Vamadevan v R

116 NSWLR 195

Vamadevan v R

[EDITORIAL NOTE: An application for special leave to appeal to the High Court was refused: [2025] HCADisp 56.]

[2024] NSWCCA 223 Court of Criminal Appeal Bell CJ, Payne JA, N Adams, Chen and Rigg JJ 23September, 6 December 2024 SENTENCING — Penalties — Intensive correction orders. SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth — of Crimes (Sentencing Procedure) Act 1999 (NSW)s 66 . Section 20AB(1) of the Crimes Act 1914 (Cth) provided:

“20AB
Additional sentencing alternatives
(1)
A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence if:
- (a)
  subsection (1AA) applies to the sentence or order; and
- (b)
  under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and
- (c)
  the first-mentioned court is:
  - (i)
    empowered as mentioned in paragraph (b); or
  - (ii)
    a federal court.”

Section 20AB(1AA) relevantly applied to a sentence or order that was known as an intensive correction order.

Section 16A(1) of the Crimes Act provided:

“16A
Matters to which court to have regard when passing sentence etc. — federal offences
(1)
In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”

Section 16A(2) prescribed a list of matters that the court must take into account in passing sentence if relevant and known to the court.

Section 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provided that “[c]ommunity safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender”.

A man pleaded guilty to offences contrary to the Criminal Code (Cth) contained in Sch 1 to the Criminal Code Act 1995 (Cth) and was sentenced to a term of imprisonment. He appealed to the Court of Criminal Appeal on a number of grounds, including that the sentencing judge erred in failing to take into account community safety as the paramount consideration as required by s 66 of the Crimes (Sentencing Procedure) Act. The Crown conceded that error on theexisting state of authority. On resentence, the court considered whether a sentencing court was required to apply s 66 in deciding whether to make an intensive correction order in relation to a federal offender under s 20AB(1) of the Crimes Act or was required to apply s 16A of the Crimes Act.

Held (dismissing the appeal on the basis that no lesser sentence was warranted): (1) When a NSW court makes an intensive correction order in relation to a federal offender, the order is made under s 20AB(1) of the Crimes Act 1914 (Cth). A court is “empowered” to make an intensive correction order under s 20AB(1) when the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) that limit the availability of an intensive correction order as a mode of disposition have been satisfied. Section 20AB(1) does not require a court to apply s 66 of the Crimes (Sentencing Procedure) Act in determining whether to make an intensive correction order, or other State provisions which govern the exercise of a discretionary power once it becomes available. This is because the matters relevant to determining whether to make a “sentence or order” under s 20AB(1) are identified in s 16A of the Crimes Act. ([19], [36]–[38], [41]–[42], [44], [70])

(2) As there is no hierarchy of matters in s 16A of the Crimes Act 1914 (Cth) and all the matters in that section must be taken into account in passing sentence for federal offences, it is not possible to apply that section while also applying s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by giving paramount consideration to community safety. Section 66 of the Crimes (Sentencing Procedure) Act is fundamentally incompatible with s 16A of the Crimes Act and, upon the correct construction of s 20AB(1) of the Crimes Act, does not apply in considering whether to impose an intensive correction order upon a federal offender. ([26], [54], [56])

Wong v The Queen(2001) 207 CLR 584; [2001] HCA 64 applied. Atanackovic v The Queen(2015) 45 VR 179; [2015] VSCA 136 considered. Chan v R[2023] NSWCCA 206; AM v R[2024] NSWCCA 26; Khanat v R (Cth)(2024) 385 FLR 234; [2024] NSWCCA 41 not followed.

CASES CITED

The following cases are cited in the judgment:

Al Am Ali v R[2021] NSWCCA 281 AM v R[2024] NSWCCA 26 Atanackovic v The Queen(2015) 45 VR 179; [2015] VSCA 136 Boulton v The Queen(2014) 46 VR 308; [2014] VSCA 342 Bugmy v The Queen(2013) 249 CLR 571; [2013] HCA 37 Chan v R[2023] NSWCCA 206 DL v The Queen(2018) 265 CLR 215; [2018] HCA 32 Hili v The Queen(2010) 242 CLR 520; [2010] HCA 45 Homewood v R[2023] NSWCCA 159 Hossain v Minister for Immigration and Border Protection(2018) 264 CLR 123; [2018] HCA 34 John Pfeiffer Pty Ltd v Rogerson(2000) 203 CLR 503; [2000] HCA 36 Johnson v The Queen(2004) 78 ALJR 616; [2004] HCA 15 Kentwell v The Queen(2014) 252 CLR 601; [2014] HCA 37 Khanat v R (Cth)(2024) 385 FLR 234; [2024] NSWCCA 41 Lange v Australian Broadcasting Corporation(1997) 189 CLR 520; [1997] HCA 25 Lee v R(2020) 246 LGERA 189; [2020] NSWCCA 307 McGregor v R(2024) 116 NSWLR 81; [2024] NSWCCA 200 Mourtada v R(2021) 361 FLR 96; [2021] NSWCCA 211 R v Vamadevan(District Court (NSW), McGuire DCJ, 29 April 2024, unrep) RO v R[2019] NSWCCA 183 Stanley v Director of Public Prosecutions (NSW)(2023) 278 CLR 1; [2023] HCA 3 Wong v The Queen(2001) 207 CLR 584; [2001] HCA 64

APPLICATION FOR LEAVE TO APPEAL

This was an application for leave to appeal against a sentence imposed in the District Court (unreported, 29 April 2024 (McGuire DCJ)).

TF Woods and M Mellos, for the applicant. RCA Higgins SC and CJ Tran, for the respondent. Judgment reserved 6 December 2024 THE COURT. 1 On 9 February 2024, Gerard Vamadevan, the applicant, confirmed guilty pleas in the District Court, first entered in the Local Court, to seven offences of using a carriage service in a way that reasonable persons would regard as menacing, harassing or offensive, contrary to s 474.17(1) of the Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code) and one offence of dealing in identification information for the purposes of committing a Commonwealth offence, contrary to s 372.1(1) of the Criminal Code. The applicant also admitted his guilt of one further offence under s 474.17(1), asking it to be taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) when sentencing him for Count 1. 2 During the period between 1 January 2018 and 31 March 2022, the applicant telephoned 46 different victims, most of whom were women, using his mobile telephone with a “No Caller ID” setting. During those telephone calls the applicant did not identify himself. He made degrading sexual comments to the victims (for example he called a number of women a “fucking dirty slut” and stated to a number of these women that he was going to “piss and spit in your mouth”). The applicant made degrading and racially offensive sexual comments, telling one woman that she was a “dirty Chinese slut” and a “dirty Chinese cunt”. On a number of occasions, the applicant used the victims’ names and referred to the names of the victims’ children. On some occasions the applicant threatened violence, including telling one victim that he was going to rape the victim’s daughter and “cut her into pieces”. During some of the telephone calls the applicant played over the telephone a recording of a parody of a song by James Blunt called “You’re Beautiful” where the lyrics were changed to “You’re a Paedophile”. Much of the offending conduct occurred when the applicant was on bail and then on a s 20(1)(a) Crimes Act recognizance release order for offences he had committed in early 2019. 3 The applicant urged the sentencing judge to make an “intensive correction order” under s 20AB of the Crimes Act which identified an “intensive correction order” as an available sentencing option for Commonwealth offences if certain preconditions (which we will describe in much greater detail) were met. 4 On 29 April 2024, McGuire DCJ in the District Court sentenced the applicant to an aggregate sentence of 2 years’ imprisonment to be served by way of full-time custody and ordered his release on a recognizance releaseorder (pursuant to s 20 of the Crimes Act) to be of good behaviour for 9 months after serving 1 year and 3 months of that sentence: R v Vamadevan (District Court (NSW), McGuire DCJ, 29 April 2024, unrep). The applicant will be eligible for release on recognizance on 29 July 2025. An aggregate sentence was imposed. Indicative sentences were stated as being Count 1 — 1 year and 6 months; Count 2 — 9 months; Count 3 — 9 months; Count 4 — 10 months; Count 5 — 3 months; Count 6 — 1 month; Count 7 — 3 months; and Count 8 — 1 month. Neither party complained about any of these indicative sentences. The Crown took no issue with the imposition of an aggregate sentence: cf McGregor v R (2024) 116 NSWLR 81; [2024] NSWCCA 200. 5 There were three grounds of appeal. The Crown (represented before the sentencing court and in this court by the Commonwealth Director of Public Prosecutions (CDPP) for whom Dr Higgins SC and Mr Tran appeared) accepted that leave to appeal should be granted and conceded grounds two and three. The second ground of appeal was that the sentencing judge “erred in failing to respond to a substantial argument put on the applicant’s behalf in relation to the mandatory assessment under s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)” (NSW Sentencing Act). The third ground of appeal was that the sentencing judge “erred in failing to take into account the paramount consideration of community safety in the manner required by law”. On the existing state of authority, which as we will explain provides that s 66 of the NSW Sentencing Act applies to federal offenders sentenced in New South Wales, the Crown’s concession was correctly made and should be accepted. 6 Accordingly, this court need not determine ground one as the Crown accepted that the appeal must be upheld and the sentence quashed unless the court concludes, following resentencing, that no lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. 7 In deciding whether any lesser sentence is warranted in law (and in particular whether, as the applicant submits, an intensive correction order should be made), this court must apply the correct law. The essential issue in resentencing the applicant is whether the court in considering whether to make an intensive correction order for a federal offender under s 20AB of the Crimes Act is obliged, as the Crown submits, to apply Pt IB and in particular s 16A of the Crimes Act and not s 66 of the NSW Sentencing Act or whether, as the applicant submits, the court is obliged to apply s 66 of the NSW Sentencing Act in considering whether to make the order. 8 Determination of this question is a question of construction of the provisions of Pt IB of the Crimes Act. It is important, however, first to analyse the decision of the majority of the High Court in Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 which dealt with the imposition of an intensive correction order upon an offender guilty of an offence against NSW law. Stanley did not address the imposition of an intensive correction order upon a federal offender convicted in New South Wales.

Intensive correction orders imposed on an offender guilty of an offence against NSW law

9 The correct construction of s 66 of the NSW Sentencing Act in the context of imposing an intensive correction order on a person guilty of an offence against NSW law was settled by the High Court in Stanley. The majority in Stanley explained at [59] that there are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the NSW Sentencing Act:

(1)
first, “a determination that the threshold in s 5(1) … is met”. That is, a determination that no sentence other than a sentence of imprisonment is available;
(2)
secondly, a “determination of the appropriate term of the sentence of imprisonment”; and
(3)
thirdly, “where the issue arises, consideration of whether or not to make an ICO”.

10 The use of the phrase “where the issue arises” is instructive. As the majority in Stanley again noted at [62], “[t]he possibility of an ICO does not arise unless and until the sentencing court has first determined that no penalty other than imprisonment is appropriate and has sentenced an offender to imprisonment” (emphasis added). Only once the first two steps have been taken can the court consider the application of the disentitling provisions contained in the NSW Sentencing Act relating to intensive correction orders. These are identified in the following paragraph. If those disentitling provisions do not apply; that is, where after the taking of the first and second step “the issue arises”, the third step, consideration of whether or not to make an intensive correction order, can be taken. 11 The first stage in making an intensive correction order requires a court, having considered all possible alternatives, to conclude that imposition of a sentence of imprisonment is appropriate: s 5(1). There are several other limitations on the availability of this power in the NSW Sentencing Act (which we have earlier described as disentitling provisions):

(1)
s 68(2) — the appropriate term of the sentence of imprisonment be no more than 3 years. This can necessarily only be determined after the second stage has been conducted;
(2)
s 4B — an intensive correction order not an available order for a domestic violence offender. A domestic violence offence has the same meaning as that given in s 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW);

(3)
s 7(3) — an intensive correction order not available to offender under 18 years old;
(4)
s 17D(1)–(1A) — an intensive correction order not available unless an assessment report has been obtained or the court is satisfied there is sufficient information to make the order without an assessment report; and
(5)
s 67 — an intensive correction order not an available order in respect of a large number of Crimes Act and Criminal Code offences.

12 Once the first and second steps have been taken and it has been determined that the disentitling provisions are not engaged, a court sentencing a person for an offence under NSW law will come under a duty to consider making anintensive correction order: Stanley at [65]. The majority in Stanley emphasised that once the power to make an intensive correction order is enlivened, the sentencing court must address the requirements in the NSW Sentencing Act relevant to the imposition of such an order: Stanley at [66]. 13 Section 66 of the NSW Sentencing Act constrains the court’s exercise of that discretionary power to make an intensive correction order once “the power to make an ICO is enlivened”: Stanley at [66]. It provides:

“66
Community safety and other considerations
(1)
Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.
(2)
When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.
(3)
When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.”

14 The applicant emphasised the language of the majority in Stanley at [79] that the requirement for assessment under s 66 of the NSW Sentencing Act “affects the power to decide whether or not to make an ICO under s 7”. 15 The majority in Stanley emphasised at [88] that although “the power to make or refuse to make an ICO at the third step is a discretionary decision” the evaluative task under s 66 was intended by the NSW legislature to be a condition of the jurisdiction to decide whether or not to make an intensive correction order. 16 By making community safety the “paramount consideration” in s 66(1), the NSW Parliament “subordinated” other factors to that consideration: Stanley at [73]. That is why “community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive”: Stanley at [76]. That said, it is not the case that “a positive finding that the risk of reoffending is best addressed by serving the sentence in the community mandates the ordering of an ICO” (Khanat v R (Cth) (2024) 385 FLR 234; [2024] NSWCCA 41 at [89]), because other factors must still be taken into account. The majority in Stanley accepted that in the decision whether to make an intensive correction order “other considerations must or may be taken into account as prescribed by s 66(3)” (at [73]), referring to the provisions of s 3A (purposes of sentencing) and that any relevant common law sentencing principles or matters the court thinks relevant must be taken into account. 17 Community safety principally concerns the harms to the community that might occur in the future from the risk of reoffending by the applicant: Stanley at [72]. In considering the paramount consideration of community safety in s 66(1), s 66(2) mandates an assessment of “the relative merits of full-time detention as against intensive correction in the community”: Stanley at [54]. A sentencing court cannot impose a sentence of full-time imprisonment “without assessing the comparative merits of full-time detention and intensive correction for reducing the offender’s particular risk of reoffending”: Stanley at [54]. Section 66(2) “requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether thesentence is served by way of full-time detention or by way of intensive correction in the community”: Stanley at [74].

The relevant question in this case

18 Part IB of the Crimes Act commenced in 1990 and has been amended many times since. Part IB provides a detailed framework for imposing sentences and making orders for offenders convicted of a crime against federal law. Both parties agreed that the question posed here was one of construction of the provisions of Pt IB of the Crimes Act. Neither party suggested that the provisions of s 68, s 79 or s 80 of the Judiciary Act 1903 (Cth) were relevant to the questions posed by the present case. 19 When a NSW court makes an intensive correction order in relation to a federal offender as permitted by s 20AB of the Crimes Act, a provision to which we will return in detail, the order is made under s 20AB(1) itself and not under the NSW Sentencing Act. This is made clear by the language in the Crimes Act that refers to orders made under s 20AB(1): s 16A(3), s 20A(5)(c)(ic), s 20AB(1B)–(6), s 20AC, s 20BQ(3) and s 22(7). 20 Critically, when determining whether to make an order under s 20AB of the Crimes Act, s 16A of the Crimes Act governs the making of that order:

“16A
Matters to which court to have regard when passing sentence etc. — federal offences
(1)
In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Note: Minimum penalties apply for certain offences — see sections 16AAA, 16AAB and 16AAC.
(2)
In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
- (a)
  the nature and circumstances of the offence;
- (b)
  other offences (if any) that are required or permitted to be taken into account;
- (c)
  if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character — that course of conduct;
- (d)
  the personal circumstances of any victim of the offence;
- (e)
  any injury, loss or damage resulting from the offence;
- (ea)
  if an individual who is a victim of the offence has suffered harm as a result of the offence — any victim impact statement for the victim;
- (f)
  the degree to which the person has shown contrition for the offence:
  - (i)
    by taking action to make reparation for any injury, loss or damage resulting from the offence; or
  - (ii)
    in any other manner;
- (fa)
  the extent to which the person has failed to comply with:
  - (i)
    any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
  - (ii)
    any obligation under a law of the Commonwealth; or
  - (iii)
    any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;
  about pre‐trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
- (g)
  if the person has pleaded guilty to the charge in respect of the offence:
  - (i)
    that fact; and
  - (ii)
    the timing of the plea; and
  - (iii)
    the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;
- (h)
  the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
- (j)
  the deterrent effect that any sentence or order under consideration may have on the person;
- (ja)
  the deterrent effect that any sentence or order under consideration may have on other persons;
- (k)
  the need to ensure that the person is adequately punished for the offence;
- (m)
  the character, antecedents, age, means and physical or mental condition of the person;
- (ma)
  if the person’s standing in the community was used by the person to aid in the commission of the offence — that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;
- (n)
  the prospect of rehabilitation of the person;
- (p)
  the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
(2AAA)
In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:
- (a)
  when making an order — to impose any conditions about rehabilitation or treatment options;
- (b)
  in determining the length of any sentence or non-parole period — to include sufficient time for the person to undertake a rehabilitation program.
(2A)
However, the court must not take into account under subsection (1) or (2), other than paragraph (2)(ma), any form of customary law or cultural practice as a reason for:
- (a)
  excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
- (b)
  aggravating the seriousness of the criminal behaviour to which the offence relates.
(2AA)
Subsection (2A) does not apply in relation to an offence against the following:
- (a)
  section 22 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984;
- (b)
  sections 15A, 15C, 17B, 22A, 27A, 74AA, 142A, 142B, 207B, 354A, 355A and 470 of the Environment Protection and Biodiversity Conservation Act 1999;
- (c)
  section 48 of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986;
- (d)
  sections 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976;
- (e)
  section 30 of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987;
- (f)
  any other law prescribed by the regulations that relates to:
  - (i)
    entering, remaining on or damaging cultural heritage; or
  - (ii)

- - damaging or removing a cultural heritage object.
(2B)
In subsection (2A):
criminal behaviour includes:

(a)
any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

(b)
any fault element relating to such a physical element.
(3)
Without limiting the generality of subsections (1), (2) and (2AAA), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.

…” (Emphasis added)

21 Section 16A(1), in terms, provides that in determining the order to be made, the court must “make an order that is of a severity appropriate in all the circumstances of the offence”. An order made under s 16A(1) plainly includes an order made under s 20AB, including an intensive correction order. So much is clear from the terms of s 16A, in particular s 16A(3) and the specific reference to matters the court “must have regard to” when making an order under s 20AB(1). The matters the court must have regard to in making an intensive correction order under s 20AB are expressed to be without limitation upon “the generality of subsections [16A](1), (2) and (2AAA)”; that is, s 16A(1), (2) and (2AAA) apply to the making of an intensive correction order under s 20AB(1). 22 In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, Gaudron, Gummow and Hayne JJ made clear that in Pt IB of the Crimes Act, there is no statutory obligation upon the sentencing court to give particular weight to one or other of the identified purposes in sentencing certain kinds of offender:

“[71] … What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. There is no statement of the kind found, for example, in the Sentencing Act 1991 (Vict) (s 5) of the purposes for which sentences may be imposed, and there is no statutory requirement which obliges a sentencer to give particular weight to one or other of those purposes in sentencing certain kinds of offender (127). Section 16A obliges the sentencer to take all of them into account and effect must be given to that legislative command.”

23 Footnote 127 in Wong is instructive. Gaudron, Gummow and Hayne JJ there contrasted the requirements of s 16A with those contained in the Sentencing Act 1991 (Vic) (Victorian Sentencing Act) which provided in s 6D(a) that in sentencing a “serious offender” (as defined) the court was directed to regard the protection of the community from the offender as “the principal purpose for which the sentence is imposed”. 24 The conclusion of the High Court in Wong is inconsistent with application in federal sentencing of the statutory command in s 66 of the NSW Sentencing Act that “community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender”. 25 In Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, the High Court said that, except to the extent stated in s 16A and s 16B of the Crimes Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable when state courts sentence offenders for federaloffences: at [15] (Gummow, Callinan and Heydon JJ). That common law principles may apply follows from the use of the words “of a severity appropriate in all the circumstances of the offence” in s 16A(1) and the introductory words “[i]n addition to any other matters” to s 16A(2) of the Crimes Act. It is also consistent with there being one common law of Australia: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563; [1997] HCA 25; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [66]. 26 There is no hierarchy of matters to be taken into account in s 16A of the Crimes Act, and it is well settled that s 16A obliges the sentencing court to take all of them into account. Effect must be given to that legislative command. It is not possible to apply s 16A of the Crimes Act while also applying s 66 of the NSW Sentencing Act by giving paramount consideration to community safety because the two approaches are fundamentally incompatible. Nor is it possible, given the statutory command in s 16A, to engage the third stage of sentencing in a manner inconsistent with the matters s 16A directs must be taken into account in deciding whether to make an order, including an intensive correction order. It is not possible to reconcile the application of s 16A of the Crimes Act, in deciding whether to make an order under s 20AB(1), with the considerations required to be treated as “paramount” by s 66 of the NSW Sentencing Act. 27 In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

“[25] … s 16A does not permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed. To attempt such a generalisation would depart from the injunction that the sentencing court ‘must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence’ …”

28 Six members of the court in that case rejected a contention that there is or should be “a norm or starting point, expressed as a percentage” for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. Their Honours said:

“[38] … references to a ‘norm’ will necessarily mislead if they distract attention from the applicable statutory provisions: Pt IB of the Crimes Act. They will mislead if they suggest that the same kind of sentencing outcome will generally be expected in the sentencing of any federal offender. That is, they will mislead if they are read as saying that the same proportionate relationship should (or should normally) exist, between the time that is to be served in prison and the length of the head sentence imposed, in relation to all federal offences, no matter whether the offender has defrauded the Commonwealth, has been knowingly concerned in the importation of prohibited imports, or has committed some other federal offence. They will mislead if they suggest that matters such as the absence of prior convictions, or the willingness to co-operate with authorities, can have no effect on fixing a non-parole period, or time to be served before a recognisance release order takes effect, greater than a stated small percentage of the head sentence. They will mislead if they suggest that the offender must demonstrate some special circumstance to warrant departure from a set, mathematically calculated, relationship between the time to be served in custody and the head sentence.”

29 Section 66 of the NSW Sentencing Act, which is a condition on the discretionary power to make an intensive correction order in relation to a NSW offender, elevates community safety in every case as a “paramount consideration” in deciding whether to make an intensive correction order. That approach is inconsistent with the requirements of s 16A of the Crimes Act, as explained in Hili. The conclusion of the majority in Stanley was that failure to comply with the requirements of s 66 of the NSW Sentencing Act constituted jurisdictional error. 30 As Kiefel CJ, Gageler and Keane JJ explained in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 the label “jurisdictional error” is applied following a process of statutory construction. We do not accept the applicant’s submission that the Crown submission in the present case that s 66 does not go to whether the court is empowered to make the intensive correction order “contradicts the reasoning of the majority in Stanley”. The relevant question of construction here is not the proper construction of the NSW Sentencing Act the subject of Stanley but, rather, the correct construction of provisions of Pt IB of the Crimes Act. 31 It is against that background that the critical question of construction in the present case arises. As we have said, s 20AB(1) of the Crimes Act enables a court sentencing a federal offender to make an intensive correction order. As we have explained, in determining the “order to be made”, which includes an intensive correction order, it is the provisions of s 16A which are governing. Section 20AB provides:

“20AB Additional sentencing alternatives

(1)
A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if:
- (a)
  subsection (1AA) applies to the sentence or order; and
- (b)
  under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and
- (c)
  the first‐mentioned court is:
  - (i)
    empowered as mentioned in paragraph (b); or
  - (ii)
    a federal court.”

32 Section 20AB explicitly permits a sentencing court to make an order “of a kind” identified in s 20AB(1AA). Section 20AB(1AA) includes an order “known as” an intensive correction order, which is listed in par (a)(ix). What an intensive correction order involves is given content by the relevant State or Territory law, specifically ss 70–73B of the NSW Sentencing Act. These provisions give the intensive correction order sentencing option under s 20AB(1AA)(a)(ix) its “colour and meaning”: Homewood v R [2023] NSWCCA 159 at [4] per Beech-Jones CJ at CL. 33 Section 20AB(1) enables the making of an order with respect to a federal offender where under the law of the State or Territory, relevantly the NSW Sentencing Act, a court is “empowered to … make such an order, in respect of a State or Territory offender in corresponding cases” (emphasis added). Corresponding cases are cases involving an offender in the same circumstances. It was common ground, albeit for different reasons, that the court was so empowered. Neither party submitted that, as s 66 of the NSW Sentencing Act was inconsistent with Pt IB of the Crimes Act, intensive correction orders could not be imposed on federal offenders in New South Wales. 34 As we have explained, application of s 66 of the NSW Sentencing Act, which elevates community safety to a paramount consideration in deciding whether or not to make an intensive correction order, is inconsistent with therequirements of s 16A of the Crimes Act, which must be applied in deciding whether to make an intensive correction order. 35 The critical constructional question is thus whether, as the applicant submits, “empowered to … make such an order, in respect of a State or Territory offender in corresponding cases” in s 20AB(1) should be construed as meaning that the discretionary power in s 66 of the NSW Sentencing Act applies in determining whether or not to make an intensive correction order under s 20AB of the Crimes Act, despite s 66 of the NSW Act requiring a process of reasoning inconsistent with applying s 16A of the Crimes Act, or whether, as the Crown submits, a court is “empowered” to make an intensive correction order in corresponding cases within the meaning of s 20AB(1) of the Crimes Act when the provisions of the NSW Sentencing Act which allow the making of such an order to be considered have been satisfied, which provisions do not include s 66 of the NSW Sentencing Act. The Crown submitted that “the conditions which must be satisfied before an ICO is available are different from, and must be contrasted with, the matters to be considered in the exercise of the discretion whether to exercise the power where that power is available”. 36 The Crown’s contention is that the legislative purpose to s 20AB is clear and the legislature did not intend that a court sentencing a federal offender should be obliged to consider making an order on a basis inconsistent with the principal statutory command in s 16A of the Crimes Act which applies to the making of that order. We have decided that the Crown’s construction of s 20AB is correct. We accept Dr Higgins SC’s submission on behalf of the Crown that:

“Section 20AB(1)(b) is concerned with when the power is available, i.e., in respect of what kinds of offences or offenders is it available, rather than the conditions of the lawful exercise of the power under State law in individual cases.”

37 A court is “empowered” to impose an intensive correction order on a NSW offender in corresponding cases when the specific provisions (including disentitling provisions) which limit the availability of an intensive correction order as a mode of disposition have been satisfied. We have identified the relevant provisions at [11] above. The conditions which must be satisfied before a court is “empowered” to make an intensive correction order in corresponding cases within the meaning of s 20AB(1) of the Crimes Act, in context, means only the specific provisions which limit the availability of an intensive correction order as a mode of disposition. The Crown is correct that this is a different question to the matters which condition the discretionary power to make or refuse to make an intensive correction order. Such matters do not go to the existence of power, but to the proper exercise of that power. 38 The text, context and purpose of s 20AB(1) of the Crimes Act do not require the court when sentencing a federal offender in New South Wales to apply provisions in the NSW Sentencing Act that condition the exercise of the power to make such “sentence or order” under that Act; in this case s 66 of the NSW Sentencing Act. Determination of whether or not to make an intensive correction order is a matter about which the Crimes Act makes its own detailed and specific provision in s 16A. 39 The construction of s 20AB(1) we prefer is underlined by s 20AB(3) which sets an explicit limit to the extent that State and Territory laws are picked up by s 20AB(1):

“(3)
Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territoryof a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).” (Emphasis added)

40 Three matters should be noted about s 20AB(3). The opening words emphasise that an order in relation to a federal offender is made under s 20AB(1). Secondly, the provisions of the NSW Sentencing Act with respect to an intensive correction order apply in relation to an intensive correction order made under s 20AB(1) so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth. Thirdly, the limits s 20AB(3) provides upon application of State or Territory laws to orders made in relation to federal offenders give important context to the meaning in s 20AB(1) of the phrase “empowered to … make such an order, in respect of a State or Territory offender in corresponding cases”.

41 The purpose of s 20AB(1)(b) of the Crimes Act (see [31] above) is to make available to federal offenders State and Territory sentencing options as modes of disposition. Whether or not an order referred to in s 20AB(1AA) which includes an intensive correction order should be made, however, is governed by Pt IB of the Crimes Act, and s 16A in particular. When s 16A and s 20AB(1)(b) are read together, it is clear that the Crimes Act intends to pick up State sentencing options when empowered to do so, that is, when such options are not prohibited by any disentitling provision. Part IB of the Crimes Act does not intend to pick up the State or Territory provisions which govern the exercise of that power once it becomes available. The purpose of s 20AB(1) is to identify when an intensive correction order is a possible or available disposition. Correctly construed, s 20AB does not direct a court about what matters to consider in deciding whether to make an order under the section. 42 We would not lightly conclude that, absent express language, the Commonwealth Parliament would willingly subordinate federal sentencing to sentencing considerations identified by a State legislature which are inconsistent with s 16A of the Crimes Act. Section 20AB(1)(b) should not, as a matter of context and purpose informed by s 20AB(3), be understood to apply State or Territory provisions which govern the exercise of the power to make an order; the matters to be taken into account in exercising the power to decide whether or not to make an order are the subject of s 16A. 43 The explicit limits in s 20AB(3), that the applied provisions are not inconsistent with the laws of the Commonwealth, provides strong purposive support for the conclusion that the words “empowered to … make such an order, in respect of a State or Territory offender in corresponding cases” in s 20AB(1) are not intended to make mandatory in federal law all requirements for the making of an order under State law where there is power to make such an order. 44 To summarise our conclusion as a matter of statutory interpretation, the Commonwealth Parliament plainly did not intend that all State and Territory provisions which govern the exercise of a power to impose a particular type of order are to be applied in federal sentencing. To the contrary, s 20AB(3) provides a strong indication that the Parliament intended that “empowered to … make such an order, in respect of a State or Territory offender incorresponding cases” means only that the specific provisions which limit the availability of an intensive correction order as a mode of disposition have been satisfied. Provisions in State and Territory law that condition the exercise of the power to make such a “sentence or order” are not encompassed within s 20AB(1). This is because the Commonwealth Parliament in s 16A of the Crimes Act has explicitly identified for itself the matters relevant to determining whether or not to make an order under s 20AB. 45 Another matter of context in determining the meaning of the words “empowered to … make such an order, in respect of a State or Territory offender in corresponding cases” is s 20AB(1AA). The breadth of orders potentially available in relation to federal offenders in each State or Territory tends in favour of a construction of the words “empowered to … make such an order, in respect of a State or Territory offender in corresponding cases” as applying to the existence of the power to make the relevant orders rather than applying to provisions which condition the exercise of the power. As we have said, the construction proposed by the applicant of incorporating all State and Territory laws which condition the exercise of the power to make the broad range of orders identified in s 20AB(1AA) would have the effect of substantially undermining the statutory command in s 16A. We do not accept the applicant’s submission that s 20AB(1AA) can only “sensibly be interpreted” as applying all the provisions of the NSW Sentencing Act, including compliance with s 66, in federal sentencing. The language used in s 20AB(1AA) supports the construction we prefer. Section 20AB(1AA) applies to an order “known as” an intensive correction order. A court sentencing a federal offender is also authorised to make an order “similar to” an order to which s 20AB(1AA)(a) applies: s 20AB(1AA)(b). Such language is consistent with “empowered” in s 20AB(1)(b) referring to the existence of the power to make the relevant order, or one similar to it, rather than referring to provisions which condition the exercise of the power, which provisions are dealt with in federal sentencing in s 16A. If the Commonwealth Parliament had intended that the detailed provisions of s 16A should not apply to any sentencing option identified in s 20AB(1AA), it could easily have so provided; it did not. 46 A further matter tending in favour of the conclusion that s 20AB (and s 20AB(1AA)) should not be understood as providing for “dispositions available to State offenders under State law” is the detailed provisions made by s 20AC of the Crimes Act which govern the consequences of a failure to comply with an order made under s 20AB(1). Section 20AC is completely inconsistent with the NSW Sentencing Act provisions governing the same subject matter in that the prescriptive federal regime requires breaches of an intensive correction order to be dealt with by a court, which has power by s 20AC(6) to revoke the order whereas the NSW Sentencing Act has its own prescriptive regime whereby breaches of an intensive correction order are dealt with by community corrections officers and the NSW Parole Authority, which is given the power to revoke the order: s 163 and s 164 of the Crimes (Administration of Sentences) Act 1999 (NSW). The detailed and inconsistent treatment in the Crimes Act of the consequences of a failure to comply with an order made under s 20AB(1) tends strongly against the applicant’s construction of s 20AB as providing “dispositions available to State offenders under State law”. 47 There is authority about a closely related question from the Victorian Court of Appeal which supports the conclusion we have reached concerning s 20AB.In Atanackovic v The Queen (2015) 45 VR 179; [2015] VSCA 136, the Victorian Court of Appeal (per Weinberg, Kyrou and Kaye JJA) drew attention to the inconsistency between applying s 16A on the one hand (as the Crimes Act requires) and the Victorian statutory sentencing regime and case law on community correction orders (which replaced, inter alia, intensive correction orders in Victoria) on the other. Atanackovic, in common with the present case, involved sentencing for federal offences where the Crown conceded that an error had been made by a sentencing judge and the Court of Appeal was obliged to resentence (including consideration of whether any lesser sentence was warranted). In conducting the resentencing, the Crown accepted that the community correction orders regime could be applied via s 20AB(1) of the Crimes Act to federal offenders but submitted, as here, that certain provisions of the Victorian Sentencing Act could not apply to sentencing federal offenders to a community correction order: at [53]. Part of the Victorian Sentencing Act at the relevant time was titled “Governing Principles”. Section 5(4) and (4C) provided that:

“(4)
A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
(4C)
A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.”

48 The Victorian Court of Appeal held that a Victorian guideline judgment, Boulton v The Queen (2014) 46 VR 308; [2014] VSCA 342, which contained principles that the Victorian Sentencing Act required a sentencing court in State matters to take into account, could not be accommodated by s 16A of the Crimes Act. Further, the guideline judgment was not picked up by s 80 of the Judiciary Act. As already noted, neither party asserted that s 80 was relevant to the present case. 49 The principal reason that the guideline judgment (given force by the Victorian Sentencing Act) did not apply to a federal offender was that the guideline judgment’s process of reasoning was inconsistent with the approach to sentencing federal offenders mandated by s 16A(1) and (2). The court held that the guideline judgment “espouses an approach to sentencing which emphasises the advantages of a [community correction order] compared to imprisonment and requires sentencing judges to take into account those advantages before concluding that imprisonment is the only sentencing option in a particular case”; it “does not set out a discrete sentencing principle”: at [98]. 50 The court explained, at [99], that “the matters in s 16A(2) are of such a nature that, when applied to an individual offence or offender, they point to either favourable or unfavourable considerations in terms of the severity of the sentence to be imposed for the purposes of s 16A(1). In other words, the matters are inherently relevant to the instinctive synthesis that a sentencing court must undertake in sentencing a federal offender. The approach in the guideline judgment, on the other hand, does not supply a sentencing consideration that is relevant to the instinctive synthesis but, rather, involves a process of reasoning for preferring one sentencing option over another after allotherwise applicable sentencing considerations have been taken into account as part of that synthesis”. That approach to sentencing cannot be accommodated by s 16A because “it is not a ‘matter’ that can harmoniously supplement the matters set out in s 16A(2)”: at [99]. 51 Similar reasoning applies here. As we have said, s 16A applies to the making of an order, including the making of an intensive correction order. The matters in s 16A(2) are of such a nature that, when applied to an individual offence or offender, they point to either favourable or unfavourable considerations in terms of the severity of the sentence, including any order to be made. In other words, the matters in s 16A are inherently relevant to the instinctive synthesis that a sentencing court must undertake in sentencing a federal offender, including in deciding whether to make any order. We reject the applicant’s submission that s 66 of the NSW Sentencing Act “does not inherently favour one sentencing outcome versus another”. The proper application of s 16A of the Crimes Act is inconsistent with the statutory command in s 66 of the NSW Sentencing Act that community safety be the “paramount consideration” in deciding whether to make an intensive correction order and the consideration of which “will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive”: Stanley at [76]. To elevate community safety as a paramount consideration, above any other factor in deciding whether to make an intensive correction order, is inconsistent with the command in s 16A(2) of the Crimes Act. 52 There is another important insight arising from Atanackovic. The Victorian Court of Appeal pointed out at [102] that s 16A(3) of the Crimes Act expressly provides for how the availability of a community correction order in accordance with s 20AB(1) of that Act is to be taken into account by a sentencing court. Section 16A(3) states that, in determining whether a sentence or order under s 20AB(1) (including a community correction order) is the appropriate sentencing option, “the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under [a community correction order]”. This requirement is different in form and emphasis from the question posed by the guideline judgment. The Victorian Court of Appeal concluded that the express requirement in s 16A(3) left no room for the application of the guideline judgment. 53 The same conclusion should be drawn here. The requirement imposed by s 16A(3) that, in determining whether an [intensive correction] order is the appropriate sentencing option, “the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that [intensive correction order]”, has a fundamentally different focus to s 66 of the NSW Sentencing Act which requires that the “paramount” consideration be community safety. 54 Finally, in Atanackovic at [104], the Victorian Court of Appeal returned to s 5(4C) of the Victorian Sentencing Act which we have set out above. The court pointed out that the section, which has no counterpart in the Crimes Act, gives express pre-eminence to making a community correction order over imprisonment in a way that s 16A and s 17A(1) do not. The same conclusion should be drawn here. Simply expressed, s 66 of the NSW Sentencing Act, which governs the exercise of the discretionary power in s 7, gives express pre-eminence to the “paramount consideration”, community safety, in a way that s 16A and s 17A(1) do not. Section 66 of the NSW Sentencing Act, which governs the exercise of the discretionary power to impose an intensivecorrection order, is inconsistent with s 16A and, upon the correct construction of s 20AB(1), is not to be applied to making an order under that section. 55 In relation to the correct construction of s 20AB(3), Atanackovic has been referred to with approval in this court: Lee v R (2020) 246 LGERA 189; [2020] NSWCCA 307, especially at [56]–[58] per Johnson J with whom Wright and Wilson JJ agreed. 56 It follows from the foregoing analysis that, in resentencing, the NSW intensive correction orders regime is available to be applied to a federal offender, as the court is “empowered … in corresponding cases” within the meaning of s 20AB(1) of the Crimes Act to make an order in the present case but that s 66 of the NSW Sentencing Act does not (as a matter of construction of s 20AB of the Crimes Act) apply in considering whether or not to impose an intensive correction order upon a federal offender. 57 Accordingly, the steps to be undertaken by a sentencing court before an intensive correction order can be imposed on a federal offender under s 20AB(1) of the Crimes Act are as follows:

(1)
First, the sentencing court must be satisfied “after having considered all other available sentences” that “no other sentence is appropriate in all the circumstances of the case” other than a sentence of imprisonment: s 17A(1).
(2)
Secondly, the sentencing judge must “impose a sentence … that is of a severity appropriate in all the circumstances of the offence”: s 16A(1).
(3)
Thirdly, if none of the disentitling provisions contained in the NSW Sentencing Act (including the identified provisions of the Crimes Act and the Criminal Code summarised above at [11]) apply, then the sentencing court may consider whether or not to impose an intensive correction order. In doing so, the sentencing judge is obliged to consider the matters in s 16A of the Crimes Act and not s 66 of the NSW Sentencing Act. The sentencing court must, “in addition to any other matters”, take into account such of the matters in s 16A(2) “as are relevant and known to the court”.

58 It may be accepted, as the respondent submitted, that a consequence of that conclusion is that federal offenders in New South Wales the potential subject of an intensive correction order are, in relation to the application of s 66 of the NSW Sentencing Act, treated differently from NSW offenders. NSW offenders will be subject to s 66 NSW Sentencing Act considerations, whereas federal offenders in New South Wales will not. However, applying s 66 of the NSW Sentencing Act to the sentencing of federal offenders distorts equality of treatment among federal offenders in a potentially significant way; a federal offender sentenced in New South Wales would be sentenced in accordance with “paramount” considerations that are not applicable if they were sentenced in other states. Those “paramount” considerations are inconsistent with the considerations Pt IB requires be taken into account for all other federal offenders. 59 The making of an intensive correction order without considering the matters identified in s 66 of the NSW Sentencing Act (s 3A and the “paramount” consideration of community safety) is the inevitable consequence of the scheme of federal sentencing where the Commonwealth Parliament has provided an extensive scheme for sentencing federal offenders in Pt IB of the Crimes Act. An intensive correction order for federal offenders is not imposedunder the NSW Sentencing Act but under s 20AB(1) of the Crimes Act. An intensive correction order is made available to federal offenders in terms that direct that s 16A identifies the factors to be considered by a court and the manner in which those factors are to be taken into account. An intensive correction order under s 20AB, if made, is still recognisable as an intensive correction order insofar as the same conditions as to the existence of power to make an order must be met and insofar as the content of the disposition (that is, what it can require the offender to do) takes its colour from the NSW Sentencing Act. The exercise of the discretion whether or not to make an intensive correction order, however, is governed by s 16A of the Crimes Act and not s 66 of the NSW Sentencing Act. 60 We acknowledge that three earlier cases in this court have reached a different conclusion, albeit that the argument developed by the CDPP here was not advanced in any of those cases. Strictly speaking, as the argument we have accepted was not put in any of those cases we need be satisfied, as we are, merely that those cases are wrong. In McGregor, this court held that it was entitled to overturn one of its own decisions without needing to find that it was “plainly wrong”, since the point in question was not part of the ratio of the previous case: at [55]–[56]. We respectfully agree and the same conclusion should be drawn here.

117 Ms Natalie K received anonymous telephone calls from the applicant on 1 January 2021 and 20 January 2022. The 1 January 2021 telephone call was initially answered by the victim’s 16-year-old daughter who then handed the telephone to her mother. During that call the applicant referred to Ms K as a “filthy fucking slut” and stated that her husband “likes to fuck other women”. 118 During the call on 20 January 2022, the applicant referred to Ms K by her full name, called her a “filthy slut” and stated that she liked being “fucked up the arse”. He also said that he would have anal intercourse with her and added that he would do the same to her daughter who he referred to by her first name. 119 Ms K received 12 further anonymous calls over the following 15 minutes which she did not answer, all of which displayed on her phone screen as “No Caller ID”. Call charge records established that each of those unanswered calls was made by the applicant. Ms K has stated that she treated the reference to her daughter and the use of her daughter’s name as a threat and that she felt terrified for her daughter’s safety.

Lily M

120 Ms Lily M received anonymous telephone calls from the applicant between 1 July 2021 and 31 August 2021, during which the applicant used swear words, threatening language and highly sexualised content. Ms M received a further anonymous call from the applicant on 20 January 2022 which she quickly terminated when she recognised the same male voice who had madethe previous calls. Call charge records established that the call in January 2022 was made by the applicant.

Eqbal H

121 Ms Eqbal H received anonymous telephone calls from the applicant in December 2021 and on 20 January 2022. During those calls the applicant referred to Ms H by her first name and called her a “dirty slut”. The call on 20 January 2022 was received while Ms H was driving with her son in a motor vehicle. During that call the applicant referred to Ms H by her first name and called her a “dirty, filthy slut”. Call charge records established that the call in January 2022 was made by the applicant.

Michele C

122 Ms Michele C received an anonymous telephone call from the applicant on 20 January 2022 during which he referred to Ms C and her daughter by their first names, called Ms C a “dirty slut” and stated that he was going to engage in anal intercourse with her and would “fuck [her] so hard”.

Count 3

123 Count 3 relates to the applicant’s conduct during the period 27 May 2020 to 17 January 2022 involving a single victim, Ms Tequila R. During the period of this conduct the applicant was on bail and then on a s 20(1)(a) Crimes Act recognizance release order for offences he had committed in March 2019. That recognizance release order commenced on 11 June 2021 and expired on 10 June 2024 requiring the applicant to be of good behaviour for three years. Ms R received frequent highly sexualised and offensive anonymous calls from the applicant, the first of which occurred on 27 May 2020. 124 Ms R described the calls as harassing and intimidating and stated that they had triggered a complex PTSD. In her victim impact statement Ms R stated that she wanted the applicant to know that he had no right to treat women that way. She described the content of the telephone calls as degrading, vulgar, sexually explicit and intimidating abuse. She also stated that she was concerned that the applicant knew where she lived and that caused her to look over her shoulder and wonder who it was that was making the calls. She further described feeling shame and resentment and that she felt objectified.

Count 4

125 Count 4 involved telephone calls to 12 victims over a period of less than two months between 6 February 2022 and 27 March 2022. The applicant was on a recognizance release order for offences he had earlier committed throughout this period. This conduct occurred after the maximum penalty for the offences under s 474.17(1) of the Criminal Code was increased from 3 years’ to 5 years’ imprisonment.

Lachlan M

126 Mr Lachlan M’s child and the applicant’s daughter went to school together and they and their families became friendly, including going away together on family holidays. Over time that friendship soured. On 11 March 2022 in a call intercepted by the police, the applicant made an anonymous telephone call to Mr M and left a voicemail which included the “You’re a Paedophile” song. Less than 20 minutes later on 11 March 2022 a similar call was made by the applicant and recorded by the police.

Askeeta P

127 Ms Askeeta P received an anonymous telephone call from the applicant on 13 February 2022 during which he referred to her as a “dirty, dirty slut” and a “dirty Muslim slut”. A few seconds after Ms P had terminated that call she received another call from an unidentified number which she did not answer. 128 In her victim impact statement Ms P stated that the telephone call was received by her while she was driving in a motor vehicle with her young son and was heard by both of them on the speakerphone. She described the caller as using a threatening tone and disgusting language. She also described the impact of the call on her as causing her and her son to have sleepless nights and feel concern that they would be harmed. She stated that as a result of the conduct she no longer answers calls from private numbers.

Kathryn W

129 Ms Kathryn W received approximately four anonymous calls from the applicant between 17 February 2022 and 20 March 2022. Each of the calls contained highly offensive and sexually vulgar language. 130 In a telephone call on 17 February 2022 the applicant referred to Ms W as a “dirty girl”, said that he was going to “fuck [her]” and stated “you know who this is”. Ms W received two further phone calls that same day from a private number which she did not answer. On 25 February 2022, Ms W received a further call from the applicant with similar content to the call of 17 February 2022. A further call was received by Ms W on 20 March 2022, which was intercepted by the police. During that call the applicant referred to Ms W by her first name and by her full name, called her a “dirty slut” and stated that he wanted to “fuck [her] hard” and “piss in [her] mouth and watch [her] drink it”. The applicant made a further telephone call minutes later on 20 March 2022 which was intercepted by the police during which the applicant made similar comments. 131 In her victim impact statement, Ms W stated that as a result of the applicant’s conduct she became hypervigilant and avoidant of men. She described feeling violated and “unmoored” as a result of the conduct. She described that she was made to feel uneasy and scared and she felt the need to close the blinds and avoid windows when inside her own house. She stated that she started regarding people with suspicion and questioning if one of her male colleagues at work was responsible. She described that the conduct had a psychological effect on her for a number of weeks and she constantly monitored her surroundings and never felt truly relaxed.

Courtney A

132 Ms Courtney A met the applicant in July 2015 under the pretence of the applicant telling her that he was a talent scout. The applicant had previously messaged Ms A on Facebook Messenger using the name “Gerard Van” suggesting that he was able to provide opportunities to work in the television industry. When the applicant and Ms A met in July 2015 at a café in Brighton-Le-Sands, the applicant showed her a number of videos and photographs of himself in the company of various celebrities. He told Ms A that he was a talent scout for Channel 7. 133 On 11 March 2022, Ms A received an anonymous telephone call from the applicant which was intercepted by the police during which the applicantreferred to her by her first name and described her as an “ugly, fat, bitch”. Call charge records established that that call was made by the applicant.

Sonia I and Nadim A

134 Ms Sonia I and her husband, Mr Nadim A, both worked as actors. Mr A’s details were available through an acting agency with which he had registered. On 20 March 2022, the applicant made an anonymous telephone call to Ms I, which was intercepted by the police, during which the applicant referred to her as a “dirty slut”, said he was going to “fuck [her] hard up [her] arse” and then when Mr A took the phone the applicant again referred to her as “a dirty slut”. 135 The applicant made another telephone call about an hour later on 20 March 2022 which was answered by Mr A and recorded by the police. During that telephone call the applicant referred to Ms I as a “dirty slut”, stated that he wanted to “piss in [her] mouth” and said “lick my arse”. A few minutes later on 20 March 2022, the applicant made four further telephone calls, each of which was answered by Ms I and during each of which the applicant referred to her as a “dirty slut”.

Andrew T

136 On 27 March 2022, the applicant made an anonymous telephone call to Mr Andrew T during which he referred to Mr T as a “fucking paedophile”.

Mairead S

137 On 27 March 2022, the applicant made an anonymous telephone call to Ms Mairead S during which he referred to her by her first name, called her a “dirty slut” and said that he wanted to put her in a pornographic film and that he would send a camera crew around to record her. In her victim impact statement Ms S described that as a consequence of the applicant’s conduct she became terrified of answering telephone calls and began to have anxiety attacks when her telephone rang. She described changing her daily routines out of fear that the person making the calls knew her whereabouts. She also described experiencing anxiety when walking her dog and feeling as though she was being stalked and targeted. She stated that the conduct had a significant impact on her mental health requiring her to consult a psychologist.

Joanne C

138 On 27 March 2022, the applicant made an anonymous telephone call to Ms Joanne C during which he referred to her by her first name, called her a “dirty Chinese slut”, and a “dirty Chinese cunt”, said he wanted to “fuck [her] up the arse” and stated that he wanted her to “feel the pain while [he] fucks [her]”.

Sarah R

139 On 27 March 2022, the applicant made an anonymous telephone call to Ms Sarah R during which he referred to her by her first name, called her a “dirty slut”, and said that he wanted to “fuck [her]”.

Ian B

140 On 27 March 2022, the applicant made an anonymous telephone call to Mr Ian B during which the applicant referred to Mr B as a “dirty paedo”.

Aimee-Marie G

141 On 27 March 2022, the applicant made an anonymous telephone call to Ms G during which he referred to Ms G by her first name, called her a “dirty slut”, and said that he was going to “tell UNICEF what a dirty slut [she was]”.

Count 5

142 Count 5 involved two telephone calls to a single victim, Ms Kirsten B, on one day, 20 January 2022. During the second of those calls, the applicant referred to the victim and her daughter by their first names. 143 The conduct relevant to Count 5 occurred while the applicant was on a recognizance release order for the offences he committed in March 2019. 144 On 20 January 2022, Ms B received an anonymous telephone call from the applicant during which he said that she needed to know that he was “going to rape [her]”. On that same day about a minute later, the applicant made another anonymous telephone call to Ms B during which he referred to her by her first name, said that he was going to “fuck [her] up the arse” and said that he was going to rape her and then rape her daughter, whose first name he used. He then said that he was going to rape Ms B’s daughter and cut her into pieces.

Count 6

145 Count 6 involved one victim, Ms Jody H, and telephone calls made on a single day, 20 January 2022. The conduct that occurred on that day was during a period whilst the applicant was on a recognizance release order for the offences he committed in March 2019. 146 On 20 January 2022, the applicant made an anonymous telephone call to Ms H and stated that he wanted to “fuck [her] up the arse”, and he wanted to “fuck [her] cunt until [she] bleed[s]”. About a minute later, Ms H received another call from a private number which she did not answer. Call charge records established that that call was also made by the applicant.

Count 7

147 Count 7 involved two calls to a victim, Ms Ritta K, on a single day, 20 January 2022. At this time, the applicant was on a recognizance release order for the offences he committed in March 2019. 148 On 20 January 2022, Ms K received an anonymous telephone call from the applicant during which the applicant used her first name, called her a “dirty slut”, stated that he was going to “fuck [her] up”, was going to “kill [her]” and was going to “rape [her]”. 149 In addition, the applicant referred to Ms K’s daughter by her first name and stated that he would tell the daughter “what a slut her mother is”. About a minute later, the applicant again telephoned Ms K. During this call, the applicant referred to Ms K’s daughter by her first name and stated that he was going to get her. 150 Ms K regarded that as a threat to her daughter which made her feel terrified. Call charge records established that these calls were made by the applicant.

Count 8

151 Count 8, being the offence contrary to s 372.1(1) of the Criminal Code in dealing with identification information, relates to the applicant’s registration of SIM cards in names other than his own name which were then used in mobile telephones to carry out the s 474.17(1) offences. 152 During the execution of a search warrant of the applicant’s residence on 13 April 2022, a number of mobile telephones and SIM cards were seized. The police were later able to establish that those devices were used to facilitate the offences contrary to s 474.17(1). The material seized included SIM cards in the name of Ahmad C, Charlotte W, Yani B and Jada L. The applicant had registered those SIM cards in those names in order to facilitate the commission of the s 474.17(1) offences and in order to avoid detection. 153 Ms L had previously met the applicant in August 2014 and later supplied her details to him with the prospect of him finding her employment in the acting industry. Ms L did not subscribe to the telephone service the applicant later used and did not give him permission to subscribe to that service in her name. 154 Mr B did not register any of the telephone numbers that were used by the applicant in his name, was never associated with any of the addresses linked with those phones and did not give anyone permission to register telephone numbers in his name. 155 Photographs of driver’s licences in the names Ms W and Mr C were located on an Apple iPhone in a Mercedes Benz searched during the execution of the search warrant at the applicant’s premises.

Application of s 16A of the Crimes Act

156 Save where those findings were expressly challenged in this court, we will adopt the same findings as made by the sentencing judge: see generally DL v The Queen (2018) 265 CLR 215; [2018] HCA 32. 157 We also take into account on resentence the affidavit of the applicant’s solicitor, Mr Chase Hope, sworn on 18 September 2024. Annexed to that affidavit were case notes from the Department of Corrective Services. The applicant is described as being “attentive and respectful” at Chapel. As for his work, he was described as “always striv[ing] to do his best” and “always aiming to better himself while gaining new skills”. The applicant was described as having settled into the gaol routine and having been provided with supportive counselling. The applicant is assessed as a low risk offender and hence is unable to participate in any rehabilitation programs in custody. His relationships with his wife and daughter are strained due to his offence and current incarceration but they remain positive and prosocial supports. The applicant has no contact with any other family outside his immediate family but has several school friends with whom he remains in contact. 158 At the hearing of this appeal, the applicant’s counsel relied on a case note from the applicant’s psychologist where the applicant acknowledged that alcohol was his strategy to cope with his traumatic childhood memories and his therapeutic goal was to improve his self-esteem. It was submitted that this indicated that the applicant has a real degree of insight into what he needs to do in order to rehabilitate himself. The notes also recorded that the applicant maintains that he has no memory of his offending due to intoxication.

Section 16A(2)(a): the nature and circumstances of the offence

159 The conduct engaged in by the applicant was very serious. It was persistent, pervasive, offensive, harassing, menacing and properly described as cowardly. The intentional reference to the victims and their children by name significantly adds to the menacing nature of many of the telephone calls. 160 We agree with the sentencing judge that gender-based harassment, sexualised intimidation and offensive anonymous communication cannot be tolerated incivilised society. Women are entitled to go about their lives without fear of being harassed and sexually intimidated by men, particularly one hiding behind the anonymity of mobile telephone calls. The insidious and pervasive nature of the applicant’s conduct must be met with condign punishment. 161 Making anonymous telephone calls to mobile telephones is serious because of the reliance each of us now places on mobile telephones. Because of the need for people to remain contactable and connected, particularly during the COVID-19 pandemic when much of the offending occurred, mobile telephones have become an essential personal item. 162 A direct result of the applicant telephoning the victims on their mobile telephones is that they were never able to escape his reach and never able to find a safe place where they could shelter from his harassment. His use of telephone settings to ensure that his mobile telephone number was not displayed on any of the victims’ screens, his failure to identify himself and his frequent use of the victims’ names and, significantly, the names of their children, establishes that he intended for his conduct not just to be harassing but also to be threatening. The inescapable conclusion is that the applicant took those various steps with the intention of causing his victims to feel fear. In a number of the calls he threatened to rape and referred to explicit forms of sexual contact with the victims and their children, which adds further to the intimidating nature of the conduct. 163 The applicant’s overall criminality and his moral culpability were high given the number of telephone calls, the number of victims and the period over which the conduct persisted. We adopt the sentencing judge’s description of the overall seriousness of the offences as follows (arranging the counts from most serious to least serious):

(1)
Count 1 — significantly above the mid-range;
(2)
Count 2 — above the mid-range;
(3)
Count 4 — about the mid-range;
(4)
Count 3 — about the mid-range;
(5)
Counts 5 and 7 — towards the lower end;
(6)
Count 6 — towards the lower end; and
(7)
Count 8 — towards the lower end.

164 There is a need for general deterrence for offences of this type. There were 46 victims of Counts 1–7, overlapping and one additional victim with respect to the admitted offence and a further four victims of Count 8. The maximum penalty for Count 4 was 5 years’ imprisonment (and also for Count 8), rather than 3 years’ imprisonment for Counts 1–3 and 5–7, the charges having not been preferred chronologically. 165 General deterrence is a fundamental purpose of sentencing in this case. Mobile phones are integral to almost every aspect of anyone’s life. When a victim is being menaced, harassed, offended or threatened through a medium that is integral and necessary in their lives, the victim constantly carries that harm and fear with them. General deterrence also has a significant role to play in this sentence because, ordinarily, identifying the perpetrator in such cases is difficult.

Series of criminal acts of the same or a similar character: s 16A(2)(c)

166 Each of the Counts 1, 2, 3 and 4 are offences that engage a consideration of s 16A(2)(c) and accordingly will attract a greater penalty than otherwise would have been the case if they had been a single incident. The conduct relevant toeach of those counts demonstrates the prolific and frequent offending and that these offences were not an aberration of character.

The personal circumstances of any victim, any injury, loss or damage resulting from the offences and any victim impact statement: s 16A(2)(d), (e) and (ea)

167 A number of the victims provided victim impact statements. Those statements speak eloquently of the pervasive impact the applicant’s conduct has had on the victims’ lives and the psychological injury which the applicant has caused.

The guilty plea: s 16A(2)(g)

168 The applicant is to be credited for the utilitarian value of his early guilty pleas. The fact of the plea, its timing and the fact that it spared many witnesses the need to give evidence should be taken into account. That is particularly so given the content of these calls about which the victims would otherwise have been required to give evidence. Not only have they been spared the time and inconvenience of giving evidence, they have been spared the trauma of having to relive events and having to revisit the contents of the telephone calls. The applicant’s guilty pleas, entered at an early stage in the Local Court, were of a significant objective utilitarian value. We apply the same 25% discount as the sentencing judge on sentence to account for the utilitarian value of the pleas.

Contrition: s 16A(2)(f)

169 We accept that the applicant has demonstrated a degree of contrition and that he is genuinely contrite. We also take into account, relevant to contrition, that the applicant has taken real and positive steps through rehabilitation treatment programs as a further indication of his contrition.

Specific and general deterrence: s 16A(2)(j) and (ja)

170 There is a need for general deterrence for offences of this type. This type of offending was not only anonymous, but highly intrusive, highly offensive and highly intimidating. The crimes were easy to commit and difficult to detect. Cowardly and bullying conduct of the type engaged in by this applicant appears, regrettably, to be an increasing feature on social network sites and via mobile telephones. We agree with the sentencing judge that its very nature calls for condign punishment. 171 Mobile telephones are now such an integral part of everyday life that harassment of the victims through mobile telephones had a pervasive effect on them. 172 Specific deterrence also has a role to play in the present sentencing exercise because of the number, frequency and duration of the telephone calls and, importantly, because the applicant, when dealt with for previous similar offences of this type committed in March 2019, in relation to which he received what was a very lenient penalty, was obviously not deterred from continuing to commit similar offences.

The need to ensure the applicant is adequately punished: s 16A(2)(k)

173 In determining the appropriate sentence, we take into account the term of pre-sentence custody which the applicant spent incarcerated between 13 April 2022 and 12 May 2022, a period of 29 days. We also note that the applicant spent four weeks in a residential rehabilitation centre and was on relativelystrict bail conditions from June 2022 until the date of sentence. However, we do not regard those additional periods as sufficient to extend the period of pre-time custody beyond the period of 29 days.

The applicant’s character and antecedents: s 16A(2)(m)

174 The applicant is currently 56 years old and was approximately 50 years old at the time this offending conduct commenced. He is married with one child who is now 18. We take into account that the applicant has a limited criminal history although, significantly, it consists of two counts of using a carriage service to menace and harass. 175 The applicant was exposed to acts of war and death during the civil war in Sri Lanka at a young age. His family house was burned down and he reported physical and emotional abuse from his parents, sexual assault perpetrated upon him by a paternal uncle, and bullying at school. He has developed PTSD as a consequence of these experiences. As the sentencing judge did, we also take into account that the applicant has engaged in treatment, it would seem quite successfully, since June 2022, and that he retains the support of his family. We have taken into account the medical reports and the various opinions that he suffers from PTSD, depressive disorder and alcohol use disorder, and that he has taken significant and positive steps to address his mental health problems and to refrain from the abuse of alcohol. We do not accept that a proper basis has been established to find that the applicant’s mental health condition contributed to the commission of these offences in a material way. Although we accept that many of the telephone calls were made at night and whilst the applicant was inebriated, it is clear that many of the calls were made during the day, at least one very early on a Sunday morning, and that the applicant on some occasions met some of the victims face to face. We cannot, on that basis, accept that the applicant’s offending conduct occurred at all times while the applicant was inebriated. Clearly, that is not so. In any event, self-induced inebriation is not a form of mitigation. In addition, many of his telephone calls were targeted, intentional and designed as retribution to people with whom the applicant had had some previous dealings. 176 We are not satisfied that the applicant’s moral culpability is reduced or that he is an inappropriate vehicle for general deterrence. We are not satisfied that the applicant’s mental health conditions reduce the significance of specific deterrence, particularly in the context of his prior offending. 177 The sentencing judge took into account the applicant’s history as representing a degree of deprivation and disadvantage, and acknowledged that the effects of profound deprivation do not diminish over time and should be given full weight in determining sentence. Referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, his Honour found that the applicant’s background moderated the significance of the need for general and specific deterrence. We take into account the applicant’s traumatic background, which has caused PTSD and depressive disorder, as relevant, including in the way contemplated by the High Court in Bugmy. We view this background and mental health disorder as reducing somewhat the applicant’s moral culpability and the role of general deterrence in this case. However, like the sentencing judge, we are of the view that this background and disorder does not render the applicant an inappropriate vehicle for general deterrence, and we have referred elsewhere to the importance of general deterrence arising from the circumstances of the offending. We are satisfied that because of his mental health,custody may weigh more heavily on the applicant such that any sentence of custody imposed on him will be more onerous and we take his mental health conditions into account in that regard.

Prospects of rehabilitation and likelihood of reoffending: s 16A(2)(n)

178 In relation to prospects of rehabilitation, we find that the applicant has taken active and positive steps towards rehabilitation. He has participated in 91 sessions of treatment with Ms Kelly Tow, a clinical psychologist, who described him as very committed and actively engaged. He has completed a four-week recovery program at The Sydney Retreat rehabilitation centre and was continuing to attend Alcoholics Anonymous meetings until he was sentenced. We note that he was an inpatient at The Sydney Clinic in July and August 2022. The material led by the applicant on resentence (referred to at [157] and [158]) is taken into account favourably to him on his prospects of rehabilitation and likelihood of reoffending. 179 The Crown did not specifically challenge the finding of the primary judge that the applicant established he has good prospects of rehabilitation and we make the same finding. We accept the concessions of the Crown prosecutor made to the sentencing judge that the applicant “has taken significant steps, and I’m going to call it towards rehabilitation of sorts”, that he has “shown commitment towards therapy of sorts” and that “if a term of imprisonment is served by fulltime custody, it would have an inevitable result of disrupting [the applicant’s] ongoing commitment to therapy”.

Hardship to the applicant’s family: s 16A(2)(p)

180 We take into account the evidence that established that the applicant was the sole financial provider for his wife and daughter and that his daughter is currently at university as an undergraduate and, thus, we take into account the hardship on his family and dependants.

Conclusion on resentence

181 Error having been established in the sentencing process, the decision in Kentwell makes clear that the duty of this court is to exercise the sentencing discretion afresh. The applicant’s appeal is to be dismissed unless this court is satisfied that “some other sentence, whether more or less severe is warranted in law and should have been passed”: s 6(3) of the Criminal Appeal Act. 182 In deciding whether any lesser sentence is warranted in law (and in particular whether, as the applicant submits, an intensive correction order should be made), this court has applied s 16A of the Crimes Act, and not s 66 of the NSW Sentencing Act. Having exercised the sentencing discretion afresh we have arrived at an aggregate sentence which is slightly longer than that imposed on the applicant. Further, we are not satisfied that making an intensive correction order would be an order of a severity appropriate in all the circumstances of the offence. The approach to be taken if this court arrived at a sentence that is more severe is to dismiss the appeal on the basis that no lesser sentence is warranted in law: see for example RO v R [2019] NSWCCA 183 at [84]–[89] and [118]–[119]. It follows that no lesser sentence is warranted in law. 183 In circumstances where the objective seriousness of the offending was high, where the need for general deterrence is substantial, and there is some continued need to specifically deter the applicant, an intensive correction orderwould not be an order of a severity appropriate in all the circumstances of these offences, even though we have accepted that a term of full-time imprisonment would cause some disruption to the applicant’s rehabilitation. 184 Having regard to all of our findings, and applying Pt IB of the Crimes Act in the way we have described, we would not impose any lesser sentence on the applicant. 185 Finally, we have not addressed the resentencing exercise on the hypothesis that our construction of s 20AB of the Crimes Act is wrong. If we were to do so, the implications of the applicant’s submission that “the work of s 16A of the [Crimes] Act is done in every case by s 66(3) [of the NSW Sentencing Act]” would need to be considered. It may be, even on the basis that s 66 of the NSW Sentencing Act applies to intensive correction orders made under s 20AB of the Crimes Act, given the need for general and specific deterrence in the present case, that no lesser sentence would in any event be warranted. But given our conclusions about construction of Pt IB of the Crimes Act, it is unnecessary to consider this hypothetical exercise further.

Orders

186 For the foregoing reasons leave to appeal should be granted but as we would not impose a lesser sentence, the appeal should be dismissed. Accordingly, the appropriate orders are:

(1)
Leave to appeal granted.
(2)
Appeal dismissed.

So ordered

Solicitors for the applicant: Hope Criminal Lawyers. Solicitor for the respondent: Director of Public Prosecutions (Cth). C LINWOOD

[2024] NSWCCA 223

6/12/2024