Ghalbouni v The Queen

[2020] NSWCCA 21

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ghalbouni v R [2020] NSWCCA 21
Hearing dates:	9 December 2019
Date of orders:	21 February 2020
Decision date:	21 February 2020
Before:	Macfarlan JA at [1]; Davies J at [2]; Hidden AJ at [3]
Decision:	1.   Leave to appeal granted. 2.   Appeal allowed. 3.   Sentence in the District Court quashed. 4.   Applicant resentenced to aggregate term of 2 years imprisonment commencing on 21 February 2020, to be served as an intensive correction order.
Catchwords:	CRIMINAL LAW – sentence appeal – ongoing supply of cocaine, dealing with the proceeds of crime – pleas of guilty – in respect of each count further offences taken into account on a Form 1 – one of the offences taken into account not established on the agreed facts – on each count one of the offences taken into account was on the Form 1 referable to the other count
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Abbas & Ors v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 C-P v R [2009] NSWCCA 291 Cullen v R [2014] NSWCCA 162 Doumit v R [2011] NSWCCA 134 R v Boag (1994) 73 A Crim R 35 R v Felton [2002] NSWCCA 443; (2002) 135 A Crim R 328 R v Janceski (2005) 64 NSWLR 10, [2005] NSWCCA 281 Woodward v R [2017] NSWCCA 44
Category:	Principal judgment
Parties:	Robert Ghalbouni (Applicant) Regina (Respondent)
Representation:	Counsel: G James QC, P Lange (Applicant) C Curtis (Respondent)   Solicitors: E Tabchouri (Applicant) C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2018/265874
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 04 July 2019 Before: Delaney DCJ File Number(s): 2018/265874

Judgment

1. MACFARLAN JA: I agree with Hidden AJ.

2. DAVIES J: I agree with Hidden AJ.

3. HIDDEN AJ: The applicant, Robert Ghalbouni, was committed for sentence in the District Court after pleading guilty in the Local Court to two offences:

1. ongoing supply of cocaine, an offence under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) which carries a maximum sentence of 20 years imprisonment;

2. dealing with the proceeds of crime, an offence under s 193C of the Crimes Act 1900 (NSW) which carries a maximum sentence of 3 years imprisonment.

4. In passing sentence for those offences, the sentencing judge took into account seven further offences on two Form 1 documents. On the Form 1 attached to the first principal offence, the ongoing supply of cocaine, these were two offences of supplying prohibited drugs, cocaine and MDMA (ecstasy), and two offences of possessing prohibited drugs, cocaine and alprazolam. On a Form 1 attached to the second principal offence (proceeds of crime), there were two further offences of possessing prohibited drugs, cocaine and oxandrolone, and an offence of possessing a restricted substance, diazepam.

5. The applicant was sentenced to an aggregate term of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 2 months, commencing on the day that sentence was passed, 4 July 2019. The indicative sentences were imprisonment for 2 years and 9 months for the ongoing supply offence and 9 months for the proceeds of crime offence. The applicant seeks leave to appeal against the aggregate sentence.

Facts

6. An agreed set of facts disclosed that in June 2018 police launched an investigation into the supply of cocaine by the applicant, using an undercover operative referred to as “Johnny”. Johnny would contact the applicant by a smartphone application to arrange to buy drugs from him. It is convenient to set out the facts of all the offences in chronological order.

7. On three occasions between 25 July and 16 August 2018, Johnny purchased cocaine from the applicant, on each occasion paying $500 for quantities of the drug in two resealable bags. On the first occasion there was a total of 1.03 grams of cocaine with a purity of 43.5%. On the second occasion there was in one bag 0.58 grams with a purity of 49%, and in the other bag 0.52 grams, the purity of which was not tested. On the third occasion there was a total of 1.33 grams with a purity of 20.5%. These transactions constituted the first principal offence, ongoing supply.

8. On 29 August 2018, the applicant again supplied Johnny with two bags containing a total of 1.17 grams of cocaine, with a purity of 64%, for $500. This is the offence of supplying cocaine on the first of the Form 1 documents. Shortly after this the applicant was arrested in the van which he was driving. When searched he was found to be in possession of cocaine totalling 1.05 grams, the purity of which was not stated. This was the offence of possessing cocaine on the first Form 1. In a container in the vehicle were found a number of tablets of alprazolam, which constituted the offence of possession of that prohibited drug on the first Form 1. Also in that container was one diazepam tablet, which was the offence of possessing a restricted substance on the second Form 1.

9. Later that same day police searched the applicant’s home. In a safe in his bedroom they found 4.71 grams of MDMA, constituting the offence of supplying that drug on the first Form 1. It will be necessary later to examine the facts of that offence, which is the subject of the first two grounds of this application.

10. Also found in the safe was $2000 in cash, which is the subject of the second principal offence, dealing with the proceeds of crime. In addition there was found 1.25 grams of cocaine, being the offence of possessing that drug on the second Form 1.

11. On the applicant’s desk police found 85 oxandrolone tablets, an anabolic steroid, weighing 15.14 grams in all. This is the offence of possessing that drug on the second Form 1. Police also found resealable bags and a set of scales. Two mobile phones had been found in the applicant’s vehicle, and a further mobile phone was found at the home.

Subjective case

12. The applicant was 24 years old at the time of the offences, and is now 25. His criminal history comprises one minor entry, of no present significance. The sentencing judge treated him as a person with no previous convictions. His Honour received a sentencing assessment report of Ms Beth Debreczeny, Community Corrections Officer, and a psychological report of Mr Chafic Awit. The applicant’s sister, Ms Theresa Neville, gave evidence.

13. This material discloses a somewhat dysfunctional background. When the applicant was quite young his father died, and his mother had to raise the children. He has five older siblings. The family suffered financial difficulties, and he attended a number of schools. Upon leaving school in his mid-teens, he obtained employment and undertook training both as a PE teacher and a personal trainer, but did not qualify as either. He worked with his brother-in-law in his construction business, and at the time of the offences had been self-employed as a water-proofer.

14. The applicant has a long history of polysubstance abuse: alcohol and a variety of illicit drugs. He had experienced financial difficulty, partly, he reported, because of a gambling dependency. He told Ms Debreczeny that at the time of the offences he was abusing cocaine and alcohol to a substantial degree and was associating with “negative peer acquaintances”. As Ms Debreczeny put it in her report, he “rationalised his decision to supply drugs as a way to gain financial stability and support his substance use”. He also reported that he had been abstinent from illicit substances since November 2018, and that he had achieved financial stability and no longer had financial issues. His Honour noted that there was no documentary corroboration of his stated employment history, previous financial difficulty and current financial stability.

15. To the psychologist, Mr Awit, the applicant described symptoms of anxiety and depression since childhood. At the time of his report in June 2019 Mr Awit had been treating him for some nine months. In the light of the history provided, and after psychometric testing, Mr Awit concluded that at the time of the offending he had been suffering from severe anxiety, depression and substance use disorder. At the time of the report he saw him as suffering from mild-moderate anxiety and mild mood disturbance.

16. Mr Awit saw a “psychological nexus” between the applicant’s condition and the offences, stemming from his “underlying psychological condition and his long-term severe illicit substance addiction”. Mr Awit described him as having expressed “remorse and shame” for his offences. He considered that he had improved considerably over the period of psychological intervention, and that continued intervention would reduce his risk of reoffending.

17. The applicant’s mother has longstanding mental health issues and more recently had been diagnosed with terminal cancer. Sadly, a fortnight after he was sentenced she died. Prior to his imprisonment he had been living alone with her and was her primary carer, although his siblings assisted in her care.

18. His Honour found that through comments made to the psychologist, and through his sister, the applicant had indicated “remorse and contrition for the activity in which he was involved”. His Honour noted that he had “community and family support in relation to the future ….” His Honour noted a submission that his prospects of rehabilitation were good and he was unlikely to reoffend. As to that, he said that the “only problem” he saw was a lack of information which would “allow the court to be satisfied that … he would be financially stable and did not need to engage in this form of activity again ….” Apart from that observation his Honour did not express a view as to the applicant’s prospects of rehabilitation and likelihood of reoffending, although he found special circumstances for his clear “need for rehabilitation, reintegration into the community, avoiding future financial problems and avoiding the likelihood that he might regress into either drug use or gambling activity”.

19. His Honour allowed a 25% reduction of sentence for each of the principal offences in recognition of the applicant’s early pleas of guilty. Having determined the length of the aggregate sentence, he considered whether it should be served by way of an intensive correction order and decided that it should not. It is his Honour’s approach to that issue, in particular the likelihood of the applicant re-offending, which is the subject of the fourth and fifth grounds of this application.

The application

20. There are five grounds of the application, the first three of them dealing with the sentencing judge’s approach to certain offences on the Form 1 documents, and the remaining two relating to his Honour’s approach to the applicant’s risk of re-offending. The first two grounds, pleaded in the alternative, are as follows:

“1.   His Honour erred in taking into account, in accordance with s 33(2) Crimes (Sentencing Procedure) Act 1999, the offence charged as sequence 9, in circumstances where the agreed statement of facts did not reveal facts which amounted to the offence charged;

2.   Alternatively, a miscarriage of justice arose as a result of the offence charged as sequence 9 being taken into account in accordance with s 33(2) Crimes (Sentencing Procedure) Act 1999, where the agreed statement of facts did not reveal facts which amounted to the offence charged.”

21. Sequence 9 is the offence of supplying MDMA on the first Form 1 relating to the quantity of the drug, 4.71 grams, found in the applicant’s safe. The quantity was sufficient to engage the deeming provision in s 29 of the Drug Misuse and Trafficking Act. Accordingly, the drug was deemed to be in the applicant’s possession for supply unless he could establish that it was not. However, the statement of facts recorded that it was “agreed” that the drug was in the safe for the applicant’s “personal use”, a matter to which his Honour expressly referred in his reasons. If that were so, of course, the applicant was not guilty of that offence. It appears that neither his Honour, nor the prosecutor or the applicant’s solicitor in the sentence proceedings, adverted to this incongruity.

22. In this Court the applicant was represented by Mr James QC, and neither he nor his instructing solicitor had been involved in the sentence proceedings. Put shortly, in written submissions Mr James submitted that there had been a miscarriage of justice because, in sentencing for the ongoing supply offence, his Honour had taken into account an offence of which, on the agreed facts, the applicant was not guilty. By way of analogy, he referred to R v Boag (1994) 73 A Crim R 35, a case dealing with the withdrawal of a plea of guilty, in which Hunt CJ at CL said at 37:

“A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted …”

23. On this issue the Crown prosecutor in this Court, without objection, read an affidavit of Michael Jones, a solicitor employed in the Office of the Director of Public Prosecutions. Annexed to that affidavit is correspondence by email between the applicant’s then solicitor and the solicitor at the Director’s office having the carriage of the matter.

24. This material records a process of negotiation between January and March of this year concerning some of the committal charges, including sequence 9. Put shortly, the applicant’s position initially was that he was not guilty of that charge because the drug was for his personal use, but that he would plead guilty to possession of the drug. The DPP did not accept that offer. In an email of 11 March the DPP solicitor noted that a charge of possession would be statute barred, as six months had passed since the date of the applicant’s arrest, but inquired whether the applicant would be willing to plead guilty to sequence 9 if it were placed on a Form 1. In a reply to that email the following day the applicant’s solicitor said that he was not comfortable with a “plea of convenience” but would obtain instructions. By email of 18 March the DPP solicitor made it clear that the offence would be portrayed as deemed supply in agreed facts. If the matter was not placed on a Form 1, the solicitor added, it would proceed to trial.

25. By email of 25 March, the applicant’s solicitor informed the DPP that the applicant would accept the “MDMA supply charge being placed on a Form 1”. Later that day the DPP solicitor forwarded to the applicant’s solicitor the draft agreed facts, in which (at par 12) the agreement that the drug the subject of that charge was for the applicant’s personal use was stated. That concession remained in the statement of facts which was before his Honour.

26. Provision for the Form 1 procedure is to be found in s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). For present purposes it is sufficient to set out the first two subsections:

33   Outstanding charges may be taken into account

(1)   When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.

(2)   The court may take a further offence into account in dealing with the offender for the principal offence—

(a)   if the offender—

(i)   admits guilt to the further offence, and

(ii)   indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and

(b)   if, in all of the circumstances, the court considers it appropriate to do so.

…

27. Mr James noted that in certain respects the procedure mandated by that section was not followed in the present case. The two Form 1 documents had been signed as required by s 33(4), and there was some brief informal discussion about them in final submissions. However, the applicant was not formally asked whether he wished any further offences to be taken into account when sentenced for the principal offences, as subs (1) requires. More importantly, his Honour did not meet the requirements of subs (2) by asking the applicant whether he admitted his guilt of the further offences and indicated his desire for them to be taken into account. Nor did his Honour say whether, in all the circumstances, it was appropriate to do so.

28. Mr James referred to R v Felton [2002] NSWCCA 443; (2002) 135 A Crim R 328, in which Howie J (with whom Sully J agreed) said at [3] (329-330):

“3   In respect of each of the three offences for which he was committed for sentence there was an accompanying Form 1 containing matters to be taken into account under the provisions of the Crimes (Sentencing Procedure) Act. However, the formalities of s 33(2) were not attended to and the applicant was not asked whether he admitted his guilt to those matters or whether he wished them to be taken into account. Although no point has been taken concerning this irregularity, the criminal courts should be astute to comply with the procedural formalities attending to the steps towards sentencing. They are not empty gestures, but are important safeguards to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his freedom or the period during which he will remain in custody.”

29. Howie J’s observations have been cited with approval in several subsequent decisions of this Court, including Woodward v R [2017] NSWCCA 44, per RA Hulme J at [25]. RA Hulme J went on to observe at [26] that the point had not been taken in that case, as it was not here. His Honour added, however, that while this Court “understands the heavy workload facing the District Court, it is important to highlight the necessity for attention to mandatory statutory requirements”. The fact that sequence 9 was taken into account even though it was not supported by the agreed facts demonstrates that necessity: particularly the requirement that the applicant be asked whether he admitted his guilt of it and whether, in all the circumstances, his Honour considered it appropriate to take it into account. As McClellan CJ at CL observed (albeit in a different context) in C-P v R [2009] NSWCCA 291 at [8], it is “important to emphasise that s 33(2) contemplates that the court must supervise the use of the Form 1 procedure”.

30. The Crown prosecutor in this Court noted the assertion in ground 2 of a miscarriage of justice and, in effect, submitted that both grounds 1 and 2 should be viewed through that prism. She relied on the correspondence annexed to the affidavit of Mr Jones, submitting that it demonstrates that the applicant had made a pragmatic decision to admit his guilt of sequence 9 on the basis that it would be dealt with by way of a Form 1 rather than proceeding to trial. That being so, she argued, the offence was properly taken into account in accordance with the intention of the parties. She added that the assertion in the agreed facts that the applicant had the drug for his personal use was plainly a mistake, which everyone had overlooked, and that no miscarriage of justice had occurred.

31. Mr James maintained his submission that his Honour had taken into account an offence of which, on his expressed reasons, the applicant was not guilty and that, accordingly, there was material error. He argued that in those circumstances the offence should not have been taken into account or, at least, should not have been taken into account as in any way “appropriately exacerbating the penalty …”. As to that matter, it should be noted that after pronouncing the aggregate sentence, his Honour said:

“I take into account in dealing with those matters my intention that, for each of the two indicative sentences, the form 1 matters are taken into account but I do not, in accordance with authority, add anything to the sentences because of those form 1 matters.”

32. What his Honour intended to convey by that passage is, with respect, somewhat unclear. Mr James submitted that it does not mean that the Form 1 matters had no effect at all upon his Honour’s assessment of the indicative sentences. Rather, he was saying that he would not quantify the extent to which he had taken them into account by a specified increase of the indicative sentences. The Crown prosecutor argued that the passage may mean that the Form 1 matters had had no effect upon the indicative sentences, a course which would have been open to his Honour. She referred to a passage in the judgment of Bathurst CJ in Abbas & Ors v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [23] (426), in which the Chief Justice said that the approach to Form 1 matters enshrined in the authorities “would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise would be required if the Form 1 offences were not taken into account …” (emphasis added).

33. In my view, Mr James’ interpretation of his Honour’s observation is correct. There were here seven Form 1 offences, of which sequence 9 was the most serious. It is unlikely that his Honour gave no effect to them when considering the indicative sentences. In particular, it cannot be said that sequence 9, even if it were treated as possession for personal use, had no effect upon the indicative sentence for the ongoing supply offence.

34. However that may be, I am satisfied that the process of taking that offence into account on a Form 1 miscarried for the reasons identified by Mr James. On the facts as his Honour recited them it should not have been taken into account. If the inconsistency had been noted the matter might have been remedied, but that did not happen.

35. Ground 1 is made out. Accordingly, error having been established, this Court’s discretion to resentence has been enlivened. Nevertheless, it is appropriate to consider ground 3.

36. The third ground, also relating to the Form 1 procedure, is in the following terms:

“3.   His Honour erred in taking into account the offence charged as sequence 14, when sentencing the applicant in respect of the drug offence, and in taking into account the offence charged as sequence 13, when sentencing the applicant in respect of the proceeds offence, where there was no power to do so.”

37. Sequence 14 is the offence of possession of 1.25 grams of cocaine on the second Form 1 document (to be taken into account on sentence for the proceeds of crime offence). Sequence 13 is the offence of possessing alprazolam tablets on the first Form 1 document (to be taken into account on sentence for the drug supply offence). Mr James argued that his Honour appears to have taken each of them into account in respect of the wrong offence, so as to relate sequence 14 to the drug offence and sequence 13 to the proceeds of crime offence.

38. It would appear that this is what his Honour intended, and understandably so. The first page of the Crown Sentence Summary originally had the Form 1 matters correctly ascribed to the principal offences, but sequences 13 and 14 had been altered by hand so as to ascribe each of them to the other principal offence. In the course of final submissions, his Honour sought to clarify this when he said:

“I’ll just make sure that I’ve got this right. There are matters on the form 1 for … supply prohibited drugs on an ongoing basis, and they’re sequences 5, 6, 9 and 14, and for dealing with property the proceeds of crime sequences 7, 11 and 13 are added on the form 1 schedule; is that right?”

Both the prosecutor and the applicant’s solicitor said that it was.

39. At the outset of his reasons for sentence his Honour referred to the Form 1 matters, saying:

“In respect of the count of supply prohibited drugs, I take into account sequences 5, 6, 9 and 14, and for the … proceeds of crime I take into account sequences 7, 11 and 13. I have been told that they are the correct sequences for each of the two offences.”

40. When reciting the facts in his reasons, his Honour referred briefly to each of the Form 1 offences without assigning them to either of the Form 1 documents. At the conclusion of his reasons he pronounced the indicative sentences for each of the principal offences without reference to the Form 1 offences. His only reference to them at that stage was in the passage of his reasons after he announced the aggregate sentence which I have set out at [31] above.

41. As it happens, the Court records created after sentence was passed ascribe each of sequences 13 and 14 correctly to the Form 1 documents on which they appear. This is to be seen in a District Court Result Sheet, and in the JusticeLink record, which is Annexure “A” to Mr Jones’ affidavit. However, if his Honour passed sentence on the understanding that he had about those two sequences, and took them into account under that misapprehension, he had no power to do so. So much is common ground.

42. In Doumit v R [2011] NSWCCA 134, the applicant had been sentenced for three counts of supplying drugs, with three further offences to be taken into account on a Form 1. The sentencing judge took the additional offences into account when sentencing for the first count. The Form 1 document was somewhat ambiguous, conveying that the principal offence might have been count 2 or 3, but it certainly was not count 1. Grove AJ (with whom Hodgson JA and Hoeben J agreed) held that the judge had fallen into error in doing so.

43. Grove AJ said at [16]:

“The power of a sentencing Judge and requisite procedures to take Form 1 matters into account are vested by ss 32 and 33 of the legislation. In this case the charge of ongoing supply to which his Honour "attached" the matters on Form 1 could not fulfil the definition of a ‘principal offence’ described on the Form itself and he lacked power to make that attachment. It is not known what elevating effect the Form 1 matters contributed to sentence assessment but it is inferred that ‘taking into account’ admitted offending would have had some such effect. I am not, of course, suggesting that his Honour should have indicated a separate penalty for the Form 1 offences even if he was taking them into account in sentencing for an appropriate principal offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146.”

44. The Crown prosecutor relied upon the fact that the Result Sheet and JusticeLink record attributed sequences 13 and 14 to principal offences in accordance with the Form 1 documents. She referred to the judgment of Adamson J (with whom Macfarlan JA and Bellew J agreed) in Cullen v R [2014] NSWCCA 162. Her Honour observed at [31] that there is “an important distinction between the sentence imposed and the remarks on sentence”, that the remarks “do not constitute the orders of the court or the sentence imposed”, and that the “only sentence actually imposed is the one pronounced at the conclusion of the remarks on sentence”. Her Honour emphasised the importance of the court’s record in criminal proceedings at [34]-[35], stating at [34] that the “official record of the sentence imposed is no mere formality”.

45. These observations must be understood in their context. One of the grounds of the application in Cullen was directed to the fact that the sentencing judge had announced sentences for each of a series of drug offences without specifying a commencement date, noting that there would be partial accumulation. He then formally convicted the applicant of all the offences and pronounced a single term of imprisonment, with a non-parole period, specifying a commencement date for it. It was unclear from his Honour’s remarks whether he intended to pass an aggregate sentence, with the sentences announced for the individual offences being indicative sentences. However, that is how his sentencing order was recorded on JusticeLink, being the record of the sentence under Pt 53 r 12 of the District Court Rules.

46. This Court saw the record as consistent with the sentencing judge’s obligations under the provisions governing aggregate sentences. As Adamson J put it at [38], the Court “should be slow to infer that a sentencing judge has not approached the sentencing task in accordance with the applicable law, where the sentence imposed and the accompanying remarks are capable of being construed in such a way that shows that the judge applied the law correctly”.

47. The problem in the present case is different. True it is that in announcing the indicative sentences his Honour did not specify the Form 1 matters he had taken into account in arriving at them. Nevertheless, it is clear that his Honour proceeded on the basis that sequence 14 was “attached” to the drug supply offence and sequence 13 to the proceeds of crime offence. Clearly, he was unaware that this did not accord with the Form 1 documents. In this respect the record of his Honour’s sentences in the Results Sheet and on JusticeLink do not represent his intention.

48. This ground also is made out. Given that the two sequences were taken into account, albeit in relation to the wrong principal offences, this may appear as a purely technical matter. However, the principal offences were distinct and carry markedly different maximum sentences, and it may be that the effect given to a Form 1 matter might vary depending on the nature of the principal offence. In any event, as Mr James reminded us in written submissions, in R v Janceski (2005) 64 NSWLR 10, [2005] NSWCCA 281, a case concerned with the signing of an indictment by a person who is not authorised to do so under the relevant legislation, Spigelman CJ observed at [90] (27) that the criminal law “is one of the last areas of the law in which a technical point is still a good point”.

49. As these two grounds justify the Court considering resentence, it is unnecessary to determine the 4th and 5th grounds.

Resentence

50. In considering resentence, of course, the offence of supplying ecstacy, sequence 9, will not be taken into account. It will remain before the District Court, and whether it proceeds to trial will be a matter for the Director of Public Prosecutions.

51. For this purpose, Mr James relied upon an affidavit of his instructing solicitor, Mr Elias Tabchouri, to which is annexed a volume of material. Much of that material bears upon the applicant’s financial situation through his business prior to his incarceration, for the purpose apparently of providing the evidence which his Honour found wanting in the sentence proceedings. The affidavit also discloses his intention prior to being incarcerated of marrying a girlfriend, including paying a deposit to purchase a ring. While reference was made to the girlfriend in the sentencing assessment report, their intention to marry was not disclosed.

52. All this material was objected to by the Crown prosecutor, on the basis that it was available at the time of the sentence proceedings and the applicant should not be permitted to run a new case on resentence in this Court: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. However, Mr James’ position on resentence was that the Court should impose a term of imprisonment to be served by way of an intensive correction order. That being so, he argued that the Court should receive this material under s 69(1)(b) of the Crimes (Sentencing Procedure) Act, which provides that in deciding whether to make an intensive correction order, the court is to have regard, among other things, to “any other information before the court” that it considers necessary for the purpose of that decision.

53. To this the Crown prosecutor responded, with some force, that the reference to “any other information” in that section must be confined to material which would otherwise be admissible in the proceedings. I find it unnecessary to decide this issue because I am satisfied, in any event, that a sentence to be served by way of an intensive correction order is the appropriate course.

54. That said, there is some new material which is clearly admissible on resentence (and was not objected to). I have already referred to the death of the applicant’s mother, to whom he had been close. He was sentenced on 4 July 2019 and his mother died on 18 July. The psychologist, Mr Awit, visited him on 22 July and provided a supplementary report on the following day.

55. In that report, Mr Awit recorded the results of some tests he administered on 22 July, together with the applicant’s account of his reaction to incarceration and the limited nature of the treatment he had received at that stage. Mr Awit’s conclusion was that his condition had worsened while incarcerated, as he had not been receiving appropriate psychological treatment, and that this had been exacerbated by the loss of his mother. He expressed concern that the applicant’s “ongoing incarceration is likely to lead to further decline in his mental health, overwriting (sic) all the improvements and gains that were achieved over the last nine (9) months of treatment”. Mr Awit added that with ongoing treatment, the applicant’s condition should “improve considerably”. Completion of treatment should ameliorate his disorders, “markedly reduce the probability of the occurrence of a similar incident”, and assist him to lead “a lawful and satisfying life”. He outlined a suitable treatment plan if the applicant were at liberty.

56. Otherwise, the supplementary report repeated material from the earlier report or referred to matters preceding the passing of sentence, to which the Crown prosecutor objected. Also objected to was Mr Awit’s assertion in that report that in his “professional opinion”, the applicant is “at low risk of reoffending”. These objections are well founded. As to the latter, Mr Awit’s opinion must have been based upon his assessment of the applicant prior to the sentence proceedings, and is unlikely to have been the product of his further assessment less than three weeks after sentence was passed.

57. The report also referred to a gastrointestinal problem which the applicant had suffered for some time, but from which he said that he continued to suffer and without receiving adequate medication in custody. That condition also predated the passing of sentence, but it would be appropriate to have regard to its effect upon him since his incarceration.

58. Having regard to the material before his Honour, and the new material which I consider to be admissible, I am satisfied that the Court should intervene and resentence the applicant. In doing so, the period of roughly 7 months’ imprisonment which he has served should be taken into account.

59. I would resentence the applicant to an aggregate term of imprisonment. The indicative term for the first count, taking into account the matters on the first Form 1 (except sequence 9), would be imprisonment for 2 years, and for the second count, taking into account the matters on the second Form 1, I would confirm the indicative sentence of 9 months. The aggregate term of imprisonment would be 2 years, to be served by way of intensive correction in the community. In determining that the sentence should be served in that way I have had regard to community safety as the paramount consideration, as required by s 66 of the Crimes (Sentencing Procedure) Act. I consider that end would be best served by the rehabilitation of the applicant through an intensive correction order.

60. Supplementary submissions were sought from the parties on conditions which might be imposed upon the order in addition to the standard conditions set out in s 73 of the Crimes (Sentencing Procedure) Act. By reference to s 73A, the Crown sought:

1. a community service work condition;

2. a rehabilitation condition requiring the applicant to participate in a rehabilitation program or to receive treatment for drug addiction;

3. a treatment condition requiring him to receive psychological treatment, and

4. an abstention condition requiring him to abstain from drugs.

61. In a supplementary submission on behalf of the applicant, Mr Tabchouri had no opposition to any of those conditions, provided that the community service work condition was not inconsistent with the rehabilitation condition and the applicant’s capacity to work.

62. The sentencing assessment report before his Honour had assessed the applicant as suitable for community service work, and this has been confirmed by a recent supplementary report provided to this Court. I propose community service work for 120 hours, which would involve 5 hours per month over the period of the sentence. This should make ample provision for the applicant to pursue employment and to undertake drug rehabilitation and treatment.

Orders

63. I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court and, in lieu, would sentence the applicant to an aggregate term of imprisonment for 2 years, to commence on the day it is imposed, to be served by way of intensive correction in the community.

64. This intensive correction order would be subject to the following standard conditions:

1. The applicant must not commit any offence.

2. He must submit to supervision by a Community Corrections officer.

The order would be subject to the following additional conditions:

3. The applicant must perform community service work for 120 hours.

4. He must participate in a rehabilitation program or receive treatment for drug addiction.

5. He must receive psychological treatment.

6. He must abstain from drugs (other than medication prescribed by a doctor).

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Amendments

21 February 2020 - Decision date amended (from 21 January 2020) to 21 February 2020.

Decision last updated: 21 February 2020