Bresnahan v R

1. [1]

   BEECH-JONES CJ at CL: I have had the advantage of reading the judgments of Walton J and Yehia J. For the reasons given by Yehia J I would uphold grounds 1 and 2 of the application for leave to appeal. Although Walton J did not consider it necessary to determine ground 2, his Honour approaches resentencing on the basis that the “reparation” payment made by the applicant to Bidfood Australia Ltd was a factor warranting separate consideration in the sentencing process beyond merely considering its effect on any assessment of the applicant’s remorse and prospects of rehabilitation. That is the approach I will adopt.

2. [2]

   Walton J cites various authorities to the effect that, if an assessment is made that the seriousness of the offending warrants a sentence being served by way of full time detention, then it is not necessary to address s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”) (eg Thurlow v R [2022] NSWCCA 20 at [34]). In circumstances where the High Court’s reasons for allowing the appeal in Stanley v DPP [2022] HCATrans 202 are not yet available, a degree of uncertainty surrounds the continuing authority of such cases. I will approach the matter on the basis that s 66 must be addressed although, even if a consideration of that provision warrants the making of an Intensive Correction Order (“ICO”), a consideration of the various sentencing objectives in light of the seriousness of the offending may still warrant the conclusion that the sentence should be served by way of full-time detention.

3. [3]

   In this case I am satisfied, for the reasons given by Walton J, that the applicant does not represent a threat to community safety. I will pass over the possibility that the concept of “community safety” embraces the necessity to deter other offenders. Hence a consideration of s 66(1) of the Sentencing Act supports the imposition of an ICO. In relation to s 66(2), I consider that neither the applicant serving a sentence by way of full time detention nor his serving the sentence via an ICO is more likely than the other to address the applicant’s risk of reoffending. In either case that risk is very low. This is a neutral factor in relation to whether or not to impose an ICO.

4. [4]

   Nevertheless, subject to the above and for the reasons given by Walton J, I consider that the offending was so serious that the applicant’s sentence should be served by way of full time detention rather than by way of an ICO even allowing for his strong subjective case.

5. [5]

   I agree with the orders proposed by Walton J.

6. [6]

   WALTON J: I have had the advantage of reading in draft the judgment of Yehia J. I gratefully adopt her Honour’s summary of the facts and remarks of the sentencing Judge. Her Honour’s judgment allows me to succinctly address the issues in this case.

7. [7]

   I am of the view that leave to appeal should be granted for both grounds. I respectfully agree with her Honour that ground 1 has been established and should be upheld. Therefore, having established error, it is necessary to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 617-618 [42] (French CJ, Hayne, Bell and Keane JJ), 619 [47] (Gageler J). It follows that it is unnecessary to resolve ground 2 and I express no view as to that ground.

8. [8]

   The point at which her Honour and I respectfully depart is determining the sentence which “should have been passed” for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW). My reasons for reaching a different outcome is as follows.

RESENTENCING

1. [9]

   The well-recognised three-stage approach to sentencing an offender to a term of imprisonment can be summarised as follows:

   1. (1)

      The first step is to consider the purposes of sentencing, as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”), and apply the test set out in s 5 of that Act: R v Hamieh [2010] NSWCCA 189 at [76] (Beazley JA, as Her Excellency then was, Kirby and Johnson JJ); R v Douar (2005) 159 A Crim R 154; [2005] NSWCCA 455 at 165 [70] (Johnson J, with whom McClellan CJ at CL and Adams J agreed). Section 5 precludes the imposition of imprisonment unless the sentencing court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. At this stage, a sentencing court must consider sentencing options that are available “instead of” a sentence of imprisonment, including community correction orders (s 8) and conditional release orders (s 9). It is noteworthy that an intensive correction order (“ICO”) is a mode by which a sentence of imprisonment can be served; it cannot, at the same time, be an alternative to imprisonment: Mandranis v R (2020) 289 A Crim R 260; [2021] NSWCCA 97 at 265 [25] (Simpson AJA, with whom Garling and N Adams JJ agreed) (“Mandranis”).

   2. (2)

      If s 5 has been applied and the sentencing court is satisfied that no penalty other than imprisonment is appropriate, the next step is to determine the term of the sentence without reference to the mode that it is to be served: R v Zamagias [2002] NSWCCA 17 at [26]-[27] (Howie J, with whom Hodgson JA and Levine J agreed); R v Assaad [2009] NSWCCA 182 at [31] (McCallum J, as her Honour then was, with whom McClellan CJ at CL and Hidden J agreed). If a sentencing court is sentencing an offender for more than one offence, it is at this stage that a sentencing court should determine whether it would exercise its discretion under s 53A of the CSPA to impose a single aggregate sentence and, if so, the term of that aggregate sentence.

   3. (3)

      It is only after the term of imprisonment has been determined that the sentencing court considers the mode of sentence. It is inappropriate to consider how the sentence will be served before determining its length: R v Ryan (2006) 167 A Crim R 241; [2006] NSWCCA 394 at 242 [1], 243 [4] (Barr and Latham JJ). Pt 5 Div 1 of the CSPA provides that an ICO is available for certain offences provided that the duration of the term of imprisonment does not exceed 2 years (or, in the case of an aggregate sentence, 3 years) (s 68).

2. [10]

   After the term of imprisonment has been set, consideration may then be given as to whether this term should be served by an ICO or full-time custody, provided that the offender is eligible for the different modes.

3. [11]

   It must be remembered that, whilst an ICO has the capacity to operate as substantial punishment, the imposition of such a penalty may also reflect a significant degree of leniency because it does not involve immediate incarceration: R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264 at 522 [53] (Harrison J, with whom Johnson and Schmidt JJ agreed) (“Pullen”); Shavali v R [2022] NSWCCA 178 at [64] (Wilson J, with whom Cavanagh J agreed). This leniency may not be warranted in every case.

4. [12]

   In R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225 (“Pogson”), an enlarged bench of five Judges considered a Crown sentence appeal in which one of the grounds was that the ICO imposed by the sentencing Judge was manifestly inadequate. All five Judges emphasised that the ultimate sentence imposed must “ensure that the sentence imposed punishes the offender, denounces their criminal conduct and provides sufficient disincentive to others who may be tempted to offend, to ensure that they refrain from criminal activities”: at 90 [141] (McClellan CJ at CL and Johnson J, with whom R A Hulme and Button JJ agreed), 91 [151] (Price J). All five Judges noted that, had they been sentencing at first instance, they would have imposed a term of full-time custody on two of the offenders, instead of an ICO, because “the level of dishonesty was such that a sentence of lesser severity was manifestly inadequate”. However, McClellan CJ at CL, Johnson, R A Hulme and Button JJ (with Price J dissenting) exercised the residual discretion in Crown appeals to dismiss the appeal. Pogson emphasises that, whilst an ICO deprives an offender of their liberty in a “real and not merely fictional sense” such that they are “not living a carefree existence amongst the community” (at 84 [109]), the objective seriousness of the offending and purpose of general deterrence continue to be relevant and important considerations in whether the sentencing court should afford the significant element of leniency to the offender that comes with making an ICO.

5. [13]

   Although Pogson was decided before the amendments made by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), which amended s 66 to its current form and made community safety the paramount consideration, it has nonetheless been recognised that the seriousness of the offending and need for deterrence may foreclose the imposition of an ICO.

6. [14]

   In Quinn v Director of Public Prosecutions (Cth) (2021) 106 NSWLR 154; [2021] NSWCA 294 (“Quinn”), Simpson AJA (with whom Johnson J agreed) stated at 195 [186]-[187] that:

7. [15]

   Earlier this year, in Thurlow v R [2022] NSWCCA 20 (“Thurlow”), Bellew J (with whom Johnson and Davies JJ agreed) applied Simpson AJA’s observations to the circumstances of that appeal and stated at [32]-[34] as follows:

8. [16]

   In R v Fangaloka [2019] NSWCCA 173 (“Fangaloka”), Basten JA (with whom Johnson and Price JJ agreed) noted that there is no obligation to consider whether to direct that a sentence of imprisonment be served by way of ICO in all cases. His Honour stated in [59]-[60]:

9. [17]

   I take his Honour to be referring to there being no obligation to consider s 66 of the CSPA. This is supported by the plain text of s 64 of the CSPA which provides that Pt 5 only applies when “a court is considering, or has made, an intensive correction order”: see Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318 at 632 [51] (McCallum JA, as her Honour then was, with whom Meagher JA and Simpson AJA agreed) (“Wany”). Quinn and Thurlow both make clear that, if a sentencing court has concluded that no other mode of imprisonment other than full-time custody is appropriate, then it is “entirely unnecessary” to consider the factors in s 66 of the CSPA even if the offender may be eligible for an ICO under ss 67 and 68 of that Act. As Basten JA observed in Fangaloka at [67], “there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of imprisonment”.

10. [18]

    If a sentencing court is of the view that an ICO may potentially be appropriate, it must then proceed to consider s 66 of the CSPA.

11. [19]

    Section 66(1) of the CSPA requires that community safety be the “paramount consideration” when the sentencing court is deciding whether to make an ICO. The first consequence of this provision is that community safety is a mandatory consideration and it must be apparent from the reasons of the sentencing court that consideration has been given to it: Blanch v R [2019] NSWCCA 304 at [60]–[62] (Campbell J, with whom Hoeben CJ at CL and Price J agreed). The second consequence is that s 66(1) has the effect of making other considerations subordinate to community safety: Pullen at 531 [86].

12. [20]

    However, the elevation of community safety to be the “paramount consideration” does not necessarily make it the sole or determinative consideration. Other factors, such as rehabilitation, accountability and denunciation, remain relevant in determining whether to make an ICO but may be given less weight than they otherwise would when the sentencing court is applying the s 5 test or in selecting the term of the sentence where the s 3A purposes are to be fully taken into account: Mandranis at 270 [50]; Mourtada v R (2021) 290 A Crim R 514; [2021] NSWCCA 211 at 522 [23]–[24] (Basten JA, with whom Adamson and Campbell JJ agreed).

13. [21]

    This conclusion is fortified by the text in s 66(3) which provides that the sentencing court “must also consider” the provisions of s 3A, common law sentencing principles and other relevant matters. This subsection confirms that factors other than community safety are still relevant to determining whether an ICO is to be made.

14. [22]

    Section 66(2) provides that “the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending”. In relation to the debate about the proper construction of s 66, I prefer the view expressed by Beech-Jones J (as his Honour then was, and with whom Bathurst CJ and N Adams J agreed) in Casella v R [2019] NSWCCA 201 at [108] as follows:

15. [23]

    The approach of Beech-Jones J (as his Honour then was) has been applied in Wany at 635 [62] and Mandranis at 270 [49] over the approach of Basten JA in Fangaloka at [63]. I do not accept that the determinative consideration is whether an ICO or full-time detention is more likely to address the offender’s risk of reoffending and, unless a favourable opinion is reached in favour of an ICO, that mode of serving the sentence is excluded. There is no textual basis to elevate s 66(2) to override the general consideration in s 66(1) or extract a prohibition unless a positive conclusion is reached.

16. [24]

    The effect of ss 66(1)-(2) was summarised by Simpson AJA in Mandranis at 271 [54] as follows:

17. [25]

    It should be emphasised, however, that even if the sentencing court does proceed to consider s 66, it is not a forgone conclusion that an ICO would be made. Two examples suffice to explain this.

18. [26]

    First, in Karout v R [2019] NSWCCA 253, Fullerton J (with whom Hoeben CJ at CL agreed, with Brereton JA dissenting) stated at [90]:

19. [27]

    Her Honour went on to say at [94]:

20. [28]

    Secondly, in Elphick v R [2021] NSWCCA 167 (“Elphick”), Adamson J (with whom Basten JA and I agreed) commended at [27] the “model” summary of the applicable law and application of it to the facts of the case by the sentencing Judge, Lerve DCJ. This passage was endorsed by Johnson J in Quinn at 198-199 [209]. The relevant sentencing remarks by Lerve DCJ in R v Elphick [2021] NSWDC 1 appear at [100]-[103] as follows:

21. [29]

    The starting point in any sentencing exercise is the maximum penalty as prescribed by law and any applicable standard non-parole period: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at 132 [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The offence has a maximum penalty of 10 years’ imprisonment.

22. [30]

    The offending in this case was very serious because of the following factors:

    1. (1)

       The maximum penalty for the offence is 10 years’ imprisonment.

    2. (2)

       The offending is aggravated because it involves a series of multiple transactions over a period of 14 months.

    3. (3)

       Those transactions increased in frequency from one pallet per week to three pallets per week.

    4. (4)

       The offending only ceased because Mr Matthew Walden – the Branch Manager for Classic Meats who sold the stolen meat to the applicant in return for cash or payment to his personal bank account – resigned.

    5. (5)

       The offending involved recklessly dealing with proceeds of crime worth more than $1 million. This involved 160 pallets of meat. This factor has increased significance because the applicant was aware of the amount and value of meat sold to him by Mr Walden.

    6. (6)

       Although the sentencing Judge was not satisfied beyond reasonable doubt that the applicant knew that the meat was stolen, the applicant stated in cross-examination that he was aware of the possibility that the meat was stolen at the time of the purchases.

    7. (7)

       The offending is aggravated because it involved a degree of planning. It was “more than opportunistic” and it is of significance that the applicant proactively enquired from Mr Walden whether more meat was available and indicated his interest in purchasing it.

    8. (8)

       The offending was motivated by greed and financial gain to increase his profit margins. Of note, the applicant was not, at the relevant time, financially struggling.

    9. (9)

       The applicant’s role in the criminal enterprise was not a small one. Instead, the applicant played an essential role to the enterprise. Sometimes he would pick up the meat himself. Other times, he directed the employees at his business, Something Nice Foods Pty Ltd (“SNF”), to pick it up. The meat was taken back to SNF’s premises and then the applicant would process and sell the meat.

    10. (10)

        The sentencing Judge found, and the applicant did not contest, that the offence fell “just within the mid-range”. The recklessness was found to be at the “upper range”.

23. [31]

    I have had regard to the fact that the applicant has made reparation in the sum of approximately $1 million in the form of a settlement after a civil claim was initiated against him. This does not go to the objective seriousness of the offence: Thewlis v R (2008) 186 A Crim R 279; [2008] NSWCCA 176 at 286 [38] (Simpson J, as her Honour then was, with whom Spigelman CJ and Price J agreed). However, it is a matter that can properly be taken into account by way of mitigation: R v Phelan (1993) 66 A Crim R 446 at 448 (Hunt CJ at CL, with whom Smart and James JJ agreed). Nevertheless, it is important that this factor not be permitted to overweigh the significance of the objective seriousness and general deterrence in this case.

24. [32]

    Although there is some doubt as to whether a substantial sacrifice is a separate consideration outside rehabilitation and remorse, I am prepared to assume for the purposes of this judgment that it may be a separate consideration. I have some doubt as to whether such a consideration has been made out in this matter. This is because there can be little confidence that the sacrifice made by the applicant may be properly characterised as “substantial” on the evidence given the lack of information about the applicant’s and SNF’s earnings, profit and reserves. The Crown was entitled to, and did, test the submissions adduced by the applicant to undermine the veracity of this basis of mitigation. Nonetheless, I am of the view that considerable weight should be given to the applicant’s payment of reparation given the extent of the payment made by him as opposed to the impact of the payment made overall.

25. [33]

    I accept the conclusion of the Sentencing Assessment Report and the finding of the sentencing Judge that the applicant is unlikely to reoffend and has been remorseful. The applicant has good prospects of rehabilitation.

26. [34]

    I have also had regard to the affidavits filed “on the usual basis” (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at 423 [2] (French CJ, Kiefel, Bell, Gageler and Gordon JJ)). The affidavit made by the applicant explained the onerous nature of being incarcerated during COVID-19. He has had extended periods of lockdowns as a result of the COVID-19 isolation protocols and staff shortages. I have had regard to the fact that the applicant’s conditions in custody have been rendered more onerous because of the imposition of restrictions by prison authorities in response to the threat posed by the pandemic: Cabezuela v R [2020] NSWCCA 107 at [131]-[132] (Walton J, with whom Hoeben CJ at CL and Harrison J agreed); Toller v R [2021] NSWCCA 204 at [25] (Beech-Jones J, as his Honour then was, with whom Macfarlan JA and Davies J agreed); Taha v R [2022] NSWCCA 46 at [68]-[69] (Walton J, with whom McCallum JA, as her Honour then was, and Fullerton J agreed).

27. [35]

    The general principles for sentencing in relation to recklessly dealing with proceeds of crime offence include an acknowledgement that general deterrence must be reflected to a significant degree: see Green (a pseudonym) v R [2020] NSWCCA 358 at [53] (Walton J, with whom Meagher JA and Beech-Jones J, as his Honour then was, agreed); Kassis v R [2013] NSWCCA 298 at [18] (Blanch J, with whom Hoeben CJ at CL and Price J agreed); R v McGlone [2016] NSWDC 418 at [63] (King DCJ); R v Salameh [2017] NSWDC 138 at [136] (Mahony DCJ); R v Ogbeide [2021] NSWDC 750 at [32] (Williams DCJ). Proceeds of crime type charges by their nature tend to be difficult to detect, investigate and to prosecute. The offending in this case attracts significant general deterrence, and specific deterrence but to a lesser extent, because it involved multiple transactions over a long period of time to a value of over $1 million. In this case, there is a need to signal to others who might be disposed to recklessly dealing with proceeds of crime that severe penalties will be imposed.

28. [36]

    Having regard to the objective and subjective features discussed above and as identified by the sentencing Judge (excluding the considerations identified in ground 1), I am satisfied that no sentence other than a term of imprisonment is appropriate (CSPA s 5). The applicant did not submit otherwise. I would take as a starting point a term of imprisonment for 2 years and 1 month. After applying a reduction of a 10% discount, the term of imprisonment would be just over 1 year and 10 months.

29. [37]

    The applicant submitted that, if a sentence not exceeding 2 years is imposed, an ICO should be made. It was submitted that the applicant may be subject to a community service work condition.

30. [38]

    It is clear from Fangaloka, Quinn and Thurlow that the seriousness of the offending and the purpose of deterrence may foreclose the imposition of an ICO. The seriousness of the offending, combined with the purpose of general deterrence, warrants a custodial sentence in the circumstances of this case. Ensuring adequate punishment, accountability, denunciation and recognition of the harm to the community are purposes under s 3A of the CSPA that strongly point towards a sentence to be served by way of full-time imprisonment. These purposes would not be sufficiently served by affording a significant element of leniency in the imposition of an ICO. In my view, an ICO would not reflect the overall gravity of the offending or satisfy the principles of sentencing which, in the circumstances of this case, elevate the importance of general deterrence and accountability.

31. [39]

    I do, however, find special circumstances to vary the statutory ratio in s 44 of the CSPA. I agree with the observations of the sentencing Judge in this respect and the ratio of 56.67% that her Honour imposed. In particular, the fact that this is the applicant’s first time in custody, the onerous conditions of imprisonment caused by the COVID-19 pandemic, the applicant’s good prospects of rehabilitation and low likelihood of re-offending make it appropriate for a longer period for the applicant to be eligible for parole: see Arnold v R [2011] NSWCCA 150 at [37] (Davies J, with whom McClellan CJ at CL and Blanch J agreed); R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 717-718 [60] (Spigelman CJ, with whom Mason P, Grove and Sully JJ, and Newman AJ agreed).

32. [40]

    I recognise that the High Court’s recent decision in Stanley v Director of Public Prosecutions (NSW) [2022] HCATrans 202, in which an appeal was allowed from the Court of Appeal’s decision in Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337, may cast doubt on the correctness of the decisions in Fangaloka, Quinn and Thurlow. Accordingly, I will also address the factors in s 66 of the CSPA.

33. [41]

    Consideration must first be given to community safety under s 66(1) of the CSPA. An aspect of this is s 66(2) because the issue as to the applicant’s risk of reoffending must be considered “[w]hen considering community safety”. Where the applicant’s risk of reoffending is low, whether an ICO is made or the sentence is served by way of full-time detention, the consideration in s 66(2) becomes neutral: see Elphick at [26]. The Sentencing Assessment Report does not show that the applicant has strong family support to reduce his risk of reoffending.

34. [42]

    The affidavits filed “on the usual basis” emphasise that SNF has suffered losses, lost customers to alternative suppliers and downsized its workforce. I am satisfied that this is attributable, at least in part, to the applicant’s absence from the business due to his incarceration. However, I do not consider that the applicant’s risk of reoffending would be more likely addressed by the imposition of an ICO to allow him to work on his business. Instead, this is one basis in which I have found special circumstances to vary to statutory ratio for the non-parole period.

35. [43]

    Having considered the factor in s 66(2) has been resolved, I then turn to consider other aspects of community safety under s 66(1) of the CSPA. I do not believe that releasing the applicant on an ICO would endanger the community. This was not an offence committed with violence, nor is there any suggestion that the applicant would pose a threat to the community. Hence, the “community safety” consideration in s 66(1) favours granting an ICO.

36. [44]

    Having regard to community safety and the considerations under s 3A of the CSPA set out above (CSPA s 66(3)), I am nonetheless of the view that an ICO should not be imposed. In weighing the wide variety of factors – some of which pull towards an ICO and others which pull the other way – I am of the view that the seriousness of the applicant’s offending and the significance of general deterrence strongly favour that the applicant’s sentence be served by full-time imprisonment. As I have stated, an ICO does not reflect the gravity of this crime, or adequately denounce it, or act as an effective deterrent to other like-minded individuals.

37. [45]

    I note that, even if an ICO were to be made, there is an issue with imposing a community service work condition in this case. Although the applicant has been assessed as suitable to undertake community service work, the Sentencing Assessment Report stated that “Community Corrections cannot assess Mr Bresnahan as suitable for a community service work condition because there is no work available for him”. It was noted that:

38. [46]

    An assessment report can assist with enabling the sentencing court to determine the appropriate sentence: CSPA s 17B(2); RC v R [2020] NSWCCA 76 at [223]-[228] (Wilson J, with whom R A Hulme and Hamill JJ agreed). Section 69(2) of the CSPA provides that the sentencing court is not bound by the assessment report except in the circumstances identified in s 73A(3). Section 73A(3) of the CSPA provides that a community service work condition must not be imposed on an intensive correction order “unless an assessment report states that the offender is suitable to be the subject of such a condition”. The provision requires suitability to the condition, not just the suitability to undertake the work. As the assessment report does not state that the applicant is suitable for a community service work condition, I have grave doubts about whether such a condition can be made.

39. [47]

    For these reasons, the orders I propose are as follows:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal allowed.

    3. (3)

       Set aside the sentence imposed by the District Court on 17 May 2022 and, in lieu thereof, impose the following sentence:

40. [48]

    YEHIA J: Paul Gerard Bresnahan (the applicant) applies for leave to appeal against the sentence of imprisonment imposed upon him in the District Court at Parramatta on 17 May 2022. The applicant pleaded not guilty to a single count of knowingly deal with proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW) (Crimes Act), and went to trial before a jury. On 18 March 2022, a jury of nine found the applicant not guilty of the offence knowingly deal with proceeds of crime, but guilty of the statutory alternative, namely, of recklessly deal with proceeds of crime. The maximum penalty for the offence is 10 years’ imprisonment. There is no applicable standard non-parole period.

41. [49]

    The sentence imposed by her Honour Judge Herbert (the sentencing Judge) was one of 2 years’ and 3 months’ imprisonment, commencing on 17 May 2022 expiring on 16 August 2024, with a non-parole period of 1 year and 5 months’ imprisonment. The starting point was 2 years’ and 6 months’ imprisonment. In imposing sentence, her Honour allowed a 10% discount to reflect the applicant’s facilitation of the administration of justice, both in the way that the trial proceeded and the fact that he consented to the trial continuing when the jury number was reduced below 10. [1]

42. [50]

    The applicant sought leave to appeal on two grounds:

43. [51]

    For the reasons explained below, the applicant should have leave to appeal, the appeal should be allowed, and he should be re-sentenced to a lesser term of imprisonment, to be served by way of an Intensive Correction Order (ICO).

Nature of Offending

1. [52]

   Bidfood Australia Ltd (Bidfood) is a nationwide company involved in the supply and distribution of fresh foods to various industries and businesses. One of the fresh food products supplied by Bidfood is meat, which is distributed throughout Australia by a wholesaler, Classic Meats. Classic Meats purchase meat from traders and then on-supply that meat at a wholesale level to other companies.

2. [53]

   The applicant was the Director of Something Nice Foods Pty Ltd (SNF). SNF purchased meat products from Classic Meats and sold processed products to Classic Meats.

3. [54]

   Between 2012 and March 2017, Matthew Walden was employed as a Branch Manager for Classic Meats. In this role, Mr Walden had overall responsibility for the management of Classic Meats’ business.

4. [55]

   Mr Walden gave evidence at the applicant’s trial. In late 2015, on three occasions, Mr Walden sold the applicant meat he claimed to have obtained from a contact referred to as “Old Mate”. Mr Walden believed that this meat was stolen.

5. [56]

   On the first occasion, Mr Walden told the applicant that his contact had some meat to move. The applicant agreed to buy the meat and paid Mr Walden in cash. On the second occasion, Mr Walden told the applicant that the meat was hot. The applicant agreed to buy the meat and, once again, paid Mr Walden in cash. On the third occasion, the applicant asked Mr Walden for bank account details. Mr Walden provided the applicant with his own personal bank account details, and the applicant paid into Mr Walden’s personal bank account money for the meat. On all occasions, the meat was sold without invoices.

6. [57]

   The sentencing Judge was not satisfied beyond reasonable doubt that Mr Walden actually told the applicant the meat was stolen. However, the meat was sold well below wholesale cost and without appropriate documentation. These transactions did not constitute any part of the criminality relied upon in respect of the offence for which he was sentenced.

7. [58]

   Instead, the applicant’s criminality arose as a result of transactions involving meat stolen from Classic Meats. Following three sales in 2015, the applicant and Mr Walden discussed whether there was any more meat available. The applicant indicated he would be interested in purchasing it.

8. [59]

   From 1 January 2016, Mr Walden was not able to source any more meat from his contact and started using meat stolen from Classic Meats. The meat was the proceeds of crime. Between 1 January 2016 and 1 March 2017, Mr Walden sold the applicant meat stolen from Classic Meats. The meat was supplied in pallets and the frequency of sales increased from one pallet per week to three pallets per week.

9. [60]

   CCTV footage from Classic Meats showed that a total of ten pallets of meat were loaded onto the SNF truck on three occasions in February 2017. SNF was not invoiced for this meat. Mr Walden did not tell the applicant that he was selling him meat that belonged to Classic Meats. On one occasion, the applicant asked Mr Walden if the meat belonged to Bidfood. Mr Walden replied: “I’d fixed it’. Mr Walden referred to “Old Mate” and “Old Mate’s son” as the sources of the meat. Mr Walden never provided the applicant with a name for these people, or any other details.

10. [61]

    The applicant dealt with the meat that was sold to him by Mr Walden. He picked up the meat himself, or directed employees of SNF to collect it. The meat was then taken back to SNF’s business premises. The applicant also dealt with the meat by processing and selling it.

11. [62]

    Mr Walden emailed the applicant count sheets, or tally sheets, in relation to the meat that was sold in this way. These indicated the weights of the pallets supplied. Mr Walden never provided the applicant with any invoices for the meat sold to him in this manner. The applicant was still buying some meats from Classic Meats with appropriate paperwork.

12. [63]

    One of the tally sheets referred to three pallets and included the total weight for each pallet. None of the other count sheets included total pallet weights. Some of the emails and tally sheets had a total price for the meat. Some of the emails between the applicant and Mr Walden referred to the sale price of the meat being at the normal rate. According to the emails, a total of 152 pallets were supplied by Mr Walden to the applicant.

13. [64]

    In total, Mr Walden sold the applicant 160 pallets of meat. The applicant paid Mr Walden $771,352.66. It was Mr Walden’s evidence that he usually sold meat to the applicant discounted by 60% to 70% of the wholesale price, but at times there was no discount applied.

14. [65]

    In civil proceedings, the loss alleged by the company was more than $2.5 million. These proceedings settled following the applicant’s conviction, when the applicant agreed to pay $800,000 and to withdraw his own claim for payment of $207,000 in outstanding invoices. The applicant made reparation to Classic Meats in the sum of $1,007,000.00.

15. [66]

    Mr Walden pleaded guilty to a charge of knowingly deal with the proceeds of crime, contrary to s 193B(2) of the Crimes Act. The offence carries a maximum penalty of 15 years’ imprisonment. He was sentenced by his Honour Judge Montgomery on 20 August 2021. Mr Walden was the Branch Manager of Classic Meats and occupied a position of trust with overall responsibility for the management of the Classic Meats’ operation, including the management of staff and the sale of assets and stock.

16. [67]

    Over a period of 14 months, between 1 January 2016 and 1 March 2017, Mr Walden participated in a sophisticated and planned scheme defrauding Classic Meats and his employer, Bidfood, to a total value of $1.2 to 1.3 million.

17. [68]

    [redacted], Mr Walden was sentenced to a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years’ and 8 months’ imprisonment.

18. [69]

    Mr Aberahama pleaded guilty to an offence of recklessly deal with proceeds of crime, contrary to s 193B(3) of the Crimes Act. He was employed at Classic Meats as a forklift driver and inventory controller. He had responsibility for stock management and assisted Mr Walden and the administrative assistant with stock-take. He was not involved in taking orders or generating invoices. His criminality arose from three incidents in February 2017, where he was directed by Mr Walden to load meat products that belonged to Classic Meats onto the trucks owned by SNF.

19. [70]

    On each of the three occasions, the offender loaded the pallets of meat without providing an invoice to the driver, knowing this was contrary to the standard processes of Classic Meats. He was sentenced on the basis that on each occasion, he was reckless as to whether the pallets of meat were proceeds of crime. The total volume of meat involved was 8 to 10 tons, with a value of $80,000 to $100,000. The offender was dealt with by way of a Community Correction Order for a period of two years.

Remarks on Sentence

1. [71]

   In assessing the objective seriousness of the offence, the sentencing Judge noted the following:

   1. (1)

      The offence involved multiple transactions over a period of 14 months and only ceased when Mr Walden resigned;

   2. (2)

      Although the offending was unsophisticated, it was “more than opportunistic” and there was a degree of planning involved;

   3. (3)

      The applicant played an essential role in the criminal enterprise as he was able to process and on-sell the proceeds of crime;

   4. (4)

      The transactions increased in frequency;

   5. (5)

      The value of the meat subject of the offence was more than $1 million, although how much more was uncertain;

   6. (6)

      The applicant engaged in the offence to increase his profit margins; and

   7. (7)

      The level of recklessness involved was towards the upper range.

2. [72]

   Her Honour determined that the objective seriousness of the applicant’s offending fell “just within the mid-range”. [2] Her Honour found that the offence was motivated by greed in circumstances where the applicant was not, at the relevant time, struggling financially, a factor that was said to increase his moral culpability.

3. [73]

   The applicant’s criminal record was limited and principally involved traffic offences. A number of character references were tendered that attested to his good character. The sentencing Judge had regard to the applicant’s good character but did not give it substantial weight because the applicant had engaged in the criminal conduct over an extended period of time.

4. [74]

   The Sentencing Assessment Report commented on the applicant’s attitude of minimising his involvement in the offence. Notwithstanding this assessment and his plea of not guilty at trial, the sentencing Judge concluded that the applicant was entitled to a finding that he was remorseful. This finding was based on the applicant’s evidence-in-chief during the sentencing proceedings. The sentencing Judge noted that the applicant in cross-examination accepted he was aware of the possibility that the meat was stolen at the time of the purchases.

5. [75]

   Furthermore, the applicant made reparation, a matter that engendered greater confidence in his rehabilitation. Her Honour concluded that the applicant was unlikely to reoffend and had good prospects of rehabilitation. The author of the Sentencing Assessment Report assessed the applicant as being at low risk of re-offending.

6. [76]

   Her Honour found that general deterrence was an “important” factor and found that personal deterrence was also relevant. Nonetheless, her Honour gave personal deterrence less weight, noting the positive findings regarding the applicant’s remorse, risk of re-offending and prospects of rehabilitation.

7. [77]

   Under the heading “Parity”, her Honour said:

8. [78]

   A number of “substantial differences” were noted, including differences in the roles and level of involvement of the three offenders. Mr Aberahama’s matter, for instance, was dealt with in the Local Court which “provided a lower jurisdictional limit”. [4]

9. [79]

   It was in this context that her Honour was satisfied that no penalty other than imprisonment was appropriate. Having concluded that the appropriate sentence, following a 10% discount, was one of 2 years’ and 3 months’ imprisonment, it was not open to consider the imposition of an ICO.

Consideration

1. [80]

   In respect of her Honour’s assessment that “the offender’s role was essential in the criminal enterprise as he was able to process and on-sell the proceeds of crime”, [5] the Crown submitted that this was not a reference to the legal concept of a “joint criminal enterprise”. Instead, the assessment was used in the general sense of describing a criminal undertaking extending beyond the applicant and his relevant role therein.

2. [81]

   The Crown accepted that reference to a “joint criminal enterprise” under the heading “Parity” was “more problematic”. The words “joint criminal enterprise” were followed by reference to the applicant bearing moral criminal responsibility for the actions of the other offenders. The Crown accepted that this was misplaced. However, in support of the submission that the sentencing Judge did not sentence the applicant for an offence of greater criminality than the offence of which he had been found guilty, the Crown pointed to a number of references in the remarks on sentence that correctly identified the offence as one involving recklessness.

3. [82]

   After describing the factual aspects of the offending, her Honour concluded:

4. [83]

   The sentencing Judge also referred to the applicant’s evidence before her, accepting that “he was aware of the possibility that the meat was stolen at the time of the purchases”. [7] These findings do not sit well with her Honour’s remarks that the offence for which she was sentencing the applicant involved a joint criminal enterprise where each offender bears criminal responsibility for the actions of the other.

5. [84]

   In support of the contention that the applicant was not erroneously sentenced on the basis of actual knowledge, the Crown relied on Garcia v R [2022] NSWCCA 172 (Garcia), submitting that a similar issue arose in that case where it was held that the error did not vitiate the sentencing discretion and, therefore, re-sentencing was not required.

6. [85]

   There is no issue with the applicant’s submissions to the effect that it was no part of the Crown case at trial or on sentence that the applicant was involved in a joint criminal enterprise with Mr Walden and/or Mr Aberahama. At trial, Mr Walden gave evidence in the Crown case after he pleaded guilty and was sentenced for knowingly deal with the proceeds of crime. In his evidence-in-chief, he said that although the meat he sold to the applicant came from Classic Meats, he tried to convey the impression to the applicant that it came from somewhere else; that is, either from “Old Mate” or “Old Mate’s Son”. [8] The reference to “Old Mate’s Son” in the emails sent by Mr Walden to the applicant was a “throw off” designed to convey to the applicant that the meat was sourced from somewhere other than Classic Meats. [9]

7. [86]

   In cross-examination, Mr Walden accepted that he deliberately misled the applicant into thinking the meat was coming from somewhere other than Bidfood. [10] He intended to have the applicant believe that he was sourcing the meat legitimately from a third party. [11] He lied to the applicant about the source of the meat to keep the money coming in to fund his gambling and drug addictions. [12] He tried to give the applicant the impression that he was “moonlighting” by conducting a side operation whilst working for Bidfood. [13] He also accepted that he strung the applicant along to have him believe the meat was coming from a third party by telling him things such as: “this is not from Old Mate but from Old Mate’s Son”, [14] and that he intended for the applicant to believe he was having conversations with his contact in the background about purchasing meat. [15]

8. [87]

   Clearly, there was no agreement between the applicant and co-offenders to carry out a particular criminal activity, let alone to participate in that criminal activity. The finding by the sentencing Judge that the applicant was part of a joint criminal enterprise was never argued or raised by the Crown at the sentencing hearing.

9. [88]

   Notwithstanding the various references by the sentencing Judge to the fact that the offence involved recklessness, her Honour found that the offence was “one involving a joint criminal enterprise”. That finding strongly suggests that she proceeded to sentence the applicant on the basis that he was party to an agreement with the co-offender, thereby conflating the applicant’s mental state from one involving an “awareness of the possibility” to actual “knowledge” that the meat was stolen pursuant to such an agreement.

10. [89]

    The error is compounded by the fact that her Honour went on to say that the applicant “bears criminal responsibility for the actions of the others”. Although that did not mean that each offender had the same moral culpability, her Honour appears to have determined the applicant’s sentence by reference to the role he played and his level of involvement in the context of having participated in a joint criminal enterprise.

11. [90]

    Mr Walden’s conduct involved a very significant breach of trust vis-à-vis his employer in his role as Branch Manager. He repeatedly abused his position of trust for over 14 months. His criminality involved a planned and sophisticated corrupting of the E360 system and the co-opting of Mr Aberahama. Mr Walden’s offending involved a conscious deception over a lengthy period. The applicant did not bear any criminal responsibility for these actions.

12. [91]

    I am satisfied that the error informed the sentencing Judge’s assessment of the seriousness of the applicant’s offending and was a material error which resulted in a miscarriage of justice.

13. [92]

    Garcia can be distinguished from the present case. That case concerned a “money laundering” type offence with a recklessness fault element. There, the error identified was that the sentencing Judge referred to the foresight of risk as “recklessness that the money would become an instrument of crime”, as opposed to “recklessness as to the fact that there was a risk the money would become an instrument of crime”.

14. [93]

    Walton J (with whom Macfarlan JA and Rothman J agreed), at [60]-[62], after referring to Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell); Newman (a pseudonym) v R [2019] NSWCCA 157; and Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, considered the respondent’s argument that notwithstanding the mis-characterisation of the offence in the parts of the sentencing reasons subject to complaint, the sentencing Judge did not sentence the applicant for an offence of greater criminality than the offence to which he had pleaded and, consequently, re-sentencing was not required.

15. [94]

    In Garcia, the applicant was convicted of a number of serious drug related offences, which included trafficking a marketable quantity of a border-controlled drug and supplying not less than large commercial quantity of a prohibited drug. The applicant was also sentenced for a Commonwealth offence of dealing with money, reckless as to the risk that the money would become an instrument of crime. The total amount of money involved was $7,289,900. The sentencing Judge found that the money was from drug-related activity and other serious criminal activity.

16. [95]

    It was common ground that the sentencing Judge erred by substituting a fault element that the applicant was reckless as to the fact that the money “would” become an instrument of crime. In that case, it was held that the nature of the error did not require the court to re-sentence.

17. [96]

    That is not the case here. In the present case, the error relates to sentencing the applicant on the basis of a joint criminal enterprise that simply did not exist. Furthermore, the applicant was sentenced on the basis that, although his moral culpability was less than Mr Walden, he bore criminal responsibility for the actions of his co-offenders. The words plainly involve a consideration of the applicant’s offending in the context of having participated in a joint criminal enterprise. Her Honour sentenced the applicant upon a wrong principle, making it necessary to exercise the sentencing discretion afresh in accordance with the High Court’s decision in Kentwell.

18. [97]

    I would uphold ground 1.

19. [98]

    The complaint made on behalf of the applicant is that although the sentencing Judge referred to the applicant having made reparation in the context of remorse (and probably rehabilitation), [16] no regard was paid in any way to reparation having been brought about by the very real and substantial sacrifice he made by selling his home. The applicant has the onus of establishing that the ameliorative conduct should result in further mitigation.

20. [99]

    The applicant brought proceedings in the New South Wales District Court, claiming $207,000 following non-payment by Classic Meats for processed meat sold to it by SNF. The proceedings were transferred to the Supreme Court after Bidfood filed a cross claim for more than $2.5 million. A settlement agreement was reached after the applicant was convicted and shortly before sentence. A condition of the settlement was that Bidfood would provide the letter that became Annexure “E” to the applicant’s affidavit. [17]

21. [100]

    At sentence, the value of the meat the applicant bought was in dispute. The applicant paid Mr Walden $771,000 for it. The Crown asserted that the meat was worth between $1.2 million and $1.3 million. The applicant said it was valued between $840,000 and $910,000. The sentencing Judge found that the value of the meat was more than $1 million but could not say how much more. [18]

22. [101]

    There was evidence at sentence that the applicant was the sole shareholder and Director of SNF. There was no evidence about the profitability of the company or its value. However, there was evidence that SNF purchased meat products from a variety of over 20 suppliers in New South Wales and across Australia. The company processed the meat by dicing, mincing and blending the meat and then selling the processed meat to end users including retailers, convenience food companies and food service companies. At the time of the sentencing proceedings, SNF had seven employees, including the applicant.

23. [102]

    As set out in his affidavit on sentence, the applicant owned his home at Carrs Park which was valued at about $2.8 million. It had a mortgage in the sum of about $1.8 million. The applicant took a loan from his brother of $750,000 and registered a second mortgage on the title. He contributed $50,000 of his own savings and paid Classic Meats $800,000. By the time of the sentencing hearing on 13 May 2022, a buyer for the family home had been found and contracts were exchanged for $2.9 million with completion due on 10 September 2022.

24. [103]

    The applicant abandoned SNF’s claim of $207,000 against Classic Meats, which meant that with the $800,000 payment, reparation was made in the sum of $1,007,000. Bidfood confirmed by letter that it suffered no permanent damage, partly due to the financial support provided by its parent company, and partly due the repayment of $800,000, plus the credit of the $207,000 owing to Bidfood by the applicant. Bidfood accepted the applicant’s remorse as evidenced by the repayment, and considered the matter closed. [19]

25. [104]

    The Crown submitted that Counsel for the applicant in the sentencing proceedings did not make a submission that there was a substantial degree of sacrifice such as to additionally mitigate the sentence. It is asserted that the submissions made on behalf of the applicant were framed in terms of remorse and prospects of rehabilitation, matters about which the sentencing Judge made findings. Furthermore, there was insufficient evidence to show that there was a “substantial degree of sacrifice” by the applicant in circumstances where the applicant was the sole shareholder of a substantial company, the value and assets of which are completely unknown, and where the company itself profited from the applicant’s crime.

26. [105]

    Counsel for the applicant in the sentencing proceedings did not fail to make a submission that there was a “substantial degree of sacrifice in the payment” which should additionally mitigate the sentence. Although the precise form of words was not used, Counsel did sufficiently raise the issue both in written and oral submissions. In written submissions, Counsel relied on the “offender taking responsibility for his offending and [being] in the process of selling his home, being his only substantial personal asset, in order that Bidfood was compensated”. Counsel stated: “this is a very substantial mitigating factor particular in light of the fact that the offender’s home with his only substantial personal asset and in his own words in his affidavit, and at [37], he will ‘have to start from scratch again’”. [20]

27. [106]

    At the sentencing hearing, Counsel submitted:

28. [107]

    The question is whether the applicant has made good on his claim that the sentencing Judge erred in failing to take into account the “substantial personal sacrifice” made by the applicant to make reparation to the victim. In support of that contention, the applicant submitted that the authorities establish that reparation, where there is a substantial sacrifice, may be treated as a separate sentencing consideration. It goes to amelioration of the effects of the appellant’s criminal conduct. It is necessary to summarise the authorities relied upon by the applicant.

29. [108]

    In R v O’Keefe (1992) 60 A Crim R 201, a clerk/bookkeeper was charged with 18 make/use false instrument offences. A further 281 charges were taken into account, netting her over $80,000. The applicant made full restitution by obtaining a loan secured by a mortgage over her home. Lee AJ (Gleeson CJ & Priestley JA agreeing) stated at 204 and 205:

30. [109]

    In R v Phelan (1993) 66 A Crim R 446 (Phelan), a bank officer was charged with six counts of making false entries and a further 148 offences were taken into account, netting him about $171,000. He made full restitution following the sale of his home (which his siblings also had a financial interest in) and the repayment was voluntary and without the application of any pressure. Hunt CJ at CL (Smart & James JJ agreeing) stated at 448:

31. [110]

    Smart J added separately at 450:

32. [111]

    In R v Burgess; R v Saunders [2005] NSWCCA 52; (2005) 152 A Crim R 100 Adams J (Hislop J & Newman AJ agreeing) stated at [49]:

33. [112]

    In Strathford v R [2007] NSWCCA 279 (Strathford), a company’s financial officer was charged with 15 counts of fraud, with another 29 charges on a Form 1, resulting in him obtaining about $160,000. He made complete reparation after he brought an action against the company for wrongful dismissal, and as part of that settlement, he accepted the obligation to repay $160,000. He withdrew about $72,000 from his superannuation, borrowed $40,000 from his wife, and secured borrowings against his home. McClellan CJ at CL (Harrison & Fullerton JJ agreeing) stated:

34. [113]

    In R v Conway [2001] NSWCCA 51; (2001) 121 A Crim R 177 (Conway), the applicant was charged with five counts of defrauding the Commonwealth after gaining almost $110,000 in overpayments. At sentence, about $58,000 had been repaid, but some $51,000 was outstanding which was being reduced at $50 per week from pension entitlements. There was a statutory mortgage on the applicant’s home due to the overpayments. Heydon JA (Bell J & Smart AJ agreeing) stated:

35. [114]

    In Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279 (Thewlis), the applicant was charged with maliciously inflicting grievous bodily harm with intent and malicious wounding. He stabbed his ex-partner and her new boyfriend, after which he immediately ran to a neighbour’s house, told them what he had done, ensured an ambulance was on its way, and returned to the house with the neighbours. The ex-partner was showing signs of cardiac arrest and her life was saved due to prompt medical attention. Simpson J (as her Honour then was) (Spigelman CJ & Price J agreeing) stated:

36. [115]

    Spigelman CJ added:

37. [116]

    In Job v R [2011] NSWCCA 267; (2011) 216 A Crim R 521, the applicant was charged with 11 counts of obtaining a benefit by deception and four counts of corruptly receiving a benefit. The quantum amounted to about $600,000 and the applicant was paid about $106,000. At sentence, the applicant promised to repay the $106,000 he received, which meant he would have to sell an investment property and the family home, leaving his wife and children in rented accommodation. The properties had been put on the market.

38. [117]

    After referring to Phelan and Conway, Hidden J (McClellan CJ at CL & Grove AJ agreeing) said the decision in Strathford (referred to above) concerning reparation only focussed on remorse as a mitigating factor. His Honour said, after referring to Thewlis:

39. [118]

    Hidden J stated that what was said by Hunt CJ at CL in Phelan about non-payment of reparation being a circumstance of aggravation should be approached with some caution:

40. [119]

    In Subramaniam v R [2013] NSWCCA 159, the applicant was charged with 23 counts of obtain benefit by deception and three counts of knowingly deal with the proceeds of crime, amounting to some $45 million. She was a senior financial accountant and used her employer’s funds for herself and others, including to purchase real estate.

41. [120]

    Some of the goods and property purchased had been recovered by a deed of arrangement with the employer. She also transferred two investment properties to the employer (which were not subject of the fraud and were also owned by her husband), but not her home. Despite that, a substantial shortfall existed at sentence which was said to be slightly less than half of the total fraud. Latham J (Emmett JA & Simpson J (as her Honour then was) agreeing), after referring to numerous authorities stating that restitution can be a mitigating factor where it involves a degree of sacrifice, said:

42. [121]

    A review of the authorities reveals that where there has been substantial sacrifice, that factor does not simply go to prospects of rehabilitation and remorse, but can be ameliorative conduct that may be worthy of separate consideration.

43. [122]

    Unlike Mr Walden, who declared bankruptcy, or a case where reparation is simply not made, the applicant made arrangements to ensure that Bidfood was compensated. Those arrangements involved selling his home which was said to be his only substantial asset. The applicant gave evidence in the sentencing proceedings. He was cross-examined at some length in respect of his concern about the operation of SNF in the event he was sent to prison and whether alternative arrangements could be made to employ someone to manage the business in his absence. [22] The applicant was also questioned about the nature of the business and the number of employees. He was not cross-examined about the profitability of the company or its value. He was not challenged about the significant setbacks experienced by SNF in 2014, 2016, 2019 and 2020. [23]

44. [123]

    In circumstances where SNF had suffered losses resulting from customers going into liquidation and the reduced hours of operation as a result of the COVID-19 pandemic, it was fitting to describe the applicant’s home as his only substantial asset. In any case, the applicant was not challenged in cross-examination about that issue. The sale of the property allowed for substantial reparation to be made to the victim. It also resulted in the applicant forgoing his only substantial asset in circumstances where his business was declining. Furthermore, unlike the sale of an investment property, the sale of one’s home involves a sacrifice greater than simply the loss of money. It involves giving up the refuge, security and stability that such a premises may provide.

45. [124]

    The Crown submitted that for reparation to result in mitigation of sentence, the conduct must be “special” and, in cases of property, the reparation usually must be “voluntarily made”. In support of that contention, the Crown relied upon Thewlis. In Thewlis, Simpson J (as her Honour then was) observed that the notion that ameliorative conduct justifies a measure of leniency is not unique. It was in that context that her Honour (at [41]) referred to cases, such as those involving property crimes, “where leniency is justified because reparation has been voluntarily made prior to any charges being brought or anticipated”. That observation did not extend to laying down as a matter of principle a prerequisite that the reparation must be voluntarily made, as opposed to, for instance, being part of the settlement.

46. [125]

    Whether the payment of reparation is voluntary or not is relevant to remorse. In a case where an offender makes reparation prior to any charges being brought, or shortly after charges are brought, the voluntary nature of the payment is relevant to an assessment of remorse because the act is capable of demonstrating an acknowledgement of guilt and contrition. An assessment of whether an offender has experienced a substantial personal sacrifice in making reparation to the victim is not necessarily dependent upon whether the payment was voluntary, or the result of a court order or settlement proceedings. The focus is on an assessment of the personal loss suffered by an offender in an effort to do all that can be done to compensate the victim.

47. [126]

    In any case, although the applicant made reparation as part of the settlement, following conviction, and shortly before the sentencing proceedings, in answer to a question as to why he agreed to the settlement, the applicant responded that prior to the trial in 2019 SNF had attempted mediation with Bidfood, which was rejected pending the finalisation of the criminal proceedings. [24] It is unclear whether the attempts at mediation were instigated by the applicant in his capacity as the sole shareholder and Director of SNF. There was no further exploration of this topic during cross-examination.

48. [127]

    I am satisfied that the way in which reparation was made was brought about by a real and substantial sacrifice on the applicant’s part, namely, selling his home. He could have done no more to ensure that reparation was made. The sacrifice he made and the personal cost to him amounted, in my view, to amelioration of the effect of the criminal conduct which was deserving of consideration in the sentencing exercise, beyond its relevance to remorse and prospects of rehabilitation.

49. [128]

    I am satisfied the ground 2 is made out.

Exercising The Sentencing Discretion Afresh

1. [129]

   It is necessary to assess the objective seriousness of the offence afresh in light of the fact that the sentencing Judge’s assessment that it fell within “the mid-range” was made in the context of erroneous remarks that attributed to the applicant criminality arising from a joint criminal enterprise in which he bore criminal responsibility for the actions of the co-offenders.

2. [130]

   The assessment of the objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; (2012) 223 A Crim R 460; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118; (2011) 2009 A Crim R 509. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence, but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29] (a standard non-parole period offence); Bektasovski v R [2022] NSWCCA 246 at [11].

3. [131]

   Although the applicant recklessly dealt with the proceeds of crime, as opposed to knowing the meat was stolen, the offence was serious for the following reasons:

4. [132]

   There is a need for the sentence imposed upon the applicant to reflect principles of general deterrence and, to a lesser degree, specific deterrence. Her Honour made findings that the applicant was remorseful and had good prospects of rehabilitation. The applicant’s good character should be taken into account, although as her Honour found, cannot be given substantial weight because the applicant committed the offence over an extended period of time.

5. [133]

   A number of affidavits have been read “on the usual basis”. Andrew Vouris is the Chief Operating Officer of Entain Esports, an Esports Wagering Division of Entain PLC. He has been friends with the applicant for a number of years. When the applicant was incarcerated, Mr Vouris agreed to become involved in the running of SNF to continue trading operations. In that capacity, he has had access to the financial accounts of SNF and is aware that Garlo’s Pies were, up until August 2022, the largest customer of SNF, comprising almost 33% of the sales in terms of turnover. Garlo’s Pies purchased processed meat from SNF in large quantities. Mr Vouris has known Sean, the Director and owner of Garlo’s Pies, for approximately seven years. Prior to the trial commencing, the applicant told Mr Vouris that he had a meeting with Sean to inform him about the trial.

6. [134]

   On 4 August 2022, Mr Vouris had a telephone conversation with Sean in which Sean said that Garlo’s Pies was “moving away from SNF as our main meat supplier”. The decision to do so was not a result of the quality of the product, but the inability to deal directly with the applicant. As a result, the sales of SNF have significantly decreased.

7. [135]

   Mark Whittingham is employed as a production manager with SNF. On 19 August 2022, he took a telephone call from the Managing Director of Baked Provisions who expressed a concern that he was not able to speak directly to the applicant and was considering sourcing his products from other suppliers. On 5 September 2022, Mr Whittingham met with the Director of Baked Provisions, who announced that he was going to trial an alternative supplier given that he was unable to talk to the applicant. On 9 September 2022, information was received that the trial with the other supplier had gone well. The usual $30,000-$40,000 weekly bulk orders from Baked Provisions have ceased. As a result of losing the business of Baked Provisions and Garlo’s Pies, SNF has had to downsize the workforce by two staff and two part-time labourer positions.

8. [136]

   Jason Maher is a chartered accountant, registered tax agent, registered company and self-managed superannuation auditor. He reviewed the financial records of SNF to assess SNF’s financial performance in the period both prior to, and subsequent to, the incarceration of the applicant. Mr Maher states that SNF’s sale revenue has dropped from a high of $774,527 in June 2022, to a low of $370,209 in September 2022, a drop of 52%. The trend continued further in October 2022, with sales revenue as at November 2022 being $333,447. The reduction in sales revenue can be linked directly to the loss of two major customers since the applicant’s absence from the business. Having regard to the declining trading figures, it is Mr Maher’s opinion that the applicant’s ongoing absence from the business will be “financially catastrophic” and will ultimately lead to severe cash flow issues, loss of employment and closure of the business.

9. [137]

   The clients who have moved away from SNF are aware that the applicant is in custody. It is unclear as to whether they are aware of the reason why he has been incarcerated. It appears that at least Sean, the owner and Director of Garlo’s Pies, was aware of the trial proceedings. The evidence establishes that SNF has suffered a significant reduction in revenue since the applicant’s incarceration and that it is likely it will continue to do so, potentially leading to the closure of the business.

10. [138]

    The applicant deposes that he was initially incarcerated at Parklea Correctional Centre. He was subject to 15 days of isolation as part of the COVID-19 protocol requirements. On 12 June 2022, he was transferred to Glen Innes Correctional Centre. Although he has been employed in the timber yard at the Centre, he has been subject to 37 days of lockdowns since 17 May 2022. The lockdowns have been a result of the COVID-19 isolation protocols, and due to staff shortages. The applicant believes that his mental health has deteriorated. He is unable to sleep properly and is anxious about losing his business, which he has spent years building.

11. [139]

    I turn now to consider the appropriate sentence. First, having regard to the objective seriousness of the offence, general deterrence, denunciation, punishment and, to a lesser extent, personal deterrence, I am satisfied, having considered all possible alternatives, that no penalty other than a term of imprisonment is appropriate: s 5(1) Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA). The applicant takes no issue with this finding.

12. [140]

    Second, allowing for a discount of 10%, I would impose a sentence of imprisonment of 1 year and 10 months. The third and final step in the process is to consider the mode by which the sentence is to be served. It will either be served by a lesser, but further period of full-time custody, or in the community by way of an ICO. In circumstances where a court is considering making an ICO, Pt 5 (ss 64 to 71) of the CSPA applies. The duration of the proposed term of imprisonment does not exceed two years and, therefore, an ICO is available: s 68 of the CSPA.

13. [141]

    Section 66 provides:

14. [142]

    The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) heralded in a new regime for sentences to be served in the community by way of an ICO. The effect of the amendment was set out by Harrison J (with whom Johnson and Schmidt JJ agreed) in R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509 (Pullen). Harrison J quoted from the Second Reading Speech delivered by the Attorney-General when the bill was put before the Parliament. The Attorney General said:

15. [143]

    The assessment task to be undertaken by a court in accordance with s 66 is an evaluative process. There has previously been competing positions as to the construction of s 66. In R v Fangaloka [2019] NSWCCA 173 (Fangaloka) at [63], Basten JA, in considering how a court should assess “community safety” by reference to means of addressing the offender’s risk of reoffending, said:

16. [144]

    In Casella v R [2019] NSWCCA 201 (Casella), Beech-Jones J (as his Honour then was) (N Adams J agreeing) referred to the construction placed on s 66 by Basten JA in Fangaloka, stating (at [108]):

17. [145]

    In Mandranis v R [2021] NSWCCA 97 (Mandranis), Simpson AJA at [49] expressed her preference for the approach taken by Beech-Jones J (as his Honour then was) in Casella. Her Honour did not accept that the determinative consideration in the decision whether to make an ICO is which of the two modes of serving the sentence is more likely to address the offender’s risk of reoffending and that, unless a favourable opinion in that respect is reached, an ICO is excluded.

18. [146]

    In Mourtada v R [2021] NSWCCA 211, Basten JA revisited the different views that had been expressed by this Court as to how s 66 requires community safety to operate. His Honour stated at [25] (footnotes omitted):

19. [147]

    The preponderance of authority of this Court is that a sentencing judge does not have to form a favourable opinion that an ICO would be more likely to address the risk of re-offending before an ICO is imposed. Section 66 does not exclude the imposition of an ICO in a case where the assessment required under s 66(2) is neutral because an offender poses no danger to the community, irrespective of whether the offender is incarcerated or subject to an ICO. As Beech-Jones J (as his Honour then was) said in Casella at [108]: “the imposition of an ICO in such a case would still be consistent with community safety”.

20. [148]

    The applicant does not pose a danger to the safety of the community. He has a limited criminal history. He has demonstrated remorse and has good prospects of rehabilitation. At first blush, an assessment of whether imposing an ICO or a further term of full-time detention is more likely to address the offender’s risk of reoffending may appear to be a neutral consideration in the present case. This is not a case, for instance, where the applicant requires intensive treatment in a residential rehabilitation centre which can only be provided in the community. The fact that he does not require residential rehabilitation does not exclude an ICO.

21. [149]

    However, on closer analysis, the irresistible conclusion in my view is that the applicant’s risk of re-offending is more likely to be addressed by the imposition of an ICO. It is in the community that he will have the benefit of protective factors such as family support and employment. It is there that he can commence rebuilding his business and once again contribute in a constructive way to the community.

22. [150]

    It must be remembered that imprisonment is uniquely punitive because it involves the complete loss of liberty, loss of personal autonomy, loss of privacy, forced association, restriction of movement, and exposure to violence and intimidation. In Mainwaring v R [2009] NSWCCA 207, Harrison J (at [71]) made an observation with which I respectfully agree:

23. [151]

    I am satisfied that an ICO adequately reflects the objective seriousness of the offence and the weight to be afforded general deterrence, denunciation and punishment. This is particularly so in circumstances where the applicant, a person of prior good character, has already served a period of six months in prison. A further, albeit shorter, period in full-time custody serves little purpose in this case.

24. [152]

    While an ICO reflects a degree of leniency, in that the applicant would serve his term of imprisonment in the community, an ICO involves substantial punishment due to the requirement to comply with multiple mandatory obligations which are attached to the standard conditions: see cll 186 and 187 of the Crimes (Administration of Sentences) Regulation 2014 (NSW). There are also additional obligations which are prescribed by regulation and attach to the additional conditions that may be imposed: see s 73A(2) of the CSPA; cll 189-189G of the Crimes (Administration of Sentences) Regulation 2014 (NSW); Pullen at [66]. The stringent conditions that attach to an ICO ensure that an offender subject to such an order is not living a carefree existence amongst the community. An ICO deprives an offender of his or her liberty in a real and not merely fictional sense: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [99], [100], [108] and [111].

25. [153]

    Furthermore, as McCallum JA (as her Honour then was) noted in Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318 at [18], a breach of conditions of an ICO can result in its revocation by the Parole Authority, whereupon the offender may be taken into custody to serve the sentence imposed: see s 164 of the Crimes (Administration of Sentences) Act 1999 (NSW).

26. [154]

    A sentencing court must impose on the ICO the standard conditions of an ICO: see s 73(1) CSPA. In addition to the standard conditions, the sentencing court must at the time of sentence impose on an ICO at least one of the additional conditions referred to in s 73A(2) of the CSPA, unless the court is satisfied there are exceptional circumstances: see s 73A(3) of the CSPA.

27. [155]

    I have had the benefit of reading the draft judgment of Walton J and agree with his Honour’s observations (at [45]-[46]) about whether, in the present case, a community service work condition can be imposed on an ICO. Section 73A(3) of the CSPA provides that the sentencing court must not impose a home detention condition or community service work condition on an ICO unless an assessment report states that the offender is suitable to be the subject of such a condition. The Sentencing Assessment Report confirms that the applicant is both able and willing to undertake community service work. The applicant is assessed as “a suitable person to undertake community service work”. However, he cannot be assessed as suitable for a “community service work condition” because:

28. [156]

    Having assessed the applicant as not suitable for a “community service work condition”, by operation of s 73A(3) of the CSPA, it would appear that such a condition cannot be imposed on an ICO. The bar to the imposition of a community service work condition is a result of the unavailability of work in the applicant’s catchment area, as opposed to his capacity or willingness to perform such work. There is no suggestion that the applicant would not successfully complete any community-based sentencing option.

29. [157]

    Having determined that it is appropriate in this case to impose a term of imprisonment to be served by way of an ICO, it would be wholly inappropriate, in my view, to proceed instead by way of full-time custody simply because a work placement is not available in the applicant’s catchment area. The unavailability of community service work in a particular catchment area can create a significant barrier preventing access to community-based sentences which have a mandatory work component and, in turn, could result in severe consequences, including net widening and penalty escalation.

30. [158]

    The applicant does not suffer from mental health or substance abuse issues that would require rehabilitation, treatment in the community, or an abstention condition. Having regard to the period of time the applicant has already spent in custody, I am not of the view that imposition of an electronic monitoring condition, a home detention condition, or a curfew condition, would be appropriate. Given the nature of the offending, there is no requirement for a non-association or place restriction condition.

31. [159]

    For these reasons, I decline to impose one of the additional conditions set out in s 73A(2) of the CSPA. Instead, I propose to impose a condition that aligns with my intention to have the applicant engage in community work for the public good as a further form of punishment and to hold the applicant to account.

32. [160]

    Per s 71(1) of the CSPA, an ICO commences on the date on which it is made. It cannot be backdated. The applicant has served a period in custody of 7 months, or 212 days, in relation to the offence. In sentencing the applicant, this period in custody must be taken into account: see s 24(a) of the CSPA. The period of custody will be deducted from the period of 1 year 10 months imprisonment: see Mandranis.

Orders

1. [161]

   Accordingly, I would propose the following orders:

   1. (1)

      Grant leave to appeal on grounds 1 and 2.

   2. (2)

      Appeal allowed on grounds 1 and 2.

   3. (3)

      The sentence imposed on the applicant in the District Court on 17 May 2022 is set aside and, in lieu thereof:

   4. (4)

      The applicant is directed to attend the Community Corrections Office at Sutherland within seven days of today’s date to facilitate the administration of the order.