R v AA (No 5)

[2021] NSWSC 195

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v AA (No 5) [2021] NSWSC 195

Hearing dates:

On the papers

Decision date:

08 March 2021

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   In relation to the Intensive Corrections Order and conditions imposed on 24 December 2019 on AA and the additional condition imposed on 15 April 2020, the additional condition imposed upon the aforesaid offender on 15 April 2020 is hereby removed.

(2)   The aforesaid order is to take effect on and from 8 March 2021.

Catchwords:

CRIME – Sentence – Intensive Corrections Order – application by Corrective Services New South Wales to remove home detention – unforeseen hardship – home detention condition removed

Cases Cited:

R v AA (No 3) [2019] NSWSC 1892

Category:

Consequential orders

Parties:

Regina (Crown)
AA (a pseudonym) (Offender)

Representation:

Counsel:
M McHugh SC / A McGrath (Crown)
S Buchen SC / J Roy (Offender)

Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Watsons Solicitors & Barristers (Offender)

File Number(s):

2016/321937

Publication restriction:

Suppression orders made under s 7(1) of the Court Suppression and NPO Act 2010 (NSW)

Judgment

1. HIS HONOUR: On 24 December 2019, the Court, as presently constituted, imposed an Intensive Corrections Order on the offender for the purpose of serving a sentence of 2 years’ imprisonment to commence on 24 December 2019 and expire on 23 December 2021.

2. The offender, AA (a pseudonym) was assessed for the purpose of the imposition of an additional condition, which, on 15 April 2020, was imposed upon her. That additional condition was to the effect that the offender be released to home detention for the remaining period of the Intensive Corrections Order.

3. Corrective Services New South Wales has applied for a variation of the Intensive Corrections Order by the deletion of the additional condition relating to home detention. The Court has, separately from Corrective Services New South Wales, notified the Crown of the terms of the application and the Crown does not wish to be heard on the application.

4. Corrective Services New South Wales has reported that AA response to supervision has been satisfactory and she has attended all appointments as directed, maintained all electronic monitoring requirements, and undertaken 384 hours of community service with 47 hours and 45 minutes remaining.

5. From the Court’s perspective, this is better than “satisfactory”. Corrective Services New South Wales has also reported that AA has demonstrated a respect for her order and conditions in all of the dealings she has had with Community Corrections and the Electronic Monitoring group. AA has also attended psychological intervention, which was directed by Community Corrections. She attended that intervention weekly since 30 October 2019 for the purpose of managing her mental health well-being and addressing factors related to her offending.

6. The unusual circumstances of AA’s offending were noted in the sentence remarks[1] and include that AA’s was an Iranian citizen; resident and domiciled in Iran; working for a government-owned electricity production company; requested, by her managers, to import material, which was the subject of sanctions imposed by the United Nations and supported by Australian legislation.

   1. R v AA (No 3) [2019] NSWSC 1892.

7. As a consequence of that conduct, when AA immigrated to Australia, she was prosecuted for the offence of breaching the United Nations sanctions, which was an offence under Australian law. It is unnecessary to reiterate how such conduct became an offence under Australian law. It is sufficient to reiterate that as a then Iranian citizen, refusing to perform the work may have been, in Iran, where she was resident, an offence against Iranian law.

8. AA pleaded guilty and was sentenced accordingly. It seems that the home detention and its effect on AA has been greater than might otherwise have been anticipated. Corrective Services New South Wales reports that the home detention is having a significant negative impact upon ’s mental well-being. This is particularly because of its effect on AA’s capacity to care for her daughter, undertake simple tasks and the social isolation that stems from the order.

9. In all of the circumstances, the Court varies the Intensive Corrections Order and deletes the additional condition imposed on 15 April 2020. The Court makes the following order:

1. In relation to the Intensive Corrections Order and conditions imposed on 24 December 2019 on AA and the additional condition imposed on 15 April 2020, the additional condition imposed upon the aforesaid offender on 15 April 2020 is hereby removed.

2. The aforesaid order is to take effect on and from 8 March 2021.

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Endnote

Amendments

09 December 2021 - Pseudonym revised.

Decision last updated: 09 December 2021