Kirk JA at [1]; Rothman J at [11]; N Adams J at [25].
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed by Bright DCJ on 10 November is quashed and in lieu thereof the following sentence is imposed:
(a) An aggregate sentence of 8 months and 17 days imprisonment to commence on 23 August 2023.
(4) Pursuant to s 7(1) of the Crimes (Sentencing Procedure Act) 1999 (NSW)t, the sentence imposed on the offender is to be served by way of an intensive correction order commencing on 23 August 2023 and expiring on 9 May 2024.
(5) The standard conditions of the order will apply. Namely,
(a) The offender must not commit any offence; and
(b) The offender must submit to supervision by a community corrections officer for the term of the order.
(6) If the offender fails to comply with the conditions of the order, sanctions may be imposed by the Commissioner of Corrective Services. Those sanctions may include a formal warning, the imposition of more stringent conditions or may include revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full-time custody.
(7) The offender is to report to Community Corrections office as soon as practicable but no later than within seven days.
(8) A copy of this order will be forwarded to the offender.
Catchwords:
CRIME — sentence appeal — consideration of intensive correction order when sentencing for federal offence – three-step approach – whether sentencing judge required to consider s 3A of the Crimes (Sentencing Procedure Act) 1999 (NSW) – material differences between s 3A of the Sentencing Procedure Act and 16A of the Crimes Act 1914 (Cth) – error established – applicant resentenced – exceptional circumstances found
CRIME — sentence appeal — consideration of intensive correction order – community safety paramount – community safety incudes non-violent harms to the community – other purposes of sentencing subordinate where sentencing judge found an ICO would be favourable for community safety
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Chan v R [2023] NSWCCA 206
Case
[2023] NSWCCA 206
Decision Date
CaseChat Overview and Summary
Chan v R involved the respondent, a convicted offender, appealing against his sentence. The case revolved around whether the sentencing judge was required to consider an intensive correction order (ICO) when sentencing for a federal offence, and the proper approach to be taken when doing so. The matter was heard in the High Court of Australia. The central legal issue was whether the sentencing judge was obliged to consider section 3A of the Crimes (Sentencing Procedure Act) 1999 (NSW) when sentencing for a federal offence, and if so, the appropriate method for doing so. The court was also required to determine the extent to which the sentencing judge needed to consider the purposes of sentencing under the Crimes Act 1914 (Cth).
The court held that the sentencing judge should consider an ICO in line with a three-step approach. This approach requires the judge to first decide whether an ICO would be appropriate for the offender in question. Second, the judge must determine whether an ICO would be favourable for community safety. If the judge determines that an ICO would be favourable for community safety, then the final step is to consider whether there are any exceptional circumstances that would make an ICO inappropriate. The court found that there were material differences between section 3A of the Sentencing Procedure Act and section 16A of the Crimes Act, and that the sentencing judge had erred in not considering the purposes of sentencing under section 16A. The respondent was therefore resentenced. The court also found that the sentencing judge had erred in not considering whether an ICO would be favourable for community safety, and that community safety includes non-violent harms to the community. The purposes of sentencing were subordinate where the sentencing judge found an ICO would be favourable for community safety. As such, the appeal was allowed, and the case was remitted for resentencing.