Mourtada v R

1. [1]

   BASTEN JA: On 26 August 2020 the applicant, Mohamad Mourtada, was sentenced for two offences relating to importation of tobacco products on which excise and GST would not be paid. The first offence involved an importation undertaken with the assistance of two co-offenders, being US servicemen posted to Australia and working in the US military’s postal system, and involving 10 consignments of molasses tobacco, weighing a total of 365kg. The duty avoided was calculated as a little over $213,000. The applicant was sentenced to imprisonment for 19 months and 3 weeks.

2. [2]

   The second offence was an attempt to import tobacco products with the intention of defrauding the revenue. The offence involved an agreement between the applicant and three other parties and was originally charged as a conspiracy. It was referred to in the proceedings as “the Oporto conspiracy”, the name referring to a restaurant at which the plan was hatched. The applicant was sentenced to 14 months and 3 weeks imprisonment to commence on the date of sentencing, namely 26 August 2020.

3. [3]

   The longer sentence for the first offence was fixed to commence on 26 November 2020 (an accumulation of 3 months) and (supposedly) expire on 25 June 2022. The judge directed that the applicant was to be released on a recognizance release order after serving 14 months and 3 weeks, the recognizance requiring him “to be of good behaviour for 8 months.” However, after sentencing two other persons, the judge returned to the applicant, correcting the earlier order by reducing the 19 months, 3 weeks sentence to 18 months and 3 weeks, with a new termination date of 15 June 2022. He did not vary the recognizance release order, nor state when it would commence or terminate.

4. [4]

   There was some doubt as to the intended operation of the release order, as it appeared to relate only to the 18 month 3 week sentence, which had a balance of 4 months to run from the date of the release. The release order thus ran for a period of 4 months beyond the balance of the sentence, terminating on 15 October 2022.

5. [5]

   The matter was brought back before the sentencing judge on 19 February 2021 on the applicant’s motion. The concern lay in the fact that the release order appeared to apply only to one sentence, and not to both. Pursuant to s 19AC of the Crimes Act 1914 (Cth) the Court was required to impose a recognizance release order with respect to both sentences.

6. [6]

   When the matter came back before the Court, the judge indicated that he had treated the first (shorter sentence) as a fixed term which would have expired three months before the release order took effect. However, accepting that such an approach did not conform to s 19AC, the judge set both sentences aside and the judge resentenced, imposing an aggregate sentence of 21 months and 3 weeks to date from 26 August 2020 and expire on 15 June 2022. The recognizance release order was to take effect upon the offender having served 15 months imprisonment and required that he be of good behaviour for a period of 9 months. He is due to be released on 25 November 2021.

7. [7]

   The power of the court to correct an error in fixing a recognizance release order was conferred by s 19AH of the Crimes Act. There appears to have been an issue between the parties as to whether the period of the release order could extend beyond the expiration of the sentence, the Director contending that it could run for up to 5 years, pursuant to s 20(1)(a), and the applicant contending that it could not. The judge appears to have accepted the Director’s submissions and no point is taken in that regard. The fact that the pre-release period may extend to the end of the sentence (reduced, where available, by remissions) pursuant to s 19AF(1), suggests that a release order may extend beyond the end of the sentence. However, as explained by the Full Court of the Supreme Court of Western Australia in Selimoski v Picknoll, [1] s 20A(1) indicates that such an order made under s 20(1)(b) operates to suspend wholly or in part the service of the sentence, it cannot be enforced after the sentence has expired. [2]

8. [8]

   Indeed, no point was taken as to the powers of the sentencing judge to fix an aggregate sentence in respect of two Commonwealth offences. Although there have been significant changes to Pt 1B of the Crimes Act since 2003, it is assumed that the reasoning in Putland v The Queen [3] continues to govern that issue. [4]

9. [9]

   The point taken on appeal was quite a different one: the applicant’s complaint was that the judge failed to direct that the whole of his sentence be served in the community pursuant to an “intensive correction order”. The particular grounds were identified in the following terms:

10. [10]

    Although the sentence was originally imposed on 26 August 2020 and corrected on 19 February 2021, and despite there being a notice of intention to appeal filed on 27 August 2020, the notice of appeal with grounds was not filed until 21 June 2021. An application book was filed on 23 July 2021 and the matter heard on 4 August 2021.

(a) available powers

1. [11]

   The power to make an intensive correction order is to be found in s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), which provides:

2. [12]

   Since the repeal of the Commonwealth Prisoners Act 1967 (Cth), there has been a wholesale evisceration of the principle that federal offenders are to be sentenced in accordance with the law applicable in the state or territory in which they are convicted, but it has not been entirely abandoned. Part 1B of the Crimes Act [5] is almost, but not completely, a comprehensive code, now with some 100 sections.

3. [13]

   The manner in which the laws of a state could be applied in federal jurisdiction was identified by the High Court in Hili v The Queen: [6]

4. [14]

   As the joint reasons in Hili continued, in relation to Pt 1B, Div 4:

5. [15]

   Relevantly for present purposes, a similar observation (as to the exhaustive nature of Div 4) may be applicable to Div 5, headed “Conditional release on parole or licence”. Subdivision D within Div 5 contains a number of provisions relating to discharge of offenders without proceeding to conviction, and conditional release of offenders after conviction: ss 19B and 20. The exhaustive nature of the subdivision, which effectively operates in place of the generality of s 68 of the Judiciary Act, is confirmed by s 20AB which picks up specific sentencing alternatives, relevantly in the following terms:

6. [16]

   Importantly for present purposes, s 20AB(1AA)(a)(ix) refers to “an intensive correction order”. An order of the kind identified in s 7 of the Sentencing Procedure Act is therefore available in the exercise of federal jurisdiction. There are however qualifications. First, the effect of s 20AB(1A) is that whilst, pursuant to s 7, the court is required first to sentence an offender to imprisonment, such a sentence is not required to be imposed in relation to a federal offender. While the removal of a requirement to impose another sentence first is not a denial of the power to take that step, the power must in fact be located in some other provision of federal law, or a state law picked up by a federal law. More troubling, however, is the implication that a sentence of imprisonment is not a necessary element of a law picked up by s 20AB(1AA). Yet, that there be a sentence of imprisonment is an essential precondition to the engagement of s 7. [10] Absent such a sentence, a state court will have no power to make an intensive correction order. An intensive correction order is treated for the purposes of the Sentencing Procedure Act as a “custodial sentence”, as indicated by the heading to Pt 2, Div 2 of the Sentencing Procedure Act, within which s 7 is located. That characterisation is confirmed by s 7(2) which provides that the court is “not to set a non-parole period for the sentence.” (On one view, that raises an anomaly: s 44 requires that “when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence”: s 44(1).)

7. [17]

   There are other issues. Section 7(4) provides that the section is “subject to” the provisions of Pt 5 of the Sentencing Procedure Act. Part 5 contains ss 64-73B. Relevantly for present purposes, because it was said that the trial judge failed to comply with this provision, s 66 provides:

(b) challenge to sentence – failure to address s 66 (grounds 1 and 2)

1. [18]

   The applicant’s submission was that the trial judge, to the extent that he considered an ICO at all, did not comply with the obligation imposed by s 66 of the Sentencing Procedure Act. Counsel at the sentencing hearing having expressly submitted that an ICO would be an appropriate order, the sentencing judge was obliged to consider making an ICO and therefore, it was said, to address s 66.

2. [19]

   There is no doubt the sentencing judge understood that an ICO had been sought and had considered the possibility. At the end of the hearing on 26 August 2020, having imposed sentences on the applicant and five co-offenders, Mr Ayache, who was appearing for the applicant, clarified the release date, to which the judge replied, “[h]is release is whatever is 14 months and 3 weeks from today.” [11] The following exchange then took place between Mr Ayache and the bench: [12]

3. [20]

   Ground 1 in the notice of appeal alleged that the judge failed to apply s 66 when deciding whether to make an ICO. The ground assumed that, in picking up the power under State law to impose such a sentence, s 20AB also picked up procedural steps governing the operation of the State provision. The Director did not challenge that assumption and it should be accepted. There is then a factual question as to whether the judge had regard to the considerations set out in s 66.

4. [21]

   The context for this submission is important. The sentencing proceedings involved seven offenders, each of whom was an offender with one or more others, but not all of whom were co-offenders on each offence. The proceedings continued over four days, being 30 September, 1 October, 2 October and 12 December 2019. The judgment was delivered over three days, being 20, 21 and 26 August 2020. One of the co-offenders (Jomaa) was sentenced on 25 September, almost exactly a year after the sentencing proceedings commenced.

5. [22]

   The following points should be made with respect to the exchange with Mr Ayache set out above. First, the suggestion that the judge may not have considered the possibility of an ICO, in response to the submissions made to him, is flatly contradicted in the course of the exchange. Secondly, the reference in Mr Ayache’s question to consideration of s 66 of the Sentencing Procedure Act was the first reference specifically to s 66 in the course of the sentencing proceedings. [13] Thirdly, it was accepted that there was one party for whom no submission was made that the sentence be served in the community, and that ICOs had been given to other co-offenders, though not all. As noted, Mr Jomaa was not sentenced at the same time, but a month later. In sentencing him, the judge stated: [14]

6. [23]

   The manner in which the judge dealt with Mr Jomaa is consistent with his observation to Mr Ayache that “the objective seriousness of the matters were such that they needed to be served by way of full-time imprisonment for the purposes of general and specific deterrence.” Ground 2 identified error in that observation. Such considerations, it was submitted, are relevant to the decision as to whether a sentence of imprisonment is required and as to the length of such a sentence. To base a decision not to impose an ICO on the same considerations is to “double-count” them.

7. [24]

   The Court has in the past grappled with the difficulties in understanding how s 66 of the Sentencing Procedure Act operates. There are three points which may briefly be made in this regard. First, the power contained in s 7 of the Sentencing Procedure Act is said to be “subject to” the provisions of Pt 5, which include s 66: s 7(4). Secondly, although “community safety” is required to be the “paramount consideration” when deciding whether to make an ICO, it appears that all other sentencing principles must also be taken into account: s 66(3). Furthermore, the consideration of “community safety” requires an assessment of whether full-time custody or an ICO “is more likely to address the offender’s risk of reoffending”: s 66(2). The question of specific deterrence must play an important role in that consideration.

8. [25]

   Thirdly, and least importantly for present purposes, there have been different views as to how s 66 requires “community safety” to operate. In R v Fangaloka [16] I noted that on one reading of s 66, “unless a favourable opinion is reached” in assessing whether such an order would be more likely to address the risk of reoffending, “an ICO should not be imposed”: at [63]. Subsequently, that has been taken to be the statutory construction preferred in Fangaloka. [17] No doubt the judgment could have been more clearly expressed, but the view accepted at [65]-[66] did not include the proposition that a positive favourable opinion was required before an ICO should be imposed. Rather, a more nuanced approach was adopted to the weighing of the various considerations required to be taken into account under s 66. At [66] the reasoning noted that the purpose of s 66 was “to ensure that the court does not assume that full-time detention is more likely to address a risk of reoffending than a community-based program of supervised activity.” The sentencing court was not required to favour an ICO over full-time custody, but it was required to have specific regard to community protection and to bear in mind that short sentences were not necessarily effective as a means of deterring further offending.

9. [26]

   Relevantly for present purposes, there was no error on the part of the sentencing judge in having regard to specific deterrence in assessing the particular purpose of community protection. Further, there is no basis in s 66 to disregard other sentencing principles, including the need for general deterrence. There is no doubt that an ICO involves a significant element of leniency, as compared with full-time custody, and, if the sentencing judge determines that a period of full-time custody is required to ensure the offender is adequately punished for the offence, a matter with respect to which general deterrence is an available consideration, there can be no error in taking that sentencing purpose into account. Although without specific reference to the language of s 66, as counsel for the applicant observed in the course of oral submissions, the relevant matters were all addressed. No relevant error was therefore identified in grounds 1 and 2 as pleaded.

10. [27]

    In oral argument, senior counsel submitted that ground 2 could be stated somewhat differently, as a complaint of inadequate reasons. The same issues were said to arise, namely that the judge did not address the obligation in terms reflecting the requirements of s 66, and therefore the offender did not know whether submissions made to the sentencing judge had been properly considered.

11. [28]

    With respect, the reformulation of the ground does not affect the outcome. The substantive matters raised in the course of the submissions were addressed by the sentencing judge; the phrase “community protection” did not appear in those submissions. It follows that no complaint can now be made that the judge did not, in the sentencing judgment, use that language. If, as the judge explained, some period of full-time custody was warranted, there was no room for the imposition of an ICO, although there was ample opportunity to suspend part of the sentence by the grant of a recognizance release order, as happened.

(c) the issue of disparity

1. [29]

   The issue of parity (or unjustifiable disparity) was addressed by reference to three co-offenders – Cobb, Paul and Chahine.

2. [30]

   There were two problems with the applicant’s approach to the question of parity. The first is that the applicant’s aggregate sentence was not imposed for a single offence, but for two offences; one was the “US forces postal service offences”, the other the “Oporto conspiracy”. Without seeking to assert error, senior counsel for the applicant expressed some doubt as to the power to grant a recognizance release order (a Crimes Act power) with respect to a sentence imposed by reference to a power conferred by state law. As the state law only applied by virtue of the Judiciary Act, there is no need to pursue that concern, but the fact that the aggregate sentence related to two offences caused a difficulty in comparing the sentences imposed on co-offenders.

3. [31]

   Paul and Cobb processed mail for the US military. Their role was an essential part of the scheme to import tobacco products, and was so described by the sentencing judge. With respect to those offences, the applicant was identified as a principal who exploited the breaches of trust by Paul and Cobb. Although Hunt DCJ did not sentence Paul and Cobb, he referred to their sentences and compared their circumstances with those of the applicant. [18] Paul and Cobb were not co-offenders with respect to other charges. However, Abbas El Zein and Yehia Assi were co-offenders on both charges involving the applicant. Abbas El Zein was the co-offender who had not sought an ICO; neither he nor Mr Assi received an ICO.

4. [32]

   No basis was identified by the applicant for interfering with the judge’s evaluative judgments as to the respective levels of culpability and the assessment of the circumstances personal to each offender. Leave to appeal should be refused with respect to this ground.

Conclusions

1. [33]

   For the reasons set out above, the Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal against his sentence on grounds (1) and (2).

   2. (2)

      Refuse leave to appeal with respect to ground (3).

   3. (3)

      Dismiss the appeal.

2. [34]

   ADAMSON J: I have had the benefit of reading the reasons of Basten JA in draft. I agree with the orders proposed by his Honour and, largely, with his reasons.

3. [35]

   I would prefer not to express a view as to the wider topic of the extent to which State laws are picked up when State Courts are imposing sentences for Federal offences since, as Basten JA has noted, specific provision is made for intensive correction orders (ICOs) in s 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth).

4. [36]

   I agree with his Honour’s reasons with respect to grounds 1 and 2. I wish to add the following. Section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) requires a sentencing judge to have regard to certain considerations when considering whether to grant an ICO. These considerations comprise: community safety; whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of re-offending; the purposes of sentencing in s 3A of the Sentencing Procedure Act; and “any relevant common law sentencing principles”.

5. [37]

   For the purposes of considering whether to grant an ICO, each of these matters is a mandatory relevant consideration, in the sense considered by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40; [1986] HCA 40. However, it does not follow from the requirement that those matters be considered, that each must be specifically addressed in the reasons given by the sentencing judge. The reasons must address the submissions made by the parties and indicate that the sentencing judge has applied the law correctly.

6. [38]

   In the present case, his Honour considered that the objective seriousness of the offending and the purposes of general and specific deterrence required the sentence to be served by full-time detention. His Honour’s reasons were sufficient to identify the bases on which an ICO was inappropriate. In these circumstances, it was not necessary for his Honour to go through s 66 of the Sentencing Procedure Act and address each consideration, as if each was an item on a list to be ticked off. No assumption is warranted that the sentencing judge was not cognisant of the wording of s 66 or the importance of the matters required to be considered. Indeed, it is plain from the sentencing judgment, when read as a whole, that his Honour was aware of, and applied, s 66 of the Sentencing Procedure Act and concluded that an ICO was warranted in respect of some offenders, but not in respect of the applicant.

7. [39]

   I agree with Basten JA’s reasons with respect to ground 3.

8. [40]

   CAMPBELL J: I have had the benefit of considering the reasons of Basten JA in draft. I agree with the orders his Honour proposes and in substance with his Honour’s reasons.

9. [41]

   I adhere to the views I expressed in Blanch v R [2019] NSWCCA 304, for present purposes, particularly at [60] and [69]. But I agree with Basten JA (at [20]) that grounds 1 and 2 asserting a failure of the sentencing judge to address s 66 raised a factual question for the consideration of this Court “as to whether the judge had regard to the considerations set out in s 66”. I also agree that this question is to be determined with due regard being given to the complexity of the sentencing task required of his Honour, pithily summarised by Basten JA at [21]. Mr Ayache’s question (see [19] above) expressly and squarely raised consideration of the s 66 “matters”. His Honour answered in the affirmative and succinctly explained his decision not to permit the sentences passed to be served by way of ICO. His Honour’s response to the matter appropriately raised by Mr Ayache should be taken at face value. I infer that while not referring to the section expressly in his reasons his Honour took into account each of the matters he was required to direct himself to by each of the subsections of s 66. The matter is factually different from Blanch.

10. [42]

    I am not convinced that his reasons when sentencing Mr Jomaa about one month later are available for consideration by this Court. If my hesitation is misplaced, the passage extracted by Basten JA at [22] bolsters the inference I am otherwise prepared to draw.

11. [43]

    I adhere to the view I expressed in Blanch that it is not necessary for a sentencing judge to refer to the provisions of s 66 in express terms, provided it appears from his or her reasons that he or she has taken each of its mandatory relevant considerations into account.