Khanat v R (Cth)

1. [1]

   WILSON J: This judgment concerns the question of error in the decision of a sentencing court in declining to direct that a sentence of imprisonment for a period of less than two years be served by way of an intensive corrections order (“ICO”) pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the C(SP) Act)”. The application before the Court turns on the construction and application of s 66 of that Act, determined through the lens of the decision of the High Court in Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3 (“Stanley”).

2. [2]

   The applicant was sentenced in the District Court on 29 June 2023 for an offence of possessing tobacco products being reckless as to whether they were imported, with intent to defraud the revenue. The offence is one contrary to s 233BABAD(2B) of the Customs Act 1901 (Cth); it carries a maximum penalty of 5 years imprisonment and / or a fine of 500 penalty units. His Honour Judge Buscombe imposed a term of imprisonment upon the applicant of 1 year and 10 months, commencing on 22 June 2023, with the applicant to be released to a recognizance after 12 months. The applicant can enter the recognizance on 21 June 2024; the total sentence expires on 21 April 2025.

3. [3]

   As Cavanagh J explains in his judgment, the sentencing judge declined to direct that the sentence be served by way of an ICO. The applicant complains that that decision was erroneous. I am grateful to Cavanagh J for his account of the facts and circumstances of the proceedings in the District Court, and of the conclusions reached by the sentencing judge. Except insofar as it is necessary to explain the reasons for my differing view as to the disposition of this application, I do not propose to repeat that information.

4. [4]

   At least in part this application turns on the decision of the High Court in Stanley. Having made orders on 15 November 2022, the High Court delivered its reasons in Stanley on 15 February 2022. The decision was one concerned with jurisdictional error rather than sentencing law as such, but the judgment of the majority (Gordon, Edelman, Steward, Gleeson JJ), the court having divided on the question of error, has led to some consternation in the criminal courts in this State, and to submissions of the kind made to this Court by the applicant. The argument is as to whether their Honours in the majority intended in the construction given to s 66 of the C(SP) Act to lay down a rule making the imposition of an ICO mandatory for any offence not precluded by sections 4B, 67, or 68 of the C(SP) Act, where community safety and the prospects of re-offending are determined favourably to the offender. That was the contention squarely raised on behalf of the applicant in this matter.

5. [5]

   The sentencing judge concluded that a sentence of imprisonment was required and, after determining its length, undertook the assessment required by s 66 of the C(SP) Act in deciding whether to direct that the term of imprisonment which was imposed upon the applicant should be served by way of an ICO. His Honour said:

6. [6]

   The argument advanced for the applicant is that, having determined questions of rehabilitation and community safety favourably to him, the sentencing judge was obliged to direct that the sentence be served by way of an ICO, with any discretion extinguished at that point. He submitted:

7. [7]

   In oral argument before the Court, the submission was even more bluntly made:

8. [8]

   The paragraph of Stanley relied upon by the applicant, paragraph 76, is, when read with [75] to place it in context, as follows:

9. [9]

   The applicant contends that, a favourable assessment having been made of those matters referred to in s 66(1) and (2), and there being no lack of certainty in the conclusion of the sentencing court, an ICO was mandatory.

10. [10]

    Whether that is the correct interpretation of s 66 and the majority judgment in Stanley does not appear to have been squarely addressed in any decision of this Court in the year or so that has passed since the High Court handed down the decision. Prior to Stanley, the authorities tended to the opposite conclusion. Another decision that, like Stanley, was concerned with jurisdictional error, Quinn v Director of Public Prosecutions (Cth) [2021] NSWCA 294, is a useful example. In that judgment Leeming JA, with the concurrence of Simpson AJA and Johnson J, each with additional reasons, considered the significance of the word “paramount” in s 66(1), at [94]:

11. [11]

    In her Honour’s judgment in Quinn, Simpson AJA expanded upon that proposition, at [186] – [187]:

12. [12]

    The third member of the Court, Johnson J, agreed with what her Honour there said, referring additionally to the decision of Elphick v R [2021] NSWCCA 167, adding, at [209]:

13. [13]

    See also R v Fangaloka [2019] NSWCCA 173.

14. [14]

    Since the judgment in Stanley was published, some consideration of it has been given by this Court, in Zheng v R [2023] NSWCCA 64; Tonga v R [2023] NSWCCA 120; Chan v R [2023] NSWCCA 206; and AM v R [2024] NSWCCA 26. None have dealt with precisely the point as it was argued here, although what was said by N Adams J in Chan is of relevance. At [127] and [129] – [130] her Honour said:

15. [15]

    The answer to her Honour’s observation in the last sentence quoted must, in my opinion, be found in s 66(3) of the C(SP) Act. Section 66 is extracted in full in the judgment of Cavanagh J but, for ease of reference, s 66(3) provides:

16. [16]

    Section 66(3) imposes a mandatory (“the sentencing court must”) requirement on a sentencing court to consider s 3A, common law principles and “any other matter” the court regards as relevant. The content of s 3A is fundamental to the exercise of the sentencing discretion. It provides:

17. [17]

    Whilst community safety and the risk of an offender committing further crime, being the matters raised by s 66(1) and (2), are addressed by s 3A(b), (c), and (d), the section goes well beyond considerations of community safety and the risk of reoffending. Significantly, it directs a sentencing court’s attention to the need, in determining the sentence to be imposed, for adequate punishment of the offender; to deter others from the commission of crime by the imposition of deterrent sentences; to make an offender accountable for his or her crime; and to denounce it; and to give due recognition to the harm done by the commission of the offence, to any victim and the community more broadly.

18. [18]

    The reference to common law principles in s 66(3) imports the vast history of sentencing in common law jurisdictions and the many principles distilled over time in the courts. Those principles are not displaced by s 66(1) and (2). Many of the more important principles, such as that of proportionality, will ordinarily apply in any particular matter before a sentencing court.

19. [19]

    The principle of proportionality is a useful example. This long and authoritatively established principle requires a sentencing court to impose a sentence which is proportionate to the gravity of the crime: Veen v The Queen (No 2) (1988) 164 CLR 465; Hoare v The Queen (1989) 167 CLR 348 at 354; R v Dodd (1991) 57 A Crim R 349 at 354; R v Whyte (2002) 55 NSWLR 252 at [156]-[158]. In R v Scott [2005] NSWCCA 152 Howie J, with the agreement of Grove and Barr JJ, said, at [15]:

20. [20]

    As a general statement of the principle, the sentence cannot exceed what is required by the objective gravity of the offence, but nor can it be inadequate to the seriousness of the crime. There have been and will be cases where only a sentence of imprisonment served by way of a full-time custodial sentence can properly reflect the gravity of the offending, as well as be adequate to address the other requirements of sentencing law, including denunciation, making an offender accountable, and deterring the offender and others.

21. [21]

    Although the majority in Stanley did not, as N Adams J noted in Chan, at [130], discuss the circumstances in which an ICO might not be imposed despite positive findings concerning community safety and rehabilitation having been made, their Honours clearly envisaged that there would be such instances. So much can be drawn from what was said at [75], albeit with the apparent qualification to the content of [75] that is found at [76]. As a matter of the observance of sentencing principles that have evolved at common law, or which are provided by statute, as well as giving effect to common sense, that must be so.

22. [22]

    There will clearly be cases, and very likely many cases, where an offender poses little or no threat to the community, and where rehabilitation is better served by an ICO, but where a sentencing court will nevertheless conclude that an ICO is not an appropriate or available penalty. An example of that proposition may be illustrative. An offender who is sentenced for an offence of dangerous driving occasioning grievous bodily harm contrary to s 52A(3) of the Crimes Act 1900 (NSW) faces a maximum penalty of 7 years imprisonment. One of the considerations that must be taken into account by any sentencing judge is the guideline judgment of R v Whyte (2002) 55 NSWLR 252. The guideline has statutory force because of Division 4 of Part 3 of the C(SP) Act. For an offence contrary to s 53(3) this Court said in Whyte, at [229]:

23. [23]

    In a case where the sentencing court determines to impose a sentence of imprisonment of, for the purposes of the example, 18 months, a term importing a full discount for an early plea, an ICO may be sought by the offender. Many offenders prosecuted for an offence contrary to s 52A(3) are persons of good character who pose no ongoing danger to the community; the rehabilitation of such an offender would almost certainly be better promoted by a supervised order. However, to impose an ICO for this offence will, in many instances, be contrary to the principle of proportionality, the requirements of s 3A, and the common law, which gives emphasis to denunciation, recognition of the great harm done by grievous injury inflicted on another, and the need for a sentence that will operate as a general deterrent. Their Honours in the majority in Stanley can hardly have intended to overthrow the long line of authority that says as much. To do so, in any event, would contravene the mandatory provision in s 66(3).

24. [24]

    For these reasons I agree with Cavanagh J’s conclusion, at [89], that positive conclusions with respect to those matters in s 66(1) and (2) do not mandate the imposition of a sentence to be served by way of an ICO.

25. [25]

    Applying that analysis, I have come to a different conclusion to that of his Honour expressed at [101]. The sentencing court, having properly considered those matters required by s 66(1) and (2) of the C(SP) Act, nevertheless declined to order that the sentence be served by way of an ICO, referring to the need for the sentence to operate as a deterrent to others. In making that reference, his Honour also referred to the gravity of the offence as a feature enhancing the need for a deterrent sentence. In my opinion the sentencing judge was right to have regard to the need for a deterrent sentence, and to point to the gravity of the offending as a relevant consideration. The gravity of an offence of this nature lies in the loss to the revenue its commission causes. The applicant had in his possession 2.1 tonnes of tobacco products, commercially packaged and, inferentially, ready for sale. The duty payable on this quantity of tobacco products was in excess of 3.5 million dollars. The loss to the revenue was substantial.

26. [26]

    Recognising the gravity of the offence, and the consequential need for a deterrent sentence, as required by s 66(3), his Honour declined to direct that the term of imprisonment imposed upon the applicant be served by way of an ICO. In my opinion, he was right to do so.

27. [27]

    I would grant leave to appeal, and dismiss the appeal.

28. [28]

    IERACE J: I agree with Wilson and Cavanagh JJ that the applicant’s primary ground should be refused, for the reasons they have given. I agree with Cavanagh J that the applicant’s alternative ground is made out and with his reasons, and thus leave should be granted and the appeal upheld.

29. [29]

    CAVANAGH J: The applicant, Mr Omran Khanat, seeks leave to appeal against a sentence imposed upon him by Judge Buscombe in the District Court at Parramatta on 29 June 2023. The applicant pleaded guilty to two offences in the Local Court as follows:

    1. (1)

       an offence of possess prohibited pistol not being authorised to do so by licence or permit contrary to s 7(1) of the Firearms Act 1996 (NSW); and

    2. (2)

       an offence of possess tobacco products reckless as to whether they were imported with intent to defraud the revenue contrary to s 233BABAD(2B) of the Customs Act 1901 (Cth).

30. [30]

    In respect of the Firearms Act offence, the applicant was sentenced to a community corrections order for a period of 12 months, commencing 29 June 2023 and expiring on 28 June 2024. The applicant does not seek to appeal from that sentence.

31. [31]

    In respect of the Customs Act offence, the applicant was sentenced to a term of imprisonment of 1 year and 10 months, commencing 22 June 2023, to be released after 12 months upon entering a recognizance of $500 on conditions. The sentence expires on 21 April 2025. The maximum penalty for this offence is 5 years imprisonment and/or a fine of up to 500 penalty units.

32. [32]

    The appeal is limited to the sentence imposed in respect of the federal offence contrary to the Customs Act.

33. [33]

    The applicant is currently in custody.

34. [34]

    The applicant relies on two grounds of appeal:

    1. (1)

       The sentencing judge erred in failing to give paramount consideration to community safety on the question of whether to make an intensive correction order as required by s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

    2. (2)

       The sentencing judge erred in treating community safety as subordinate to general deterrence on the question of whether to make an intensive correction order.

35. [35]

    During oral submissions, counsel for the applicant suggested that both grounds related to the same point. I will deal with the grounds as if they constitute one ground of appeal.

36. [36]

    The discrete point raised by this appeal is whether, having regard to the High Court’s decision in Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3 (“Stanley”), the sentencing judge erred in not determining that the sentence of imprisonment should be served by way of an intensive correction order (“ICO”).

Background

1. [37]

   There were agreed facts on sentence. His Honour’s remarks on sentence are based on these agreed facts.

2. [38]

   On 7 July 2022, the police executed a search warrant at the applicant’s premises. Police located two cartons of Al Fakher branded tobacco products. The applicant said that he had purchased these cartons from a person some months earlier. The applicant denied that there were any more tobacco products on his property.

3. [39]

   Upon further searching, the police located illicit cigarettes and tobacco products in the garage and a large quantity of tobacco products in the storage shed on the property (2.1 tonnes). The applicant told the police that he had not been in the shed for two or three months.

4. [40]

   On 24 October 2022, a tobacco expert examined samples and identified them as tobacco products, specifically being flavoured hookah tobacco, cigarettes and looseleaf tobacco. Other than the looseleaf tobacco, each of the tobacco products was commercially packaged. Two of the wrapped packages containing loose leaf dried tobacco found in the garage of the property bore a postal label suggesting that they emanated from China.

5. [41]

   A total of 2,186,88 kilograms of tobacco products and 29,020 cigarettes were seized from the applicant’s property. The customs duty avoided was $3,553,209.09.

6. [42]

   During the search, the police also located a 6 mm airsoft calibre unknown manufacturer repeating air pistol, which was located in a safe at the residential premises. The applicant was not a holder of a relevant licence or permit for the pistol. This was the subject of the Firearms Act offence.

Remarks on sentence

1. [43]

   The sentencing judge observed that, although not determinative, the quantity of tobacco and loss of revenue was very significant. This was relevant to the assessment of the objective seriousness of the offending, as was the applicant’s role in the offending conduct.

2. [44]

   His Honour referred to the Sentencing Assessment Report, the content of which suggested that the applicant sought to blame another person, denying knowledge of the legal implications of storing the tobacco. As his Honour said, this was not tested and there was simply no evidence apart from the applicant’s untested assertions that someone else was involved in the possession of the tobacco.

3. [45]

   His Honour was satisfied that the applicant’s recklessness as to whether the goods were imported with intent to defraud the revenue was high. His Honour also accepted that the applicant engaged in the offending for financial gain although he was not able to quantify the amount of financial gain.

4. [46]

   His Honour considered that the offence was a serious offence of its kind.

5. [47]

   In respect of the Firearms Act offence, his Honour considered that the offence was towards the bottom of the range.

6. [48]

   The applicant did not give evidence during the sentence proceedings, but the following material was before the sentencing judge:

   1. (1)

      A Sentencing Assessment Report dated 9 June 2023;

   2. (2)

      A psychological report by Sevcan Eminov dated 20 April 2023;

   3. (3)

      Letters of support from family members and friends; and

   4. (4)

      Certificates of appreciation from certain charities.

7. [49]

   The applicant was born in 1984 and was 39 years of age at the time of sentence. He had no criminal history, which the sentencing judge found entitled him to leniency. He migrated to Australia in 2004 from Lebanon – his father and sister had died in the war in Lebanon. The applicant settled in Australia where he met his now wife, and they went on to have four children.

8. [50]

   In Australia, the applicant initially worked in the building industry and as a truck driver before starting a small convenience store which he had been operating since 2012. He worked very hard – seven days a week.

9. [51]

   The applicant told the psychologist he saw for the purposes of sentencing that he found his initial six days in custody very distressing. He was concerned about the well-being of his wife and children. The psychologist found him to be within the normal range of symptoms for depression but at an extremely severe range for anxiety.

10. [52]

    His Honour accepted that the applicant had shown remorse and contrition, although that appeared to be primarily focused upon the consequences of his offending for his wife and family. His Honour did not accept that the applicant had shown any real insight into the damage the offending does to the revenue of the Commonwealth.

11. [53]

    His Honour found that no sentence other than a sentence of imprisonment was appropriate in respect of the tobacco offence, observing that the applicant’s counsel and the Crown accepted this. His Honour then referred to the importance of general deterrence and concluded that a significant sentence must be imposed for the Customs Act offence. His Honour considered that the appropriate starting point was 2 years and 6 months. After applying the 25% discount on account of the plea of guilty, his Honour fixed the term of imprisonment at 1 year and 10 months.

12. [54]

    His Honour then went on to consider “whether it is appropriate to extend to you the leniency of serving the sentence in the community”.

13. [55]

    As his Honour’s consideration of this issue forms the basis of the appeal, I will set out in full his Honour’s remarks:

The applicant’s contentions

1. [56]

   The applicant submits that, having regard to the approach set out in Stanley, the sentencing judge erred in not finding that the term of imprisonment should be served in the community by way of an ICO.

2. [57]

   The applicant’s primary submission was that, having made a positive finding that the risk of reoffending was low and that that risk was more likely to be addressed if the applicant was allowed to serve the sentence in the community, the sentencing judge was obliged or mandated to impose an ICO, having regard to s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”).

3. [58]

   The applicant’s alternative submission was that, even if there remained some discretion not to impose an ICO, having regard to the positive finding as to the risk of reoffending, his Honour erred in giving greater weight to general deterrence, thereby making community safety subordinate to general deterrence.

4. [59]

   In the end, the applicant moved away from his primary submission, accepting that there may be some circumstances in which, even despite the finding of the type made, an ICO may not be ordered. However, the applicant submitted that those circumstances would not be usual and must necessarily involve giving weight to a number of different sentencing factors which when combined might detract from the appropriateness of making an ICO (contrary to the sentencing judge’s approach).

5. [60]

   The Crown submits that the appeal should be dismissed for three principal reasons being:

   1. (1)

      The sentencing judge correctly considered the importance of general deterrence, even though it was a subordinate consideration to community safety, in deciding whether a sentence of full time imprisonment was appropriate. General deterrence was a significant aspect of sentencing for the offence.

   2. (2)

      The sentencing judge was not obliged to impose an ICO only because of a positive finding about the safety of the community, and the safety of the community was the paramount consideration.

   3. (3)

      The sentencing judge’s task was an evaluative one, which required giving weight to all the purposes of sentencing, even though one of those purposes was the paramount consideration. The question of what weight was to be given to each of the purposes of sentencing was a matter for the sentencing judge. There was no error in the exercise of the sentencing judge’s discretion.

6. [61]

   The import of the Crown’s submission is that his Honour’s remarks should not be interpreted to mean that he did not give paramount consideration to community safety and that a sentencing judge is not obliged to impose an ICO only because of the positive finding about community safety. The exercise remains evaluative and discretionary.

Consideration

1. [62]

   Section 7 of the Act provides for the making of an ICO.

2. [63]

   The procedures for imposing an ICO are then set out in part 5 of the Act. The part applies in circumstances in which a court is considering or has made an ICO (see s 64).

3. [64]

   Sections 67 and 68 specify the circumstances in which an ICO is not available, having regard to certain types of offences and where the term of imprisonment imposed exceeds two years.

4. [65]

   This appeal relates to the proper application of s 66, which is in the following terms:

5. [66]

   In Stanley, the High Court considered an appeal from the New South Wales Court of Appeal all the way from the Local Court relating to whether Ms Stanley should have received an ICO in respect of sentencing for firearms offences. The District Court dismissed her appeal. Ms Stanley then appealed to the New South Wales Court of Appeal seeking judicial review on the basis that the District Court did not properly consider s 66(2) of the Crimes (Sentencing Procedure) Act and that such an error was jurisdictional in nature. The Court of Appeal by majority (per Bell P (as his Honour then was), Basten JA, Leeming JA and Beech-Jones J (as his Honour then was)) dismissed the appeal.

6. [67]

   By majority, the High Court (per Gordon, Edelman, Steward and Gleeson JJ) allowed the appeal, finding error in the determination, having regard to s 66(2) of the Act and accepting that the errors were jurisdictional in nature.

7. [68]

   In coming to their view, the majority set out the proper approach to the assessment of whether an ICO should be made. The focus of the argument in this matter was on paragraphs [72] to [77], which I have inserted below:

8. [69]

   Unfortunately, the sentencing judge was not directed to Stanley in either written or oral submissions. His Honour did not refer to the decision (in an otherwise comprehensive sentencing judgment) and, at least on one view, may have adopted an approach consistent with some earlier statements by this court.

9. [70]

   Prior to the High Court’s consideration in Stanley, pt 5 and, in particular, s 66 had been the subject of considerable judicial consideration (see, for example, Mandranis v The Queen (2021) 289 A Crim R 260; Karout v The Queen [2019] NSWCCA 253; Casella v The Queen [2019] NSWCCA 201; R v Fangaloka [2019] NSWCCA 173 (“Fangaloka”); R v Pullen (2018) 275 A Crim R 509 (“Pullen”)).

10. [71]

    It is perhaps difficult to reconcile all of this Court’s earlier statements about pt 5 and, specifically, s 66 with the majority judgment in Stanley. For example, in Fangaloka, Basten JA observed at [61]:

11. [72]

    And again at [66]:

12. [73]

    Having said that, the observations of Harrison J (as his Honour then was) in Pullen at [86] and [89] and Simpson AJA in Mandranis at [50]-[51] remain apt.

13. [74]

    In Pullen, his Honour said at [86]:

14. [75]

    And then at [89]:

15. [76]

    Stanley has been the subject of subsequent consideration by this Court in Zheng v R [2023] NSWCCA 64 (“Zheng”) and Chan v R [2023] NSWCCA 206 (“Chan”). Indeed, between the hearing of this appeal and the delivery of this judgment, s 66 was again considered in AM v R [2024] NSWCCA 26 (“AM v R”).

16. [77]

    However, the issue raised by this appeal has not yet been determined, albeit it was the subject of comment by N Adams J in Chan at [145]-[150]. I will return to this.

17. [78]

    In Zheng, after referring to Stanley and, in particular, the paragraphs to which I have just cited, Gleeson JA set out five points which his Honour said emerged from the joint judgment in Stanley as follows at [282]-[286]:

18. [79]

    His Honour’s fifth point is a direct reference to the opening sentence at [76] of Stanley.

19. [80]

    The point of difference in this appeal is that the evidence was not inconclusive. The sentencing judge made a positive finding as follows:

20. [81]

    The applicant thus says that the conclusive or positive finding that his risk of reoffending was best addressed by serving his sentence in the community should have caused his Honour to order an ICO.

21. [82]

    It is plain that his Honour considered that the imposition of an ICO should be viewed as a more lenient sentence than serving the term of imprisonment in custody. His Honour said so:

22. [83]

    The question of whether the degree of leniency attached to an ICO may be a relevant factor was taken up N Adams J in Chan. Her Honour stated at [139]-[140]:

23. [84]

    At [149], her Honour referred to the observations of Beech-Jones CJ at CL (with whom Fagan J and R A Hulme AJ agreed) in R v FF [2023] NSWCCA 186 as follows:

24. [85]

    Her Honour then went on to say:

25. [86]

    As has often been said, and was again observed in Stanley at [59], there are three steps to be undertaken by a sentencing court prior to imposing a sentence of imprisonment under the Act, being:

    1. (1)

       First, determination that the threshold set out in s 5(1) is met, that is, that no sentence other than a term of imprisonment is appropriate;

    2. (2)

       Secondly, the sentencing judge must determine the appropriate term of imprisonment; and

    3. (3)

       Thirdly, the sentencing judge must consider whether or not to make an ICO (if the issue arises) having regard to any limitations in making an ICO, as set out in pt 5 div 2.

26. [87]

    This process involves the application of instinctive synthesis of multiple factors at each stage (Stanley at [59]). Further, the power to make or refuse to make an ICO is discretionary (Stanley at [65]).

27. [88]

    It is the third stage of that discretionary process which is the issue in this appeal. Of course, the fact that the process is discretionary does not mean the discretion is at large. The discretion must be exercised in accordance with the statutory provisions.

28. [89]

    Having said that, it does not seem to me that anything said in Stanley leads to the conclusion that a positive finding that the risk of reoffending is best addressed by serving the sentence in the community mandates the ordering of an ICO. That is, I reject the applicant's primary submission that once the positive finding was made an ICO must necessarily have been ordered.

29. [90]

    I say this for the following reasons.

30. [91]

    Firstly, in Stanley (at [75]) their Honours stated that the assessment required by s 66(2) is not determinative of whether an ICO may or should be made. As required by s 66(3), when deciding whether to impose an ICO, the sentencing court must also consider the provisions of s 3A and any other relevant common law sentencing principles and may consider any other matters that the Court thinks relevant. The exercise is thus evaluative, albeit community safety must be treated as the paramount consideration.

31. [92]

    Secondly, although the Court observed (at [76]) that community safety will usually have a decisive effect unless the relevant evidence is inconclusive, there is no suggestion that an ICO must be ordered consequent on a positive finding on addressing the risk of reoffending. It may usually have a decisive effect but that leaves open the possibility that there will be circumstances in which, even giving paramountcy to community safety and a positive finding on the risk of reoffending, an ICO may not be ordered.

32. [93]

    The Court did not identify what those circumstances might be but left open the possibility that, having considered the matters referred to in s 66(3), the sentencing court may decline to impose an ICO, subject to having given paramountcy to community safety in its consideration.

33. [94]

    Thirdly, the sentencing exercise is essentially discretionary. The sentencing court comes to a decision as to sentence through a process of instinctive synthesis. I do not take anything said in Stanley to be fundamentally altering that approach.

34. [95]

    It follows that I do not accept that a positive or conclusive finding that the risks of reoffending are better addressed in the community mandates an order for an ICO.

35. [96]

    Having said that, in my view, whilst the exercise remains discretionary, the proper application of s 66 (consistent with Stanley) does not permit the approach of the sentencing judge in this matter. The problem is that by referring only to general deterrence as the reason for declining to impose an ICO (as his Honour did in the second paragraph of the sentencing judgment to which I have referred to at [55] above), his Honour could not have given paramount consideration to community safety. He must be taken to have done what cannot be done, which was to elevate deterrence to a factor of greater importance than community safety. Indeed, using the expression in Stanley at [73], community safety has been subordinated to general deterrence.

36. [97]

    His Honour must be taken to have considered that the imposition of an ICO would be too lenient, particularly having regard to the important sentencing factor of general deterrence. His Honour referred to the serious nature of the offending and its prevalence in the community, thereby emphasising the need for general deterrence.

37. [98]

    It is difficult to accept that his Honour was giving paramount consideration to community safety in adopting this approach.

38. [99]

    Paragraph [77] in Stanley is particularly relevant to this appeal. As was said, aspects such as specific and general deterrence will have been considered in deciding whether to impose a sentence of imprisonment before considering the imposition of an ICO.

39. [100]

    Further, as the majority observed at [76], a conclusive or positive finding of the type made in this matter would usually be decisive.

40. [101]

    It does not seem to me that there is anything unusual or exceptional about this matter. His Honour plainly considered that the ordering of an ICO would be too lenient, having regard to the important issue of general deterrence. The effect of his Honour's approach was to subordinate community safety to general deterrence, which was contrary to the approach set out in Stanley. In this regard, his Honour erred.

41. [102]

    It is not necessary in this appeal to determine the circumstances in which, following a positive finding under s 66(2), an ICO may not be ordered. It is only necessary to say that having regard to the High Court’s reference to such a positive finding being “usually decisive”, there may be some circumstances in which the proper exercise of the discretion leaves open the possibility that an ICO should not be ordered. That may arise from a combination of relevant sentencing factors, still giving due paramountcy to community safety.

42. [103]

    Error having been established; it is necessary to re-sentence (s 6(3) of the Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601 at [43]).

Re-sentence

1. [104]

   There is no challenge to the findings of the sentencing judge either as to objective seriousness or the applicant's subjective features. I adopt those findings: see DL v The Queen (2018) 265 CLR 215 at [9]; Zheng at [267]; Turnbull v R [2019] NSWCCA 97 at [44]-[46].

2. [105]

   The offending contrary to the Customs Act is serious offending of its kind. This is evident by the amount of customs duty avoided ($3,553,209) and the very significant quantity of tobacco involved. The applicant engaged in the offending conduct for financial gain. Like the sentencing judge, I am unable to accept that some other person was involved or that the tobacco products happened to be at the offender's premises because of an unknown third person.

3. [106]

   For the purposes of re-sentencing, the applicant relies on an affidavit of his solicitor dated 9 February 2024, his own affidavit dated 1 February 2024 and an affidavit of his wife Suesan Khanat dated 8 February 2024. They refer to the family difficulties experienced subsequent to the applicant’s incarceration and the work and courses the applicant has undertaken whilst in prison. I have regard to this material. At least in part, it serves to emphasise the applicant’s prospects of rehabilitation and low risk of reoffending.

4. [107]

   The offender has no criminal history. He has good prospects of rehabilitation. He has a long history of employment and good family support. He has expressed remorse. He has a strong subjective case.

5. [108]

   Having said that, general deterrence must be given appropriate weight in the exercise of the sentencing discretion.

6. [109]

   He is also entitled to the 25% discount on account of his plea of guilty.

7. [110]

   Adopting the required three-step process (also as set out in Stanley):

   1. (1)

      I accept that no other sentence other than a sentence of imprisonment is appropriate in all the circumstances There was no suggestion to the contrary. An ICO is not an alternative to a term of imprisonment and I do not consider that at this stage of the process;

   2. (2)

      I must now determine the term of imprisonment, without regard to the way in which it might be served. I consider that the appropriate starting point for the sentence is 2 years and 4 months, which with the discount for the early plea would result in a sentence of 1 year and 9 months imprisonment.

   3. (3)

      I should now consider whether an ICO should be made in accordance with pt 5 of the Act.

8. [111]

   In this regard, as set out in s 66(1) of the Act, community safety must be the paramount consideration in determining whether or not to impose an ICO. I adopt the sentencing judge's finding that the risk of reoffending is low having regard to all of the applicant's subjective circumstances. I consider that the applicant's risk of reoffending is best addressed if he serves his sentence in the community.

9. [112]

   As required by s 66(3) of the Act, I have also considered the purposes of sentencing as set out in s 3A, and other relevant sentencing factors such as the importance of general deterrence. However, having regard to the paramountcy of community safety, I do not consider that those other relevant sentencing factors are such that an ICO should not be ordered. Community safety remains the paramount consideration and I am not at this point in the assessment considering whether the sentence is too lenient.

10. [113]

    As set out in s 69, I must have regard to the content of any assessment report and information from any community corrections officer and any other information available that I consider necessary for the purposes of deciding whether to make an ICO.

11. [114]

    The sentencing assessment report is dated 9 June 2023. Community Corrections considers that no conditions other than a supervision order are required to implement the recommended supervision plan. The report was obtained for the sentencing in the District Court. As was observed in Pullen at [80], it would be a “statutory absurdity” if the finalisation of this appeal was delayed for the purposes of obtaining a further report in circumstances in which there is unlikely to be any change.

12. [115]

    As set out in s 71 of the Act, an ICO commences on the day on which it is made. In the circumstances, an ICO could only commence on the date of this judgment. It cannot be backdated to take account of the time spent in custody.

13. [116]

    Yet, the applicant has already been in custody for a period of nearly 9 months. Whilst I am sentencing afresh, I am not doing so in a vacuum. As was observed most recently by Hamill J in AM v R at [46] (when considering a similar issue on resentence), it would be artificial not to take account of the fact that the applicant has already served 9 months of the sentence in prison.

14. [117]

    Further, I am conscious that the applicant should not be worse off as a result of this appeal. This issue was addressed in Mandranis at [56].

15. [118]

    In all of these circumstances, the orders I propose are that:

    1. (1)

       Leave to appeal is granted.

    2. (2)

       The appeal against sentence is upheld.

    3. (3)

       The sentence imposed in the District Court on 29 June 2023 is quashed and in lieu thereof:

16. [119]

    The effect of the sentence is that the applicant will serve nine months in custody, having been in custody since 22 June 2023. He will be released on 21 March 2024 on a recognizance for two years and will be subject to the conditions I have imposed for a period of two years. If he breaches any of those conditions, he may be subject to further action.