YZ v R

1. [1]

   WRIGHT J: I agree with the orders proposed by Weinstein J for the reasons his Honour has given.

2. [2]

   WEINSTEIN J: On 28 March 2025, the applicant YZ was sentenced by Newlinds SC DCJ ("the sentencing judge") following pleas of guilty to three offences. The applicant seeks leave to appeal his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

3. [3]

   By an Amended Notice of Appeal, the applicant advanced the following grounds of appeal:

4. [4]

   The following table sets out the offences, the dates of the offences, the maximum penalties and the indicative sentences pronounced by the sentencing judge:

Factual Background

1. [5]

   An agreed statement of facts was tendered as part of Exhibit A on sentence. The following summary is taken from that exhibit and his Honour’s judgment.

2. [6]

   On 29 June 2022, the applicant drove a truck to pick up tobacco from a co-offender. The applicant parked his truck back-to-back with the co-offender’s truck in order to facilitate the transfer of tobacco between the two trucks.

3. [7]

   When police approached the two trucks, the applicant and the co-offender fled the scene. The applicant’s truck contained 666kg of tobacco products, comprising 632,200 tobacco cigarettes, 178kg of hookah tobacco and 10,329 vapes. The excise duty that would have been payable on those products was $998,963.28.

4. [8]

   The applicant possessed the tobacco in circumstances where it was reasonable to suspect that excise duty had not been paid on the tobacco. No one, including applicant, had paid excise or duty on the tobacco or had been granted a relevant exemption under Commonwealth law (sequence 1).

5. [9]

   On 29 August 2023 the applicant engaged in a conversation via WeChat with a person using the username “Happy Seller” to arrange the purchase and delivery of tobacco. Later that day, the applicant handed a white plastic bag to an unknown man inside a vehicle. The white plastic bag contained $200,000 in Australian cash, it being reasonable to suspect that such money was the proceeds of crime (sequence 5 on the s 16BA Schedule).

6. [10]

   On 8 September 2023, NSW Police executed a search warrant at the applicant’s residence. Police seized $740,810 of Australian cash, it being reasonable to suspect that such money was the proceeds of crime (sequence 8).

7. [11]

   Later that day, police conducted a search of the applicant’s storage unit and truck. Police found 5,683kg of tobacco, comprising 5,262,000 cigarettes and several boxes of loose-leaf tobacco. The total customs and excise duty that would have been payable on the tobacco was $10,468,684.17.

8. [12]

   The applicant possessed the tobacco knowing that the tobacco was imported with intent to defraud the revenue (sequence 7).

The sentencing judgment

1. [13]

   The sentencing judge heard the matter on 17 March 2025, and handed down his judgment on 28 March 2025. The applicant was sentenced to an aggregate term of imprisonment of 3 years, commencing on 28 January 2025 and expiring on 27 January 2028. His Honour ordered that the applicant be released on 27 January 2026 upon him entering a recognizance in the sum of $100, without security, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) for a period of two years.

2. [14]

   In sentencing the applicant under the Crimes Act, his Honour was required to take into account the non-exhaustive list of factors in s 16A(2). His Honour made the following findings.

3. [15]

   The sentencing judge declined to place the offending on a notional scale of objective seriousness but noted that each of the tobacco offences was a “serious example” of that offending.

4. [16]

   His Honour found that the offences involved “a significant degree of planning within the context of organised criminal activity”. The temporal gap between the offending in 2022 and 2023 demonstrated that the applicant’s involvement in the criminal activity was not brief or unplanned.

5. [17]

   His Honour found that the large amount of tobacco and money seized demonstrated that the applicant had some sort of trusted role within the organised criminal operation. However, his Honour accepted that his role fell toward the bottom of the hierarchy of the various criminals involved in the operation.

6. [18]

   His Honour noted that the total loss of revenue to the Commonwealth was substantial, and that the applicant would have expected significant financial gain from his involvement in the criminal activity.

7. [19]

   His Honour accepted that the applicant’s guilty pleas were entered at the earliest opportunity and afforded him a 25% discount. He was further satisfied that the applicant had demonstrated real contrition and remorse.

8. [20]

   His Honour found that the repeated offending favoured a need for specific deterrence. However, balanced against that was the onerous nature of custody and the hardship experienced by the applicant’s family as a result of his incarceration.

9. [21]

   His Honour thought that general deterrence was a “weighty factor”, but that there was a real question as to whether the applicant was an appropriate vehicle for general deterrence because of his mental health condition and childhood disadvantage.

10. [22]

    His Honour noted that the applicant had been sentenced to a Community Corrections Order (“CCO”) for recklessly dealing with the proceeds of crime in November 2022. It was during the term of this CCO that the applicant committed the sequence 7 and 8 offending, after having already been apprehended for the sequence 1 offending. His Honour found that those circumstances meant that applicant was disentitled to leniency.

11. [23]

    His Honour observed that the law recognises that an offender’s background of social deprivation may reduce their moral culpability. The applicant’s background was set out in an apology letter to the court and a psychological assessment by Mr Borenstein, a clinical psychologist. These documents disclosed the following facts about the applicant’s background.

12. [24]

    The applicant was born in Iran to an ethnically Iraqi family. In Iran, the applicant and his family faced persecution and marginalisation as a result of their ethnicity. The applicant’s parents were unable to work or purchase property because they were not Iranian citizens. The family faced extremely difficult living conditions, including, at one point, homelessness. The applicant described being “bullied and bashed” as a result of being a non-citizen, and disclosed that he had no friends at school.

13. [25]

    When the applicant was 10 years old, his parents decided to leave Iran. They travelled to Australia on a fishing boat with 200 refugees. While at sea, the engine stopped, and the boat began to take on water. There was no remaining food or drink. The applicant described believing that he was going to die.

14. [26]

    The boat and its passengers were eventually rescued by the Australian Navy, and the applicant and his family were taken into immigration detention in Port Hedland. They remained in the immigration detention centre for one year, before eventually being granted visas and making their way to Sydney.

15. [27]

    The sentencing judge found that the applicant’s background was “characterised by profound dislocation and suffering". His Honour stated that he was satisfied that the applicant’s childhood gave rise to considerations described in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”).

16. [28]

    Mr Borenstein, psychologist, diagnosed the applicant with depression and chronic post-traumatic stress disorder (PTSD). His Honour accepted that the applicant’s PTSD was the “backdrop and context, but not direct cause, for the offending conduct…”.

17. [29]

    His Honour stated at [56]:

18. [30]

    His Honour noted that this conclusion was of particular importance given the significant weight that must ordinarily be given to the principle of general deterrence.

19. [31]

    His Honour found that the applicant’s wife and children would suffer hardship as a result of his incarceration, and he noted the judgment in Totaan v R [2022] NSWCCA 75 at [92].

20. [32]

    His Honour found that the applicant had probably been rehabilitated as a consequence of his experience of being apprehended, charged, spending time in custody and going through the sentencing procedure. His Honour was of the view that the applicant’s prospects of re-offending were low, and that he had “been rehabilitated and the goal of specific deterrence achieved”.

21. [33]

    In setting the applicant’s sentence, his Honour acknowledged the parties’ agreement that the threshold in s 17A had been crossed. He observed that the Crown had submitted that the appropriate penalty would be an aggregate term of imprisonment exceeding three years and that the applicant had submitted that he be immediately released on a recognizance subject to the supervision of Community Corrections or, in the alternative, be subject to an Intensive Correction Order (“ICO”).

22. [34]

    His Honour understandably found the matter difficult. He balanced, in the applicant’s favour, his contrition, remorse, assistance to authorities, his rehabilitation and his difficult upbringing against the seriousness of the offending and the “clear need for general deterrence”.

23. [35]

    At [75], his Honour said:-

24. [36]

    His Honour imposed an aggregate sentence of three years, and backdated the sentence by 60 days to account for the time the applicant had already spent in custody.

Ground 1

1. [37]

   The applicant’s first ground of appeal is that the sentencing judge erred by failing to appropriately consider alternatives to full time imprisonment.

2. [38]

   The applicant accepted that during the sentencing hearing in the District Court, counsel for the applicant implicitly conceded that the threshold in s 17A of the Crimes Act had been crossed (that is, that no sentence other than a sentence of imprisonment was appropriate in the circumstances). However, the applicant submitted that it was nonetheless incumbent on the sentencing judge to consider alternative ways that the sentence of imprisonment could be served, as the matter was raised in written submissions and at length in oral submissions, both as to immediate release on the applicant’s own recognizance and through the imposition of an ICO.

3. [39]

   The applicant submitted that the sentencing judge wholly failed to consider the alternatives to full-time imprisonment, and that such a failure was an error.

4. [40]

   The applicant submitted that the decision of Stanley v DPP (NSW) (2023) 278 CLR 1; [2023] HCA 3 (“Stanley”) sets out the three steps to be undertaken when imposing a sentence of imprisonment pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW). The High Court held at [59]:-

5. [41]

   It was submitted that Stanley’s application to the sentencing of federal offenders was explained by this Court in Vamadevan v The King [2024] NSWCCA 223 (“Vamadevan”). There, the Court said at [57]:

6. [42]

   In support of the proposition that a sentencing judge should consider alternatives to full time imprisonment, the applicant relied on Paul Campbell (a pseudonym) v The Queen [2018] NSWCCA 87 (“Campbell”), in which Hamill J stated at [53]:

7. [43]

   The applicant submitted that while the failure to expressly state what alternatives were considered and why they were rejected “does not of itself involve error, it may lead the Court to consider carefully whether the correct process has been followed”: Casella v R [2019] NSWCCA 201 at [63] per Bathurst CJ (“Casella”).

8. [44]

   The sentencing judge, having found that no other sentence was appropriate in accordance with s 17A (at [72] of the sentencing judgment), and having determined an appropriate sentence in accordance with s 16A(1) (at [76]-[77] of the sentencing judgment), then proceeded immediately to backdate the sentence (at [78] of the sentencing judgment) and make the respective orders (at [80]-[82] of the sentencing judgment). The applicant submitted that this approach left a lacuna in the judgment which sounds in error, as his Honour failed to undertake the third step of considering alternatives to full-time imprisonment.

9. [45]

   The applicant submitted that omitting to consider alternatives to full-time imprisonment was an error because the matter of how the sentence should be served was the subject of significant argument during the sentencing hearing. He submitted that the two alternatives to full-time imprisonment advanced by defence counsel at the hearing were not meaningfully addressed in the sentencing judgment.

10. [46]

    The applicant relied on Larkin v The Queen [2012] WASCA 238 (“Larkin”) which discussed the process to be followed when considering whether to release a federal offender on a recognisance forthwith under s 20(1)(b) of the Crimes Act. The Court held at [75], consistently with the approach in Stanley:

11. [47]

    The applicant submitted that the sentencing judge’s prior consideration of the s 16A factors in relation to the term of imprisonment did not satisfy the need to consider those factors afresh in relation to the question of how the term of imprisonment would be served and that those factors should have been addressed following paragraph [78] of the sentencing judgment.

12. [48]

    The Crown submitted that the authorities relied on by the applicant do no more than provide a guide as to the process that may be followed by a sentencing judge. It was submitted that a failure to patently express a consideration of alternatives to full-time imprisonment in the sentencing judgment is not an error of law in the Commonwealth regime.

13. [49]

    The Crown accepted, however, that because the issue of alternatives to full-time imprisonment was raised in the sentencing hearing, it may be relevant for this Court to consider whether the sentencing judge engaged in a consideration of those alternatives.

14. [50]

    The Crown submitted that a proper examination of the sentencing judgment and the transcript of the sentence hearing demonstrates that the sentencing judge did in fact consider the alternatives to full-time imprisonment that were raised by defence counsel. The sentencing judge stated the position of the parties (including the defence counsel’s submissions regarding alternatives to full-time imprisonment), and then went on to conclude that, due to the objective seriousness of the offending and the significant need for general deterrence, “no sentence other than imprisonment is appropriate”.

15. [51]

    The Crown submitted that “imprisonment” in this context means full-time imprisonment, ie that the sentencing judge did consider alternatives to full-time imprisonment but subsequently concluded that the sentence ought to be served by full-time custody to reflect the seriousness of the offending and to give effect to general deterrence.

16. [52]

    The third stage discussed in Vamadevan and Larkin requires a sentencing judge to apply the factors in s 16A of the Crimes Act to the specific question of whether an alternative to full-time imprisonment is appropriate for an offender. When applied to that question (as opposed to the question of severity of the sentence), the s 16A factors may point in different directions. This is because “the weight to be given to these factors, and the manner in which they are relevant, will differ as a result of the different purposes underlying each function”: Larkin at [75].

17. [53]

    Two questions fall for consideration with respect to this ground of appeal. The first question is whether the sentencing judge was required to undertake this third stage in the sentencing exercise. The second question is whether his Honour did so.

18. [54]

    In my view, in this particular case his Honour was required to undertake the third stage discussed in Larkin and Vamadevan. While I accept that Campbell and Vamadevan discuss this third stage in optional or “preferable” terms, I am of the view that the third stage ceases to be optional when alternatives to full-time imprisonment have been the subject of substantial argument during a sentencing hearing.

19. [55]

    I have carefully considered whether the correct process has been followed in this instance and I find that his Honour did not undertake the necessary third stage. Having determined the appropriate term of imprisonment, his Honour proceeded immediately to make an order of full-time custody. I accept the applicant’s submissions that this approach left a lacuna in the judgment. This lacuna is indicative of error.

20. [56]

    I should not be taken to suggest that a sentencing judge will be in error unless the three distinct stages are expressly undertaken on every occasion. However, where alternatives to full time custody are both available and argued, it is incumbent on the sentencing judge to consider whether those alternatives are appropriate in light of the factors in s 16A of the Crimes Act: see, for example, Khalil v R [2022] NSWCCA 36 (“Khalil”) at [135]-[136] (per Ierace J).

21. [57]

    Where a sentencing judge has failed to express clear consideration of alternatives to full-time imprisonment, it is occasionally possible to infer that alternatives were considered in substance in the remarks. In my view that cannot be said about the present case. To paraphrase Ierace J in Khalil at [136], the threshold of s 17A being satisfied, it was necessary for his Honour to disclose his reasoning for rejecting the applicant’s submissions. His Honour’s sentencing judgment does not disclose those reasons, expressly or by inference. I therefore conclude that the correct process was not followed: Casella at [63].

22. [58]

    This ground of appeal is made out and I would therefore allow the appeal.

Grounds 2, 2(a) and 3

1. [59]

   The first ground of appeal having been made out, the Court will proceed to re-sentence. It is not necessary to deal with the balance of the grounds of appeal. However, I wish to make some brief comments on the application of the Bugmy principles in a sentencing exercise in light of the debate between his Honour and counsel about the effect of a finding of childhood deprivation and his Honour’s apparent failure to make a finding, one way or the other, about the applicant’s moral culpability (ground 2).

2. [60]

   The Bugmy principles, and how they apply to moral culpability, have been the subject of many appeals in this Court. The competing submissions on ground 2 touched upon many of the themes considered in these appeals. I summarise below some of the key principles that have emerged on these themes in the years since Bugmy was decided.

3. [61]

   In NK v R [2025] NSWCCA 73 (“NK”), Yehia J (with whom Ball JA and Fagan J agreed) held that the correct application of the Bugmy principles involves three considerations (at [110]-[113]). This approach to the application of Bugmy principles was recently approved by N Adams J (with whom Bell CJ and Payne JA agreed) in DG v R [2025] NSWCCA 137 at [111]-[115] (“DG”).

4. [62]

   Adapting the three considerations set out by Yehia J in NK, the following is, in my view, the process to be undertaken when applying the Bugmy principles.

5. [63]

   The first consideration is to determine whether the offender’s background is one of “deprivation” or “disadvantage” and whether it affects an offender’s moral blameworthiness: NK at [110]. There is no requirement that the disadvantage must be “profound” or “sustained” in order to enliven the Bugmy principles: Hoskins v R [2021] NSWCCA 169 (“Hoskins”) at [57] (per Brereton JA); Nasrallah v R [2021] NSWCCA 207 (“Nasrallah”) at [110]-[111] (per Hamill J).

6. [64]

   The following principles are relevant to the determination of whether an offender’s disadvantaged background affects their moral culpability for their offending:

   1. (1)

      An offender’s moral culpability may be reduced because there is a causal link between their background and their offending. Indeed, such a causal link “will inevitably support a finding that such an offender’s moral culpability is reduced”: DR v R (2022) 300 A Crim R 116; [2022] NSWCCA 151 at [37] (per Bellew J, Ward P and RA Hulme J agreeing); Dungay v R [2020] NSWCCA 209 (“Dungay”) at [153] (per N Adams J, Bell P and Davies J agreeing).

   2. (2)

      However, the authorities are now clear that a causal link between an offender’s background and the offence for which they are to be sentenced is not required for a court to make a finding of reduced moral culpability: Dungay [136]-[153] (per N Adams J); Hoskins at [57] (per Brereton JA); Nasrallah at [88] (per Hamill J); Lloyd v R [2022] NSWCCA 18 at [27] (per McCallum JA); R v MJ [2023] NSWCCA 306 (“MJ”) at [2]-[15] (per Simpson AJA). Whether or not a causal link can be established, it will often be the case that an offender from a disadvantaged background cannot be said to bear the same moral responsibility as a person whose background is advantaged. In the oft-quoted words of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69], a court may consider that “common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”

   3. (3)

      In MJ, Simpson AJA emphasised at [15], that the essential question is the assessment of an offender’s moral culpability. I agree with her Honour. I would add that in my view, the assessment of whether an offender’s moral culpability is reduced by reason of their disadvantaged upbringing often involves one simple consideration. That is, in all the circumstances, can it be accepted that the offender in question bears the same moral responsibility for their offending as a person who has had a privileged or conventional upbringing? If that cannot be accepted, there must inevitably be a reduction in the offender’s moral culpability. I consider that this is consistent with the plurality’s reasoning in Bugmy.

   4. (4)

      There is no requirement that the offending be ‘impulsive’ for a court to find that an offender’s moral culpability is reduced by reason of their disadvantaged background. Neither is evidence of planning necessarily a barrier to a finding of reduced moral culpability: see Robertson v R [2024] NSWCCA 22 (“Robertson”) at [111]-[114] (per Ierace J, Harrison CJ at CL, Wilson J agreeing) and the cases discussed therein: Chiarlini v R [2023] NSWCCA 227 at [21] and [37] (supplying a large commercial quantity of methylamphetamine); Baines v R [2023] NSWCCA 302 at [71]-[76] (a planned gangland execution) and Harris v R [2023] NSWCCA 174 at [79] and [84] (armed robbery).

   5. (5)

      The effects of a background of profound disadvantage “do not diminish with the passage of time”: Bugmy at [43]. A long history of offending is no barrier to a finding of reduced moral culpability because of an offender’s background: Bugmy at [43]. Similarly, the fact that an offender has lived a pro-social life in the period between their disadvantaged childhood and offending is also not a barrier to a finding of reduced moral culpability: Robertson at [114], Bugmy at [43]-[44].

7. [65]

   The second consideration, if moral culpability is reduced, is for a sentencing judge to consider how reduced moral culpability impacts the weight to be given to the various purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (with respect to State offenders), or, in the case of Commonwealth offenders, how reduced moral culpability impacts the various matters to be considered under s 16A of the Crimes Act. The competing purposes of sentencing are a separate consideration to the offender’s moral culpability: NK at [11] (per Fagan J) and at [112] (per Yehia J).

8. [66]

   With respect to State offenders, a court should consider how the diminishment in moral culpability “bears upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution and the promotion of rehabilitation”: NK at [102]; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [92]-[93] (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ). Similar considerations arise for examination pursuant to s 16A of the Crimes Act with respect to Commonwealth offenders. When determining the weight to be given to general deterrence, a sentencing judge must consider whether that particular offender is an appropriate vehicle for general deterrence: DG at [126]-[131].

9. [67]

   A reduction in moral culpability does not automatically translate to a reduced sentence: Harris v R [2021] NSWCCA 322 at [89] (per Dhanji J, Simpson AJA and Ierace J agreeing). A sentencing judge must have regard to countervailing factors, so far as they are relevant: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]; NK at [112].

10. [68]

    Third, even if a reduction in moral culpability is offset by the weight given to one or more purposes of sentencing, if an offender has a deprived background, that background must be given “full weight” in every sentencing decision: Bugmy at [44], NK at [113].

Re-sentence

1. [69]

   Since error has been found in relation to ground 1, the Court is required to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

2. [70]

   In re-sentencing the applicant, I am required by s 16A(1) of the Crimes Act to impose a sentence of a severity appropriate in all of the circumstances of the offence, and to take into account (if relevant and known to the Court) the matters enumerated in s 16A(2). I adopt those matters set out in his Honour’s sentencing judgment which I have noted above. I accept that the applicant is remorseful and has achieved rehabilitation. So far as the applicant’s background of disadvantage is concerned, I adopt his Honour’s findings and further find that his moral culpability for the offending is reduced. In my view his diminished moral culpability moderates the weight to be given to general deterrence and denunciation. In relation to the applicant’s mental health, while his mental health condition did not materially contribute to the offending such that his moral culpability is reduced on that account, I find that it renders him a less appropriate vehicle for general deterrence. The applicant’s mental health condition also means that a custodial sentence will weigh more heavily on him and that the need for specific deterrence is reduced: see Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (per McClellan CJ at CL).

3. [71]

   On re-sentence, an affidavit of the applicant’s wife affirmed on 28 July 2025 was read. Since the applicant has been in custody, she has been left to care for their children and maintain their home by herself. She suffers from debilitating depression and anxiety, a condition from which she has suffered since 2010, and which has been significantly exacerbated since the applicant’s return to custody. The deterioration in her mental health is confirmed in a letter from her treating psychologist dated 16 May 2025. Her physical health has also deteriorated, as confirmed in a letter from her treating general practitioner dated 21 July 2025. Her two children have also been adversely impacted, as noted in the letter from her son’s school dated 25 July 2025. In addition, the applicant’s mother’s eye health has deteriorated, as set out in a report from her ophthalmic surgeon dated 18 July 2025. The applicant is said to be the one that would assist her with the care required post-surgery for this condition. I accept the continuing deleterious effect of the applicant’s detention on his family: s 16A(2)(p). It is a matter I take into account on re-sentence.

4. [72]

   In imposing a sentence, the starting point are the guideposts provided by the maximum penalties set out in the table at paragraph 3 above. No complaint is made on this appeal about his Honour’s characterisation of the objective seriousness of the offending. I therefore adopt his Honour’s characterisation of objective seriousness for the purpose of re-sentence. The concession having been made at the first sentence hearing, I accept that the s 17A threshold has been crossed. I observe too, that there is no complaint of manifest excess. Like his Honour, I would impose an aggregate term of imprisonment of three years backdated to commence on 28 January 2025 and to expire on 27 January 2028. Also like his Honour, the indicative sentences I would have imposed are one year imprisonment for sequence 1, three years imprisonment for sequence 7 and one year imprisonment for sequence 8, taking into account sequence 5 on the s 16BA schedule.

5. [73]

   Of course, I accept that for the purpose of re-sentence, alternatives to full-time imprisonment must be considered having regard to my findings above. However, in the circumstances of this appeal there are practical difficulties with imposing an ICO on re-sentence. In particular, an ICO commences on the day on which it is made: s 71(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

6. [74]

   Bearing in mind that the applicant is to be released on a recognizance of $100 in a few months’ time for the period of 2 years, it is arguable that if this Court was to impose an ICO, the applicant would be entitled to a Parker warning (Parker v Director of Public Prosecutions (1992) 28 NSWLR 282). The fact is that an ICO is no longer appropriate in the circumstances, although were it not for these practical considerations, I believe that an ICO would have been the appropriate penalty. I propose to impose a lesser sentence by imposing a longer recognizance release order, which provides similar safeguards to an ICO with respect to supervision and rehabilitation.

7. [75]

   The applicant will soon have spent 9 months in custody. In my opinion, on resentence, and bearing in mind all matters set out in s 16A(2), I would order the applicant to be released from custody three months earlier than his Honour, on 27 October 2025, upon his entering a recognizance of $100, without security, pursuant to s 20(1)(b) of the Crimes Act for a period of 2 years and 3 months. The recognizance is conditional on the offender:

   1. (1)

      Being of good behaviour;

   2. (2)

      Being subject to the supervision of a parole officer appointed in accordance with the order;

   3. (3)

      Obeying all reasonable directions of a parole officer.

8. [76]

   I would make the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentence imposed by the District Court on 28 March 2025 is quashed and in lieu thereof the applicant is sentenced an aggregate sentence of imprisonment of 3 years to date from 28 January 2025 and to expire on 27 January 2028.

   4. (4)

      The indicative sentences, after a 25% reduction for the applicant’s early plea of guilty, are:

   5. (5)

      Order that the applicant is to be released from custody after 9 months, on 27 October 2025, upon his entering a recognizance of $100, without security, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) for a period of 2 years and 3 months.

   6. (6)

      The recognizance is conditional on the offender:

9. [77]

   SWEENEY J: I agree with Weinstein J.