[EDITORIAL NOTE: An application for special leave to appeal to the High Court was refused: [2025] HCADisp 56.]
[2024] NSWCCA 223Court of Criminal AppealBell CJ, Payne JA, N Adams, Chen and Rigg JJ23September, 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Vamadevan v R [2024] NSWCCA 223
Case
[2024] NSWCCA 223
Decision Date
CaseChat Overview and Summary
Gerard Vamadevan appealed against his sentence imposed in the District Court for offences relating to telephone harassment of women. The applicant pleaded guilty to seven counts of using a carriage service in a way that reasonable persons would regard as menacing, harassing or offensive, and one count of dealing in identification information for the purposes of committing a Commonwealth offence. The District Court sentenced the applicant to an aggregate sentence of two years' imprisonment to be served by way of full-time custody, and ordered his release on a recognizance release order to be of good behaviour for nine months after serving one year and three months of that sentence. The applicant appealed on three grounds, including that the sentencing judge failed to take into account community safety as the paramount consideration as required by s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crown conceded that error on the existing state of authority.
The Court of Criminal Appeal considered whether the sentencing court was required to apply s 66 of the Crimes (Sentencing Procedure) Act in deciding whether to make an intensive correction order in relation to a federal offender under s 20AB(1) of the Crimes Act 1914 (Cth). The Court held that the sentencing court was not required to apply s 66 of the Crimes (Sentencing Procedure) Act in making an intensive correction order for a federal offender under s 20AB(1) of the Crimes Act. The Court concluded that s 16A of the Crimes Act applied in determining whether to make an intensive correction order, and that s 66 of the Crimes (Sentencing Procedure) Act was inconsistent with s 16A of the Crimes Act. The Court held that the construction of s 20AB(1) of the Crimes Act did not require the sentencing court to apply s 66 of the Crimes (Sentencing Procedure) Act in making an intensive correction order for a federal offender.
The Court dismissed the appeal and confirmed the original sentence.