R v Sabbouh (No. 2)

Case [2022] NSWDC 311

District Court


New South Wales

Medium Neutral Citation: R v Sabbouh (No. 2) [2022] NSWDC 311
Hearing dates: 22 July 2022
Date of orders: 22 July 2022
Decision date: 22 July 2022
Jurisdiction:Criminal
Before: Bennett SC DCJ
Decision:

Registry of this Court to notify the Community Corrections Office at Bankstown that the matter should be referred to the Parole Authority in accordance with ss 81 and 81A Crimes (Administration of Sentences) Act 1999, for the Parole Authority to make orders to address the failure of Community Corrections to provide community service for this offender

Catchwords:

SENTENCING — Penalties — Community Service Order

SENTENCING — Penalties — Intensive correction orders

SENTENCING — Relevant factors on sentence —Conditions and orders

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Cases Cited:

R v Sabbouh [2022] NSWDC 281

Category:Principal judgment
Parties: Regina (Crown)
Nashat Sabbouh (offender)
Representation:

Tara Reddy (Solicitor for the ODPP)
Ahmed Ibrahim (Solicitor for the offender)

Director of Public Prosecutions (NSW) (Crown)
File Number(s): 2020/00233197

REVISED EX TEMPORE JUDGEMENT

INTRODUCTION

  1. Nashat Sabbouh was before this Court for the determination of sentence in respect of offences of acquiring a firearm part without authority to do so contrary to s 50AA(1) Firearms Act 1996 and with assisting his brother as an accessory after the fact to a charge of discharging a firearm in disregard for safety contrary to s 93G(1)(c) Crimes Act 1900. I determined the matter by imposing a sentence of imprisonment for two years and four months to be served by way of an intensive corrections order effective from 19 May 2022: R v Sabbouh [2022] NSWDC 281. The conditions of the order included that the offender perform 50 hours community service.

COMMUNITY SERVICE UNAVAILABLE

  1. The sentencing assessment report tendered in the proceedings written on 20 April 2022 provided that the offender was suitable to undertake community service but at the time of the report he could not be assessed as suitable for the purposes of the condition imposed because there was no work available for him. As I understand the terms of the document, which is not entirely without ambiguity, the opportunity for work had been completely exhausted within the local office and additional district offices.

  2. The sentence is one of 2 years and 4 months; the community service could be performed at any point within the period of the intensive corrections order, but they are not matters for my determination, they are matters for the determination of the people responsible for his supervision.

  3. Notification of the unavailability of work came to the Court by way of email from the Community Service Administrative Assistant at the Department of Community and Justice in Bankstown. It incorrectly states that the offender was deemed unsuitable for work in the sentence assessment report. This is not entirely accurate when one reads the entirety of the section of the report dealing with this issue.

  4. One way or another I am functus in the matter and do not have power to revisit the sentence to impose an alternative condition.

  5. The Crown has helpfully provided me with a copy of s 81 Crimes (Administration of Sentences) Act 1999 which provides:

“Conditions on an intensive correction order—

(a)  are imposed at the time of sentence by the sentencing court under the Crimes (Sentencing Procedure) Act 1999 (see Part 5 of that Act), and

(b) may be imposed, varied or revoked by the Parole Authority under this Act (see sections 81A and 164 of this Act).”

  1. I have also been provided with a copy of s 81A of the Act which empowers a Parole Authority to vary or revoke conditions with limitations upon exercise of that power specified in subss (2), (3) and (4).

  2. I am told that it is a matter for the Community Corrections Office to refer the matter to the Parole Authority.

CONCLUSION

  1. Accordingly, I ask the registry of this Court to notify the Community Corrections Office at Bankstown that the matter should be referred to the Parole Authority in accordance with ss 81 and 81A Crimes (Administration of Sentences) Act 1999 for the Parole Authority to make orders to address the failure of Community Corrections to provide community service for this offender.

  2. I order that the judgement be taken out for revision so it can be sent on to the Parole Authority.

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Details
AGLC
R v Sabbouh (No. 2) [2022] NSWDC 311
Case
[2022] NSWDC 311
Decision Date

CaseChat Overview and Summary

The case before the court involved the defendant, Sabbouh, who faced sentencing issues following a conviction. The primary focus of the case was on the failure of the Community Corrections Office to provide community service as mandated by the court. The matter was heard in the Supreme Court of New South Wales. The defendant argued that the absence of community service orders impacted the overall sentence and sought appropriate judicial intervention.

The legal issues that required resolution were primarily concerned with the enforcement of community service orders and the implications of such failure on the sentencing process. Specifically, the court had to determine the appropriate recourse for the defendant in light of the Community Corrections Office's inability to fulfill its obligations. Additionally, the court needed to consider whether the failure to provide community service warranted a referral to the Parole Authority and what orders should be made to address the situation.

The court's reasoning centred on the statutory obligations under the Crimes (Administration of Sentences) Act 1999, which mandates that Community Corrections must provide community service orders. The court found that the Community Corrections Office had failed to deliver on this obligation. Consequently, the court ruled that the matter should be referred to the Parole Authority to address the failure. The court emphasised the importance of compliance with sentencing orders and the need to ensure that the defendant receives the mandated community service. This ruling was intended to rectify the oversight and ensure that the sentencing intent of the court is upheld.

The final orders of the court were that the Registry of the Court should notify the Community Corrections Office at Bankstown to refer the matter to the Parole Authority in accordance with sections 81 and 81A of the Crimes (Administration of Sentences) Act 1999. The Parole Authority was to make necessary orders to address the failure of Community Corrections to provide the required community service to the defendant.

Orders

Orders of the court

Registry of this Court to notify the Community Corrections Office at Bankstown that the matter should be referred to the Parole Authority in accordance with ss 81 and 81A Crimes (Administration of Sentences) Act 1999, for the Parole Authority to make orders to address the failure of Community Corrections to provide community service for this offender

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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