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Key decisions

  • Chan v R [2023] NSWCCA 206
  • Rodden v R [2023] NSWCCA 202

Chan v R [2023] NSWCCA 206

Federal sentencing – Intensive Correction Orders

For anybody worried that it wasn’t already sufficiently complicated to sentence federal offenders, fear not, because this decision of the Court of Criminal Appeal (‘CCA’) provides that when sentencing a federal offender, a court applying the three-step test in deciding whether to impose an Intensive Correction Order (‘ICO’) must take into account the federal purposes of sentencing for the first two steps, and then the NSW purposes of sentencing for the third step. The decision also provides some tantalising obiter comments about possible future developments of ICO sentencing law.

The applicant, a pharmacist, pleaded guilty and was sentenced in the District Court for lodging over 105 false claims on the Pharmaceutical Benefits Scheme, amounting to 1,070 pharmaceuticals, netting him about $290,000 to which he was not entitled. When confronted with his misconduct, he voluntarily admitted to it – indeed, disclosed further misconduct – and explained that the financial stresses of his three pharmacies led him to take matters into his own hands. He expressed regret at his conduct and a commitment to giving a genuine account of his non-genuine claims. He repaid the full amount.

Despite having invited the sentencing judge to impose an ICO, the applicant was sentenced to two years imprisonment and, the matters being federal offences, was to be subject to a Recogizance Release Order after 14 months. In her sentencing remarks, the sentencing judge commented that, because she was sentencing for a federal offence, she had taken into account the factors set out in s 16A of the Crimes Act 1914 (Cth) (‘Crimes Act’), but crucially not the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Procedure Act’).

The applicant appealed the sentence, asserting the sentencing judge had erred in declining to consider s 3A, failed to take into account community safety as the paramount consideration and, ultimately, erred in not imposing an ICO.

The CCA (N Adams J, Kirk JA and Rothman J agreeing as to the ultimate outcome, but each with additional reasons, and each declining to determine ground 2) considered the sentencing judge had been in error in declining to take into account s 3A.

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