Mustafa v R

[2021] NSWCCA 164

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Mustafa v R [2021] NSWCCA 164

Hearing dates:

9 July 2021

Date of orders:

16 July 2021

Decision date:

16 July 2021

Before:

McCallum JA at [1];
Rothman J at [2];
Ierace J at [138]

Decision:

(1)   Leave to appeal granted;

(2)   Appeal allowed;

(3)   The sentence imposed by the District Court on the applicant, Omer Mustafa, on 2 December 2020 be quashed and in lieu thereof the following sentence be imposed:

(a)   Conviction recorded;

(b)   The Court imposes an aggregate sentence of imprisonment of 2 years, 4 months and 14 days, being the remainder of the term otherwise imposed, the indicative sentences for which are:

Robbery in Company, imprisonment for 2 years, 4 months and 14 days;

Common Assault, 3 months’ imprisonment;

(c)   The foregoing aggregate sentence of imprisonment shall be served by way of an Intensive Correction Order, commencing 16 July 2021 and expiring 30 November 2023.

(d)   The Intensive Correction Order is subject to the following conditions:

(i)   The applicant must not commit any offence;

(ii)   The applicant must submit to supervision by a Community Corrections Officer;

(iii)   The applicant must participate in any program or intervention recommended by a Community Corrections Officer;

(iv)   The applicant is to abstain from consuming alcohol and drugs;

(v)   The applicant shall report to the Liverpool Community Corrections Office within seven days of the making of this order, by telephone if permitted by Corrective Services, in order to receive instructions about his obligations if and while supervision is suspended.

(4)   Leave granted to the parties to make application for any different or additional conditions in the aforesaid Intensive Corrections Order.

Catchwords:

CRIME – Appeal against sentence – sentencing judge precluded aggregate sentence and order of ICO – effective sentence of 3 years from 2 offences fully concurrent – aggregate sentence available and, if imposed, ICO available – appeal allowed – aggregate sentence imposed – ICO ordered.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 7(1), 25D, 53A, 68(1)-(3), 73A

Cases Cited:

Abel v R [2020] NSWCCA 82

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159

Douar v R [2005] NSWCCA 455

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kutchera v Regina [2007] NSWCCA 121

Mandranis v The Queen [2021] NSWCCA 97

Ng v R (2011) 214 A Crim R 191; [2011] NSWCCA 227

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v Faraj [2020] NSWDC 171

R v Fangaloka 2019] NSWCCA 173

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264

R v Stanley [2003] NSWCCA 233

RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47

Re Building Workers’ Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81; [1988] HCA 4

Sullivan v Department of Transport (1978) 20 ALR 323

Category:

Principal judgment

Parties:

Omer Mustafa (Applicant)
Regina (Respondent)

Representation:

Counsel:
P Lange (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Olympus Law Partners (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/00395886; 2021/00149119

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02 December 2020

Before:

Townsden DCJ

File Number(s):

2018/00395886

Judgment

1. McCALLUM JA: I agree with Rothman J.

2. ROTHMAN J: The applicant, Omer Mustafa, pleaded guilty to two offences in the District Court of New South Wales and was sentenced to imprisonment for a total effective period of 3 years, with a non-parole period of 12 months.

3. The effective period was made up of two sentences. The first offence, robbery in company, the maximum penalty for which is 20 years’ imprisonment and for which there is no standard non-parole period, attracted a sentence of 3 years’ imprisonment with a non-parole period of 12 months. The second offence, common assault, which carries a maximum penalty of 2 years’ imprisonment and has no standard non-parole period prescribed, attracted a sentence of 3 months’ imprisonment.

4. Each of the sentences commenced on 1 December 2020, as a consequence of which the sentence for the common assault was to be served wholly concurrently with the sentence for robbery in company.

5. Essentially, the applicant complains that he was not sentenced to an aggregate sentence and, if he were to have been so sentenced, he should have been sentenced to an Intensive Correction Order (hereinafter “ICO”). That complaint is more formally described in three Grounds of Appeal, one of which was an amendment made at the hearing of the application for leave and appeal.

6. The Grounds of appeal are:

1. Ground 1: In declining to sentence the applicant to an aggregate sentence of imprisonment, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour erroneously concluded that it would be ‘quite inappropriate’ for an aggregate sentence of imprisonment to be imposed where the two sentences would, if an aggregate sentence were not imposed, be served concurrently;

2. Ground 2: In declining to sentence the applicant to an aggregate sentence of imprisonment, pursuant to s 53A of the Crimes (Sentencing Procedure) Act, his Honour deprived the applicant of procedural fairness by failing to indicate to the applicant’s counsel that he did not intend to resort to an aggregate sentence of imprisonment.

3. Ground 3: His Honour erred in failing to give reasons for declining to sentence the applicant to an aggregate sentence in accordance with s 53A of the Crimes (Sentencing Procedure) Act.

Background: Factual and Procedural

7. The applicant was committed to the District Court for trial, having pleaded not guilty at committal. When he was arraigned in the District Court, the applicant pleaded guilty to the two offences.

8. The learned sentencing judge was provided a Statement of Agreed Facts, [1] which the sentencing judge summarised in his Remarks on Sentence. [2] It is possible to summarise those facts very briefly.

   1. Exhibit A on Sentence; Appeal Book pp 106-107.

   2. Remarks on Sentence pp 1-4; Appeal Book pp 74-77.

9. The victim in this matter, Ante Grgich was 28 years old and had a cognitive impairment. At about 9 PM on Sunday, 23 December 2018, the victim was dropped off at Liverpool Westfield Shopping Centre by his parents, where he stayed for about half an hour. The victim walked to Collimore Park in Liverpool, where he was approached by a group of males, including the applicant.

10. The applicant and others searched through the victim’s pockets and took the victim’s mobile phone. The applicant also took the victim’s iPod and another male, Mr Lazo, took $590 from the victim’s wallet and handed the victim’s Medicare card to another person.

11. Mr Lazo then hit the victim. The victim tried to run from the park and the applicant and his co-accused, Mr Faraj, chased after him.

12. The victim offered the applicant and Mr Faraj more money for them to stay away and told them he had $40,000 in the bank. He was threatened that if he failed to give them money, they were going to rob his house and started hitting him again.

13. The applicant and another drove the victim to his house at about midnight and the Police were called. The group were later apprehended in their car in Casula and four offenders were arrested.

Submissions

Ground 1 and Ground 3

14. These two grounds can conveniently be dealt with together and each depends on the same submissions. The applicant, in relation to Grounds 1 and 3, submitted that, during the sentence proceedings, he sought an aggregate sentence in order to become eligible for consideration of an ICO.

15. In the submissions on sentence, the applicant submitted that, taking into account the objective and subjective factors pertaining to the offence and the offender, an aggregate sentence of 3 years or less was within range. [3] Further, the applicant submitted that such an aggregate sentence of imprisonment should be served in the community by way of an ICO.

    3. cf. Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2.

16. The submission on appeal by the applicant concentrated on a particular passage in his Honour’s Remarks on Sentence [4] in which his Honour said:

“Nevertheless, despite these observations, this Court is bound by the decision in R v Pullen. In any event, given that I have determined that in respect of the offender Mustafa the sentence for the offence of common assault will be served concurrently, my observations have no practical effect. It would, of course, be quite inappropriate, therefore, to consider the provisions of s 53A of the Act.”

4. Remarks on Sentence p 21; Appeal Book p 94.

17. The applicant submits that it is not “entirely clear-cut” why his Honour thought it was “quite inappropriate” to consider the provisions of s 53A of the Act. The applicant submits that the sentencing judge may have considered that because s 53A of the Act was introduced to ameliorate problems that may arise where sentences are accumulated, the provision should not be employed where sentences are not being accumulated. [5]

    5. Applicant’s Written Submissions at [12].

18. In response to the applicant’s submissions, the Crown submits that the sentencing judge was merely stating that he had already determined the structure of the sentences that he deemed appropriate and, therefore, it was not necessary or appropriate to impose an aggregate sentence under s 53A of the Act and it would be, in those circumstances, inappropriate or impossible to impose an ICO. [6]

    6. Respondent’s Written Submissions at [48].

19. The Crown submits that there is no requirement for the sentencing judge to impose an aggregate sentence and clearly the sentencing judge did not consider it appropriate in the circumstances of the case. The Crown contends that the reason why the sentencing judge took this approach was because the facts in relation to the assault charge were already encompassed in the facts of the robbery in company count. The decision to structure the sentence in this way was to give transparency to the sentencing exercise and to ensure his Honour was not unfairly punishing the applicant twice for the same conduct.

20. The difficulty with the foregoing submission of the Crown is that transparency is capable of being provided without the necessity of imposing two separate sentences. That is the purpose of indicative sentences.

21. Further, assuming for present purposes that the Crown correctly understands the rationale of the sentencing judge, and accepting, as do all of the parties and as did his Honour, that the criminality involved in the assault charge was wholly encompassed in the criminality associated with the robbery in company, then the learned sentencing judge had available to him the capacity to set indicative sentences of, using his Honour’s sentences, 3 months’ imprisonment and 3 years’ imprisonment and imposing an aggregate sentence of 3 years’ imprisonment.

22. That would have achieved each of the purposes suggested by the Crown as the basis upon which his Honour structured the sentence in the manner that he did. In that way, his Honour would have had available an aggregate sentence of 3 years’ imprisonment and, as a consequence, were it thought appropriate, the imposition of an ICO.

23. The Crown further submitted that his Honour did not consider an ICO to be an appropriate sentence, in any event, because his Honour took the view that the appropriate sentence was a sentence of full-time imprisonment. In that submission, the Crown relied upon the following passage in the Remarks on Sentence:

“In respect of each offender, given the gravity of the offending behaviour, and taking into account their subjective circumstances I am satisfied the only sentence which can be imposed is a sentence of full time imprisonment. In doing so, I have regard to both the principles of specific and general deterrence. I would, however, make a finding of special circumstances for both offenders given their youth, plea of guilty, remorse and limited records. The additional term will be significantly greater than what might ordinarily be considered appropriate given their youth and greater emphasis being placed on the need for rehabilitation.” [7]

7. Remarks on Sentence p 22; Appeal Book p 95.

24. The Crown submitted that it would be contrary to sentencing principles to impose a term of imprisonment by reference to and for the purpose of imposing an ICO. There is authority for the proposition that one should, in applying sentencing principles, not start with the proposition that an ICO is appropriate and work backwards to structure a sentence so as to be able to impose an ICO.

25. However, that principle also works in the opposite direction. One should not structure a sentence for the purpose of ensuring that an ICO cannot be imposed. The Crown submitted that the sentencing judge did not fall into error; the structure of the sentence was one that was open to him; and the Court, on appeal, ought not to intervene.

Ground 2

26. The applicant, in relation to Ground 2, submitted that the sentencing judge failed to draw to the parties’ attention that he might not impose an aggregate sentence. [8] The applicant submitted, on appeal, that his Honour created an expectation during the course of the proceedings on sentence that an aggregate sentence would be imposed and, in those circumstances, the applicant was denied the opportunity of advancing submissions as to why an aggregate sentence should be imposed.

    8. Applicant’s Written Submissions at [19].

27. The applicant submitted that notice of the issue would have permitted the applicant’s Counsel to argue that the imposition of an aggregate sentence would have enlarged the sentencing options and would have permitted the judge to give effect to the community’s protection. Ultimately, the applicant submitted that the learned sentencing judge unduly constrained his discretion, or, alternatively, denied the applicant procedural fairness.

28. The applicant submitted that a lesser sentence is warranted in law and the Court should intervene to impose a lesser sentence. If the Court were to intervene, on the submission of the applicant, an aggregate sentence would be appropriate, and it would be appropriate for the sentence to be served by way of an ICO.

29. In relation to this Ground, the Crown submitted that the starting point is to look at that which occurred during the sentencing proceedings and that it is “necessary to read fairly the entirety of the sentencing transcript and the remarks on sentence, for the purpose of determining whether practical injustice has been demonstrated in this case”. [9] The Crown submitted that the breach of procedural fairness ground should fail and there was no denial of natural justice to the applicant.

    9. Ng v R (2011) 214 A Crim R 191; [2011] NSWCCA 227 at [44] (Bathurst CJ, James and Johnson JJ).

30. The Crown submission was that the judge did not form any concluded view on the appropriate sentence during the proceedings on sentence. While there was reference to the possible length of a custodial sentence and the availability and/or appropriateness of an ICO, both parties had an opportunity to address those issues. The Crown submitted that it is impermissible to elevate a discussion during the course of proceedings to an expectation in one party, which, if not the result, may give rise to a breach of natural justice.

31. The Crown submitted that counsel for the applicant in the District Court made submissions based on the appropriateness of an aggregate sentence; that the aggregate sentence should be 3 years or less; and that an ICO should be imposed. As such there can be no breach of natural justice.

32. Further, the Crown submitted that, if leave to appeal were to be granted, which the Crown opposed, and if the Court were to find error, the Court, on resentencing, would not form the view that a less severe sentence is warranted in law and, on that basis, would dismiss the appeal.

Bail

33. The applicant was on bail from the day of his arrest until his sentence was imposed, a period of approximately two years. The applicant has applied for bail before this Court, but that application is dependent upon the attitude of the Court on the appeal. The Court is required to deal with that application expeditiously. [10]

    10. Bail Act 2013 (NSW), s 71.

34. The applicant sought to have the matter of bail dealt with on the basis of the attitude of the Court to the appeal and the bail application was listed before the Court with the appeal. Plainly, as submitted, the result of any bail application was to be informed by the strength of the applicant’s case on appeal.

35. Each of the parties agreed with the Court’s suggestion that the bail application be adjourned and dealt with at the time that the judgment on the appeal is delivered, if it be necessary. The Court took the view that, by determining the outcome of the appeal as soon as reasonably practicable, such a procedure would be the most expeditious way of dealing with the bail application.

Remarks on Sentence

36. The proceedings on sentence occurred substantively on 30 October 2020 and the Remarks on Sentence were delivered on 2 December 2020, approximately one month after the proceedings. The proceedings and remarks concerned both the applicant and his co-offender, Mr Zahinda.

37. His Honour set out the charges against each offender and then recited or summarised the agreed facts. After setting out the agreed facts or summarising them, his Honour dealt with the subjective circumstances of the applicant at some length. Much of the material relating to the applicant was obtained from the Report of the Clinical Psychologist, Mr Sam Borenstein, in his Report dated 7 October 2020, which had been tendered without objection.

38. The applicant gave evidence during the course of the sentencing hearing and relied upon his own Affidavit of 28 October 2020. At the time of sentencing, the applicant was 19 years of age; and was (and still is) an Australian citizen. The applicant was just over 18 years of age at the time of the offending.

39. The applicant had emigrated from Sudan, where he was born, in 2005, when he was five. He was accompanied by his parents and one younger sister.

40. The applicant completed his HSC and did reasonably well and dreamt of becoming a flight captain. For that purpose he was booked to leave Australia on 27 December 2018, just after the offending, in order to do an aviation program in Dubai. His father is currently disabled; living on a pension; had a heart attack prior to 2010 and, as a consequence, is unable to work. Prior to the applicant’s offending, his mother worked as a child educator.

41. At the time of the offending, the applicant realised that the victim suffered from a learning deficit about which he says he felt uncomfortable, but, when asked to video the events, he complied.

42. It seems most of the conduct of the applicant is conduct that has resulted from peer pressure and the applicant never hit the victim but, as he understood, the common assault to which he was pleading guilty, related to grabbing the victim’s shoulder. The agreed facts do not suggest that the applicant hit the victim.

43. The applicant had written a letter of apology to the victim and testified to the genuineness of the expressions in the letter. [11]

    11. Appeal Book pp 155-156.

44. The applicant has undertaken counselling through Trinity Health Care Liverpool and has also undertaken sessions with the Sudanese Community Counsellor, Dr Walid Ahmed.

45. The learned sentencing judge recited an extract from the Psychologist’s Report, to which reference has already been made, and it is appropriate to repeat that extract, which is in the following terms:

“In summary, Mr Mustafa suffers with symptoms of recurrent depression, traumatic stress and anxiety. Mr Mustafa is engaged in psychological treatment in the wake of his arrest and being charged, and subsequent traumas, i.e. the deaths of two close friends, and Mr Mustafa himself, being subject to three separate assaults. Mr Mustafa states he has gained a greater appreciation of the impact on victims, now he identifies himself as a victim of crime, and struggles with symptoms of traumatic stress, anxiety and depressed mood.” [12]

12. Report of Mr Sam Borenstein p 7; Appeal Book p 172.

46. The Report of Mr Borenstein, in passages not cited by the learned sentencing judge, but plainly understood by him, also included comments to the effect that Mr Mustafa’s psychological treatment targeting his traumatic stress symptoms and recurrent depression and anxiety will assist Mr Mustafa to establish clear boundaries and limits and improve his psychological resiliency. This, according to the Psychologist’s Report, makes the likelihood of the applicant reoffending significantly reduced.

47. However, the Psychologist also noted that there is no suggestion of serious psychiatric disorder or psychosis. Further, the applicant is cognitively intact.

48. Returning to the Remarks on Sentence, the sentencing judge referred to the tests administered by the Psychologist and the results of those tests, which confirmed moderate to severe symptoms of depression, moderate to severe symptoms of anxiety and mild to moderate symptoms of stress.

49. The learned sentencing judge referred to the circumstances in which the applicant’s mother lost her job, seemingly as a result of the applicant residing with her and the support that the applicant’s mother is giving to the applicant in these trying circumstances and her evidence as to the improvement in his behaviour and maturity. He also referred to a number of character references tendered in support of the applicant. For obvious reasons I omit reference to the material dealing with the subjective circumstances of the co-offender.

50. The learned sentencing judge referred to the lack of timeliness in the plea of guilty, being two months prior to trial, and indicated that he would reduce the overall sentence for each offence by 10%, pursuant to the terms of s 25D(2)(b) of the Crimes (Sentencing Procedure) Act. In considering the sentence, the learned sentencing judge took the view that the applicant was a poor witness who appeared evasive, even though he and his co-offender showed remorse. Further, the sentencing judge took the view that the applicant appeared to downplay his role in the offences.

51. His Honour remarked as to what his Honour considered was an inconsistency in his evidence pertaining to the video record taken by the applicant. The learned sentencing judge referred to the Affidavit of the applicant in which he stated that he was “keen on adhering to my friends’ request to please them”, but in cross-examination he said he was “scared for my life”.

52. His Honour rejected the evidence in this regard, being, as I understand it, a reference to his state of terror. This is a finding open to his Honour and with which no one cavils.

53. Nevertheless, it is important in assessing credit to take account of the cultural aspects that would alter the manner in which some persons would perceive conduct and the manner in which they would express their views of it. [13] The Remarks on Sentence then deal with issues of parity, particularly in relation to the co-offender, Mr Faraj, who entered an early plea of guilty and was provided a 25% discount and also gave assistance that was said by the sentencing judge to be subject of a further discount of 15%. The sentencing judge’s conclusion was that the role of the applicant and the role of the co-offender Faraj was similar.

    13. Judicial Commission of New South Wales, Equality Before the Law Bench Book.

54. The co-offender Faraj was sentenced to an ICO of 1 year and 9 months after what was said to be a discount of 40%. Apparently, the Remarks on Sentence in these proceedings referred to the sentencing judge in relation to the co-offender Faraj as having started with the undiscounted sentence of 3 years and 6 months.

55. However, the arithmetic would point to that being in error. The ICO of 21 months (1 year and 9 months), if 60% of the commencement sentence, would mean that the starting point was 35 months, i.e. 2 years and 11 months, which would be an unusual starting point for the calculation of a sentence.

56. The sentencing remarks of Judge Colefax in relation to the co-offender Faraj were before the court below and are before the Court on appeal. [14] In the Faraj sentence, the sentencing judge expressly commenced the sentence at 3 years and 6 months.

    14. R v Faraj [2020] NSWDC 171; Appeal Book pp 135-142.

57. However, the discount provided, which was wrongly expressed by the sentencing judge in dealing with the sentence now impugned, was: 25% discount for the plea of guilty; 10% discount for past assistance; and a further 15% discount for future assistance. In other words, the total reduction for plea of guilty and assistance was 50%, not a total of 40%, as stated by the learned sentencing judge. The sentence imposed was for the single offence of robbery in company.

58. The sentencing judge referred to the guideline judgment in Henry. [15]

    15. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, as applied to robbery in company; R v Stanley [2003] NSWCCA 233 at [14].

59. The sentencing judge took the view that the offence in question would fall “just below the mid-range for offences of this type” and, in that respect, his Honour adopted the assessment expressed by Colefax SC DCJ in relation to the co-offender, Faraj.

60. The learned sentencing judge referred to the fact that the applicant was on conditional release as a consequence of the offence of drive vehicle while under the influence of drugs, but was otherwise in a position where he had not previously been imprisoned. Nor had the applicant previously had, other than the driving under the influence of drugs, any convictions. The sentencing judge considered the fact that the applicant was subject to conditional liberty as an aggravating feature to be taken into account on sentence, but less significantly so than if he were to have been involved in similar offending conduct.

61. The sentencing judge also referred to the vulnerable position of the victim on account of his intellectual disability. The sentencing judge referred to the proposition that the violence involved in the offence “could not be said to be limited”, even though no injuries were sustained. Presumably, this was a reference to the whole of the robbery offence and not the conduct of the applicant.

62. His Honour also took into account the fact that the offence involved a large group of offenders, bearing in mind that the offence itself requires that the applicant committed the offence in company.

63. The sentencing judge referred to the fact that the applicant had spent a considerable period of time on bail, but does not indicate how, if at all, that factor affected the sentence to be imposed. The sentencing judge considered that the applicant had good prospects of rehabilitation. It can be assumed that the sentencing judge considered the period of time on bail and the conditions of bail, which included, for a period, a curfew, as a factor in ameliorating the sentence that might otherwise be imposed, although that is not expressed.

64. In relation to the assault offence, the sentencing judge, correctly, determined that the common assault was an offence committed during the course of the robbery and involved grabbing the victim. That conduct was taken into account in determining the objective seriousness of the robbery. Therefore, the sentencing judge took the view that any sentence imposed for the assault would be served concurrently with the robbery offence.

65. The sentencing judge then dealt with submissions made by Counsel for the imposition of an ICO. The Remarks on Sentence were to the following effect:

“It was submitted that if the court were to impose an aggregate sentence of three years or less, then the sentence could be served by way of intensive correction order. Counsel referred to the decision of R v Pullen [2018] NSWCCA 264 where Harrison J considered the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 and specifically the new scheme introduced by the Crimes (Sentencing Options) Act 2017. It was submitted that if the indicative sentence was greater than two years but less than three for the robbery offence and the overall sentence was not greater than three years, an aggregate sentence could be imposed.” [16] (Emphasis added.)

16. Remarks on Sentence p 17; Appeal Book p 90.

66. His Honour referred to the provisions of s 68 of the Crimes (Sentencing Procedure) Act, which he recited in the Remarks on Sentence, and then recited a further passage from R v Pullen [17] in the following terms:

“The proper construction of s 68 is clear. Section 68(1) and (3) provide for circumstances where the Court does not impose an aggregate sentence. However, where an aggregate sentence is imposed, s 68(2) makes clear that the only relevant limitation on the imposition of an ICO is that the aggregate sentence must not exceed three years’ imprisonment. As indicated earlier, the Court has determined to proceed by way of aggregate sentencing in this case. Upon the proper construction of s 68, an ICO is available so long as the term of the aggregate sentence does not exceed three years. Accordingly, s 68 does not prevent the imposition of an ICO in this case.” [18]

17. R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264.

18. R v Pullen, supra, at [83] (Harrison J).

67. His Honour then referred to the reasons for judgment of RA Hume J in Abel v R [19] and referred to the proposition that the judgment in Pullen gives rise to a number of anomalies. His Honour then, in the Remarks on Sentence, says:

“A single sentence greater than two years cannot be served by way of an intensive correction order. An intensive correction order cannot be made if there is more than one sentence and the overall sentence is between two and three years if one of the sentences is greater than two years. However, such a sentence is available if the court imposed an aggregate sentence. I would add that considerable injustice may be occasioned where there are co-accused involved such as the present case. The co-offender, who faces one offence, cannot be sentenced under the provisions of s 53A of the Crimes (Sentencing Procedure) Act, which deals with aggregate sentences.” [20] (Emphasis added.)

19. Abel v R [2020] NSWCCA 82.

20. Remarks on Sentence pp 18-19; Appeal Book pp 91-92.

68. The sentencing judge’s remarks then referred to the provisions of s 68(3) of the Crimes (Sentencing Procedure) Act and referred in particular to the judgment of this Court in R v Fangaloka. [21] His Honour referred to the judgment of Basten JA in Fangaloka, extracted a passage,[22] and makes the following comment:

“When applying Pullen, a person such as in the present case who is to be sentence for more than one offence pursuant to s 68(2) may be sentenced to an intensive correction order where an indicative sentence is greater than two years but less than three years. The co-offender who is to be sentence for one offence is not eligible for an intensive correction order if the sentence exceeds two years (although I would accept parity considerations play a part in these circumstances).

If the Court, however, were to impose a sentence for an offender who is to be sentenced for more than one offence, in accordance with s 68(3) the individual sentence could not be greater than two years.

The provisions of s 53A, which fall within the same Act, have a limited role to play when considering an appropriate sentence. Section 53A was introduced to overcome the difficulties which arise when sentencing offenders to multiple offences and when taking into account the principles of totality and applying the decision of Pearce…. The aggregate sentence is only to be considered after the court has determined the appropriate sentence it would have been imposed for each offence. The indicative sentence is, therefore, an integral part of the sentencing process. An intensive correction order would be unavailable in the circumstances where the court would conclude that the sentence to be imposed exceeded 2 years. Intensive correction orders were introduced on 1 October 2010. Section 68, as it then was, limited the length of an order to not exceeding two years. Nothing in the provisions of s 53A, which came into effect on 14 March 2011, altered the provisions of s 68 at the time.” [23] (Emphasis added.)

21. R v Fangaloka [2019] NSWCCA 173.

22. Ibid at [51] (Basten JA).

23. Remarks on Sentence pp 19-20; Appeal Book pp 92-93.

69. The sentencing judge then referred to Project Blue Sky[24] and extracted paragraph [69] in the plurality judgment. His Honour then set out, correctly, that s 68(2) of the Crimes (Sentencing Procedure) Act is to be read having regard to the provisions of s 68(1) and s 68(3) and s 53A of the Act. So much is trite.

    24. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.

70. His Honour then set out the proposition that s 68(2) of the Crimes (Sentencing Procedure) Act sets the upper limit for an ICO, where an aggregate sentence is imposed. So much is completely accurate.

71. However his Honour then says somewhat circularly that s 53A of the Crimes (Sentencing Procedure) Act is invoked “as a consequence of there being more than one offence” and says that that proposition “is consistent with both s 68(1) and importantly s 68(3), which also deals with more than one offence.” [25] His Honour then observes that the Court is bound by the comments of this Court in Pullen, supra. He then remarks that given that the applicant’s sentence has already been determined as to be served “concurrently” then “my observations have no practical effect. It would, of course, be quite inappropriate, therefore, to consider the provisions of s 53A of the Act.” [26]

    25. Remarks on Sentence p 21; Appeal Book p 94.

    26. Ibid.

72. Most importantly, his Honour says:

“In respect of each offender, given the gravity of the offending behaviour, and taking into account their subjective circumstances I am satisfied the only sentence which can be imposed is a sentence of full-time imprisonment. In doing so, I have regard to both the principles of specific and general deterrence. I would, however, make a finding of special circumstances for both offenders given their youth, plea of guilty, remorse and limited records. The additional term will be significantly greater than what might ordinarily be considered appropriate given their youth and greater emphasis being placed on the need for rehabilitation.” [27] (Emphasis added.)

27. Remarks on Sentence p 22; Appeal Book p 95

73. The sentencing judge referred to the sentence imposed on the co-offender Faraj as being an ICO which he described as “significantly more lenient” than a sentence of full-time imprisonment and, for reasons of parity, the learned sentencing judge was prepared “to accept some amelioration in the non-parole period in respect of each of the offenders”.

74. As earlier stated, in relation to the applicant, after a 10% discount for the plea of guilty, the applicant was sentenced to a term of 3 years’ imprisonment for the robbery in company, and 3 months’ imprisonment for the assault, each of which sentence was to commence on 1 December 2020 and, in the case of the robbery in company, included a non-parole period of 12 months’ imprisonment concluding 30 November 2021 with the remainder of term concluding 30 November 2023.

75. The co-offender Zahinda was sentenced to full-time imprisonment of 2 years and 9 months as a commencement point and, after the discount of 10% for the utilitarian value of the plea of guilty, an actual term of imprisonment of 2 years and 5 months, commencing 10 June 2020 and the 9-month non-parole period expired on 9 March 2021.

Consideration

76. In the course of summarising the submissions of the applicant and the Crown, I have commented, briefly, on some of the aspects of the issues raised. Nevertheless, it is necessary to deal more fully with the Grounds of Appeal and the submissions of each party.

77. It is convenient to deal first with the issues raised under Ground 2, the alleged denial of natural justice.

78. Essentially, in Ground 2, the applicant argues that there has been a denial of procedural fairness, which has been occasioned, on that submission, by the discussion between Counsel and the sentencing judge during the course of the proceedings, in which, it is said, the applicant built up an expectation of an aggregate sentence and the likelihood of the imposition of an ICO. As a consequence, the applicant submits that the proceedings involved a miscarriage of justice and, by denying procedural fairness, involved an error of law.

79. The bases upon which an appeal court may intervene in the exercise of discretion involved in sentencing are well-known and confined. They involve identifiable error, which, in turn, involves: acting on a wrong principle; allowing extraneous or irrelevant matters to be used in determining the sentence; a mistake of fact; or failing to take into account some material consideration. [28]

    28. House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ).

80. The Court, on appeal, may also intervene in circumstances where there is manifest error, which is disclosed when the outcome of the sentencing exercise is “unreasonable” or “plainly unjust”, even though specific error is not disclosed or identified. In that latter circumstance, the Court, on appeal, can draw the inference that there has been a failure properly to exercise the discretion conferred below. [29]

    29. Ibid.

81. If there were truly a denial of procedural fairness, then the process of sentencing would have been vitiated by jurisdictional error and the Court would need to intervene. But a failure to afford procedural fairness or a breach of natural justice does not occur simply because a party’s expectation as to a result is not realised.

82. Natural justice has two aspects: the hearing rule and the rule against bias. Procedural fairness is an essential characteristic of judicial proceedings. [30]

    30. RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47 at [42] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

83. Notwithstanding that natural justice is fundamental to the exercise of judicial power, the legislature could, were it so minded, validly legislate to exclude the rules of natural justice. [31] In this case, there is no suggestion that there has been any legislation, valid or otherwise, qualifying the application of procedural fairness to the process of sentencing.

    31. Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [152] (Hayne, Crennan, Kiefel and Bell JJ); cf [177] (Gageler J in dissent).

84. However, as the High Court has made clear in Barbaro, [32] courts on appeal will be vigilant to ensure the maintenance of the fundamental roles of the prosecutor, the accused and the Court in the sentencing process.

    32. Barbaro, supra.

85. As has been made clear on a number of occasions, and as was confirmed in Barbaro, supra, the roles are separate and distinct. First, it is the function of the prosecutor, alone, to determine the charge to be preferred. Secondly, it is for the accused, alone, to determine the plea to be entered to any charge. Thirdly, it is for the judge alone to determine the sentence to be imposed. [33]

    33. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [28]-[30] (Gleeson CJ, Kirby, Hayne and Heyden JJ).

86. The sentencing judge is not bound by any agreement between the prosecutor and the accused. Nor is the sentencing judge bound by any range or limits suggested by either or both of the prosecutor and the accused to the Court. [34]

    34. GAS, supra at [31]-[32]; Barbaro, supra, at [47] (French CJ, Hayne, Kiefel and Bell JJ) and at [56] (Gageler J).

76. Leaving aside currently irrelevant considerations in relation to procedural fairness, such as the rule against bias or its perception, natural justice requires that a party to proceedings, including an accused in criminal proceedings, if not especially an accused in criminal proceedings, is given a reasonable opportunity to prepare and to present his or her case. The obligation that a party be given a reasonable opportunity to present their case, including a reasonable opportunity to prepare the case, is at the heart of the requirements of natural justice and the exercise of judicial power. [35]

    35. Sullivan v Department of Transport (1978) 20 ALR 323 at 342, 343; [1978] FCA 48 (Deane J, as a member of the Full Court of the Federal Court of Australia).

77. Nevertheless, it is not the function of the Court to ensure that a party uses to its best advantage an opportunity so given. [36] In this case, there can be no suggestion that the parties did not use the opportunity to present to the sentencing judge arguments on why the sentence should be an aggregate sentence; of less than 3 years in duration; and imposed by way of ICO. The submissions of the applicant below are replete with such urging. [37]

    36. Ibid.

    37. See in particular the Written Submissions on behalf of the accused below at [71] and following; Appeal Book p 223 and following.

78. It could not be said in these proceedings that the applicant was denied the opportunity of presenting to the sentencing judge all that could be put on the duration of the sentence and its structure. Further, it could not be said that any indication from the sentencing judge deprived the applicant of an opportunity to present his case.

79. The applicant’s case was presented, in relation to the imposition of an ICO, fully, fairly and forcefully. All that is required for natural justice to be satisfied is for the issue to be opened up and the opportunity provided to a party to address the issue or for the issue to be addressed in a manner which should reasonably have caused the party to apprehend that the issue had been opened up. [38] Ground 2 of the appeal must fail.

    38. Re Building Workers’ Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 83-84; [1988] HCA 4 (Mason CJ, Wilson, Deane and Gaudron JJ).

80. Grounds 1 and 3 are in a different category and do not depend upon the applicant being denied an opportunity to argue for an aggregate sentence. Rather, the Grounds depend upon the sentencing judge’s treatment of the relationship between multiple offences, aggregate sentences and the availability of the imposition of an ICO.

81. As the Crown correctly submits, and as has been the subject of comment earlier in these reasons, it would be contrary to sentencing principles to impose a term of imprisonment for the sole purpose of imposing an ICO. It is also contrary to sentencing principles to impose a term of imprisonment, or structure a sentence, to avoid the possibility of imposing an ICO.

82. The Court has, previously, confirmed the long line of authority that the determination of the duration of a sentence should not be undertaken by reference to or for the purpose of utilising an ICO. The Court said:

“[36]    It being uncontroversial in this case that no penalty other than a term of imprisonment is appropriate, the first question for present determination is the term of the sentence. On the authority of Zamagias, Douar, Assaad and the cases that have followed them, that has to be done before, and without regard to, the manner in which the sentence is to be served. It would be contrary to those decisions to select the term of the sentence by reference to, and for the purpose of utilising, the alternative means, provided by s 7, by which the sentence may be served. In part, the term of the sentence will depend upon whether separate sentences for the two offences are, or, under s 53A, an aggregate sentence encompassing both offences is, to be imposed, in which case it might be thought that the aggregate sentence would exceed that which would be imposed in relation to each of the individual offences (although, on the approach taken by the sentencing judge in this case, making the second sentence wholly concurrent with the first, no additional penalty was in fact imposed).”[39]

39. Mandranis v The Queen [2021] NSWCCA 97 at [36] (Simpson AJA, with whom Garling and N Adams JJ agreed).

94. The foregoing comment applies authority of some standing. The Court in Douar,[40] in dealing with a Crown appeal against sentence, and with s 6 of the then Crimes (Sentencing Procedure) Act, said:

“[60] The Applicant submits that the remarks on sentence of Solomon DCJ do not reflect the two-stage approach required when imposing periodic detention, that is, his Honour did not first fix an appropriate period of imprisonment and then give consideration as to whether the sentence ought be served in circumstances other than full-time custody. The Applicant submits that his Honour determined to proceed by way of periodic detention and then moved directly to impose the maximum sentence of periodic detention which the law allows. The Applicant submits that this approach does not comply with s.6 and decisions of this Court: R v Wegener [1999] NSWCCA 405 at paragraph 23; R v Foster [2001] NSWCCA 215; R v Zamagias [2002] NSWCCA 17 at paragraph 26; R v Hanslow [2002] NSWCCA 161; R v Schodde (2003) 142 A Crim R 307 at 311 (paragraph 14).

[61]    The 1999 amendments to the Periodic Detention of Prisoners Act 1981 inserted s.5 which required a two-step sentencing process: Wegener at paragraph 19ff. Before that amendment, it was accepted that a sentence to be served by way of periodic detention might be longer than a sentence of full-time custody to compensate for the element of leniency in a sentence of periodic detention: R v Sadebath (1992) 16 MVR 138 and R v Bang (Court of Criminal Appeal, 1 September 1992, unreported). Following the 1999 amendments, that approach is no longer available: Schodde at 311 (paragraph 15). It is necessary for a sentencing judge to determine whether a sentence of imprisonment is to be imposed and the length of that sentence, and only then consider whether the sentence ought be served by way of periodic detention.

[62]    It has been said that it is unnecessary that a sentencing court expressly state that it has applied the two-stage approach in arriving at the sentence imposed: Foster at paragraph 33; Zamagias at paragraph 30. The failure of a court to indicate expressly that it has taken the two-stage approach to the determination of a sentence of periodic detention does not, of itself, demonstrate a failure to carry out the sentencing exercise in this manner: R v Saldaneri [2001] NSWCCA 480 at paragraph 14; Zamagias at paragraph 30.

[63]    However, the nature of the sentence imposed, and the failure to record that a two-stage approach has been taken, may lead the Court to examine carefully the findings made by the sentencing Judge to determine whether the sentence is erroneous: Foster at paragraph 35; Zamagias at paragraph 30.” [41]

40. Douar v R [2005] NSWCCA 455.

41. Douar, supra, at [60]-[63] (Johnson J, with whom McClellan CJ at CL and M Adams J agreed).

95. As already stated, the converse of the foregoing is also true. A judicial officer, who is sentencing an offender, must not structure the sentence, deliberately, for the purpose of avoiding the capacity to impose an ICO. The process must be a genuine determination of the appropriate sentence to be imposed, bearing in mind totality.

96. Assuming, for present purposes, that the threshold mandated by s 5 of the Crimes (Sentencing Procedure) Act has been satisfied and that no alternative to imprisonment, all of which have been considered, is appropriate, the sentencing judge must determine a sentence to be imposed in relation to each offence of which the offender is guilty and determine the total sentence to be imposed, being a sentence that represents the total criminality of the offending.

97. Just as a sentence of imprisonment is the option to be imposed only when no alternative is appropriate, whether or not a full-time custodial sentence is appropriate is a matter that ought to be determined at the point in time when the sentencing judge has arrived at an appropriate total period of imprisonment. Even though the duration of a sentence cannot be affected by a desire to impose an ICO, once the duration of sentences has been determined and a sentencing judge is considering the structure of the sentence, the sentencing judge is entitled to reflect on the available options in determining that structure.

98. There are a number of unusual aspects to the comments made by the learned sentencing judge in these proceedings. First, the learned sentencing judge suggests that he is bound by the statements of principle in Pullen. It is not clear what the sentencing judge means by that statement. Of course, insofar as it goes, the statement is a truism. But the principles outlined by Harrison J in Pullen do no more than restate the clear and unambiguous provisions of s 68 of the Crimes (Sentencing Procedure) Act1999 (NSW).

99. Moreover, the learned sentencing judge seems to contrast that which was said by this Court in Pullen to that which was said by Basten JA in Fangaloka. The two are not, on this aspect, inconsistent. Indeed, on this issue, the two are totally consistent.

100. The passage extracted in the learned sentencing judge’s Remarks on Sentence from the judgment of Basten JA may have been misinterpreted. The qualification in [51] of Fangaloka, to the effect that an ICO cannot be imposed where a single sentence exceeds 2 years, applies only to the case where individual sentences are being imposed and not an aggregate sentence.

101. The reference by the sentencing judge to the comments of RA Hulme J may also disclose that those comments have been misunderstood. In Abel,[42] RA Hulme J was pointing out the anomaly in the Act, not the judgment in Pullen. Further, the reference to “total effective sentence” in Abel is a reference to sentences other than an aggregate sentence.

     42. Abel, supra, at [4].

102. An ICO, regardless of the length of any indicative sentence, may be imposed if the aggregate sentence does not exceed 3 years. Lastly, in the present circumstances, an aggregate sentence of 3 years encompassing indicative sentences of 3 years and another of 3 months would be permissible under s 68(2) of the Crimes (Sentencing Procedure) Act.

103. With respect to the learned sentencing judge, it is not accurate to confine the imposing of an ICO to an offender “who is to be sentenced for more than one offence pursuant to s 68(2) … where an indicative sentence is greater than two years but less than three years” [43] (Emphasis Added). The length of the indicative sentence is irrelevant to s 68(2), as long as the aggregate sentence does not exceed 3 years. A sentence which is exactly three years, rather than less than three years, is amenable to an ICO.

     43. Remarks on Sentence p 19; Appeal Book p 92.

104. That may be the error that has occasioned the sentencing judge’s constraint of his jurisdiction to order an ICO. On the other hand, the error may be as a result of his Honour’s view that there was a degree of arbitrariness in the restrictions imposed in relation to s 68(3) of the Crimes (Sentencing Procedure) Act as distinct from those contained in s 68(2).

105. That arbitrariness may have been compounded, in his Honour’s mind, by the comparison between the applicant and the co-offender Zahinda, whom the sentencing judge was required to sentence at the same time. Because the co-offender Zahinda was to be sentenced for one offence only, no aggregate sentence was available and because the appropriate sentence, in his Honour’s view, was a sentence greater than 2 years, the co-offender Zahinda was not able to have imposed upon him an ICO. [44]

     44. Crimes (Sentencing Procedure) Act s 68(1).

106. His Honour took the view that he considered the co-offender Zahinda was slightly less culpable than the applicant, and may have thought that to impose an ICO on the applicant and not on the co-offender Zahinda would impact the parity between the two.

107. However, parity is not to be used to lengthen a sentence or to impose a more severe sentence than is thought appropriate. If the sentencing judge imposed a sentence on the applicant with the structure that he did for the purposes of avoiding disparity with the co-offender Zahinda, he would be imposing a more severe sentence for that purpose and acting inconsistently with principle.

108. Lastly, it may be that the sentencing judge simply misunderstood the effect of the judgment in Pullen and Fangaloka and considered, having determined that the robbery offence would be subject to a sentence of 3 years’ imprisonment, he could not impose an ICO, even if he were to structure the sentence as an aggregate sentence.

109. It is impossible to identify, precisely, the error that has occasioned the structure of the sentence in the manner that it has been imposed. The Crown, relying upon the passage in the Remarks on Sentence extracted above, [45] submitted that his Honour took the view that “the gravity of the offending behaviour” was such that full-time imprisonment was to be imposed. The difficulty with that approach is the manner in which his Honour has expressed that view, if it were his view.

     45. Remarks on Sentence p 22; Appeal Book p 95.

110. The Remarks on Sentence were not provided ex tempore. The sentence and the Remarks were the subject of substantial consideration by the learned sentencing judge.

111. The passage to which the Crown refers relates, first, to the fact that the subjective circumstances are taken into account, which can mean only to the benefit of the applicant, and that, therefore, “given the gravity of the offending behaviour”, notwithstanding the subjective circumstances, “the only sentence which can be imposed is a sentence of full-time imprisonment.” [46] (Emphasis Added.)

     46. Ibid.

112. There are two aspects to this passage. First, his Honour is suggesting that the gravity of the offending behaviour renders impermissible the imposition of a sentence other than full-time imprisonment.

113. The terms of s 68 of the Crimes (Sentencing Procedure) Act is a legislative prescription as to the capacity of the sentencing judge to impose an ICO. It does so by reference to the length of the term of imprisonment imposed and, in so doing, prescribes that a sentence of such gravity that, in fixing an aggregate sentence, a total aggregate sentence of 3 years’ imprisonment is to be imposed, is one for which an ICO is available. The duration of the length of imprisonment is an indication of the gravity of the offending.

114. Secondly, the passage in his Honour’s Remarks, emphasised above, makes clear that his Honour’s view was that it was impermissible to impose an aggregate sentence and, as a consequence, an ICO. The result, a term of imprisonment of 3 years for both offences, is plainly within range. No criticism can be made of his Honour in that regard.

115. However, the imposition of an ICO for that 3-year term was also within range, assuming that the 3-year term was structured in a way that allowed it to be imposed pursuant to the terms of s 68(2) of the Crimes (Sentencing Procedure) Act.

116. His Honour precluded the consideration of an available outcome. As this Court, in dealing with a suspended sentence, said in Kutchera:[47]

“[43]    To preclude consideration of an available outcome is an error of law. To treat a suspended sentence as an unavailable result, when it is within range, is an error capable of being remedied on appeal. His Honour has erred in treating the suspension of the sentence as out of range.” [48]

47. Kutchera v Regina [2007] NSWCCA 121.

48. Kutchera, supra, at [43] (Rothman J, with whom James and Harrison JJ agreed).

117. As the Court pointed out in Kutchera, the foregoing is not a counsel of perfection. This Court is not unmindful of the pressures on judicial officers, whether they be magistrates or District Court judges. It is not appropriate to comb through Remarks on Sentence, particularly if the remarks are given ex tempore.

118. But in these proceedings, the sentencing judge has, it seems, precluded for himself an aggregate sentence for both offences and taken the view that an ICO is outside the range available. An ICO was within range, as already stated.

119. Once the prosecutor has charged more than one offence and the appropriate sentence to be imposed for all offences is 3 years or less, then the sentencing judge has available the structuring of the sentence as an aggregate sentence and the choice of imposing an ICO, subject to an assessment consistent with that course. As stated in Kutchera:

“However, if in the course of imposing a sentence, a judge exposes, in his Remarks on Sentence or otherwise, a process of reasoning which arguably has had the effect of erroneously excluding from his available choices a particular outcome that he should not have excluded, this will amount to an error of law that is amenable to correction by appeal to this Court.” [49]

49. Kutchera, supra, at [53] (Harrison J).

120. In my view, while it is not clear, precisely, how his Honour arrived at the position that he did, it is clear that his Honour precluded the option of an ICO. Given the subjective circumstances of the applicant and the absence of violence perpetrated by him, other than the grabbing of a shoulder, an ICO was not so clearly inappropriate and was certainly not incapable of being imposed.

121. Once his Honour had determined that a total sentence for the two offences of 3 years’ duration was the appropriate measure of the offence and the offender, his Honour had available to him the ability to structure the sentence as an aggregate sentence and to impose an ICO.

122. It may well be that his Honour was concerned that the prosecutor had inappropriately charged two offences, when the one offence of robbery encompassed the totality of the criminality. As a consequence, the ordering of an ICO may have been thought, by his Honour, to be inappropriate. But a sentencing judge, as earlier stated, is not entitled to interfere with the discretion of the prosecutor to prefer such charges as the prosecutor thinks appropriate.

123. For the foregoing reasons, in my view there is error of law and/or manifest error in the sentence imposed by his Honour. The difficulty is that, since some of the sentence has already been served and an ICO is an available option, it is necessary to have a Pre-Sentence Report, unless the Court considers it has sufficient information to make the determination without a further assessment.

Re-sentencing

124. An assessment report was obtained for the court below. [50] That Report has assessed the applicant as “suitable to undertake community service work, however there is no work currently available at Liverpool Community Corrections”. It also assesses the applicant as being at a medium to low risk of re-offending, which Community Corrections has calculated as Tier 1 according to the Community Impact Assessment. The evidence before the Court is that the applicant’s time in prison has confirmed that assessment.

     50. Sentencing Assessment Report; Appeal Book p 119 and following.

125. The Assessment Report states that, as a consequence of the medium to low risk of reoffending, if the Court were to make a supervised order, “Community Corrections will suspend [the applicant’s] supervision in accordance with cl 189I of the Crimes (Administration of Sentences) Regulation 2014”. It makes clear that the applicant is to report to Liverpool Community Corrections within seven days of the imposition of the ICO to receive instructions about his obligations, while supervision is suspended.

126. The provisions of s 7(1) of the Crimes (Sentencing Procedure) Act allow the Court to impose an ICO in accordance with the provisions of Pt 5 of the aforesaid Act.

124. When the Attorney General introduced the amendments in 2017, which are implemented in Pt 5 of the Act, he said:

“New section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why new section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.” [51]

51. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 3.

128. For those involved in the criminal justice system, the foregoing comment by the Attorney General is well-established. Yet it is rarely understood by those not involved in the criminal justice system.

129. Nevertheless, the Court is required to consider community safety as the paramount consideration before imposing an ICO on offenders. I accept the analysis of Simpson AJA in Mandranis v R. [52]

     52. Mandranis v R [2021] NSWCCA 97 at [42] – [51].

130. I accept that the imposition of an ICO would represent some degree of leniency. There are mandatory conditions as prescribed by the Crimes (Sentencing Procedure) Act and the Court is required to impose additional conditions, or at least one such condition, unless there are exceptional circumstances. [53]

     53. Crimes (Sentencing Procedure) Act s 73A(1) and (1A).

131. I note the prior offending of the applicant relates to the consumption of illegal drugs. It seems to me that at least as much, and, in my view more, protection of the safety of the community will be effected by an ICO than by keeping the applicant in prison.

132. However, it seems that the applicant should undertake programs for intervention suggested by Community Corrections; and, when it becomes available, the applicant should undertake community service work. He should also be prohibited from consuming alcohol or illicit substances.

133. In the circumstances, I am satisfied that an ICO is appropriate and serves the safety of the community and the administration of justice better than the applicant’s continued imprisonment.

134. The learned sentencing judge referred to the applicant’s youth as a feature affecting special circumstances and warranting a shorter non-parole period. No party has raised the sentencing judge’s treatment of youth as problematic. However, it is important to reiterate the principles stated by this Court:

“[3]    The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] – [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles.

[4]    First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36].

[5]    Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a “child offender” of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

[6]    Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.”[54]

54. BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [3]-[6] (Hodgson JA); see also at [108] and [109] (Rothman J also agreeing with Hodgson JA).

135. Since the treatment of youth has not been raised, this is not an appropriate basis upon which to analyse the sentence imposed. It is a matter that I would take into account in allowing the leniency associated with an ICO, as compared to full-time imprisonment.

136. As a consequence, and given the lack of criticism of the remainder of the findings of his Honour, I consider, except in relation to their structure, the sentences imposed by his Honour as appropriate indicative sentences. Given my determination and the proposed orders, it is unnecessary to deal further with the application for bail.

137. It is however necessary to express the view that as a result of the terms of the operation of s 71(1) of the Crimes (Sentencing Procedure) Act, the term of the ICO will be for the remaining period of the sentence originally imposed and commence on and from today in accordance with the approach adopted by Simpson AJA, with whom Garling and N Adams JJ agreed, in Mandranis. [55]

     55. Mandranis, supra at [61]-[64].

138. In the circumstances, I would propose the following orders:

1. Leave to appeal be granted;

2. Appeal be allowed;

3. The sentence imposed by the District Court on the applicant, Omer Mustafa, on 2 December 2020 be quashed and in lieu thereof the following sentence be imposed:

1. Conviction recorded;

2. The Court imposes an aggregate sentence of imprisonment of 2 years, 4 months and 14 days, being the remainder of the term otherwise imposed, the indicative sentences for which are:

Robbery in Company, imprisonment for 2 years, 4 months and 14 days;

Common Assault, 3 months’ imprisonment;

3. The foregoing aggregate sentence of imprisonment shall be served by way of an Intensive Correction Order, commencing 16 July 2021 and expiring 30 November 2023.

4. The Intensive Correction Order is subject to the following conditions:

1. The applicant must not commit any offence;

2. The applicant must submit to supervision by a Community Corrections Officer;

3. The applicant must participate in any program or intervention recommended by a Community Corrections Officer;

4. The applicant is to abstain from consuming alcohol and drugs;

5. The applicant shall report to the Liverpool Community Corrections Office within seven days of the making of this order, in order to receive instructions about his obligations if and while supervision is suspended.

4. Leave be granted to the parties to make application for any different or additional conditions in the aforesaid Intensive Corrections Order.

139. IERACE J: I also agree with Rothman J.

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Endnotes

Amendments

21 March 2022 - Coversheet - Typographical error.

Decision last updated: 21 March 2022