Criminal law: November 2021

Mourtada v R [2021] NSWCCA 211

Sentencing – Intensive Correction Orders – interpretation

In this decision the Court of Criminal Appeal (‘CCA’) has added yet more commentary to the saga interpreting the legislation providing for the imposition of an Intensive Correction Order (‘ICO’).

The applicant was sentenced for offences relating to importing tobacco in a way that avoided excise and GST. He was sentenced to 14 months and 3 weeks imprisonment with a recognizance release order (the terms of which are a bit hazy in the judgment, and not presently important). He appealed on two grounds relating to asserted error in not imposing an ICO, and one ground asserting disparity between his sentence and that of his co-offenders. This summary only deals with the ICO issue – and then only a limited part of it.

There has been ongoing debate about the correct interpretation of s 66 of the Crimes (Sentencing Procedure) Act, which has played out in these pages as a series of increasingly-convoluted summaries as new decisions interpret older ones. Section 66 provides that the ‘paramount consideration’ when considering an ICO is community safety, but it also requires the court to consider whether community safety is best addressed by way of ICO or full-time custody.

One of the issues discussed by the Court here (consisting of Basten JA, with whom Adamson and Campbell JJ agreed – albeit each with some qualifications in short additional reasons) was a discussion of the decision of R v Fangaloka [2019] NSWCCA 173 (‘Fangaloka’) which has come to be the preferred interpretation of s 66. Basten JA also wrote the judgment in Fangaloka. There, his Honour had observed that on one reading of s 66, ‘unless a favourable opinion is reached’ in the assessment of whether an ICO would be more likely to address the risk of reoffending, ‘an ICO should not be imposed’ (at [63] of Fangaloka). Practitioners may be aware that some judicial officers have taken the impact of that comment by Basten JA to significantly limit the circumstances in which an ICO is available.

According to Basten JA in this decision, his earlier judgment in Fangaloka ‘could have been more clearly expressed’. But the decision in Fangaloka did not include the proposition that a favourable opinion was required before an ICO could be imposed. Instead, a more nuanced approach was adopted, involving the weighing of various considerations required by s 66. The point of s 66, emphasised Basten JA here, was to ensure that the court does not assume that full-time detention is more likely to address the risk of reoffending. A sentencing court is not required to favour an ICO over full-time custody, but is required to have specific regard to community protection and to bear in mind that short sentences are not necessarily effective as a means of deterring further offending (at [25]).

On the other hand, however, there is no basis in s 66 to disregard other sentencing principles, including the need for general deterrence. An ICO involves a significant element of leniency, and if the sentencing judge (or magistrate) determines that a period of full-time custody is required to make sure the offender is adequately punished, there can be no error in taking that sentencing purpose into account (at [26]). If, as the sentencing judge explained, some period of full-time custody was warranted, there was no room for an ICO – although there was, in this case, the opportunity to partially suspend the sentence by way of a recognizance release order (at [28]).