Crown negotiated fresh and amended charges, culminating in the applicant entering pleas of guilty on 28 April 2023 to the four counts on which he was ultimately sentenced.

21. The undue length of the applicant’s remand came about from a combination of factors, including the complexities inherent in a multi-accused trial (no doubt further complicated by the coincidence of the Covid-19 pandemic) and protracted negotiations between the parties.

The remarks on sentence

22. The sentencing judge found that the criminality of count 1 effectively consumed that of the Form 1 offence so that it would not increase “in any meaningful sense” the sentence otherwise appropriate. The criminality of count 1 also overlapped “to some degree” with the criminality in the other offences, and the criminality of counts 2, 3 and 4 overlapped with each other.

23. As to the applicant’s role, his Honour found that although he was a member of Mr Sultani’s “inner circle”, he was not satisfied that he had a senior role in the group, since his only substantive activity was collecting the fees to be used collectively for the legal fees of group members as necessary. The group was controlled by Mr Sultani, so that “decision-making associated with the group’s activities was not collaborative so much as a reflection of the imposition of Mr Sultani’s will on others.”

24. As to the objective seriousness of the participate offence, his Honour said that the gravity of the offending “must be assessed by reference to this offender’s role as agreed”, but that it could not be divorced from the context in which that participation occurred, in particular, the nature of the group, the breadth of its activities and the length of the offender’s knowing participation in it. His Honour concluded, “On any view this is a serious example of offending against the relevant provision”.

25. Similarly, his Honour found the offending in counts 2 and 3 to be “serious” and was also to be understood in the context of the criminal group:

“The gravity of this offending too is informed, to a substantial degree, by the organised and sophisticated context in which it occurred. Of course, in that context this offender, like others in the group, I am satisfied was subject to the will and direction of Mr Sultani rather than someone himself responsible for planning and decision-making, although the inference is readily available that the offending was directed to financial benefit in which all group members were to share in some unidentified proportion.”

26. Again, in respect of count 4, his Honour found that although the quantities and amounts of financial return involved were limited, the gravity of the offending was rendered substantially more serious by “the organised context in which it occurred and the planning obviously attached to it”. However, the applicant was not “a directing mind” in the operation, but rather:

“… a willing and active participant in carrying out Mr Sultani’s directions with a view to obtaining again some unidentified share as a member of the group in the [takings] intended ultimately to be derived which, in the events which transpired with the arrest of the offenders, amounted to very little in fact.”

27. As to the applicant’s subjective case, his Honour noted the burden of the applicant’s long remand from the age of 23, which coincided with the Covid-19 pandemic and the consequent restrictions in his custodial environment:

“This extremely lengthy period of remand has resulted in a period of custody more burdensome and restrictive than it otherwise would have been or should ideally have been, particularly through the inability to obtain employment or access programs.”

28. His Honour accepted evidence to the effect that since his release on bail the applicant had re-established his family relationships; that his home environment appeared to be “entirely prosocial and supportive”; and that he had part-time employment and a promise of full-time employment if he obtained his truck-driver’s licence, which he intended to do. Although his Honour was “reasonably guarded” as to the applicant’s prospects of rehabilitation and of the risk of him re-offending, he noted positive indicators, particularly the applicant’s acquired maturity of thinking over his long remand as to his situation.

29. His Honour referred to the applicant’s limited criminal history, noting that for 7 months of the participate offence, he was subject to a s 10 bond for driving while disqualified.

The structure of the sentence imposed

30. The applicant’s remand history and the inter-related nature of the offending in an organised criminal context did not lend itself to a straightforward sentencing exercise. His Honour expressly acknowledged that the remand period that was referrable to this offending “will be taken into account when imposing sentence”, and reiterated that the organised context of the offences rendered each offence more serious and that there was a degree of overlap, “certainly not entire”, in the criminality for each offence, which required “some care from the point of view of totality to ensure no double or greater penalisation for each offence than is appropriate.”

31. His Honour allowed a 10 per cent discount for the late pleas to counts 1 and 4 for their utilitarian benefit, although they also reflected “some remorse”. The applicant’s pleas for counts 2 and 3 were entered as soon as negotiations resulted in an agreement, for which his Honour allowed a discount on the same basis of 15 per cent.

32. His Honour said that there were a variety of ways in which the sentence might be structured and acknowledged competing submissions by the parties as to whether the applicant had effectively served an appropriate period of time in custody. His Honour accepted that the applicant had served sufficient time in custody; “the appropriate structure” was a sentence that did not require him to return to full-time custody; that the interests of justice and the community would best be served by a sentence that permitted the applicant to continue his rehabilitation in the community, albeit with supervision and scrutiny.

33. For those reasons, his Honour imposed two aggregate sentences, the first, for counts 2 and 3, being “a fixed term of imprisonment” of 5 years, backdated to commence on 27 December 2017 and expiring on 26 December 2022. The indicative sentences were 3 years and 4 months imprisonment for each count. His Honour noted, “As the entire period of that sentence has been served in full-time custody there is no occasion to fix a non-parole period”.

30. As to the second sentence, for counts 1 and 4, his Honour said:

“For the offences of participation and supply cannabis I also intend to impose an aggregate sentence of imprisonment. Had I not done so, the sentences that would have been imposed for each, taking into account in each case the balance of the time spent in custody not otherwise attributed, the discount I have identified for the pleas, the overlap in criminality with the other offending, particularly but not only in the case of the participation offence, and in the case of the participation offence the matter on the Form 1, are as follows: for the participation offence 18 months’ imprisonment; for the supply cannabis offence two years’ imprisonment. The aggregate sentence I impose is a sentence of two years and six months’ imprisonment.

Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an intensive correction order.”

The application for leave to appeal the second sentence

35. The three grounds are so inter-related that it is convenient to consider them together.

Ground 1

(a) His Honour failed to take into account the full extent of the applicant’s pre-sentence custody, as required by s 24(a) of the Sentencing Act;

(b) In determining that the sentence of imprisonment should be served by an intensive correction order, his Honour failed, when considering s 66(3) of the Sentencing Act, to take into account the full extent of the applicant’s pre-sentence custody; alternatively,

(c)   The decision to order that the sentence of imprisonment be served by an intensive corrections order was plainly unjust or unreasonable

36. Section 24(a) of the Sentencing Act provides:

“24   Court to take other matters into account

In sentencing an offender, the court must take into account–

(a)   any time for which the offender has been held in custody in relation to the offence …”

37. The applicant submitted that, in handing down the second sentence, the sentencing judge only took into account, by way of pre-sentence custody, the balance of 1 month and 4 days of the applicant’s remand that had not been expressly incorporated into the backdated first sentence. That submission arose from his Honour’s reference in the passage extracted at [34] above to the indicative sentences for the second sentence “taking into account in each case the balance of the time spent in custody not otherwise attributed”.

38. The applicant submitted that the second sentence should have been structured to take into account, as well as the 1 month and 4 days, a quarter of the combined period of the assault sentence (6 months) and the first sentence (5 years); that is, a quarter of 5 years and 6 months, which is approximately a period of 1 year and 4 months. It was submitted that this is equivalent to a nominal parole period (assuming there was no finding of special circumstances), had the first sentence not been backdated, since in applying the principle of totality, a back-dated sentence should ordinarily commence with the parole period of a preceding sentence: RO v R [2019] NSWCCA 183 per Beech-Jones CJ at CL at [72], [73] (RO v R).

39. The applicant accepted that it was open to the sentencing judge to not fix an aggregate non-parole period for the first sentence, pursuant to s 45(1)(c) of the Sentencing Act, since it was already spent. However, the explanation by the sentencing judge that he did not fix a non-parole period because the aggregate sentence had expired, implied that if the applicant had not been in the situation of having spent over five years on remand so that the sentence was not fully back-dated, the first sentence would have included an aggregate non-parole period, in which case the applicant could have expected the second sentence to commence from the expiration of that non-parole period, or otherwise take that period into account. In this way, the applicant submitted that the second sentence did not comply with s 24 of the Sentencing Act.

40. As to the second sub-ground, s 66 of the Sentencing Act, which is in Pt 5 of the Act, titled: “Sentencing procedures for intensive correction orders”, is as follows:

“66   Community safety and other considerations

(1)   Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2)   When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

(3)   When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.”

41. In support of the second sub-ground, the applicant relied upon the reference in s 66(3) to the obligation upon the sentencing court to consider “any relevant common law sentencing principles”. In this sentencing exercise, the principle that an offender is to be credited for periods of incarceration solely referable to the particular offence was applicable and, it was submitted, had not been applied. The applicant referred to s 47 of the Sentencing Act, which relevantly provides:

“47   Commencement of sentence

(1)   A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed.

(2)   A court may direct that a sentence of imprisonment—

(a)   is taken to have commenced on a day occurring before the day on which the sentence is imposed …

(3)   In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.

…”

42. The applicant relied upon a passage from Kljaic v R [2023] NSWCCA 225 per Wright J (Beech-Jones CJ at CL and Harrison J agreeing) at [18]-[19] (Kljaic v R), and submitted:

“… if this Court were to conclude that there need not, under s 24 [of the Sentencing Act] be numerical equivalence between a period of pre-sentence custody and any reduction in a term ordered to be served in the community under s 66 of the Act, it is submitted that there must be numerical equivalence under s 47 of the Act.”

43. In oral submissions the applicant accepted that, in view of what was said in McMillan v R [2024] NSWCCA 83 per McNaughton J (Garling and Weinstein JJ agreeing) at [90]-[97] as to how ss 24(a) and 47(3) of the Sentencing Act are to be applied, numerical equivalence was not essential, but submitted that, had this occurred, the applicant would have received a significantly lesser sentence.

44. Further, as to the third sub-ground, had the second sentence been one of full-time imprisonment that was backdated, the applicant would have had the benefit of a statutory parole release order so that he would not have had to re-enter custody. In this sense, the service of the sentence by way of an ICO, which cannot be backdated, was unjust and unreasonable.

Consideration

45. The applicant accepts that his complaint hinges upon whether, in fixing the second sentence, the sentencing judge did have regard to the remand period beyond that of 1 month and 4 days.

46. This Court has frequently noted the importance of fairly assessing a sentencing judge’s remarks in their entirety when determining if error is established: see for example Fuller v R [2023] NSWCCA 282 per Wright J (Adamson JA and Fagan J agreeing) at [53]; Miller v R [2023] NSWCCA 267 per Kirk JA (Rothman and N Adams JJ agreeing) at [23], [24]; Kaddour v R [2017] NSWCCA 294 per Adamson J (Leeming JA and Fullerton J agreeing) at [24].

47. By way of that overall assessment, it is apparent that the sentencing judge expressly acknowledged that the time the applicant was on remand would be “taken into account” when imposing sentence. His Honour referred to the length of the remand, the applicant’s young age when it commenced, the hardship that it occasioned through the years of Covid-19 restrictions in the prison system and the absence of the benefits of classification that the applicant did not have as a remand prisoner.

48. His Honour found merit in defence counsel’s submission that the applicant’s lengthy pre-sentence custody and significant progress while on bail militated against him being returned to prison but, equally, his Honour also found merit in the Crown’s submission that the offences warranted a longer sentence of imprisonment than that served on remand.

49. Within these parameters, the sentencing judge adopted a structure of two aggregate sentences that, as his Honour noted, was in the community’s best interest and the interests of justice in the individual circumstances of the case, which included not interrupting the applicant’s community-based rehabilitative process. The impact on the applicant of his lengthy and onerous remand and progress in the community towards achieving pro-social goals such as full-time employment, enabled the sentencing judge to make an unusually informed assessment of the applicant’s developing maturity over those years on remand.

50. In the circumstances of this unusual sentencing exercise, it is inappropriate to discretely assess each aggregate sentence rather than consider them in combination and in light of the sentencing judge’s stated overall objective of a structure that took into account the applicant’s remand and the desirability of him remaining in the community to strengthen his rehabilitation and protect the community. To the extent the second sentence involved the applicant serving his second sentence by way of an ICO, that aspect of the structure accorded with a sentencing court’s obligations arising from ss 66(1) and (2) of the Sentencing Act. An assessment of both aggregate sentences in this global fashion does not disclose error.

51. The imposition of two discrete aggregate sentences rather than, for example, one overall aggregate sentence, was a flexible exercise by his Honour of his sentencing discretion that achieved these objectives. In the passage relied upon by the applicant from Kljaic v R, Wright J cited with approval observations in Kaderavek v R [2018] NSWCCA 92 by Hamill J (Beazley P and Schmidt J agreeing) at [19] to the effect that a sentencing judge may exercise a degree of flexibility when taking into account time already served:

“[Section 47] provides a sentencing Judge with a degree of flexibility. The prima facie position is that the sentence commences on the day it is imposed. If the sentence is to commence before that date, the section provides no particular guidance except that the sentencing Judge ‘must take into account any time for which the offender has been held in custody in relation to the offence’. Otherwise, the determination of the commencement date is to be determined by reference to general sentencing principles and other relevant provisions.” (emphasis in original)

52. The sentencing judge referred to the first sentence as a “fixed” aggregate sentence. The absence of a non-parole period distinguishes it from the sentencing exercise that was under review in RO v R, where the earlier sentence did have a non-parole period. I am satisfied that in fashioning the two aggregate sentences, the sentencing judge applied the principle of totality and took into account the full extent of the applicant’s pre-sentence custody. I am also satisfied that the ICO was not unjust or unreasonable, in all the circumstances of this sentencing exercise.

53. Accordingly, I would grant leave to appeal and dismiss the appeal.

**********

Decision last updated: 22 August 2025