Karout v R

1. [1]

   HOEBEN CJ at CL: I agree with Brereton JA that Grounds 1, 3 and 4 of the Application for Leave to Appeal Against Sentence have not been made out.

2. [2]

   In relation to Ground 2, I agree with the analysis of Fullerton J and her Honour’s reasons. Accordingly, I agree with the orders proposed by Fullerton J.

3. [3]

   BRERETON JA: Three days after his matter was listed for trial in the District Court, the applicant Hassan Karout pleaded guilty to an offence of knowingly take part in supply of a prohibited drug, namely 140 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), an offence for which the maximum penalty is imprisonment for 15 years and/or a fine of 2,000 penalty units; there is no standard non-parole period. On 6 November 2018, he was sentenced to a term of imprisonment for two years commencing on 5 November 2018 and expiring on 4 November 2020, with a non‑parole period of one year expiring on 4 November 2019. However, on 16 November 2018, the sentencing judge granted him bail, pending the hearing of his appeal to this Court against the sentence.

The offence

1. [4]

   The applicant was one of four offenders convicted of offences arising out of activities conducted at a factory at 7 Production Avenue, Kogarah; the others were his father Kaldon Karout who was the owner of the factory; an associate Merhav Atiyas; and the applicant’s brother Ali Karout.

2. [5]

   The applicant was sentenced on the basis of an agreed statement of facts, on which the following summary is founded.

3. [6]

   Listening and optical surveillance devices installed in the factory captured a number of meetings, between 27 July 2015 and 11 September 2015, between Kaldon Karout, Merhav Atiyas, and other associates, who used a number of items within the factory – including a domestic blender, a coffee grinder, scales, plastic bags, disposable gloves, Tupperware containers, vacuum sealing equipment and a 20,000 kilogram hydraulic press – to blend cocaine and heroin with admixture and repress them into blocks of various sizes using metal plates and dies.

4. [7]

   On 30 July 2015 at 5.34pm the applicant entered the factory and sat down with Kaldon Karout, Atiyas and an unknown man (UKM), who had been playing backgammon for about 30 minutes before the applicant’s arrival. The applicant and Kaldon Karout played a game of backgammon, while Kaldon Karout and Atiyas discussed debts owed. A short time later, Kaldon Karout, standing in the middle of the factory, instructed Atiyas, the applicant and UKM in relation to cutting and repressing prohibited drugs. Kaldon Karout then left the factory, while Atiyas, the applicant and UKM remained.

5. [8]

   At 5.53pm, Atiyas walked back and forth within the factory, carrying a bag containing white powder. He collected a number of items from around the factory, including one from the top of a large floor safe, and said, “Where did you put it, did you change the place?”. The applicant replied, “It’s here, it’s here”. A short time later the sound of clanking was heard. At 5.57pm, the applicant asked Atiyas, “You right for … now?”, to which Atiyas replied, “Yeah, OK”, and the applicant responded, “Gotta break it up”.

6. [9]

   At about 6.02pm, Atiyas and UKM walked to the location of the hydraulic press, and the sound of metal clanking and banging was heard. UKM asked, “Have you got the plates?”, and Atiyas said, “Yeah”. UKM said, “Oh same plates as mine”, and Atiyas said, “Yeah I know”. UKM said, “I got the same ones. I snapped those plates the little ones and I got bigger ones”. At this time, the sound of the press, metal plates and a blender or grinder was heard. Atiyas and UKM then had the following conversation:

7. [10]

   At about 6.05pm, the applicant approached the area where the press was located, carrying a bag containing white powder, and said, “Too hard bro, I bite it. I bite it. I bit through the bag, got it all over my teeth, for an hour it was fucked”. Atiyas said, “Remember when we opened the other one?”, and the applicant replied, “Yeah”. Atiyas said, “Just the fuckin’ fumes … fumes”.

8. [11]

   The conversation continued:

9. [12]

   Between about 6.02pm and 6.19pm, the press was used to repress 5 ounces (140 grams) of cocaine. At 6.19pm, the applicant and Atiyas had the following conversation:

10. [13]

    Atiyas, the applicant and UKM then left the factory, Atiyas taking with him two ounces (56 grams) of the re-pressed cocaine. Later that evening, Kaldon Karout returned to the factory. Atiyas arrived shortly thereafter and handed Kaldon Karout a package.

11. [14]

    On 11 September 2015, Kaldon Karout was arrested at 5.22pm as he left the factory. Atiyas was arrested a short time later, having driven away from the factory. A search warrant was executed at the factory at 6.20pm, when Police located the 20,000 kilogram hydraulic press, metal plates which when assembled formed a mould, blending equipment, scales, freezer bags, ties, disposable masks, gloves, cutting agents, plastic Tupperware containers and vacuum sealing equipment. On top of the large floor safe were Allen bolts used to assemble the metal plates. Also found was a die capable of making blocks of up to 4 or 5 ounces of powder. Inside the roof cavity at the rear of the factory, Police found a number of hard packed blocks of white powder, similar in size to the dimensions of the metal plates when assembled. Among them was a bag containing a partially broken down block, and a bag containing five smaller pressed 1 ounce blocks. A total of 951.9 grams of white rock substance was located and found to be cocaine, and a total of 1,305.7 grams of heroin in the form of pressed blocks was also located.

12. [15]

    Between 3 July 2015 and 11 September 2015 Kaldon Karout supplied in excess of the large commercial quantities of cocaine and heroin. He was captured on surveillance devices re-pressing multiple blocks of prohibited drugs on various occasions over that period.

13. [16]

    On 21 November 2015, the applicant attended St George Police Station, where he was arrested and placed on conditional bail; he remained on bail until he was sentenced.

14. [17]

    The applicant did not give evidence in the proceedings on sentence, but a psychological report by Professor Stephen Woods was tendered on his behalf, which will be referred to below. For present purposes, however, it is relevant that Professor Woods recorded that the applicant had told him that he was aware that his father and associates were involved in a criminal activity but participated in the activities described in the hope that his father Kaldon Karout would give him a quantity of the cocaine for his personal use, and that he was adamant that this was the only occasion on which he had any involvement in the processing of an illicit substance.

The applicant

1. [18]

   The applicant was born on 29 March 1992, and was thus 26 years of age at the time of the sentencing proceedings. He married Daniella Khalil in January 2016 and their first child, a daughter, was born on 1 November 2018.

2. [19]

   According to the report of Professor Woods, his parents separated when he was still an infant and he had had a difficult early relationship with his father, whom he frequently observed using illicit drugs to the point that he considered drug use normal and socially acceptable. He began using cannabis in his mid‑teens, then MDMA and then cocaine. He presented with an estimated level of functioning intelligence approximately consistent with the low average range; he performed poorly at school and had been “invited” to leave school before completing Year 10, following which he made two unsuccessful attempts to complete the Year 10 School Certificate through TAFE, though he ultimately at the age of 20 obtained a Building and Construction Certificate IV through a private vocational college. Since leaving school, he has worked in the building and construction industry, and has been with his current employer Milestone Civil since 2016.

3. [20]

   The applicant was diagnosed with an anxiety disorder at age approximately nine years. By early adolescence he began to experience recurrent episodes of a depressed nature, and a pervasive sense of fear and apprehension. By his mid-teens, he began to suffer panic attacks. These symptoms persisted into adulthood. Professor Woods expressed the view that the aetiology of his mental health problems, including his drug use, was primarily to be found in the dysfunctional environment in which he was raised – and in particular in the dynamics of his dysfunctional relationship with his father – against a predisposing background of a familial history of mental health problems.

4. [21]

   Marriage had apparently had a stabilising influence on him. By the time of the sentencing proceedings, and not without difficulty, he had (according to Professor Woods) ceased using drugs and produced a clear urinalysis certificate.

5. [22]

   Professor Woods diagnosed:

   1. (1)

      Dependent Personality Disorder, resolving with maturation and the security of the marital relationship;

   2. (2)

      Substance Use Disorder (cocaine and cannabis), previously moderate to severe, now in full remission; and

   3. (3)

      Generalised Anxiety Disorder, with panic attacks and features of Separation Anxiety Disorder, chronic but with potential to fully resolve.

6. [23]

   Professor Woods recommended that he be encouraged (and if possible Court mandated) to enter into individual psychological treatment involving Dialectical Behavioural Therapy to address symptoms and behaviours associated with personality disorder, Cognitive Behavioural Therapy to address symptoms of anxiety and depression, and drug use relapse prevention counselling. He opined that his risk of re-offending was in the moderately low range, and that full-time incarceration would adversely impact his mental health.

7. [24]

   In addition to the matters referred to by Professor Woods, the sentencing judge noted that the applicant also had a significant deformity of his left hand.

The sentencing of the co-offenders

1. [25]

   The others involved were sentenced as follows:

2. [26]

   Atiyas was sentenced, also by Robison DCJ on the same occasion as the applicant, in respect of an offence of knowingly take part in the supply of 950 grams of cocaine, contrary to Drug Misuse and Trafficking Act s 25(2) (for which the maximum penalty is 20 years imprisonment and the standard non‑parole period ten years), to a non-parole period of three years and three months and a balance term of one year and nine months, being a total sentence of five years.

3. [27]

   The applicant’s brother Ali Karout was sentenced on 15 November 2016 by Hosking ADCJ, in respect of an offence of knowingly take part in the supply of heroin contrary to Drug Misuse and Trafficking Act s 25(1) (the same offence as the applicant), to a term of 18 months imprisonment, wholly suspended on a s 12 bond.

4. [28]

   The applicant’s father Kaldon Karout was sentenced by Lakatos SC DCJ on 1 June 2018, in respect of offences of (1) supplying not less than the large commercial quantity of cocaine (being 1008.06 grams) contrary to Drug Misuse and Trafficking Act s 25(2); and (2) supplying not less than the large commercial quantity of heroin (being 1285.22 grams) contrary to Drug Misuse and Trafficking Act s 25(2), with a further matter of supplying 22.94 grams of heroin on a Form 1. On the first he was sentenced to a non-parole period of five years and total effective sentence of seven years, and on the second to a non-parole period of five years and four months and total effective sentence of eight years, with a partial accumulation of three months.

The judgment of the sentencing judge

1. [29]

   The remarks on sentence reveal that the sentencing judge proceeded as follows.

2. [30]

   First, his Honour noted, as an aggravating factor, that the offence was committed whilst he was on two s 10 bonds, one in respect of an offence of possess prohibited drug, and the other for one of resist an officer.

3. [31]

   Secondly, in the course of summarising the agreed facts, his Honour noted matters which satisfied him, beyond reasonable doubt, that the applicant had some “prior knowledge” of the process of “blocking” cocaine.

4. [32]

   Thirdly, his Honour distinguished the applicant’s case from that of his brother Ali Karout (which was considered somewhat less serious, and in respect of which there were additional mitigating factors, most notably that he had no criminal record whatsoever), and that of Atiyas (whose role was greater).

5. [33]

   Fourthly, his Honour determined that the appropriate utilitarian discount for the plea of guilty, though it was not early, was 20%.

6. [34]

   Fifthly, his Honour referred to the report of Professor Woods, which I have sought to summarise above. In the course of doing so, his Honour noted that there was “nothing to indicate anything that would contradict” the applicant’s assertion that this was the only occasion on which he had any involvement in the processing of an illicit substance – an observation which does not necessarily sit comfortably with his Honour’s findings elsewhere that the applicant had some “prior knowledge” of the process.

7. [35]

   Sixthly, his Honour concluded that the offence fell “in the middle range of objective seriousness” for offences of this kind. In this, his Honour had regard to a number of references in the conversations recited in the agreed facts from which it was inferred that the applicant had “prior knowledge” of the process, and had provided the plates used in it.

8. [36]

   Finally, his Honour concluded that although, since Parente v R, [1] there is no longer a principle that in drug trafficking cases a full-time custodial sentence should be imposed unless there are exceptional circumstances being demonstrated, nonetheless – giving weight in particular to general deterrence – the s 5 threshold had been crossed and a sentence of imprisonment was entirely appropriate. His Honour rejected the submission made on behalf of the applicant that the sentence should be served by way of Intensive Correction Order, concluding that that there ought to be a sentence of imprisonment to be served on a full-time custodial basis. His Honour found “special circumstances”, because he considered that prospects of rehabilitation “have been amply made out”, and a departure from the standard ratio would not only serve to address his problems, but would also serve to protect the community when he is eventually released.

9. [37]

   For those reasons, after allowing for the 20% utilitarian discount, his Honour set a non-parole period of one year, commencing 5 November 2018 and expiring 4 November 2019, and imposed a balance term of imprisonment of one year to commence upon the expiration of the non-parole period and expiring 4 November 2020, so that the total sentence was two years.

The grounds of appeal

1. [38]

   The applicant propounds the following grounds of appeal:

2. [39]

   As the offence in question in this case was not one which carried a standard non-parole period, the strictures of Muldrock v The Queen [2] do not apply in their full rigour, and it is unnecessary – and indeed may be unwise – in such a case to compare the objective seriousness of the offence with the “mid-range”. [3] That is because it is not necessary to determine where by reference to the mid-range of objective seriousness the offence sits. Nonetheless, it is still necessary for a sentencing judge to form a view as to the objective gravity of the offence, and that is what the sentencing judge did here.

3. [40]

   The assessment of objective seriousness is quintessentially a matter for the sentencing judge, [4] in respect of which error will be demonstrated only on the grounds referred to in House v The King. [5] For the applicant, it was submitted that his Honour erred in taking into account, as a matter which increased objective seriousness (and which therefore had to be proven beyond reasonable doubt), [6] that the applicant had supplied the plates that were used to block the cocaine. It was contended that this matter was not proved to the requisite standard.

4. [41]

   This ground of appeal turns on the following passage in the judge’s remarks on sentence (emphasis added):

5. [42]

   That passage illustrates that his Honour did indeed take into account, in the evaluation of the objective seriousness of the applicant’s offending, a finding of fact that the applicant had supplied the plates. Although the language used does not expressly attribute the supply to the applicant, it is only sensible and relevant in the context in which it appears – namely, discussion of the objective seriousness of the applicant’s offence – if it is a reference to the conduct of the applicant. The purpose of the finding was to illustrate that the applicant’s involvement was more than merely trivial, in that it was he who provided the plates. Likewise, the following sentence, with its reference to “knowledge”, is a reference to knowledge on the part of the applicant. (It was not disputed that his Honour was entitled to be satisfied, to the requisite standard, and to take into account, that the applicant had “prior knowledge” of the process). In my view, the conclusion is inescapable that his Honour took into account, and gave some weight to, the circumstance that (as his Honour found) the applicant had supplied the plates.

6. [43]

   It was not, in terms, an agreed fact that the applicant had supplied the plates. Any finding that he had done so must have been founded on the conversation referred to at [11] above, in which the applicant had said, in the context of a conversation which appears to have referred to plates having broken on a previous occasion, “Nah, but if you’ve got professional ones, this one … these ones … someone gave to me as a present … I think was his … his mate gave it to me”.

7. [44]

   In the context that it was agreed that the applicant had spoken those words, immediately after UKM had said “Nah, but what I’m saying the plates snapped”, the inference that the applicant was referring to the plates being used at that moment in the process – the “professional ones” which “someone gave to me as a present” – and that therefore the plates being used in the process were his – was the obvious one. The presence of deficits or gaps in the transcript of the conversation does not detract from this, when it was agreed that those words were said in a single sentence in the course of a conversation about plates. Indeed, in that context, it is difficult to imagine to what else the applicant could have been referring. While it was submitted to the sentencing judge that this involved speculation, no alternative hypothesis was identified. In my judgment, the inference that the applicant was speaking of plates being used in the process as his was one of which the judge was entitled to be satisfied beyond reasonable doubt.

8. [45]

   Once that is accepted, the question becomes whether a finding that the offence was in “the mid-range” was not open, or unreasonable. In this respect, counsel for the applicant points to the following considerations:

   1. (1)

      While the amount of drug involved (at 140 grams) was roughly half the next threshold (250 grams), the applicant’s involvement was limited to a period of 45 minutes between 5.34pm and 6.19pm on 30 July 2015. The continuous surveillance between 27 July and 11 September 2015 did not reveal him having any other involvement in the illicit use of the factory.

   2. (2)

      There was nothing to suggest that he engaged in the actual supply of the drug, or received any of the drug.

   3. (3)

      He was acting under the guidance and direction of his father Kaldon Karout.

   4. (4)

      Of those who remained after Kaldon Karout’s departure, he seemed to perform a lesser role than either Atiyas or UKM.

9. [46]

   Mr James QC further submitted that error was demonstrated by a comparison with the judge’s conclusion that the offending of Atiyas was also “around the middle of the range”. In respect of Atiyas, the judge said:

10. [47]

    The judge accepted that Atiyas’ role was significantly greater than that of the applicant:

11. [48]

    It is not a complete answer to this submission to recognise, as the Crown emphasised, that Atiyas’ offence was found to be at the mid-range of a more serious offence. While that is true, the offence with which Atiyas was charged was more serious, and the available range of sentences commensurately greater, because the quantity involved was greater. But when one examines his role, it was also significantly more extensive than that of the applicant (Atiyas was involved on five occasions, as opposed to the applicant’s single occasion), and the quantity was at the upper end of the range for the more serious offence (950 grams where the next threshold was 1000 grams, whereas the applicant’s was in the middle of the relevant range).

12. [49]

    Against that, however, the applicant was engaged in the blocking of the drug, under the earlier direction of his father, with two others. The amount involved was worth in the order of $30,000 to $37,500. He had some prior knowledge of the process, and supplied the plates. And the offence was committed while the applicant was on two s 10 bonds. As the judge said:

13. [50]

    Although, were I approaching the matter afresh, I would incline to the view that objectively this offending was closer to the lower than the mid-range for offences of this kind, I am not satisfied that his Honour’s conclusion was not open, or unreasonable. In any event, in the context of an offence for which there was not a standard non-parole period, this finding was not an essential separate integer in the process, but part of the process of synthesis that informed the ultimate result.

14. [51]

    Ground 1 therefore fails.

15. [52]

    In the sentencing proceedings, it was submitted for the applicant that he should be permitted to serve his sentence by way of an intensive correction order. The sentencing judge rejected this submission:

16. [53]

    This was in the context that his Honour recognised that there was no longer any rule that a full-time custodial sentence should apply for such offences:

17. [54]

    The Crimes (Sentencing Procedure) Act 1999 (NSW) s 66, provides as follows:

18. [55]

    This has the effect that in making a decision whether to make an intensive correction order, community safety – including 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 – is the paramount, though not the only, consideration. [7] An ICO may be appropriate where prospects of rehabilitation are good and the risk of re-offending may be better managed in the community. [8]

19. [56]

    In rejecting the submission that the sentence should be served by way of ICO, the sentencing judge did not refer, at least explicitly, to community safety, but only to the seriousness of the matter and principles of general deterrence. This must be seen in the context of the following findings, which provide a positive view of the applicant’s prospects for rehabilitation, and his need for ongoing psychological treatment:

20. [57]

    In R v Fangaloka, [9] Basten JA (with whom Johnson and Price JJ agreed), expressed the view that s 66 should be given a restrictive, rather than a facilitative, construction, to the effect that an ICO should not be imposed unless the court was satisfied that it was more likely than fulltime custody to address the risk of re-offending (citations omitted):

21. [58]

    More recently, the restrictive view of s 66 has been questioned in Casella v R, [10] in which Beech-Jones J said:

22. [59]

    N Adams J said:

23. [60]

    It is unnecessary on this appeal to resolve that controversy, because on either approach it is necessary to form a view as to what form of sentence is more likely to address an offender’s risk of re-offending. I accept that his Honour’s ex tempore reasons must be read as a whole and not in an unduly technical way. [11] However, if his Honour did address the question of community safety in the relevant context, it is simply not possible to discern how he did so. In particular, it is not possible to know whether his Honour’s reasoning was that although an ICO would more likely to address the offender’s risk of reoffending than full-time custody, the offence was so serious that there must nonetheless be a fulltime sentence; or whether his Honour concluded that a full-time sentence would more likely address the risk of reoffending than an ICO. To my mind, this demonstrates that it cannot be seen whether or how his Honour took into account, on the question of whether the sentence should be served by way of ICO, the paramount consideration of community safety, including in particular whether it would more likely address the offender’s risk of reoffending than a full-time custodial sentence. In the context of the express submission that there should be an ICO, and his Honour’s conclusions that there were good prospects of rehabilitation, this required serious consideration.

24. [61]

    I would therefore uphold Ground 2.

25. [62]

    Equal justice requires that, as between co-offenders, there should not be such a disparity in sentencing as gives rise to a “justifiable sense of grievance”. [12] However, as the High Court has explained in Green v The Queen, [13] whether there is a justifiable sense of grievance is judged objectively, [14] and disparity may be justified having regard to differences between the co-offenders, including their age, background, criminal history, general character, and the part each has played in the relevant criminal conduct or enterprise. [15]

26. [63]

    This ground was advanced by reference to the sentence imposed on the applicant’s brother, Ali Karout, who pleaded guilty in the Local Court to one offence of knowingly take part in the supply of heroin contrary to s 25(1), and was committed for sentence. After a 25% discount for his early guilty plea, he was sentenced to a term of 18 months, which was suspended.

27. [64]

    It was submitted for the applicant that while the terms of 18 months (after a 25% discount) and 24 months (after a 20% discount) were not greatly different, a legitimate sense of grievance arose from the circumstance that Ali Karout’s sentence was wholly suspended. I accept that this makes it a significantly more lenient sentence. [16] However, there were significant differences between the two offenders and their offending.

28. [65]

    In my view, sufficient justification for the difference between their sentences is afforded by the circumstance that not only was Ali Karout not serving two s 10 bonds to be of good behaviour, but he had no criminal record whatsoever. Further justification is provided by the somewhat spontaneous and “very minimal role” found to have been played by Ali Karout, who attended the factory only once (somewhat spontaneously at the request of his father), compared with the “prior knowledge” and provision of plates by the applicant. Indeed, in sentencing Ali Karout, Hosking ADCJ said:

29. [66]

    The sentencing judge was alert to these considerations:

30. [67]

    Ground 3 therefore fails.

31. [68]

    The relevant principles to be applied in respect of a contention that a sentence is manifestly excessive were summarised in Hughes v R, [17] as follows:

32. [69]

    For an offence carrying a maximum penalty of 15 years imprisonment, with a plea entered at a late stage (for which he nonetheless received a 20% discount), in circumstances where he had a criminal history and was on two s 10 bonds, it cannot be said that a non-parole period of 1 year and a balance term of 1 year, being a total effective sentence of 2 years, was unreasonable or plainly unjust.

33. [70]

    Ground 4 therefore fails.

Resentencing

1. [71]

   However, as I would uphold ground 2, it is necessary to resentence the applicant.

2. [72]

   As to objective seriousness, the amount of drug involved (at 140 grams) was roughly half the next threshold (250 grams). Although the applicant appears to have some prior knowledge of the process, it is significant that this was the only occasion, in six weeks of continuous surveillance of the factory, that he was detected to have any role (when his father’s role was very much greater, and Atiyas was involved on five occasions). It is also relevant that his involvement was at the instigation and pursuant to the instructions of his father, and that the applicant appears to have received no benefit from his participation (though he hoped to receive some cocaine for personal use). While I have been most troubled by the circumstance that this offence was committed at a time when he was bound to be of good behaviour under not one but two bonds, and while I have declined to find error in the sentencing judge’s conclusion that this was a “mid-range” offence, for myself on resentencing I would place it closer to the low than to the medium range.

3. [73]

   Before us, an affidavit of the applicant of 14 August 2019 was read. The applicant has been on bail since 16 November 2018, when released by the sentencing judge pending his appeal, after serving 12 days in custody, and has apparently complied with his bail conditions, including a daily reporting condition. His wife is expecting their second child in November 2019. He has voluntarily submitted to urinalysis, which has been clear. He has been able to resume employment with his former employer. He says:

4. [74]

   He has been attending a program with Dr Borenstein under the treatment plan recommended by Professor Woods, for treatment of his anxiety, panic and depressed mood, and his propensity to dependency and passive co‑operation. Dr Borenstein reports that he is well-engaged in treatment which will continue for another twelve months, that he is responding very favourably to psychological intervention to date, and that his substance abuse disorder is in full remission and he has not shown any propensity to relapse into drug use. However, he has become noticeably more anxious as the hearing of his appeal approached, and is fearful of the impact a custodial sentence would have on his precarious mental health. Dr Borenstein opines:

5. [75]

   This material, superimposed on the sentencing judge’s findings that he is unlikely to reoffend, and has good prospects of rehabilitation, persuade me that an ICO would much more likely address the risk of reoffending than full-time custody. Even if an ICO can be imposed only where that question is affirmatively answered, that requirement is satisfied here.

6. [76]

   While general deterrence is an important consideration in offences such as these, the applicant’s unhappy family history, educational limitations, early exposure to drug use, and the dominant influence of his father – who is now removed from the scene – mitigate its importance here. I also take into account that he has served a short period in custody following the sentencing proceedings until appeal bail was granted, on which account the sentence I would impose would be taken to commence from a date twelve days prior to the date of delivery of this judgment.

7. [77]

   Having regard to these matters, I consider that while a more severe penalty than that imposed on Ali Karout remains appropriate, it should be served by way of an Intensive Correction Order.

8. [78]

   I propose that:

   1. (1)

      leave to appeal be granted;

   2. (2)

      the appeal be allowed;

   3. (3)

      the sentence imposed in the District Court be set aside; and

   4. (4)

      in lieu thereof, the applicant be sentenced to a term of imprisonment for two years, dating from 6 October 2019 and expiring on 5 October 2021, to be served by way of intensive correction in the community, subject to conditions that:

9. [79]

   FULLERTON J: I agree with Brereton JA that Grounds 1, 3 and 4 of the application for leave to appeal the sentence of imprisonment of 2 years imposed by Robison DCJ on 6 November 2018 have not been made out.

10. [80]

    I have come to a different conclusion as concerns the second ground of appeal. Accordingly, I have come to a different conclusion as to the disposition of the appeal.

11. [81]

    For the reasons which follow I propose the following orders:

    1. (1)

       Leave to appeal granted.

    2. (2)

       The appeal dismissed. Whilst the sentence imposed by Robison DCJ on 6 November 2018 is confirmed, there needs to be an adjustment to the date upon which the sentence is ordered to commence to account for time the applicant spent in custody prior to the grant of appeals bail. The sentence is to commence from 6 October 2019, being 12 days prior to the date of judgment taking into account the time spent in custody post‑sentence and prior to the granting of appeals bail on 16 November 2018.

12. [82]

    In order to deal with the complaint the subject of the second ground of appeal, and the way in which it was developed in submissions on the hearing of the appeal, it is necessary to set out the ground in full:

13. [83]

    The complaint is not that the sentencing judge failed to give reasons for declining to exercise the discretion in s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) or any complaint about the adequacy of his Honour’s reasons for so doing. Were that the basis upon which the sentencing order of full-time imprisonment was challenged, this Court would have expected that complaint to be made patent in an appropriately particularised ground of appeal in order that consideration could be given to whether there was any failure to conform with a sentencing judge’s obligations to give reasons.

14. [84]

    In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [42], Spigelman CJ expressed that obligation in these terms:

15. [85]

    Neither is there a complaint that declining to make an Intensive Correction Order (“ICO”) constituted an error in the exercise of the sentencing judge’s discretion. Were that the complaint, either the subject of the second ground of appeal or to be read into it, it would have necessitated a consideration of error in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense.

16. [86]

    Rather, the complaint is that in declining to exercise the discretion to permit the sentence of imprisonment to be served by way of an ICO, the sentencing judge failed to meet the obligation, said by the applicant to be imposed by the terms of s 66 of the Sentencing Act, that he have regard to the “protection of the community”, and that by failing to have regard to the fact or alternatively by failing to give paramount consideration to that fact, the order that the sentence of imprisonment be served by way of full-time custody was defective as a matter of law.

17. [87]

    In my view, that analysis is based on a misunderstanding of the operation of s 66 of the Sentencing Act.

18. [88]

    By stipulating in s 66(1) that community safety is to be treated by sentencing courts as the paramount consideration when a submission is advanced that a sentence of imprisonment should be served in the community, the Legislature should not, in my view, be taken to have intended that community protection be elevated to a mandatory consideration in the sentencing exercise, in the sense that it should dominate considerations of broader sentencing principles, including considerations which may dictate that no lesser sentence than one involving a full-time custodial term is appropriate.

19. [89]

    Despite the controversy in this Court as to whether s 66 should be interpreted as restrictive rather than facilitative, a controversy encapsulated in the judgments Brereton JA extracted at [57]–[59], the observations of Basten JA in R v Fangaloka [2019] NSWCCA 173 at [59]–[61] (with whom Johnson and Price JJ agreed) are not controversial. After referring to the reasoning of the primary judge in R v Pullen [2018] NSWCCA 264, to the effect that he considered himself obliged to consider whether, after imposing a sentence of 2 years, it was appropriate that it be served by way of an ICO, Basten JA said:

20. [90]

    Adopting and applying that analysis (with which I agree), I consider that were the Legislature to have intended to impose on sentencing courts an obligation to give paramount consideration to community supervised programs as a means of ensuring community safety as one of the purposes of sentencing in s 3A(c) of the Sentencing Act, or to impose on a sentencing court a statutory obligation to give reasons for concluding that the other purposes of sentencing in s 3A, alone or in combination, dictate that even where the offender’s risk of reoffending is such that community protection can be sufficiently addressed by an ICO, a sentence of full-time custody is the appropriate sentencing outcome, I would have expected the Legislature would have made that plain when the 2018 amending Act was passed.

21. [91]

    In my view, the sentencing judge’s approach to the exercise of the power in s 66 does not reveal error. I respectfully disagree with Brereton JA at [60] of his Honour’s judgment that the sentencing judge’s reasons for declining to exercise that power are deficient, or that there was any failure to give appropriate consideration to the protection of the community in his ultimate determination that the sentence of imprisonment should be served by an order for full-time custody.

22. [92]

    The result might have been otherwise (and a different ground of appeal framed) were the sentencing judge to have failed altogether to refer to the written and oral submissions of the applicant’s senior counsel that an ICO was an available and appropriate sentencing order.

23. [93]

    After a sensible rendering of his Honour’s ex tempore sentencing reasons, delivered following detailed oral submissions from the parties in addressing their written submissions, I am left in no doubt that when his Honour stated that he had carefully considered whether an ICO should be imposed, the question of community protection, as one amongst a number of discretionary considerations having an impact upon the ultimate sentencing order, was given appropriate weight in the discretionary sentencing exercise.

24. [94]

    The fact that his Honour made positive findings as to the applicant’s good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant’s offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play.

25. [95]

    In the result, the complaint that his Honour’s approach to s 66 constituted a sentencing error has not been made out.