Maximos v R

1. [1]

   HAMILL J: I agree with McNaughton J.

2. [2]

   McNAUGHTON J: The applicant seeks leave to appeal against his sentence imposed on 20 December 2024 by Turner DCJ (the sentencing judge) at Campbelltown District Court.

3. [3]

   The applicant relies on one ground of appeal based on a discrete issue. That is, whether material inadvertently and incorrectly placed before the sentencing judge meant that the judge fell into error in her Honour’s remarks on sentence thus causing a material error.

Background

1. [4]

   The applicant entered pleas of guilty on 20 August 2024 at the Downing Centre District Court to eight offences of recklessly dealing with proceeds of crime committed over the twelve day period, between 2 and 14 September 2018 (these charges being statutory alternatives to the eight counts of knowingly deal with proceeds of crime on the original indictment). With the Crown having accepted those pleas entered on the earlier indictment, the applicant re-entered pleas of guilty on 22 August 2024 to a fresh indictment containing the finalised charges. The details of the offences to which the applicant pleaded guilty, the applicable maximum penalties and the sentences indicated are as follows (noting there is no applicable standard non-parole period):

2. [5]

   The applicant was sentenced to an aggregate sentence of 2 years 6 months imprisonment with a non-parole period of 1 year and 6 months. With the sentence backdated to commence on 19 December 2024 to reflect the single day of pre-sentence custody served, the applicant is entitled to be released to parole on 19 June 2026.

3. [6]

   This appeal was heard on 23 February 2026. A notice of intention to appeal had been filed on 20 December 2024. An initial notice of appeal (containing different grounds) and associated documents were filed on 12 June 2025, and the matter was first listed for hearing on 23 July 2025. At that hearing, those initial grounds of appeal were abandoned. On 15 October 2025, an amended notice of appeal containing the sole current ground was filed together with associated documents.

4. [7]

   The single ground of appeal is framed as follows:

Factual overview

1. [8]

   Between 8 May 2012 and 5 November 2020, the applicant was the sole director and sole shareholder of CCS 136 Castlereagh Pty Ltd (CCS), a supermarket and grocery store. In 2016, CCS opened a Business Transaction Account with the Commonwealth Bank of Australia (CBA) (CCS Account) and the applicant, as director and secretary of CCS, signed a bank authority for the CCS Account. At that time, the applicant was the only authorised signatory to the CCS Account. On 17 August 2016, an updated authority was provided to CBA authorising Mohid Al Kilani to operate the account. Mr Al Kilani was recorded as the ‘Manager’ of CCS. Later that month, CBA approved an application from CCS for card merchant facilities to be installed, and terminals were installed shortly thereafter.

2. [9]

   Two years later, in 2018, eight unauthorised Mastercard transactions totalling $746,500 were identified. The transactions resulted in money being deposited into the CCS Account after it was put through the merchant terminal belonging to CCS. The deposits were made between 3 September and 13 September 2018, and were in increasing amounts of between $55,000 and $109,400.

3. [10]

   The majority of the funds deposited in the transactions were withdrawn from the CCS Account prior to CBA becoming aware of the suspect nature of the disputed card transactions. An analysis of the withdrawn funds can be summarised as follows:

4. [11]

   On 13 September 2018, a stop was put on the CCS Account preventing withdrawal of the final $109,400 deposited on that date.

5. [12]

   The applicant departed Sydney on 7 September 2018 and returned to Australia on 5 October 2018. During that period, the IP addresses recorded in the CBA’s NetBank logs corresponded to the geographical locations of Morocco and Melbourne.

6. [13]

   The applicant presented himself to a Police Station on 15 October 2018 where he was arrested and charged.

The sentence proceedings

1. [14]

   The sentence proceedings commenced on 28 August 2024. On that day, Mr Lange, appearing for the applicant, requested an adjournment because the applicant’s scheduled appointment with a neurologist had not gone ahead as planned. The hearing proceeded to a point on that day and was then adjourned to 25 October 2024 when further material was tendered by both the respondent and the applicant. The matter was then adjourned for further sentence to 20 December 2024. Prior to her Honour delivering her reasons on that day, the applicant tendered an affidavit indicating that he had paid $50,000 in reparation to the CBA with further amounts of $15,000 agreed to be paid monthly pursuant to a confidential settlement agreement.

2. [15]

   I will now set out in more detail what occurred on each of the sentence hearing days.

3. [16]

   On 28 August 2024, following agreement to proceed as far as possible that day, the Crown tendered the Crown bundle consisting of the indictment, a statement of agreed facts, the applicant’s criminal history and a NSW Department of Corrective Services report.

4. [17]

   The applicant then tendered his sentence bundle, consisting of a letter of apology written by the applicant, a chronology of events, three personal references (including a letter from his daughter), an affidavit from his solicitor in relation to the delayed neurologist appointment, and a psychological report and related documents prepared by Tim Watson-Munro dated 26 August 2024.

5. [18]

   Both parties provided written submissions and made initial oral submissions, and the Crown provided four authorities: Butler v R [2012] NSWCCA 54; Hraiki v R [2019] NSWCCA 140; McRae v R [2023] NSWCCA 55; Ishaq v R [2023] NSWCCA 178.

6. [19]

   Some salient features emerging from that hearing are as follows:

   1. (1)

      The applicant had been on conditional liberty for dishonesty offences at the time of the index offending and the sentencing judge commented that without the facts in respect of those earlier offences, it was difficult for her to assess them “in a vacuum”. The Crown indicated that as the matter had to be adjourned in any event, facts in relation to previous matters would be obtained.

   2. (2)

      The applicant had not returned any of the funds.

   3. (3)

      The Crown submitted that even though the applicant said he had experienced a “turning point” in 2019 and needed to change, stopped using drugs and alcohol and began to rebuild his life, he continued to commit offences after 2019 including drug offences and an Apprehended Violence Order (AVO) breach. The Crown submitted that was relevant to rehabilitation.

   4. (4)

      The Crown anticipated her main submissions at the next sentence hearing would be on the issue of the custodial penalty being served by way of Intensive Correction Order (ICO) or full-time custody.

   5. (5)

      Mr Lange submitted that the previous dishonesty offences had been committed over a short period of two days in December 2016 and were comparatively less serious.

   6. (6)

      Mr Lange did not suggest any diminution of the applicant’s moral culpability as a result of his mental health.

   7. (7)

      Mr Lange conceded that the s 5 threshold [referring to s 5(1) Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act)] had been crossed in relation to each of the offences.

   8. (8)

      Mr Lange conceded that some of the delay was because of the applicant’s conduct.

7. [20]

   When the sentence hearing resumed, the Crown tendered, without objection, Court Attendance Notices and facts in relation to the applicant’s prior matters, including facts in relation to breaches of an AVO in 2019 and 2020. It is material which was inadvertently included in this further bundle which underpins the sole ground of appeal. The Crown also tendered a sentencing assessment report dated 15 October 2024.

8. [21]

   The applicant tendered a bundle of documents containing a report of Professor Gavin Davis, Neurosurgeon Consultant, dated 21 October 2024, a report of Dr Kenan Ismal in relation to the applicant’s brother, and a supplementary psychological report dated 24 October 2024 prepared by Mr Watson-Munro. Professor Davis’ report provided information in relation to an aneurysmal growth on the applicant’s brain. Professor Davis opined that should there be a haemorrhage, whether at home or in prison, an ambulance would need to be summoned followed by immediate hospital transfer. Professor Davis did not consider incarceration would have an impact upon any treatment that might be provided.

9. [22]

   Mr Watson-Munro’s report included his view that the speed of delivery of intervention in an emergency would inevitably be impeded by incarceration. Mr Watson-Munro further stated:

10. [23]

    Oral submissions were directed to the appropriateness of an ICO.

11. [24]

    Mr Lange submitted that the most relevant offences were the prior dishonesty offences but again noted the short period of time over which they had been committed and the small amounts of money involved, ultimately reflected by the sentence imposed. There had been no dishonesty offences from 2016 until the index offending.

12. [25]

    When addressing the applicant’s prior criminal history, Mr Lange stated that “matters behind tabs three to six” (which included the AVO matter in 2019 and the possess drugs matter in May 2023) were of “a wholly different nature”. Further, together with the 2016 dishonesty matters, it was submitted that they “occurred some significant time ago as did the current offending’. Mr Lange then qualified the submission by conceding the drug matters were “recent but of a wholly different nature”.

13. [26]

    Mr Lange addressed the sentencing judge in relation to “the breaches of an AVO” stating: “I don’t ignore the fact that there’s a charge of stalk and intimidate, but they are for a very different kind from the present”.

14. [27]

    As became apparent on this appeal, and which will be discussed in more detail below, the breach AVO matter in 2019 and 2020 had been the subject of negotiation and the applicant ultimately had been sentenced for only one charge of “breach of an AVO” and no charge of “stalk and intimidate”.

15. [28]

    In the course of argument, the sentencing judge noted, in terms of considering community safety in relation to the imposition of an ICO, there was some evidence of the applicant not complying with court orders “including bail and an AVO”. Mr Lange emphasised the "antiquity” of the AVO matters. The sentencing judge then stated that she would “need to look at them”.

16. [29]

    The applicant and the Crown made further oral submissions about the AVO matters. Mr Lange submitted that those matters had occurred within a family setting, and since those matters, he had not presented as a risk to the community generally. The Crown submitted that Mr Lange’s submissions that the AVO matters were not terribly serious should not be accepted.

17. [30]

    It is thus clear that the AVO matters were raised and were the subject of attention during the sentencing hearing.

18. [31]

    The matter was then adjourned to 20 December 2024 for delivery of the sentence judgment.

19. [32]

    After some further material was tendered, the judge delivered the remarks on sentence.

Remarks on sentence

1. [33]

   After setting out the maximum penalties and a brief history of the proceedings, the sentencing judge noted the concession by the Crown that the plea of guilty should attract a 5% discount for the utilitarian benefit of the plea and also stated she would take into account, albeit not recognised by a discrete discount, the applicant’s willingness to facilitate the administration of justice by his plea.

2. [34]

   The sentencing judge then set out an overview of the agreed facts in relation to the eight counts. Her Honour also set out additional detail in relation to each count. I will summarise some of this additional detail.

3. [35]

   Prepaid Mastercard cards (Mastercards) were used in each of the eight transactions. These cards can be purchased at retail outlets and are anonymous. They are activated when a user loads an amount of cash into them.

4. [36]

   On 3 September 2018 at 8:24pm, a prepaid Mastercard was used in an offline transaction in the CCS merchant facility in the amount of $55,000, and at 11:03pm, that amount was credited into the CCS Account.

5. [37]

   From 4 September 2018 at 1:18am, a number of transactions took place using the applicant’s NetBank identification number including $57,000 being transferred from the CCS Account to the applicant’s CBA account and $20,000 transferred from the applicant’s CBA account to another account for which the applicant was an authorised signatory. In addition, on 4 September 2018 the applicant made three cash withdrawals totalling $50,000 in person at the bank, and a further ATM withdrawal of $1,880.

6. [38]

   On 4 September 2018 at 8:06am, a prepaid Mastercard was used in an offline transaction in the CCS merchant facility in the amount of $86,000, and at 11:06pm, that amount was credited into the CCS Account.

7. [39]

   From 5 September 2018 at 12:09am, a number of transactions took place using the applicant's NetBank identification number including $58,000 being transferred from the CCS Account to the applicant’s CBA account and a further $2,000 transferred to his CBA account at 11:49am. There were a number of other transactions involving transfers of cash from the applicant’s CBA account to other accounts, including his own CBA Mastercard. There was also a transfer of $10,000 from the applicant’s CBA account to another account for which the applicant was an authorised signatory, followed by withdrawal of $10,000 in cash in person. Later that day, there was a similar transfer of $5,000 followed by a withdrawal of $5,000 in cash.

8. [40]

   There was then a further transfer of $10,000 to another account (in relation to which both the applicant and Mr Al Kiliani were the sole signatories) from the applicant’s CBA account. Shortly after the applicant withdrew two lots of $5,000 in cash from that account. There was a further withdrawal by the applicant in person at the bank of $10,000 from his CBA account, an ATM withdrawal of $2,000 and a further $10,000 withdrawn by the applicant from the CCS Account.

9. [41]

   On 5 September 2018 at 6:50am, a prepaid Mastercard was used in an offline transaction in the CCS merchant facility in the amount of $88,500, and at 11:02pm, that amount was credited into the CCS Account.

10. [42]

    Between 5–6 September 2018 a number of transactions took place using the applicant’s NetBank identification number. One minute after the funds were in the CCS Account, $15,000 was transferred from that account to the applicant’s CBA account. Shortly after, $10,000 was transferred to the applicant’s National Bank of Australia account.

11. [43]

    On 6 September 2018, $40,000 was transferred from the applicant’s account to an account where the applicant was a signatory and shortly after, there was a withdrawal in cash from that account by the applicant. $18,500 in total was transferred to accounts of other persons.

12. [44]

    $1,000 was also withdrawn from an ATM from the applicant’s account and a further $1,000 was again withdrawn from that same ATM.

13. [45]

    On 7 September 2018, the applicant left Australia and returned on 5 October 2018. His incoming passenger cards stated he had spent most of his time in Morocco and Lebanon.

14. [46]

    On 9 September 2018 at 7:24am, a prepaid Mastercard was used in an offline transaction in the CCS merchant facility in the amount of $93,500 and at 11:01pm, that amount was credited into the CCS Account.

15. [47]

    On 10 September 2018 a number of transactions took place using the applicant’s NetBank identification number. At 12:02am and 12:09am, $26,000 and $22,000 respectively was transferred from the CCS Account to the applicant’s CBA account. There were also other transfers from the CCS Account to other accounts, from which there were then subsequent transfers.

16. [48]

    There were transfers from the applicant’s CBA account and then transfers of funds to the Mastercard of the applicant, or Mastercard accounts where the applicant was an additional cardholder. There were other transactions from the applicant’s account to another CCS Account.

17. [49]

    Not only was the applicant’s NetBank identification number used, but the IP addresses associated with the transactions were in the geographical locations of Casablanca, Morocco and Melbourne, Australia.

18. [50]

    Later that day, Mr Al Kilani withdrew three different sums of cash from the CCS Account and other related accounts.

19. [51]

    On 10 September 2018 at 6:37am, a prepaid Mastercard was used in an offline transaction in the CCS merchant facility in the amount of $98,700, and at 11:02pm, that amount was credited into the CCS Account.

20. [52]

    Between 10 and 11 September 2018 a number of transactions took place using the applicant’s NetBank identification number with the associated IP addresses recorded as Casablanca, Morocco and Melbourne, Australia. At 11:39pm, $58,000 was transferred from the CCS Account to a related account and one minute later $40,0000 was transferred from the CCS Account to the applicant’s CBA account.

21. [53]

    On 11 September 2018, Mr Al Kilani withdrew $58,000 in cash from the related account. Cash was transferred from the CCS Account to another related account, and from the applicant’s account to another person’s account.

22. [54]

    On 11 September 2018 at 7:00pm, a prepaid Mastercard was used in an offline transaction in the CCS merchant facility in the amount of $106,400, and at 11:01pm, that amount was credited into the CCS Account.

23. [55]

    Between 11 and 12 September 2018 a number of transactions took place using the applicant’s NetBank identification number with the associated IP addresses recorded as Rabat, Morocco and Casablanca, Morocco. At 11:20pm on 11 September, $106,000 was transferred from the CCS Account to the applicant’s CBA account, to his own Mastercard, and to the Mastercards in the names of other persons where he was an additional cardholder, as well as a related account and another named account.

24. [56]

    On 12 September 2018, Mr Al Kilani withdrew $60,000 from a related account in person.

25. [57]

    On 12 September 2018 at 8:24pm, a prepaid Mastercard was used in an offline transaction in the CCS merchant facility in the amount of $109,000, and at 11:07pm, that amount was credited into the CCS Account.

26. [58]

    Between 12 and 13 September 2018 a number of transactions took place using the applicant’s NetBank identification number with the associated IP addresses recorded as Rabat, Morocco and Casablanca, Morocco. At 11:43pm on 12 September, $109,000 was transferred from the CCS Account to the applicant’s CBA account. From that account, $50,000 was transferred to a related account, as well as to the applicant’s Mastercard as well as a Mastercard in the name of another person for which he was an additional accountholder. Further sums of cash were transferred out of the applicant’s CBA account to two other people.

27. [59]

    On 13 September 2018, Mr Al Kilani withdrew $50,000 in cash from the related account.

28. [60]

    On 13 September 2018 at 4:00pm, a prepaid Mastercard was used in an offline transaction in the CCS merchant facility in the amount of $109,400, and at 11:02pm, that amount was credited into the CCS Account.

29. [61]

    The CBA placed a stop on the CCS Account, preventing any withdrawals after this last deposit.

30. [62]

    As noted, the applicant was arrested on 15 October 2018 after presenting himself at the police station.

31. [63]

    The total money possessed by the applicant from 3 – 13 September 2018 was $746,500. The total amount of money involved, minus the last transaction, which was stopped by the CBA, was $637,100. The CBA suffered a real loss of $613,851.87 which represented the amount CBA had to pay the issuing card authorities.

32. [64]

    In assessing objective seriousness, the sentencing judge observed that whilst the applicant was not being sentenced for participating in any fraud, she was satisfied his conduct was part of a planned and organised activity and involved a substantial amount of money. The offending involved a high degree of recklessness. It also involved a degree of concealment by the applicant in dissipating the money so that it could not be recovered by the bank.

33. [65]

    The sentencing judge found that the applicant was motivated to commit the offences for financial gain. Given the paucity of evidence in relation to the applicant’s financial situation at the time and the substantial amount of money the applicant dealt with, the sentencing judge was not satisfied the applicant’s motivation was solely due to financial difficulties and not also for profit. She was satisfied the offending only stopped because of the action taken by the bank rather than of the applicant’s own volition.

34. [66]

    The sentencing judge assessed the offences as serious offences of their type but as below the mid-range of seriousness for this type of offending.

35. [67]

    The sentencing judge then turned to the applicant’s criminal record, noting it commenced with a fine for using an unregistered vehicle in 2008, followed by possession of a prohibited weapon in 2014. The next offending was in 2016 involving a number of offences of dishonestly obtain financial advantage by deception, with further similar offences taken into account on a Form 1. For these offences, the applicant was sentenced to s 9 Sentencing Act bonds for a period of 12 months, and the facts for this offending were before the sentencing judge. This offending involved the applicant using cloned cards in numerous different ATMs to conduct numerous transactions over two days. The applicant withdrew $5,900 in cash in total and attempted to withdraw $11,920. In relation to these offences, the sentencing judge stated:

36. [68]

    The sentencing judge then noted the applicant’s 2017 convictions and fines for three counts of possess prohibited drug, a 2018 mid-range PCA offence and a 2020 drive whilst suspended offence.

37. [69]

    The sentencing judge then stated:

38. [70]

    Finally, the sentencing judge noted the applicant was convicted and fined for two counts of possessing a prohibited substance (four vials of steroids) in 2023.

39. [71]

    The sentencing judge concluded that the applicant’s record “does not entitle him to any leniency”.

40. [72]

    Next, the sentencing judge noted that the index offences were committed whilst the applicant was on s 9 bonds for the 2016 dishonestly obtain financial advantage by deception offences, and correctly indicated that whilst not relevant to objective seriousness, this had an aggravating effect on the sentence by affecting considerations of punishment, deterrence and the protection of the community.

41. [73]

    As to the applicant’s subjective circumstances, gleaned from the report of Mr Watson-Munro, and letters from the applicant and his daughter, the sentencing judge noted that the applicant was born in Syria in 1976 and has nine siblings, many of whom live in Australia. His elderly mother lives with him. The applicant has been in Australia for 25 years and is an Australian citizen. His education took place in Saudi Arabia, Jordan (where he completed high school) and then Kyiv, Ukraine where he completed his tertiary training, obtaining degrees in Engineering and Biomedical Engineering graduating in 1999.

42. [74]

    He came to Australia as a refugee in 1999 and worked to save money to establish businesses which he ran between 2002 and 2017. At the time of sentencing, he was living on Centrelink benefits and working casually in a store which he part-owned.

43. [75]

    He met his former wife in Ukraine, and they had four children, the oldest born in Ukraine, and the others born in Australia. The applicant separated from his former wife in 2015 and divorced in 2020. He had since remarried and currently lives with his wife and six children. His wife has two children from a previous marriage, one of whom suffers from a serious genetic disorder. He is the sole provider for his family. His wife is not in paid work and does not speak English. She has vision problems, and is reliant on him for support, logistics issues and transportation.

44. [76]

    He told Mr Watson-Munro he used to have a Substance Use Disorder which commenced in 2015 and primarily involved cocaine. He said he ceased taking drugs in 2018 or 2019.

45. [77]

    In relation to the offending, he said in his letter to the Court that by 2018 his businesses were struggling, and he was owed money by his business partners. He was in debt to most of his suppliers and claimed he made the “poor” decision to hand over his business terminals to someone who promised to deposit funds in his business account. He said at the time he was not aware that the transactions were fraudulent. He told the author of the Sentencing Assessment Report that his poor decision making was due to his chronic cocaine abuse around the time of the offending, and told Mr Watson-Munro, he was also under considerable emotional and financial strain at the time.

46. [78]

    As to his mental health, he reported that even though his drug use had ceased, his symptoms of anxiety, depression and low self-esteem continued, compounded by his association with the criminal justice system, his father dying and his inability to attend his father’s funeral in Turkey. Mr Watson-Munro administered testing which confirmed his clinical impressions of the applicant having a severe and recurring Depressive Disorder. It was noted by the sentencing judge, however, that no submission was made by Mr Lange that the applicant’s mental health should reduce his moral culpability, albeit her Honour accepted that the applicant’s current mental health condition modestly tempered the application of general deterrence.

47. [79]

    The sentencing judge was not satisfied the applicant’s mental health condition tempered the significance of specific deterrence to any great extent, not only because the applicant could still understand a deterrent message but also “due to his criminal record and chronology of offending as I have outlined, and due to the fact he was on good behaviour bonds at the time.” [Emphasis added]

48. [80]

    The sentencing judge found that the applicant was further affected by physical health issues caused by a serious motor vehicle accident in 2023, resulting in him spending two weeks in hospital, during which time a three millimetre aneurysm was discovered. Her Honour summarised the medical evidence before her from Professor Davis and Mr Watson-Munro. The sentencing judge did not accept Mr Watson-Munro’s opinion about the speed of intervention if required in a custodial environment. Whilst her Honour was satisfied that the risk of rupture was low and that the applicant’s health in respect of the aneurysm could be monitored and treated appropriately in custody, she accepted the applicant had associated anxiety and was prepared to accept this anxiety would make his time in custody more onerous.

49. [81]

    The sentencing judge found that the applicant had expressed remorse for his conduct, and had accepted “some responsibility for it, albeit late in the piece” (noting the late efforts at reparation), but found he did not acknowledge the high degree of recklessness involved in his offending.

50. [82]

    The sentencing judge found that the applicant had reasonable prospects of rehabilitation. In the section of the judgment relating to prospects of rehabilitation leading up to this finding, her Honour took into account “that since these offences, the [applicant] has committed further offences, albeit of a different nature”, and noted Mr Lange’s submission that “the domestic violence offences could be seen to be offending around the same period of time when the [applicant] was vulnerable to drugs, and he submitted there has been rehabilitation since that time”.

51. [83]

    Importantly, however, immediately after the finding of reasonable prospects of rehabilitation her Honour stated:

52. [84]

    As to delay, the sentencing judge found that there had been some delay, but it was not completely unrelated to the applicant’s conduct. It was noted that at least two trial dates were vacated because of the applicant, one because of a change in legal representation and the other because of an expert report. Her Honour found that delay was relevant in this case in two ways. First, because of the applicant being in “uncertain suspense” which had taken a toll on his mental and emotional wellbeing for an extended period, and secondly, because it allowed him to demonstrate rehabilitation.

53. [85]

    As to the effect of custody on the applicant’s stepson, the sentencing judge took this into account in a general sense in the applicant’s subjective features and onerousness of custody.

54. [86]

    The sentencing judge then referred to the purposes of sentencing in s 3A of the Sentencing Act. In this section of the remarks, as well as the multiple offences, the record of “similar offending” (including being on conditional liberty in relation to “similar offending”) was referred to in the context of specific deterrence.

55. [87]

    The sentencing judge was satisfied that no sentence other than imprisonment was appropriate for each of the offences and then went on to consider the length of the sentence, taking into account totality and the indicative sentences. Her Honour was satisfied that it was appropriate that there be substantial concurrency as well as some degree of accumulation.

56. [88]

    The remainder of the remarks discussed in detail whether it was appropriate to make an ICO, with careful consideration given to the principles in Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3. Her Honour correctly adverted to the consideration of community safety as one of the factors which must be taken into account, which included the likelihood of reoffending by the applicant. Her Honour discussed which of an ICO and full-time detention would be more likely to address that risk. Her Honour stated:

57. [89]

    After setting out that there was currently no targeted community based rehabilitation or treatment in respect of any issue relevant to his likelihood of reoffending which would be interrupted by incarceration, nor any that was planned, her Honour continued:

58. [90]

    Her Honour determined not to impose an ICO, stating:

59. [91]

    Her Honour found special circumstances given that it was the applicant’s first time in custody and on the basis of his mental health condition.

Background to the single ground of appeal

1. [92]

   As noted above, at the beginning of the second day of the sentence hearing, namely 25 October 2024, the Crown tendered a further bundle of documents which were admitted without objection. The documents included Court Attendance Notices and fact sheets in respect of earlier charges which had been brought against the applicant. The material included charge sheets and facts for five matters purportedly dealt with to finality in the Local Court on 22 July 2020 involving a breach of an apprehended violence order (and including a stalk/intimidate charge).

2. [93]

   In fact, on 22 July 2020 in the Local Court, the applicant had entered a plea of guilty to only one “rolled up” count of contravention of an apprehended violence order spanning 24 December 2019 to 6 January 2020 which involved the making of four telephone calls to the applicant’s then wife. The remaining four sequences were withdrawn. Following the plea of guilty, redacted police facts were provided to the Local Court. Those facts indicated that the applicant accepted guilt in relation to having contact, or attempting contact, with his then wife a total of 11 times. The applicant was subsequently sentenced to a conditional release order for 18 months for this single rolled up offence which was based only on telephone contact between the applicant and his then wife.

3. [94]

   Regrettably, instead of the redacted facts being tendered to the sentencing judge, the sentencing judge was provided with material that contained a copy of an unredacted statement of facts which included the additional allegations against the application relating to three additional offences of contravening a prohibition or restriction of an apprehended domestic violence order and one offence of stalk/intimidate intended to cause fear of physical or mental harm (domestic violence offence).

4. [95]

   This Court was informed that the redacted version, as tendered, was inexplicably not found on the Local Court file, hence the unwitting provision to the sentencing judge of the incorrect material. The fact sheet which was erroneously provided to the sentencing judge included the following material (in italics) (the erroneously unredacted material) which should not have been before her Honour as it had been redacted in the Local Court proceedings. For context some surrounding material has been summarised set out in square brackets.

5. [96]

   It is clear that her Honour referred to the erroneously unredacted material in the course of her sentencing remarks as set out above at [69] and [88] above. This is unsurprising, especially in light of the discussion during the course of the sentence hearing in the context of the suitability of an ICO, as set out above at [25]-[30] above.

Consideration

1. [97]

   Appellable error will be established if the factual basis on which the applicant was sentenced was not reasonably open and the error was material: House v The King (1936) 55 CLR 499; [1936] HCA 40; Hancock v R [2025] NSWCCA 213 at [73]. For an error to be material, it must have the capacity to affect the sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550 at [82]-[87]; cf, in the context of a conviction appeal, Brawn v The King [2025] HCA 20 at [8]-[11].

2. [98]

   The applicant submitted that the sentencing judge must have taken into account the prior “domestic violence offences” when considering the issue of community safety, as required by s 66 of the Sentencing Act which provides that community safety must be the paramount consideration when the sentencing court is deciding whether to make an ICO. The applicant further contended that because those offences included the intimidation of the applicant’s then wife and the meting out of abuse to her, which was characterised by the sentencing judge as “serious offending conduct” (as set out above at [69]), the assessment of the risk of reoffending was infected by matters, which had not, in fact, been accepted by, or proved against, the applicant in the Local Court proceedings. The applicant also pointed to the sentencing judge’s references to the “domestic violence offence” and the “contravene AVO offence” (set out above at [88]) in the context of the applicant’s prospects of rehabilitation, as well as references to “further offences, albeit of a different nature” at [69].

3. [99]

   The Crown on the appeal acknowledged that the sentencing judge relied on the incorrect factual basis underpinning the conviction relating to the breach of the AVO, but contended there was no material error. It attempted to make good this argument by pointing to a number of factors. These factors included the correct use of the singular by the sentencing judge when referring to the conviction for the AVO, as well the correct reference to the penalty imposed for that offence which had been based upon the correct version of the facts. The Crown also pointed to the sentencing judge’s correct assessment that the applicant’s criminal history did not entitle him to any leniency given that it included offending from 2008 and contained a significant number of offences of dishonesty in addition to drug offences, weapons offences and driving offences.

4. [100]

   In essence, the Crown submitted that the misstated factual basis of one offence in a criminal history which spanned 16 years and involved more serious criminal activity did not have the ability to influence her Honour’s assessment of the effect of his criminal history, or the sentence. Further, the Crown pointed to the sentencing judge’s finding that the applicant had reasonable prospects of rehabilitation in any event.

5. [101]

   I am of the view that the ground is made out. Not only was the issue involving the prior domestic violence conduct the subject of argument, there was also explicit reference by her Honour in the remarks to the detail of the erroneously unredacted material concerning the applicant’s intimidating conduct towards his then wife, and an assessment of that conduct as “serious offending conduct”. There were also further references in the remarks to “to his criminal record and chronology of offending as I have outlined” in the context of the consideration of specific deterrence offending (at [79] above) and a reference to offending “in a different manner” in the context of the discussion of likelihood of reoffending (at [83]).

6. [102]

   Through no fault of the sentencing judge, there was error in the factual material considered by her Honour, and the error was material in that it had the capacity to affect the sentence. Given that the sentence imposed was affected by error, it is accordingly necessary for this Court to re-exercise the sentencing discretion afresh: Kentwell at [42] (French CJ, Hayne, Bell and Keane JJ).

7. [103]

   The sole ground of the appeal has been established.

Resentence

1. [104]

   On the appeal, the applicant tendered material to be taken into account in the event of resentence concerning the large number of “lock in days” during his time in custody. As of 1 May 2025, he had had 49 such days. It can properly be assumed that there have been more lock in days since May 2025.

2. [105]

   The applicant contended that on resentence, he should receive a term of imprisonment to be served in the community by way of an ICO, referring to the discussion in R v Weldon [2025] NSWCCA 21 at [159]-[161] per Yehia J. That discussion highlighted the important observation that community safety in the context of s 66 of the Sentencing Act is not just about incarceration. Community safety is inextricably linked to rehabilitation which is more likely to occur with supervision and access to treatment programs in the community.

3. [106]

   The Crown submitted that on resentence, the Court would form the opinion that a less severe sentence is not warranted in law and would therefore dismiss the appeal. It pointed to the late plea of guilty, the number of offences, the level of planning and organisation over 11 days, the substantial amount of money involved as well as a high degree of recklessness (including the dissipation of funds to minimise detection). The Crown also emphasised that an aspect of the applicant’s motivation was financial gain, that his record disentitles him to leniency, and he committed the index offences whilst subject to conditional liberty for other fraud-related offences. The Crown further contended that there was a significant risk that the applicant was likely to reoffend, given his prior and subsequent convictions, including whilst subject to conditional liberty. Further, the Crown submitted there were limited prospects of rehabilitation and an unwillingness to engage in his mental health plan. Finally, the principle of totality required there to be some notional accumulation of the individual indicative sentences.

4. [107]

   I have considered the submissions carefully. In exercising the sentencing discretion afresh, subject to one exception, I adopt all the findings of the sentencing judge, including the 5% discount for the plea of guilty. The only finding I do not adopt is in relation to the applicant’s risk of reoffending. I am of the view that his risk of reoffending is modest. This is because other than the possession of steroids charges in 2023 (for which he received modest fines), the applicant has not offended since 2020; he has since remarried and has caring responsibilities for his wife and six children.

5. [108]

   In all the circumstances, I am of the view that a lesser sentence is warranted in law. In coming to this view I have taken into account the unusual delay in this matter (including additional delay since he was sentenced in the District Court, part of which is not attributable to the conduct of the applicant), as well as the fact that this is the applicant’s first substantial time in custody, at least 49 days of which have been spent in lockdown.

6. [109]

   It is not appropriate, however, in the circumstances of this case, to order that the sentence be served by way of an ICO. An ICO cannot be backdated but rather commences on the day on which it is made: s 71(1) Sentencing Act. A further practical difficulty is that the applicant has already served the vast bulk of his non-parole period and is due to be released in just over three months. As noted by Hamill J in AM v R [2024] NSWCCA 26 at [46], it would be artificial to ignore these factors.

7. [110]

   I would not alter the length of the indicative sentences but would reduce the notional accumulation between them. I would find special circumstances pursuant to s 44(2B) of the Sentencing Act for the same reasons as the sentencing judge, namely that this is the applicant’s first time in custody and on the basis of his mental health (see above at [91]). Like the sentencing judge I would impose a non-parole period which is around 59-60% of the total aggregate sentence. I propose that the aggregate head sentence should be 2 years and 3 months, with a non-parole period of 1 year and 4 months.

Proposed Orders

1. [111]

   Accordingly, the orders I propose are as follows:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed on the applicant in the District Court on 20 December 2024, and in lieu thereof, sentence the applicant to a term of imprisonment of 2 years and 3 months, commencing on 19 December 2024 and expiring on 18 March 2027 with a non-parole period of 1 year and 4 months to expire on 18 April 2026.

2. [112]

   EMMETT J: I agree with McNaughton J.