Sahyoun v R (No 2)

1. [1]

   GLEESON JA and FULLERTON J: On 1 May 2020, the Court made orders granting leave to appeal, allowed the applicant’s appeal against sentence and quashed the sentence imposed by the District Court on 9 November 2018. On re-sentence, the Court, by majority, imposed the following sentence:

2. [2]

   These orders were entered on 1 May 2020: Sahyoun v R [2020] NSWCCA 87. Rule 50C(3) of the Criminal Appeal Rules, provides that “[w]ithin 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.” The Court may not extend the time limited by subrule (3): r 50C(4). Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions): r 50C(5).

3. [3]

   As explained below, order 3 requires variation to delete the reference to the non-parole period, correct the commencement date of the sentence and specify the period of the intensive correction order. Order 4 requires variation to include the standard conditions of an intensive correction order, and any additional conditions the Court considers appropriate.

Order 3

1. [4]

   Section s 7(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) provides that if the Court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the Court is not to set a non-parole period for the sentence. Accordingly, the specification in order 3 of a non-parole period is inappropriate and should be deleted from the order.

2. [5]

   Section 71(1) of the Sentencing Act provides that an intensive correction order commences on the date on which it is made. It is also necessary to have regard to s 47 of the Sentencing Act which relevantly provides:

3. [6]

   In R v Pullen [2018] NSWCA 264, the Court (Harrison J, Johnson and Schmidt JJ agreeing) allowed a Crown appeal against an aggregate sentence of imprisonment for 15 months to be served by way of an intensive correction order, and on resentence imposed an aggregate period of imprisonment for 3 years to be served by way of an intensive correction order backdated to commence on 24 August 2018, the date the applicant was originally sentenced in the District Court.

4. [7]

   In Blanch v R [2019] NSWCCA 304, the Court (Campbell J, Hoeben CJ at CL, Price J agreeing) allowed the applicant’s appeal against an aggregate sentence of 2 years and 9 months, commencing on 13 March 2019, with a non-parole period of 1 year and 6 months expiring on 12 September 2020, and on resentence imposed an aggregate of imprisonment of 2 years and 9 months to be served by way of an intensive correction order backdated to commence on 13 March 2019, being a date before the sentencing judge passed the sentence to be quashed. This was to allow for the applicant’s pre-sentence custody for a period when bail was refused.

5. [8]

   In Blanch at [92], a possible difficulty was identified arising from the terms of s 71(1) of the Sentencing Act, namely that the intensive correction order will commence on the date on which it is made only if the date of this Court’s orders is taken as the date of commencement. In Blanch the Court addressed this issue by treating the re-sentence passed on appeal as in substitution for the sentence passed by the sentencing judge which is quashed when the sentence appeal is upheld, such that the order on appeal is taken to have been passed “then rather than now”, referring to s 6(3) of the Criminal Appeal Act 1912 (NSW). Campbell J said at [94]:

6. [9]

   In this case, on re-sentence by this Court the commencement date of the aggregate sentence of imprisonment for 2 years and 6 months to be served by way of intensive correction order was backdated to commence on 7 January 2020 to take into account the time the applicant had spent time in custody of 3 months and 24 days, comprising pre-sentence custody (2 days), and post-sentence custody (3 months and 22 days).

7. [10]

   The circumstances of the present case do not easily lend themselves to the reasoning in Blanch, or the approach in Pullen, given that the applicant has been on bail pending his appeal for a significant period. In this case were the commencement date of the intensive correction order to commence on “the date on which it is made” in accordance with s 71(1) of the Sentencing Act but referable to the date he was sentenced in the District Court (the approach in Pullen) the order will expire on 15 January 2021 and were the approach in Blanch taken the broken periods of pre and post sentence custody are not readily accounted for. Another approach in a case like the present is to commence the sentence to be served by way of an intensive correction order on the date the order is made on resentence, an approach also consistent with s 71(1) of the Sentencing Act but to reduce the period of the aggregate sentence to allow for the applicant’s pre and post-sentence custody.

8. [11]

   Adopting this approach, Order 3 should be varied such that the applicant is sentenced to an aggregate term of imprisonment of 2 years, 2 months and 7 days to be served by way of an intensive correction order commencing on 1 May 2020 and expiring on 7 July 2022. The effect of this variation is not to change the effective period of the intensive correction order which was imposed by Order 3.

Order 4

1. [12]

   Given the variation to Order 3, Order 4 in its present terms is superfluous but there is a need for supplementation of the Court’s orders in view of s 73 and s 73A of the Sentencing Act.

2. [13]

   Section 73(1) of the Sentencing Act provides that the sentencing court must at the time of sentence impose on an intensive correction order the standard conditions of an intensive correction order. The standard conditions are: (a) a condition that the offender must not commit any offence; and (b) a condition that the offender must submit to supervision by a community corrections officer: s 73(2).

3. [14]

   Order 4 should be supplemented by making those standard conditions.

4. [15]

   Section 73A(1) of the Sentencing Act provides that in addition to the standard conditions, the sentencing court must at the time of sentence impose on an intensive correction order at least one of the additional conditions referred to in sub-sec (2). The sentencing court is not required to impose an additional condition if the Court is satisfied that there are exceptional circumstances: s 73A(1A).

5. [16]

   The appropriate additional condition with respect to the applicant is an abstention condition requiring abstention from the consumption of drugs: s 73A(2)(f). This condition should apply for the duration of the intensive correction order.

6. [17]

   Accordingly, the Court makes the following orders:

   1. (1)

      Pursuant to r 50C of the Criminal Appeal Rules (NSW):