Vamadevan v The King

1. [1]

   THE COURT: On 9 February 2024, Gerard Vamadevan, the applicant, confirmed guilty pleas in the District Court, first entered in the Local Court, to seven offences of using a carriage service in a way that reasonable persons would regard as menacing, harassing or offensive, contrary to s 474.17(1) of the Schedule to the Criminal Code Act 1995 (Cth) (the “Criminal Code”) and one offence of dealing in identification information for the purposes of committing a Commonwealth offence, contrary to s 372.1(1) of the Criminal Code. The applicant also admitted his guilt of one further offence under s 474.17(1), asking it to be taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) (the “Crimes Act”) when sentencing him for Count 1.

2. [2]

   During the period between 1 January 2018 and 31 March 2022, the applicant telephoned 46 different victims, most of whom were women, using his mobile telephone with a “No Caller ID” setting. During those telephone calls the applicant did not identify himself. He made degrading sexual comments to the victims (for example he called a number of women a “fucking dirty slut” and stated to a number of these women that he was going to “piss and spit in your mouth”). The applicant made degrading and racially offensive sexual comments, telling one woman that she was a “dirty Chinese slut” and a “dirty Chinese cunt”. On a number of occasions, the applicant used the victims’ names and referred to the names of the victims’ children. On some occasions the applicant threatened violence, including telling one victim that he was going to rape the victim’s daughter and “cut her into pieces”. During some of the telephone calls the applicant played over the telephone a recording of a parody of a song by James Blunt called “You’re Beautiful” where the lyrics were changed to “You’re a Paedophile”. Much of the offending conduct occurred when the applicant was on bail and then on a s 20(1)(a) Crimes Act recognizance release order for offences he had committed in early 2019.

3. [3]

   The applicant urged the sentencing judge to make an “intensive correction order” under s 20AB of the Crimes Act which identified an “intensive correction order” as an available sentencing option for Commonwealth offences if certain preconditions (which we will describe in much greater detail) were met.

4. [4]

   On 29 April 2024, McGuire DCJ in the District Court sentenced the applicant to an aggregate sentence of 2 years’ imprisonment to be served by way of full-time custody and ordered his release on a recognizance release order (pursuant to s 20 of the Crimes Act) to be of good behaviour for nine months after serving one year and three months of that sentence. The applicant will be eligible for release on recognizance on 29 July 2025. An aggregate sentence was imposed. Indicative sentences were stated as being Count 1 – 1 year and 6 months; Count 2 – 9 months; Count 3 – 9 months; Count 4 – 10 months; Count 5 – 3 months; Count 6 – 1 month; Count 7 – 3 months and Count 8 – 1 month. Neither party complained about any of these indicative sentences. The Crown took no issue with the imposition of an aggregate sentence: cf McGregor v The King [2024] NSWCCA 200.

5. [5]

   There were three grounds of appeal. The Crown (represented before the sentencing Court and in this Court by the Commonwealth Director of Public Prosecutions (“CDPP”) for whom Dr Higgins SC and Mr Tran appeared) accepted that leave to appeal should be granted and conceded grounds two and three. The second ground of appeal was that the sentencing judge “erred in failing to respond to a substantial argument put on the applicant’s behalf in relation to the mandatory assessment under s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)” (the “NSW Sentencing Act”). The third ground of appeal was that the sentencing judge “erred in failing to take into account the paramount consideration of community safety in the manner required by law”. On the existing state of authority, which as we will explain provides that s 66 of the NSW Sentencing Act applies to federal offenders sentenced in NSW, the Crown’s concession was correctly made and should be accepted.

6. [6]

   Accordingly, this Court need not determine ground one as the Crown accepted that the appeal must be upheld and the sentence quashed unless the Court concludes, following resentencing, that no lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

7. [7]

   In deciding whether any lesser sentence is warranted in law (and in particular whether, as the applicant submits, an intensive correction order should be made), this Court must apply the correct law. The essential issue in resentencing the applicant is whether the Court in considering whether to make an intensive correction order for a federal offender under s 20AB of the Crimes Act is obliged, as the Crown submits, to apply Part IB and in particular s 16A of the Crimes Act and not s 66 of the NSW Sentencing Act or whether, as the applicant submits, the Court is obliged to apply s 66 of the NSW Sentencing Act in considering whether to make the order.

8. [8]

   Determination of this question is a question of construction of the provisions of Part IB of the Crimes Act. It is important, however, first to analyse the decision of the majority of the High Court in Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 which dealt with the imposition of an intensive correction order upon an offender guilty of an offence against NSW law. Stanley did not address the imposition of an intensive correction order upon a federal offender convicted in NSW.

Intensive correction orders imposed on an offender guilty of an offence against NSW law

1. [9]

   The correct construction of s 66 of the NSW Sentencing Act in the context of imposing an intensive correction order on a person guilty of an offence against NSW law was settled by the High Court in Stanley. The majority in Stanley explained at [59] that there are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the NSW Sentencing Act:

   1. (1)

      First, “a determination that the threshold in s 5(1) … is met”. That is, a determination that no sentence other than a sentence of imprisonment is available;

   2. (2)

      Secondly, a “determination of the appropriate term of the sentence of imprisonment”; and

   3. (3)

      Thirdly, “where the issue arises, consideration of whether or not to make an ICO”.

2. [10]

   The use of the phrase “where the issue arises” is instructive. As the majority in Stanley again noted at [62], “[t]he possibility of an ICO does not arise unless and until the sentencing court has first determined that no penalty other than imprisonment is appropriate and has sentenced an offender to imprisonment” (emphasis added). Only once the first two steps have been taken can the court consider the application of the disentitling provisions contained in the NSW Sentencing Act relating to intensive correction orders. These are identified in the following paragraph. If those disentitling provisions do not apply; i.e. where after the taking of the first and second step “the issue arises”, the third step, consideration of whether or not to make an intensive correction order, can be taken.

3. [11]

   The first stage in making an intensive correction order requires a court, having considered all possible alternatives, to conclude that imposition of a sentence of imprisonment is appropriate: s 5(1). There are several other limitations on the availability of this power in the NSW Sentencing Act (which we have earlier described as disentitling provisions):

   1. (1)

      s 68(2) – the appropriate term of the sentence of imprisonment be no more than three years. This can necessarily only be determined after the second stage has been conducted;

   2. (2)

      s 4B – an intensive correction order not an available order for a domestic violence offender. A domestic violence offence has the same meaning as that given in s 11 Crimes (Domestic and Personal Violence) Act 2007 (NSW);

   3. (3)

      s 7(3) – an intensive correction order not available to offender under 18 years old;

   4. (4)

      s 17D(1)-(1A) – an intensive correction order not available unless an assessment report has been obtained or the court is satisfied there is sufficient information to make the order without an assessment report; and

   5. (5)

      s 67 – an intensive correction order not an available order in respect of a large number of Crimes Act and Criminal Code offences1.

4. [12]

   Once the first and second steps have been taken and it has been determined that the disentitling provisions are not engaged, a court sentencing a person for an offence under NSW law will come under a duty to consider making an intensive correction order: Stanley at [65]. The majority in Stanley emphasised that once the power to make an intensive correction order is enlivened, the sentencing court must address the requirements in the NSW Sentencing Act relevant to the imposition of such an order: Stanley at [66].

5. [13]

   Section 66 of the NSW Sentencing Act constrains the court’s exercise of that discretionary power to make an intensive correction order once “the power to make an ICO is enlivened”: Stanley at [66]. It provides:

6. [14]

   The applicant emphasised the language of the majority in Stanley at [79] that the requirement for assessment under s 66 of the NSW Sentencing Act “affects the power to decide whether or not to make an ICO under s 7”.

7. [15]

   The majority in Stanley emphasised at [88] that although “the power to make or refuse to make an ICO at the third stage is a discretionary decision” the evaluative task under s 66 was intended by the NSW legislature to be a condition of the jurisdiction to decide whether or not to make an intensive correction order.

8. [16]

   By making community safety the “paramount consideration” in s 66(1), the NSW Parliament “subordinated” other factors to that consideration: Stanley at [73]. That is why “community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive”: Stanley at [76]. That said, it is not the case 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” (Khanat v R (Cth) (2024) 385 FLR 234; [2024] NSWCCA 41 at [89]), because other factors must still be taken into account. The majority in Stanley accepted that in the decision whether to make an intensive correction order “other considerations must or may be taken into account as prescribed by s 66(3)” (at [73]), referring to the provisions of s 3A (purposes of sentencing) and that any relevant common law sentencing principles or matters the court thinks relevant must be taken into account.

9. [17]

   Community safety principally concerns the harms to the community that might occur in the future from the risk of reoffending by the applicant: Stanley at [72]. In considering the paramount consideration of community safety in s 66(1), s 66(2) mandates an assessment of “the relative merits of full-time detention as against intensive correction in the community”: Stanley at [54]. A sentencing court cannot impose a sentence of full-time imprisonment “without assessing the comparative merits of full-time detention and intensive correction for reducing the offender’s particular risk of reoffending”: Stanley at [54]. Section 66(2) “requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community”: Stanley at [74].

The relevant question in this case

1. [18]

   Part IB of the Crimes Act commenced in 1990 and has been amended many times since. Part IB provides a detailed framework for imposing sentences and making orders for offenders convicted of a crime against federal law. Both parties agreed that the question posed here was one of construction of the provisions of Part IB of the Crimes Act. Neither party suggested that the provisions of ss 68, 79 or 80 of the Judiciary Act 1903 (Cth) were relevant to the questions posed by the present case.

2. [19]

   When a NSW court makes an intensive correction order in relation to a federal offender as permitted by s 20AB of the Crimes Act, a provision to which we will return in detail, the order is made under s 20AB(1) itself and not under the NSW Sentencing Act. This is made clear by the language in the Crimes Act that refers to orders made under s 20AB(1): ss 16A(3), 20A(5)(c)(ic), 20AB(1B)-(6), 20AC, 20BQ(3) and 22(7).

3. [20]

   Critically, when determining whether to make an order under s 20AB of the Crimes Act, s 16A of the Crimes Act governs the making of that order:

4. [21]

   Section 16A(1), in terms, provides that in determining the order to be made, the Court must “make an order that is of a severity appropriate in all the circumstances of the offence”. An order made under s 16A(1) plainly includes an order made under s 20AB, including an intensive correction order. So much is clear from the terms of s 16A, in particular s 16A(3) and the specific reference to matters the court “must have regard to” when making an order under s 20AB(1). The matters the court must have regard to in making an intensive correction order under s 20AB, are expressed to be without limitation upon “the generality of subsections [16A] (1), (2) and (2AAA)”; that is, 16A(1), (2) and (2AAA) apply to the making of an intensive correction order under s 20AB(1).

5. [22]

   In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, Gaudron, Gummow and Hayne JJ made clear that in Part IB of the Crimes Act, there is no statutory obligation upon the sentencing court to give particular weight to one or other of the identified purposes in sentencing certain kinds of offender:

6. [23]

   Footnote 127 in Wong is instructive. Gaudron, Gummow and Hayne JJ there contrasted the requirements of s 16A with those contained in the Sentencing Act 1991 (Vic) (the “Victorian Sentencing Act”) which provided in s 6D(a) that in sentencing a “serious offender” (as defined) the Court was directed to regard the protection of the community from the offender as “the principal purpose for which the sentence is imposed”.

7. [24]

   The conclusion of the High Court in Wong is inconsistent with application in federal sentencing of the statutory command in s 66 of the NSW Sentencing Act that “community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender”.

8. [25]

   In Johnson v The Queen (2004) 218 CLR 451; [2004] HCA 15, the High Court said that, except to the extent stated in ss 16A and 16B of the Crimes Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable when state courts sentence offenders for federal offences: at [15] (Gummow, Callinan and Heydon JJ). That common law principles may apply follows from the use of the words “of a severity appropriate in all the circumstances of the offence ...” in s 16A(1) and the introductory words “[i]n addition to any other matters ...” to s 16A(2) of the Crimes Act. It is also consistent with there being one common law of Australia: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563; [1997] HCA 25; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [66].

9. [26]

   There is no hierarchy of matters to be taken into account in s 16A of the Crimes Act, and it is well settled that s 16A obliges the sentencing court to take all of them into account. Effect must be given to that legislative command. It is not possible to apply s 16A of the Crimes Act while also applying s 66 of the NSW Sentencing Act by giving paramount consideration to community safety because the two approaches are fundamentally incompatible. Nor is it possible, given the statutory command in s 16A, to engage the third stage of sentencing in a manner inconsistent with the matters s 16A directs must be taken into account in deciding whether to make an order, including an intensive correction order. It is not possible to reconcile the application of s 16A of the Crimes Act, in deciding whether to make an order under s 20AB(1), with the considerations required to be treated as “paramount” by s 66 of the NSW Sentencing Act.

10. [27]

    In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [25], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

11. [28]

    Six members of the Court in that case rejected a contention that there is or should be “a norm or starting point, expressed as a percentage” for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. Their Honours said:

12. [29]

    Section 66 of the NSW Sentencing Act, which is a condition on the discretionary power to make an intensive correction order in relation to a NSW offender, elevates community safety in every case as a “paramount consideration” in deciding whether to make an intensive correction order. That approach is inconsistent with the requirements of s 16A of the Crimes Act, as explained in Hili. The conclusion of the majority in Stanley was that failure to comply with the requirements of s 66 of the NSW Sentencing Act constituted jurisdictional error.

13. [30]

    As Kiefel CJ, Gageler and Keane JJ explained in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 the label “jurisdictional error” is applied following a process of statutory construction. We do not accept the applicant’s submission that the Crown submission in the present case that s 66 does not go to whether the Court is empowered to make the intensive correction order “contradicts the reasoning of the majority in Stanley”. The relevant question of construction here is not the proper construction of the NSW Sentencing Act the subject of Stanley but, rather, the correct construction of provisions of Part IB of the Crimes Act.

14. [31]

    It is against that background that the critical question of construction in the present case arises. As we have said, s 20AB(1) of the Crimes Act enables a court sentencing a federal offender to make an intensive correction order. As we have explained, in determining the “order to be made”, which includes an intensive correction order, it is the provisions of s 16A which are governing. Section 20AB provides:

15. [32]

    Section 20AB explicitly permits a sentencing court to make an order “of a kind” identified in s 20AB(1AA). Section 20AB(1AA) includes an order “known as” an intensive correction order, which is listed in paragraph (a)(ix). What an intensive correction order involves is given content by the relevant State or Territory law, specifically ss 70-73B of the NSW Sentencing Act. These provisions give the intensive correction order sentencing option under s 20AB(1AA)(a)(ix) its “colour and meaning”: Homewood v R [2023] NSWCCA 159 at [4] per Beech-Jones CJ at CL.

16. [33]

    Section 20AB(1) enables the making of an order with respect to a federal offender where under the law of the State or Territory, relevantly the NSW Sentencing Act, a court is “empowered to … make such an order, in respect of a State or Territory offender in corresponding cases” (emphasis added). Corresponding cases are cases involving an offender in the same circumstances. It was common ground, albeit for different reasons, that the Court was so empowered. Neither party submitted that, as s 66 of the NSW Sentencing Act was inconsistent with Part IB of the Crimes Act, intensive correction orders could not be imposed on federal offenders in NSW.

17. [34]

    As we have explained, application of s 66 of the NSW Sentencing Act, which elevates community safety to a paramount consideration in deciding whether or not to make an intensive correction order, is inconsistent with the requirements of s 16A of the Crimes Act, which must be applied in deciding whether to make an intensive correction order.

18. [35]

    The critical constructional question is thus whether, as the applicant submits, “empowered to … make such an order, in respect of a State or Territory offender in corresponding cases” in s 20AB(1) should be construed as meaning that the discretionary power in s 66 of the NSW Sentencing Act applies in determining whether or not to make an intensive correction order under s 20AB of the Crimes Act, despite s 66 of the NSW Act requiring a process of reasoning inconsistent with applying s 16A of the Crimes Act or whether, as the Crown submits, a court is “empowered” to make an intensive correction order in corresponding cases within the meaning of s 20AB(1) of the Crimes Act when the provisions of the NSW Sentencing Act which allow the making of such an order to be considered have been satisfied, which provisions do not include s 66 of the NSW Sentencing Act. The Crown submitted that “the conditions which must be satisfied before an ICO is available are different from, and must be contrasted with, the matters to be considered in the exercise of the discretion whether to exercise the power where that power is available”.

19. [36]

    The Crown’s contention is that the legislative purpose to s 20AB is clear and the legislature did not intend that a court sentencing a federal offender should be obliged to consider making an order on a basis inconsistent with the principal statutory command in s 16A of the Crimes Act which applies to the making of that order. We have decided that the Crown’s construction of s 20AB is correct. We accept Dr Higgins SC’s submission on behalf of the Crown that:

20. [37]

    A court is “empowered” to impose an intensive correction order on a NSW offender in corresponding cases when the specific provisions (including disentitling provisions) which limit the availability of an intensive correction order as a mode of disposition have been satisfied. We have identified the relevant provisions at [11] above. The conditions which must be satisfied before a court is “empowered” to make an intensive correction order in corresponding cases within the meaning of s 20AB(1) of the Crimes Act, in context, means only the specific provisions which limit the availability of an intensive correction order as a mode of disposition. The Crown is correct that this is a different question to the matters which condition the discretionary power to make or refuse to make an intensive correction order. Such matters do not go to the existence of power, but to the proper exercise of that power.

21. [38]

    The text, context and purpose of s 20AB(1) of the Crimes Act do not require the Court when sentencing a federal offender in NSW to apply provisions in the NSW Sentencing Act that condition the exercise of the power to make such “sentence or order” under that Act; in this case s 66 of the NSW Sentencing Act. Determination of whether or not to make an intensive correction order is a matter about which the Crimes Act makes its own detailed and specific provision in s 16A.

22. [39]

    The construction of s 20AB(1) we prefer is underlined by s 20AB(3) which sets an explicit limit to the extent that State and Territory laws are picked up by s 20AB(1):

23. [40]

    Three matters should be noted about s 20AB(3). The opening words emphasise that an order in relation to a federal offender is made under s 20AB(1). Secondly, the provisions of the NSW Sentencing Act with respect to an intensive correction order apply in relation to an intensive correction order made under s 20AB(1) so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth. Thirdly, the limits s 20AB(3) provides upon application of State or Territory laws to orders made in relation to federal offenders gives important context to the meaning in 20AB(1) of the phrase “empowered … to … make such an order, in respect of a State or Territory offender in corresponding cases”.

24. [41]

    The purpose of s 20AB(1)(b) of the Crimes Act (see [31] above) is to make available to federal offenders State and Territory sentencing options as modes of disposition. Whether or not an order referred to in s 20AB(1AA) which includes an intensive correction order should be made, however, is governed by Part IB of the Crimes Act, and s 16A in particular. When s 16A and s 20AB(1)(b) are read together, it is clear that the Crimes Act intends to pick up State sentencing options when empowered to do so, that is, when such options are not prohibited by any disentitling provision. Part IB of the Crimes Act does not intend to pick up the State or Territory provisions which govern the exercise of that power once it becomes available. The purpose of s 20AB(1) is to identify when an intensive correction order is a possible or available disposition. Correctly construed, s 20AB does not direct a court about what matters to consider in deciding whether to make an order under the section.

25. [42]

    We would not lightly conclude that, absent express language, the Commonwealth Parliament would willingly subordinate federal sentencing to sentencing considerations identified by a State legislature which are inconsistent with s 16A of the Crimes Act. Section 20AB(1)(b) should not, as a matter of context and purpose informed by s 20AB(3), be understood to apply State or Territory provisions which govern the exercise of the power to make an order; the matters to be taken into account in exercising the power to decide whether or not to make an order are the subject of s 16A.

26. [43]

    The explicit limits in s 20AB(3), that the applied provisions are not inconsistent with the laws of the Commonwealth, provides strong purposive support for the conclusion that the words “empowered … to … make such an order, in respect of a State or Territory offender in corresponding cases” in s 20AB(1) are not intended to make mandatory in federal law all requirements for the making of an order under State law where there is power to make such an order.

27. [44]

    To summarise our conclusion as a matter of statutory interpretation, the Commonwealth Parliament plainly did not intend that all State and Territory provisions which govern the exercise of a power to impose a particular type of order are to be applied in federal sentencing. To the contrary, s 20AB(3) provides a strong indication that the Parliament intended that “empowered … to … make such an order, in respect of a State or Territory offender in corresponding cases” means only that the specific provisions which limit the availability of an intensive correction order as a mode of disposition have been satisfied. Provisions in State and Territory law that condition the exercise of the power to make such a “sentence or order” are not encompassed within s 20AB(1). This is because the Commonwealth Parliament in s 16A of the Crimes Act has explicitly identified for itself the matters relevant to determining whether or not to make an order under s 20AB.

28. [45]

    Another matter of context in determining the meaning of the words “empowered … to … make such an order, in respect of a State or Territory offender in corresponding cases” is s 20AB(1AA). The breadth of orders potentially available in relation to federal offenders in each State or Territory tends in favour of a construction of the words “empowered … to …make such an order, in respect of a State or Territory offender in corresponding cases” as applying to the existence of the power to make the relevant orders rather than applying to provisions which condition the exercise of the power. As we have said, the construction proposed by the applicant of incorporating all State and Territory laws which condition the exercise of the power to make the broad range of orders identified in s 20AB(1AA) would have the effect of substantially undermining the statutory command in s 16A. We do not accept the applicant’s submission that s 20AB(1AA) can only “sensibly be interpreted” as applying all the provisions of the NSW Sentencing Act, including compliance with s 66, in federal sentencing. The language used in s 20AB(1AA) supports the construction we prefer. Section 20AB(1AA) applies to an order “known as” an intensive correction order. A court sentencing a federal offender is also authorised to make an order “similar to” an order to which s 20AB(1AA)(a) applies: s 20AB(1AA)(b). Such language is consistent with “empowered” in s20AB(1)(b) referring to the existence of the power to make the relevant order, or one similar it, rather than referring to provisions which condition the exercise of the power, which provisions are dealt with in federal sentencing in s 16A. If the Commonwealth Parliament had intended that the detailed provisions of s 16A should not apply to any sentencing option identified in s 20AB(1AA), it could easily have so provided; it did not.

29. [46]

    A further matter tending in favour of the conclusion that s 20AB (and s 20AB(1AA)) should not be understood as providing for “dispositions available to State offenders under State law” is the detailed provisions made by s 20AC of the Crimes Act which govern the consequences of a failure to comply with an order made under s 20AB(1). Section 20AC is completely inconsistent with the NSW Sentencing Act provisions governing the same subject matter in that the prescriptive federal regime requires breaches of an intensive correction order to be dealt with by a court, which has power by s 20AC(6) to revoke the order whereas the NSW Sentencing Act has its own prescriptive regime whereby breaches of an intensive correction order are dealt with by community corrections officers and the NSW Parole Authority, which is given the power to revoke the order: ss 163 and 164 of the Crimes (Administration of Sentences) Act 1999 (NSW). The detailed and inconsistent treatment in the Crimes Act of the consequences of a failure to comply with an order made under s 20AB(1) tends strongly against the applicant’s construction of s 20AB as providing “dispositions available to State offenders under State law”.

30. [47]

    There is authority about a closely related question from the Victorian Court of Appeal which supports the conclusion we have reached concerning s 20AB. In Atanackovic v The Queen (2015) 45 VR 179; [2015] VSCA 136, the Victorian Court of Appeal (per Weinberg, Kyrou and Kaye JJA) drew attention to the inconsistency between applying s 16A on the one hand (as the Crimes Act requires) and the Victorian statutory sentencing regime and case law on community correction orders (which replaced, inter alia, intensive correction orders in Victoria) on the other. Atanackovic, in common with the present case, involved sentencing for federal offences where the Crown conceded that an error had been made by a sentencing judge and the Court of Appeal was obliged to resentence (including consideration of whether any lesser sentence was warranted). In conducting the resentencing, the Crown accepted that the community correction orders regime could be applied via s 20AB(1) of the Crimes Act to federal offenders but submitted, as here, that certain provisions of the Victorian Sentencing Act could not apply to sentencing federal offenders to a community correction order: at [53]. Part of the Victorian Sentencing Act at the relevant time was titled “Governing Principles”. Section 5(4) and 5(4C) provided that:

31. [48]

    The Victorian Court of Appeal held that a Victorian guideline judgment, Boulton v The Queen (2014) 46 VR 308; [2014] VSCA 342, which contained principes that the Victorian Sentencing Act required a sentencing court in State matters to take into account, could not be accommodated by s 16A of the Crimes Act. Further, the guideline judgment was not picked up by s 80 of the Judiciary Act (Cth). As already noted, neither party asserted that s 80 was relevant to the present case.

32. [49]

    The principal reason that the guideline judgment (given force by the Victorian Sentencing Act) did not apply to a federal offender was that the guideline judgment’s process of reasoning was inconsistent with the approach to sentencing federal offenders mandated by s 16A(1) and (2). The Court held that the guideline judgment “espouses an approach to sentencing which emphasises the advantages of a [community correction order] compared to imprisonment and requires sentencing judges to take into account those advantages before concluding that imprisonment is the only sentencing option in a particular case”; it “does not set out a discrete sentencing principle”: at [98].

33. [50]

    The Court explained, at [99], that “the matters in s 16A(2) are of such a nature that, when applied to an individual offence or offender, they point to either favourable or unfavourable considerations in terms of the severity of the sentence to be imposed for the purposes of s 16A(1). In other words, the matters are inherently relevant to the instinctive synthesis that a sentencing court must undertake in making an order applying to a federal offender. The approach in the guideline judgment, on the other hand, does not supply a sentencing consideration that is relevant to the instinctive synthesis but, rather, involves a process of reasoning for preferring one sentencing option over another after all otherwise applicable sentencing considerations have been taken into account as part of that synthesis”. That approach to sentencing cannot be accommodated by s 16A because “it is not a ‘matter’ that can harmoniously supplement the matters set out in s 16A(2)”: at [99].

34. [51]

    Similar reasoning applies here. As we have said, s 16A applies to the making of an order, including the making of an intensive correction order. The matters in s 16A(2) are of such a nature that, when applied to an individual offence or offender, they point to either favourable or unfavourable considerations in terms of the severity of the sentence, including any order to be made. In other words, the matters in s 16A are inherently relevant to the instinctive synthesis that a sentencing court must undertake in sentencing a federal offender, including in deciding whether to make any order. We reject the applicant’s submission that s 66 of the NSW Sentencing Act “does not inherently favour one sentencing outcome versus another”. The proper application of s 16A of the Crimes Act is inconsistent with the statutory command in s 66 of the NSW Sentencing Act that community safety be the “paramount consideration” in deciding whether to make an intensive correction order and the consideration of which “will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive”: Stanley at [76]. To elevate community safety as a paramount consideration, above any other factor in deciding whether to make an intensive correction order, is inconsistent with the command in s 16A(2) of the Crimes Act.

35. [52]

    There is another important insight arising from Atanackovic. The Victorian Court of Appeal pointed out at [102] that s 16A(3) of the Crimes Act expressly provides for how the availability of a community correction order in accordance with s 20AB(1) of that Act is to be taken into account by a sentencing court. Section 16A(3) states that, in determining whether a sentence or order under s 20AB(1) (including a community correction order) is the appropriate sentencing option, “the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under [a community correction order]”. This requirement is different in form and emphasis from the question posed by the guideline judgment. The Victorian Court of Appeal concluded that the express requirement in s 16A(3) left no room for the application of the guideline judgment.

36. [53]

    The same conclusion should be drawn here. The requirement imposed by s 16A(3) that, in determining whether an [intensive correction] order is the appropriate sentencing option, “the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that [intensive correction order]”, has a fundamentally different focus to s 66 of the NSW Sentencing Act which requires that the “paramount” consideration be community safety.

37. [54]

    Finally, in Atanackovic at [104], the Victorian Court of Appeal returned to s 5(4C) of the Victorian Sentencing Act which we have set out above. The Court pointed out that the section, which has no counterpart in the Crimes Act, gives express pre-eminence to making a community correction order over imprisonment in a way that ss 16A and 17A(1) do not. The same conclusion should be drawn here. Simply expressed, s 66 of the NSW Sentencing Act, which governs the exercise of the discretionary power in s 7, gives express pre-eminence to the “paramount consideration”, community safety, in a way that ss 16A and 17A(1) do not. Section 66 of the NSW Sentencing Act, which governs the exercise of the discretionary power to impose an intensive correction order is inconsistent with s 16A and, upon the correct construction of s 20AB(1) is not to be applied to making an order under that section.

38. [55]

    In relation to the correct construction of s 20AB(3), Atanackovic has been referred to with approval in this Court: Lee v R [2020] NSWCCA 307, especially at [56]-[58] per Johnson J with whom Wright and Wilson JJ agreed.

39. [56]

    It follows from the foregoing analysis that, in resentencing, the NSW intensive correction orders regime is available to be applied to a federal offender, as the court is “empowered… in corresponding cases” within the meaning of s 20AB(1) of the Crimes Act to make an order in the present case but that s 66 of the NSW Sentencing Act does not (as a matter of construction of s 20AB of the Crimes Act) apply in considering whether or not to impose an intensive correction order upon a federal offender.

40. [57]

    Accordingly, the steps to be undertaken by a sentencing court before an intensive correction order can be imposed on a federal offender under s 20AB(1) of the Crimes Act are as follows:

    1. (1)

       First, the sentencing court must be satisfied “after having considered all other available sentences” that “no other sentence is appropriate in all the circumstances of the case” other than a sentence of imprisonment: s 17A(1).

    2. (2)

       Secondly, the sentencing judge must “impose a sentence … that is of a severity appropriate in all the circumstances of the offence”: s 16A(1).

    3. (3)

       Thirdly, if none of the disentitling provisions contained in the NSW Sentencing Act (including the identified provisions of the Crimes Act and the Criminal Code summarised above at [11]) apply, then the sentencing court may consider whether or not to impose an intensive correction order. In doing so, the sentencing judge is obliged to consider the matters in s 16A of the Crimes Act and not s 66 of the NSW Sentencing Act. The sentencing court must, “in addition to any other matters”, take into account such of the matters in s 16A(2) “as are relevant and known to the court”.

41. [58]

    It may be accepted, as the respondent submitted, that a consequence of that conclusion is that federal offenders in NSW the potential subject of an intensive correction order are, in relation to the application of s 66 of the NSW Sentencing Act, treated differently from NSW offenders. NSW offenders will be subject to s 66 NSW Sentencing Act considerations, whereas federal offenders in NSW will not. However, applying s 66 of the NSW Sentencing Act to the sentencing of federal offenders distorts equality of treatment among federal offenders in a potentially significant way; a federal offender sentenced in NSW would be sentenced in accordance with “paramount” considerations that are not applicable if they were sentenced in other states. Those “paramount” considerations are inconsistent with the considerations Part IB requires be taken into account for all other federal offenders.

42. [59]

    The making of an intensive correction order without considering the matters identified in s 66 of the NSW Sentencing Act (s 3A and the “paramount” consideration of community safety) is the inevitable consequence of the scheme of federal sentencing where the Commonwealth Parliament has provided an extensive scheme for sentencing federal offenders in Part IB of the Crimes Act. An intensive correction order for federal offenders is not imposed under the NSW Sentencing Act but under s 20AB(1) of the Crimes Act. An intensive correction order is made available to federal offenders in terms that direct that s 16A identifies the factors to be considered by a court and the manner in which those factors are to be taken into account. An intensive correction order under s 20AB, if made, is still recognisable as an intensive correction order insofar as the same conditions as to the existence of power to make an order must be met and insofar as the content of the disposition (that is, what it can require the offender to do) takes its colour from the NSW Sentencing Act. The exercise of the discretion whether or not to make an intensive correction order, however, is governed by s 16A of the Crimes Act and not s 66 of the NSW Sentencing Act.

43. [60]

    We acknowledge that three earlier cases in this Court have reached a different conclusion, albeit that the argument developed by the CDPP here was not advanced in any of those cases. Strictly speaking, as the argument we have accepted was not put in any of those cases we need be satisfied, as we are, merely that those cases are wrong. In McGregor, this Court held that it was entitled to overturn one of its own decisions without needing to find that it was “plainly wrong”, since the point in question was not part of the ratio of the previous case: at [55]-[56]. We respectfully agree and the same conclusion should be drawn here.

44. [61]

    The principal decision is Chan v R [2023] NSWCCA 206, which was followed in AM v R [2024] NSWCCA 26 and Khanat v R [2024] NSWCCA 41. Those subsequent cases do not provide any additional reasons to Chan. Chan was not the outcome of a series of cases in which relevant principles were worked through. For the reasons that follow, Chan, AM and Khanat should be overruled.

45. [62]

    Kirk JA in Chan at [7]-[9] considered that to apply s 66 and Part 3A of the NSW Sentencing Act “is simply an aspect of applying the State ICO scheme as picked up by s 20AB of the federal law”. As the Court recently explained in McGregor (at [82]), both parties in Chan submitted that s 66 of the NSW Sentencing Act applied by reason of s 20AB(3) to federal sentencing “without translation”. Kirk JA considered it important that “whether to impose an ICO is a distinct stage of sentencing” which may appropriately be subject to State rather than federal sentencing principles: at [7]. Respectfully, his Honour’s reasoning overlooks the application of ss 16A(1), 16A(2) and 16A(3) to the making of orders under s 20AB, including intensive correction orders. Section 16A(3) leaves no room in our opinion for a “distinct stage of sentencing” inconsistent with s 16A of the Crimes Act when determining whether an intensive correction order is the appropriate order to be made in respect of a federal offence and the joint submission in Chan that s 20AB(3) permits s 66 of the NSW Sentencing Act to be applied consistently with Part IB of the Crimes Act in deciding whether to make an intensive correction order for a federal offender was not supportable. In saying this, we make clear that we do not accept the Crown submission in the present case that s 20AB(3) applies only to provisions applying after an order (in this case an intensive correction order) is made. In context, s 20AB(3) provides specific authority permitting State and Territory law sentencing outcomes to be applied to federal offenders, but only to the extent that those State and Territory provisions are not inconsistent with the laws of the Commonwealth.

46. [63]

    In Chan, his Honour found, consistent with the course then being urged by the Crown (also represented by the CDPP), that s 20AB(3) “picked up” the whole of s 66 of the NSW Sentencing Act, including the reference to s 3A of the NSW Sentencing Act (in preference to Part IB of the Crimes Act) and the requirement in s 66(2) of the NSW Sentencing Act to treat community safety as the paramount consideration when conducting the third, discretionary, step in deciding to make an intensive correction order. We respectfully disagree with this construction of the Crimes Act. As we have said, s 66 of the NSW Sentencing Act is inconsistent with s 16A of the Crimes Act. A construction of s 20AB which is consistent with the application of s 16A to the making of an intensive correction order rather than one which requires an approach inconsistent with s 16A to be applied is to be preferred. We also note that, in reaching the conclusion he did, his Honour’s attention was apparently not drawn to Atanackovic or Lee.

47. [64]

    In Chan at [92], N Adams J (with whom Rothman J generally agreed) gave only tentative support to the application of s 66 of the NSW Sentencing Act to federal offenders. Her Honour explained that “[a]lthough the sentencing judge was required to sentence the applicant under the Crimes Act (and to have regard to s 16A in doing so), she was also asked to impose an aggregate sentence on the applicant and to consider the imposition of an ICO, both of which required her Honour to apply NSW law”. The acceptance by her Honour of the proposition that s 66 of the NSW Sentencing Act applied was tentative at best:

48. [65]

    The case referred to in this passage by N Adams J, Mourtada v The Queen [2021] NSWCCA 211, does not present an obstacle to acceptance of the Crown’s submissions in this case. In Mourtada, Basten JA said:

49. [66]

    That is, Basten JA was asked to assume that s 66 applied to a federal offender. Moutarda is not, therefore, authority for the point.

50. [67]

    It is significant that Beech-Jones CJ at CL had earlier explicitly left the point open in Homewood:

51. [68]

    In Homewood, Beech-Jones CJ at CL did not determine that s 66 applies. To the contrary, his Honour identified the present issue as unresolved:

52. [69]

    In Al Am Ali v The Queen [2021] NSWCCA 281, Beech-Jones CJ at CL had earlier said:

53. [70]

    For all of these reasons, s 66 of the NSW Sentencing Act does not apply to the discretion to impose an intensive correction order for a federal offender sentenced in NSW. To the extent they decide to the contrary, Chan, AM and Khanat should be overruled and no longer be followed.

Resentencing of the applicant

1. [71]

   In addressing the resentencing of the applicant, it is necessary first to set out, as concisely as possible, the relevant facts.

2. [72]

   The applicant, using his mobile telephone with a “No Caller ID” setting, telephoned 46 different victims, most of whom were women, during the period between 1 January 2018 and 31 March 2022. During those telephone calls the applicant did not identify himself. He made highly sexualised comments to the victims and on a number of occasions used the victims’ names and also on occasion referred to the names of victims’ children. The content of the calls was such that reasonable persons would regard them as highly offensive. The frequency of the calls was such that a reasonable person would regard them as harassing. In relation to those calls during which the applicant referred to the victim by name or referred to a child of the victim by name, those calls are such that a reasonable person would regard the content of those calls as menacing. During some of the telephone calls the applicant played over the telephone a recording of a parody of a song by James Blunt called “You’re Beautiful” where the lyrics were “You’re a Paedophile”. A reasonable person would regard those calls as offensive and harassing.

3. [73]

   The applicant had some connection with some of the victims, mostly through the school which his daughter attended or through his place of work. In relation to some of the victims, the applicant pretended to be a talent scout or agent for actors and pretended to be in a position to assist the victims in obtaining acting roles in order to obtain their telephone numbers.

4. [74]

   There were 16 different mobile telephone numbers and associated IMEI numbers linked to relevant calls. Mobile phone tower records established that intercepted telephone calls that were made in March 2022 were made in the vicinity of Dover Heights. On 13 April 2022 upon the execution of a search warrant at the applicant’s residence, three mobile telephones were seized with IMEI numbers which matched those for a number of the telephone calls. DNA swabs connected those phones with the applicant.

5. [75]

   Count 1 relates to conduct during a four-year period between 1 January 2018 and 22 January 2022 and involved 19 separate victims receiving numerous and frequent telephone calls from the applicant.

6. [76]

   Between 1 January 2018 and 22 January 2022 Ms Ruth B received approximately 30 anonymous telephone calls from the applicant. She estimated that she received an anonymous call approximately once every month or once every six weeks.

7. [77]

   Ms B’s telephone number was known to the applicant because her son and the applicant’s daughter attended the same school and were in the same grade. During the calls the applicant referred to Ms B by her first name, called her a “slut” and said she was “good in bed” and made other sexually explicit and vulgar comments.

8. [78]

   The applicant obtained Ms Kathleen R’s telephone number by representing that he was an executive at Foxtel who could provide her with acting opportunities. The applicant used Facebook, calling himself “Gerard Van” and “Jared Van”, and arranged to meet Ms R at a coffee shop in Sydney’s CBD on 14 June 2018. Ms R met with the applicant and discussed possible offers for acting work. At this meeting the applicant obtained Ms R’s phone number.

9. [79]

   Ms R received anonymous telephone calls from the applicant between mid-2018 and February 2019. Ms R answered approximately 10 to 15 of these calls and left approximately 15 of them unanswered. During the answered calls the applicant used explicit and derogatory terms, including referring to her as a “dirty slut” and a “filthy whore”, stating that he was going to “fuck [her] cunt and rape [her] pretty pussy”. During one of the telephone calls the applicant told Ms R that he worked at Channel 7 and that he was going to raid her house and do a news story on her.

10. [80]

    In her victim impact statement Ms R said that she is still frightened to pick up the telephone and that she feels anxious whenever she receives a phone call from an unknown number. She described the conduct as contributing to her general fear and distrust of men and causing difficulties in her professional and personal relationships.

11. [81]

    Ms Kerrie A received about 20 anonymous calls from the applicant between 1 September 2018 and 22 January 2022. The contents of those calls were highly sexualised and offensive including referring to her as a “dirty slut” and stating that he was going to “fuck [her]”.

12. [82]

    Ms Leanne K received approximately 10 anonymous telephone calls from the applicant between 1 January 2019 and 23 January 2022. During those calls the applicant asked her for sex and referred to “fucking [her] up the arse”.

13. [83]

    Ms Melissa A received numerous and repeated anonymous telephone calls from the applicant during the period 1 July 2018 to 22 January 2022 at random times of the day and days of the week. The calls were sexualised and highly offensive in their content, including the applicant calling Ms A “dirty slut” and saying that he “wanted to fuck [her] up the arse”. During some of the calls the applicant referred to Ms A by her first name.

14. [84]

    Ms Samantha T received numerous anonymous telephone calls from the applicant during the period 18 July 2019 to 22 January 2022. The calls to Ms T were frequent. Nine calls were made on 18 July 2019, eight calls were made on 24 July 2019, six calls were made on 7 August 2019, two calls were made on 3 October 2019, 13 calls were made on 10 December 2019 and six calls were made on 2 May 2021. The content of the calls was highly offensive, including the applicant calling Ms T a “paedophile” and playing the “You’re a Paedophile” song over the telephone.

15. [85]

    On 27 April 2015 Ms Rachel W received a message via Facebook Messenger from the applicant using the name Gerrard Van, during which the applicant purported to be a talent agent and suggested he might be able to offer Ms W television acting work. Arrangements were made for the two to meet on 2 May 2015 at a hotel at Brighton-Le-Sands. Before that meeting took place Ms W sent a message via Facebook requesting details of the agency at which the applicant worked, and when she was unable to find any independent information confirming the existence of the agency Ms W cancelled the meeting.

16. [86]

    Over a two hour period on 5 October 2019 the applicant made more than 50 anonymous telephone calls to Ms W. Those calls were sexualised and highly offensive, including the applicant calling Ms W a “fucking dirty slut” and stating that he was going to “piss and spit in [her] mouth”. Between 5 October 2019 and February 2022 Ms W received on average one sexually explicit call from the applicant every month, sometimes several times within a week.

17. [87]

    Ms Ashleigh C was the owner of a fashion business and in 2013 was in the process of organising a fashion show and was interested in having a celebrity or a singer involved in that show. Through other connections Ms C met the applicant. In June or July 2014 Ms C met the applicant at a café in Brighton-Le-Sands, during which the applicant told her that he had connections with celebrities. He showed her photographs on his mobile phone of himself in the company of various celebrities and said that he could assist in providing a celebrity to appear at the fashion show.

18. [88]

    During the period 1 January 2020 to 22 January 2022 Ms C received around 30 to 40 anonymous telephone calls from the applicant, the contents of which were highly offensive, sexually derogatory and vulgar, including the applicant telling Ms C that he wanted to “fuck [her]”. Over a particular period of three to four days Ms C received five calls each day.

19. [89]

    Ms Emma T received anonymous telephone calls from the applicant during the period from 1 January 2020 to 22 January 2022 at a frequency of about two to five calls every week. The frequency of the calls was harassing and the content of the calls was highly offensive and sexualised. During some of the calls the applicant referred to Ms T by her first name, and in some of them he referred to Ms T’s mother. Amongst other things the applicant said was that he wanted to “fuck [her] up the arse”, said that he would “come to [her] house” and called both Ms T and her mother a “dirty slut”. One of the calls the applicant made to Ms T was answered by her friend and recorded by Ms T during which the applicant said, “you know who I am”.

20. [90]

    In her statement to the police Ms T stated that as a result of the applicant’s conduct she felt violated, scared for her life, worried that the applicant knew where she lived and worried that he would attend her musical performances and approach her family. She described being so afraid that she was unable to answer her phone from numbers which were unknown or unfamiliar and believes that as a result she has missed business opportunities.

21. [91]

    In her victim impact statement Ms T stated that she works in the entertainment industry, and as a result her contact details are available on various internet sites. She described the effect of the applicant’s conduct as terrifying, traumatising, causing her to feel scared for her safety and leaving her feeling violated. She stated that she suffers from psychological posttraumatic stress disorder (PTSD) and trauma which has required her to receive psychological treatment and counselling. She also stated that she has removed her mobile telephone number from multiple business platforms as a result of the applicant’s conduct.

22. [92]

    Ms Casey L received approximately 20 anonymous telephone calls from the applicant during the period 1 January 2020 to 31 March 2022. The contents of the calls were highly offensive and sexually vulgar. During the calls the applicant requested her to perform a number of sexual acts on him and referred to her as a “bad girl”, a “slut”, and a “bitch”.

23. [93]

    In her victim impact statement Ms L stated that she worked as a presenter, actor and model and prior to the calls had been confident and comfortable in her professional life. She described the effect of the applicant’s conduct as causing her to second-guess herself and feel unsure around people, particularly men who are older than her in positions of influence and power. Ms L described that as the calls became more frequent and more pronounced in their content she started cancelling her professional engagements, became nervous in front of the camera and found herself unable to perform professionally. She described feeling helpless, doubtful of others and fearful of her relationships and that she took steps to distance herself from men. She also described the applicant’s conduct as causing her to feel unsure about her ability to judge others, feeling weak and incapable and blaming herself. She further stated that she was scared to answer the telephone, distanced herself from male friendships, struggled with trust issues and felt ashamed.

24. [94]

    Ms Nina D received numerous anonymous calls from the applicant during the period 15 June 2020 to 11 March 2022. The calls were received on at least a weekly basis. On one occasion between the period 15 June 2020 and October 2021 eight telephone calls were received on one evening. During the calls the applicant referred to Ms D by her first name and used sexually explicit and offensive language, including referring to her as a “slut” and said that he was going to “fuck [her]”.

25. [95]

    In a witness statement to the police Ms D stated that she felt violated, intimidated and uncomfortable as a result of the calls and described the content of the calls as sinister and confronting.

26. [96]

    Ms Georgia B received approximately 12 anonymous telephone calls from the applicant during the 13 day period between 2 July 2020 and 14 July 2020, and at least another 20 telephone calls between July 2020 and 2021. The telephone calls made by the applicant to Ms B were sexually explicit, during which the applicant referred to Ms B by her first name, called her a “dirty slut” and said he wanted to “fuck [her]”.

27. [97]

    In her victim impact statement Ms B stated that she was an actress and performer and had worked professionally for about 10 years, and that as a result her contact details were on various casting platforms. She described the impact of the applicant’s conduct on her as instilling huge fear in her and causing her to take her details off the casting platforms. She said that she has now stopped performing professionally. She described the contents of the calls as sick, foul, disgusting, scary and often causing her to be unable to sleep. She also described the impact on her as affecting her relationship with her partner at the time and requiring her to consult a psychologist who prescribed her with anti-anxiety medication.

28. [98]

    Ms Jaydan D received several anonymous telephone calls from the applicant during the period from July 2020 to 31 March 2022. During a call on 5 July 2020 the applicant referred to Ms D by her first name and called her a “dirty slut”.

29. [99]

    Ms Isabelle W received repeated telephone calls from the applicant during the period 11 September 2020 to 31 March 2022. During a telephone call on 11 September 2020 the applicant referred to Ms W as a “dirty slut” and described himself as “a guy you gave great head to”.

30. [100]

    Mr James B was the director of a company NetStrategy Pty Ltd. The applicant was employed at NetStrategy until 13 May 2020 when his employment was terminated by Mr B. During the period October 2020 to 11 March 2022 Mr B received in excess of 30 anonymous telephone calls from the applicant during which the applicant played the “You’re a Paedophile” song.

31. [101]

    Ms Faletoese F received over 20 anonymous telephone calls from the applicant during the period January 2021 to March 2022. During these calls Ms F recalled hearing the “You’re a Paedophile” song being played over the telephone line.

32. [102]

    Ms Malika S received around 20 to 30 anonymous telephone calls from the applicant over a six month period between September 2021 and March 2022, during which the applicant referred to Ms S by her first name, called her a “dirty little slut” and a “fucking little slut” and asked her “do you know who this is?”.

33. [103]

    In 2010 Ms Renee G taught violin to the applicant’s daughter. Those lessons occurred at the applicant’s family home in Sans Souci once a week requiring Ms G to attend that house. The violin lessons ceased at a time when the applicant’s daughter changed schools.

34. [104]

    On 10 November 2021 Ms G received an anonymous telephone call from the applicant in which he referred to her by her first name and called her a “dirty slut” and a “filthy slut”. When the applicant telephoned again that call was answered by Ms G’s husband, Daniel G. During that call the applicant again referred to Ms G by her first name and said to Mr G that his wife was a “filthy slut” and that he had videos of her which he would send.

35. [105]

    The police lawfully recorded telephone calls made by the applicant to 19 victims in March 2022. The 19 victims relevant to the s 16BA offence are the same as the 19 victims relevant to Count 1, with one exception being Mr Daniel G and one addition being Mr Richard P. The recorded calls the subject of this offence comprised:

    1. (1)

       Ms B received further anonymous telephone calls from the applicant on 13 February 2022 and on 20 March 2022, a telephone call intercepted by the police, in which the applicant referred to her by her first name and called her a “dirty slut”.

    2. (2)

       Ms R received a further anonymous telephone call from the applicant on 20 March 2022, which was intercepted by the police, in which the applicant referred to Ms R by her first name, claimed that he had a video of the two of them engaging in sexual intercourse and stated that he wanted to “piss in [her] mouth” and called her a “dirty slut”.

    3. (3)

       Ms A received further anonymous telephone calls from the applicant, including a call on 27 March 2022, which was intercepted by the police, in which the applicant referred to her as a “dirty slut”.

    4. (4)

       Ms K received a further anonymous telephone call from the applicant on 20 March 2022 which was intercepted by the police, in which the applicant referred to her as a “dirty slut”, stated that he wanted to “fuck [her] hard” and stated that he wanted to “piss in [her] mouth”.

    5. (5)

       Ms A received three further anonymous telephone calls from the applicant on 27 March 2022, at 4:24pm, 4:43pm and 4:44pm, which were intercepted by the police. During those various calls the applicant used Ms A’s first name, called her a “dirty slut” and said that he wanted to “fuck [her]” and told her to “lick [his] arse”.

    6. (6)

       Ms T received nine further anonymous calls from the applicant each on 11 March 2022, all within a period of four minutes. Those calls were intercepted by the police. During one of those calls the applicant referred to Ms T as a “dirty slut” and then played the “You’re a Paedophile” song over the line.

    7. (7)

       Ms W received further anonymous calls from the applicant on 4 March 2022 and on 11 March 2022 which were intercepted by the police. During those calls the applicant referred to Ms W by her first name, told her that he knew her and that that was how he had obtained her mobile telephone number, referred to her boyfriend by his first name, called her a “dirty slut”, stated that he was going to “pee and spit in [her] mouth”, said he want to “fuck [her] hard” and “fuck [her] up the arse” and told her to “scream so [he could] cum”.

    8. (8)

       On 11 March 2022 the applicant made an anonymous call to Mr Richard P. That call was intercepted by the police during which the applicant played the “You’re a Paedophile” song over the line.

    9. (9)

       Ms C received a further anonymous telephone call from the applicant on 20 March 2022 which was intercepted by the police. During that call the applicant referred to her by her first name, called her a “dirty cunt” and said that he was going to “fuck [her]”.

    10. (10)

        Ms T received a further anonymous telephone call from the applicant on 16 March 2022 during which he referred to her by her first name and called her a “dirty slut”.

    11. (11)

        Ms L received further anonymous calls from the applicant. Two calls were received on 11 March 2022 and one on 31 March 2022. During those calls the applicant variously referred to Ms L by her first name, called her a “dirty slut”, said that he wanted to “‘fuck [her] up the arse” and said that he wanted to “fuck [her]”.

    12. (12)

        Ms D received a further anonymous call from the applicant which was intercepted by the police, during which the applicant referred to her by her first name, referred to her boyfriend, called her a “dirty slut”, referred to having anal and vaginal intercourse with her and called her “disgusting”.

    13. (13)

        Ms B received a further anonymous call from the applicant on 31 March 2022 which was intercepted by the police, during which he called her a “dirty slut” and said he wanted to “fuck [her]”.

    14. (14)

        Ms D received further anonymous calls from the applicant on 11 March 2022 and 31 March 2022 which were intercepted by the police, during which the applicant referred to her by her first name and called her a “dirty slut” and said that he wanted to “fuck [her]”.

    15. (15)

        Ms W received a further anonymous call from the applicant on 31 March 2022 which was intercepted by the police, during which the applicant referred to her by her first name, called her a “dirty slut”, said that he wanted to “fuck [her] cunt”, “fuck [her] up the arse” and “piss in [her] mouth” and get her to drink it.

    16. (16)

        Mr B received further anonymous calls from the applicant in March 2022. Four calls were made on 4 March 2022, at 6.01pm, 6.02pm, 6.07pm and 6.08pm. When those calls were answered Ms B heard the “You’re a Paedophile” song being played. The applicant left a voicemail on Mr B’s phone on 11 March 2022 in which the applicant said, “Paedo, paedo”. Less than half an hour later on 11 March 2022 the applicant left another voicemail on Mr B’s phone again playing the “You’re a Paedophile” song.

    17. (17)

        Ms F received a further anonymous call from the applicant on 11 March 2022 which was intercepted by the police, during which the applicant played the “You’re a Paedophile” song.

    18. (18)

        Ms S received a further anonymous call from the applicant on 31 March 2022 which was intercepted by the police, during which he called her a “dirty slut”, said that he wanted to “piss in [her] mouth” and told her to “lick [his] arse”; and

    19. (19)

        Ms G received a further anonymous call from the applicant on 20 March 2022 which was intercepted by the police, during which he called her a “dirty slut”.

36. [106]

    Count 2 relates to conduct during a period of about three years and three months between 6 November 2018 and 20 January 2022 and involved ten separate victims.

37. [107]

    Ms Angela M received an anonymous telephone call from the applicant at 7.06am on Sunday morning, 29 September 2019. During that call the applicant referred to Ms M by her first name, referred to her as a “dirty slut” and stated “I am going to get you” and said that he was going to “fuck [her] up the arse”. The applicant called Ms M again about a minute later and again on 3 October 2019.

38. [108]

    In her victim impact statement Ms M stated that she found the telephone calls to be scary and that she detected hatred in the voice on the other end of the phone. She said that she became concerned that the person calling her was watching and following her because he knew her name. She described the impact of the calls on her relationship with her husband, stating that it caused them initially to have trust issues. Ms M also stated the offending conduct has had a financial impact on her business because she no longer answers calls from unidentified numbers.

39. [109]

    Mr Steven O ran a restaurant at Bondi Beach. The applicant, his wife and their daughter were regular weekly patrons of that restaurant.

40. [110]

    In around September or October 2018 a report was broadcast on the Channel 9 “A Current Affair” program relating to the applicant’s prior criminal conduct. That broadcast included images and video of Mr O’s restaurant. In response to some criticism for associating with the applicant, Mr O posted a comment to the A Current Affair Facebook page stating that his business was not associated with the applicant and that he knew nothing of the applicant’s conduct.

41. [111]

    Shortly after posting that comment Mr O commenced receiving offensive anonymous telephone calls from the applicant. He received between 30 to 40 calls each night from November 2018 to 31 December 2019. During some of those calls the applicant referred to Mr O as a “faggot” and to his mother as a “fat cunt”. The calls were generally disgusting and vulgar in content.

42. [112]

    The calls to the restaurant were of such a frequency that Mr O had to disconnect the telephone during opening hours which then affected the restaurant’s ability to take calls from customers and receive bookings.

43. [113]

    Ms Antonia M received numerous anonymous calls from the applicant between October 2019 and 29 November 2019. During the calls the applicant variously played the “You’re a Paedophile” song, referred to Ms M as a “slut” and referred to her 14 year old daughter by name.

44. [114]

    Ms Penny V created an online profile for her daughter who was an aspiring singer. The profile included Ms V’s personal mobile telephone number.

45. [115]

    Between 6 September 2020 and 7 January 2021 Ms V received numerous anonymous telephone calls from the applicant, during which he variously referred to Ms V’s daughter by her first name, referred to her daughter as a “slut” and a “dirty bitch’” and made comments of a highly sexualised nature about her daughter. The contents of each of the calls was offensive and menacing.

46. [116]

    Lyn and Brett O received anonymous telephone calls from the applicant on 4 November 2020 and 20 January 2022. During the call on 4 November 2020 the applicant referred to Ms O by her first name, called her a “fucking bitch”, said that he wanted to “fuck [her]” and that he wanted to “piss in [her] mouth”. When Mr O took the phone, the applicant again referred to Ms O by her first name and said that he was going to “fuck [her] up the arse real hard and then … piss in her mouth”. During the call on 20 January 2022, the applicant again referred to Ms O by her first name, called her a “dirty slut” and made further references to anal intercourse with her.

47. [117]

    Ms Natalie K received anonymous telephone calls from the applicant on 1 January 2021 and 20 January 2022. The 1 January 2021 telephone call was initially answered by the victim’s 16 year old daughter who then handed the telephone to her mother. During that call the applicant referred to Ms K as a “filthy fucking slut” and stated that her husband “likes to fuck other women”.

48. [118]

    During the call on 20 January 2022, the applicant referred to Ms K by her full name, called her a “filthy slut” and stated that she liked being “fucked up the arse”. He also said that he would have anal intercourse with her and added that he would do the same to her daughter who he referred to by her first name.

49. [119]

    Ms K received 12 further anonymous calls over the following 15 minutes which she did not answer, all of which displayed on her phone screen as “No Caller ID”. Call charge records established that each of those unanswered calls was made by the applicant. Ms K has stated that she treated the reference to her daughter and the use of her daughter’s name as a threat and that she felt terrified for her daughter’s safety.

50. [120]

    Ms Lily M received anonymous telephone calls from the applicant between 1 July 2021 and 31 August 2021, during which the applicant used swear words, threating language and highly sexualised content. Ms M received a further anonymous call from the applicant on 20 January 2022 which she quickly terminated when she recognised the same male voice who had made the previous calls. Call charge records established that the call in January 2022 was made by the applicant.

51. [121]

    Ms Eqbal H received anonymous telephone calls from the applicant in December 2021 and on 20 January 2022. During those calls the applicant referred to Ms H by her first name and called her a “dirty slut”. The call on 20 January 2022 was received while Ms H was driving with her son in a motor vehicle. During that call the applicant referred to Ms H by her first name and called her a “dirty, filthy slut”. Call charge records established that the call in January 2022 was made by the applicant.

52. [122]

    Ms Michele C received an anonymous telephone call from the applicant on 20 January 2022 during which he referred to Ms C and her daughter by their first names, called Ms C a “dirty slut” and stated that he was going to engage in anal intercourse with her and would “fuck [her] so hard”.

53. [123]

    Count 3 relates to the applicant’s conduct during the period 27 May 2020 to 17 January 2022 involving a single victim, Ms Tequila R. During the period of this conduct the applicant was on bail and then on a s 20(1)(a) Crimes Act recognizance release order for offences he had committed in March 2019. That recognizance release order commenced on 11 June 2021 and expired on 10 June 2024 requiring the applicant to be of good behaviour for three years. Ms R received frequent highly sexualised and offensive anonymous calls from the applicant, the first of which occurred on 27 May 2020.

54. [124]

    Ms R described the calls as harassing and intimidating and stated that they had triggered a complex PTSD. In her victim impact statement Ms R stated that she wanted the applicant to know that he had no right to treat women that way. She described the content of the telephone calls as degrading, vulgar, sexually explicit and intimidating abuse. She also stated that she was concerned that the applicant knew where she lived and that caused her to look over her shoulder and wonder who it was that was making the calls. She further described feeling shame and resentment and that she felt objectified.

55. [125]

    Count 4 involved telephone calls to twelve victims over a period of less than two months between 6 February 2022 and 27 March 2022. The applicant was on a recognizance release order for offences he had earlier committed throughout this period. This conduct occurred after the maximum penalty for the offences under s 474.17(1) of the Criminal Code was increased from three years to five years imprisonment.

56. [126]

    Mr Lachlan M’s child and the applicant’s daughter went to school together and they and their families became friendly, including going away together on family holidays. Over time that friendship soured. On 11 March 2022 in a call intercepted by the police, the applicant made an anonymous telephone call to Mr M and left a voicemail which included the “You’re a Paedophile” song. Less than 20 minutes later on 11 March 2022 a similar call was made by the applicant and recorded by the police.

57. [127]

    Ms Askeeta P received an anonymous telephone call from the applicant on 13 February 2022 during which he referred to her as a “dirty, dirty slut” and a “dirty Muslim slut”. A few seconds after Ms P had terminated that call she received another call from an unidentified number which she did not answer.

58. [128]

    In her victim impact statement Ms P stated that the telephone call was received by her while she was driving in a motor vehicle with her young son and was heard by both of them on the speakerphone. She described the caller as using a threatening tone and disgusting language. She also described the impact of the call on her as causing her and her son to have sleepless nights and feel concern that they would be harmed. She stated that as a result of the conduct she no longer answers calls from private numbers.

59. [129]

    Ms Kathryn W received approximately four anonymous calls from the applicant between 17 February 2022 and 20 March 2022. Each of the calls contained highly offensive and sexually vulgar language.

60. [130]

    In a telephone call on 17 February 2022 the applicant referred to Ms W as a “dirty girl”, said that he was going to “fuck [her]” and stated “you know who this is.” Ms W received two further phone calls that same day from a private number which she did not answer. On 25 February 2022, Ms W received a further call from the applicant with similar content to the call of 17 February 2022. A further call was received by Ms W on 20 March 2022, which was intercepted by the police. During that call the applicant referred to Ms W by her first name and by her full name, called her a “dirty slut” and stated that he wanted to “fuck [her] hard” and “piss in [her] mouth and watch [her] drink it”. The applicant made a further telephone call minutes later on 20 March 2022 which was intercepted by the police during which the applicant made similar comments.

61. [131]

    In her victim impact statement, Ms W stated that as a result of the applicant’s conduct she became hypervigilant and avoidant of men. She described feeling violated and “unmoored” as a result of the conduct. She described that she was made to feel uneasy and scared and she felt the need to close the blinds and avoid windows when inside her own house. She stated that she started regarding people with suspicion and questioning if one of her male colleagues at work was responsible. She described that the conduct had a psychological effect on her for a number of weeks and she constantly monitored her surroundings and never felt truly relaxed.

62. [132]

    Ms Courtney A met the applicant in July 2015 under the pretence of the applicant telling her that he was a talent scout. The applicant had previously messaged Ms A on Facebook Messenger using the name “Gerard Van” suggesting that he was able to provide opportunities to work in the television industry. When the applicant and Ms A met in July 2015 at a café in Brighton-Le-Sands, the applicant showed her a number of videos and photographs of himself in the company of various celebrities. He told Ms A that he was a talent scout for Channel 7.

63. [133]

    On 11 March 2022, Ms A received an anonymous telephone call from the applicant which was intercepted by the police during which the applicant referred to her by her first name and described her as an “ugly, fat, bitch.” Call charge records established that that call was made by the applicant.

64. [134]

    Ms Sonia I and her husband, Mr Nadim A, both worked as actors. Mr A’s details were available through an acting agency with whom he had registered. On 20 March 2022, the applicant made an anonymous telephone call to Ms I, which was intercepted by the police, during which the applicant referred to her as a “dirty slut,” said he was going to “fuck [her] hard up [her] arse” and then when Mr A took the phone the applicant again referred to her as “a dirty slut”.

65. [135]

    The applicant made another telephone call about an hour later on 20 March 2022 which was answered by Mr A and recorded by the police. During that telephone call the applicant referred to Ms I as a “dirty slut,” stated that he wanted to “piss in [her] mouth” and said “lick my arse.” A few minutes later on 20 March 2022, the applicant made four further telephone calls, each of which was answered by Ms I and during each of which the applicant referred to her as a “dirty slut.”

66. [136]

    On 27 March 2022, the applicant made an anonymous telephone call to Mr Andrew T during which he referred to Mr T as a “fucking paedophile.”

67. [137]

    On 27 March 2022, the applicant made an anonymous telephone call to Ms Mairead S during which he referred to her by her first name, called her a “dirty slut” and said that he wanted to put her in a pornographic film and that he would send a camera crew around to record her. In her victim impact statement Ms S described that as a consequence of the applicant’s conduct she became terrified of answering telephone calls and began to have anxiety attacks when her telephone rang. She described changing her daily routines out of fear that the person making the calls knew her whereabouts. She also described experiencing anxiety when walking her dog and feeling as though she was being stalked and targeted. She stated that the conduct had a significant impact on her mental health requiring her to consult a psychologist.

68. [138]

    On 27 March 2022, the applicant made an anonymous telephone call to Ms Joanne C during which he referred to her by her first name, called her a “dirty Chinese slut,” and a “dirty Chinese cunt,” said he wanted to “fuck [her] up the arse” and stated that he wanted her to “feel the pain while [he] fucks [her]”.

69. [139]

    On 27 March 2022, the applicant made an anonymous telephone call to Ms Sarah R during which he referred to her by her first name, called her a “dirty slut,” and said that he wanted to “fuck [her]”.

70. [140]

    On 27 March 2022, the applicant made an anonymous telephone call to Mr Ian B during which the applicant referred to Mr B as a “dirty paedo.”

71. [141]

    On 27 March 2022, the applicant made an anonymous telephone call to Ms G during which he referred to Ms G by her first name, called her a “dirty slut,” and said that he was going to “tell UNICEF what a dirty slut [she was]”.

72. [142]

    Count 5 involved two telephone calls to a single victim, Ms Kirsten B, on one day, 20 January 2022. During the second of those calls, the applicant referred to the victim and her daughter by their first names.

73. [143]

    The conduct relevant to Count 5 occurred while the applicant was on a recognizance release order for the offences he committed in March 2019.

74. [144]

    On 20 January 2022, Ms B received an anonymous telephone call from the applicant during which he said that she needed to know that he was “going to rape [her]”. On that same day about a minute later, the applicant made another anonymous telephone call to Ms B during which he referred to her by her first name, said that he was going to “fuck [her] up the arse” and said that he was going to rape her and then rape her daughter, whose first name he used. He then said that he was going to rape Ms B’s daughter and cut her into pieces.

75. [145]

    Count 6 involved one victim, Ms Jody H, and telephone calls made on a single day, 20 January 2022. The conduct that occurred on that day was during a period whilst the applicant was on a recognizance release order for the offences he committed in March 2019.

76. [146]

    On 20 January 2022, the applicant made an anonymous telephone call to Ms H and stated that he wanted to “fuck [her] up the arse”, and he wanted to “fuck [her] cunt until [she] bleed[s]”. About a minute later, Ms H received another call from a private number which she did not answer. Call charge records established that that call was also made by the applicant.

77. [147]

    Count 7 involved two calls to a victim, Ms Ritta K, on a single day, 20 January 2022. At this time, the applicant was on a recognizance release order for the offences he committed in March 2019.

78. [148]

    On 20 January 2022, Ms K received an anonymous telephone call from the applicant during which the applicant used her first name, called her a “dirty slut,” stated that he was going to “fuck [her] up”, was going to “kill [her]” and was going to “rape [her]”.

79. [149]

    In addition, the applicant referred to Ms K’s daughter by her first name and stated that he would tell the daughter “what a slut her mother is”. About a minute later, the applicant again telephoned Ms K. During this call, the applicant referred to Ms K’s daughter by her first name and stated that he was going to get her.

80. [150]

    Ms K regarded that as a threat to her daughter which made her feel terrified. Call charge records established that these calls were made by the applicant.

81. [151]

    Count 8, being the offence contrary to s 372.1(1) of the Criminal Code in dealing with identification information, relates to the applicant’s registration of SIM cards in names other than his own name which were then used in mobile telephones to carry out the s 474.17(1) offences.

82. [152]

    During the execution of a search warrant of the applicant’s residence on 13 April 2022, a number of mobile telephones and SIM cards were seized. The police were later able to establish that those devices were used to facilitate the offences contrary to s 474.17(1). The material seized included SIM cards in the name of Ahmad C, Charlotte W, Yani B and Jada L. The applicant had registered those SIM cards in those names in order to facilitate the commission of the s 474.17(1) offences and in order to avoid detection.

83. [153]

    Ms L had previously met the applicant in August 2014 and later supplied her details to him with the prospect of him finding her employment in the acting industry. Ms L did not subscribe to the telephone service the applicant later used and did not give him permission to subscribe to that service in her name.

84. [154]

    Mr B did not register any of the telephone numbers that were used by the applicant in his name, was never associated with any of the addresses linked with those phones and did not give anyone permission to register telephone numbers in his name.

85. [155]

    Photographs of driver’s licences in the names Ms W and Mr C were located on an Apple iPhone in a Mercedes Benz searched during the execution of the search warrant at the applicant’s premises.

Application of s 16A of the Crimes Act

1. [156]

   Save where those findings were expressly challenged in this Court, we will adopt the same findings as made by the sentencing judge: see generally DL v The Queen (2018) 265 CLR 215; [2018] HCA 32.

2. [157]

   We also take into account on resentence the affidavit of the applicant’s solicitor, Mr Chase Hope, sworn on 18 September 2024. Annexed to that affidavit were case notes from the Department of Corrective Services. The applicant is described as being “attentive and respectful” at Chapel. As for his work, he was described as “always striv[ing] to do his best” and “always aiming to better himself while gaining new skills.” The applicant was described as having settled into the gaol routine and having been provided with supportive counselling. The applicant is assessed as a low risk offender and hence is unable to participate in any rehabilitation programs in custody. His relationship with his wife and daughter are strained due to his offence and current incarceration but they remain positive and prosocial supports. The applicant has no contact with any other family outside his immediate family but has several school friends with whom he remains in contact.

3. [158]

   At the hearing of this appeal, the applicant’s counsel relied on a case note from the applicant’s psychologist where the applicant acknowledged that alcohol was his strategy to cope with his traumatic childhood memories and his therapeutic goal was to improve his self-esteem. It was submitted that this indicated that the applicant has a real degree of insight into what he needs to do in order to rehabilitate himself. The notes also recorded that the applicant maintains that he has no memory of his offending due to intoxication.

4. [159]

   The conduct engaged in by the applicant was very serious. It was persistent, pervasive, offensive, harassing, menacing and properly described as cowardly. The intentional reference to the victims and their children by name significantly adds to the menacing nature of many of the telephone calls.

5. [160]

   We agree with the sentencing judge that gender-based harassment, sexualised intimidation and offensive anonymous communication cannot be tolerated in civilised society. Women are entitled to go about their lives without fear of being harassed and sexually intimidated by men, particularly one hiding behind the anonymity of mobile telephone calls. The insidious and pervasive nature of the applicant’s conduct must be met with condign punishment.

6. [161]

   Making anonymous telephone calls to mobile telephones is serious because of the reliance each of us now place on mobile telephones. Because of the need for people to remain contactable and connected, particularly during the COVID-19 pandemic when much of the offending occurred, mobile telephones have become an essential personal item.

7. [162]

   A direct result of the applicant telephoning the victims on their mobile telephones is that they were never able to escape his reach and never able to find a safe place where they could shelter from his harassment. His use of telephone settings to ensure that his mobile telephone number was not displayed on any of the victims’ screens, his failure to identify himself and his frequent use of the victims’ names and, significantly, the names of their children, establishes that he intended for his conduct not just to be harassing but also to be threatening. The inescapable conclusion is that the applicant took those various steps with the intention of causing his victims to feel fear. In a number of the calls he threatened to rape and referred to explicit forms of sexual contact with the victims and their children, which adds further to the intimidating nature of the conduct.

8. [163]

   The applicant’s overall criminality and his moral culpability were high given the number of telephone calls, the number of victims and the period over which the conduct persisted. We adopt the sentencing judge’s description of the overall seriousness of the offences as follows (arranging the counts from most serious to least serious):

   1. (1)

      Count 1 - significantly above the mid-range;

   2. (2)

      Count 2 - above the mid-range;

   3. (3)

      Count 4 - about the mid-range;

   4. (4)

      Count 3 - about the mid-range;

   5. (5)

      Counts 5 and 7 - towards the lower end;

   6. (6)

      Count 6 - towards the lower end; and

   7. (7)

      Count 8 - towards the lower end.

9. [164]

   There is a need for general deterrence for offences of this type. There were 46 victims of Counts 1 to 7, overlapping and one additional victim with respect to the admitted offence and a further 4 victims of Count 8. The maximum penalty for Count 4 was 5 years’ imprisonment (and also for Count 8), rather than 3 years’ imprisonment for Counts 1 to 3 and 5 to 7, the charges having not been preferred chronologically.

10. [165]

    General deterrence is a fundamental purpose of sentencing in this case. Mobile phones are integral to almost every aspect of anyone’s life. When a victim is being menaced, harassed, offended or threatened through a medium that is integral and necessary in their lives, the victim constantly carries that harm and fear with them. General deterrence also has a significant role to play in this sentence because, ordinarily, identifying the perpetrator in such cases is difficult.

11. [166]

    Each of the Counts 1, 2, 3 and 4 are offences that engage a consideration of s 16A(2)(c) and accordingly will attract a greater penalty than otherwise would have been the case if they had been a single incident. The conduct relevant to each of those counts demonstrates the prolific and frequent offending and that these offences were not an aberration of character.

12. [167]

    A number of the victims provided victim impact statements. Those statements speak eloquently of the pervasive impact the applicant’s conduct has had on the victims’ lives and the psychological injury which the applicant has caused.

13. [168]

    The applicant is to be credited for the utilitarian value of his early guilty pleas. The fact of the plea, its timing and the fact that it spared many witnesses the need to give evidence should be taken into account. That is particularly so given the content of these calls about which the victims would otherwise have been required to give evidence. Not only have they been spared the time and inconvenience of giving evidence, they have been spared the trauma of having to relive events and having to revisit the contents of the telephone calls. The applicant’s guilty pleas, entered at an early stage in the Local Court, were of a significant objective utilitarian value. We apply the same 25% discount as the sentencing judge on sentence to account for the utilitarian value of the pleas.

14. [169]

    We accept that the applicant has demonstrated a degree of contrition and that he is genuinely contrite. We also take into account, relevant to contrition, that the applicant has taken real and positive steps through rehabilitation treatment programs as a further indication of his contrition.

15. [170]

    There is a need for general deterrence for offences of this type. This type of offending was not only anonymous, but highly intrusive, highly offensive and highly intimidating. The crimes were easy to commit and difficult to detect. Cowardly and bullying conduct of the type engaged in by this applicant appears, regrettably, to be an increasing feature on social network sites and via mobile telephones. We agree with the sentencing judge that its very nature calls for condign punishment.

16. [171]

    Mobile telephones are now such an integral part of everyday life that harassment of the victims through mobile telephones had a pervasive effect on them.

17. [172]

    Specific deterrence also has a role to play in the present sentencing exercise because of the number, frequency and duration of the telephone calls and, importantly, because the applicant, when dealt with for previous similar offences of this type committed in March 2019, in relation to which he received what was a very lenient penalty, was obviously not deterred from continuing to commit similar offences.

18. [173]

    In determining the appropriate sentence, we take into account the term of pre-sentence custody which the applicant spent incarcerated between 13 April 2022 and 12 May 2022, a period of 29 days. We also note that the applicant spent four weeks in a residential rehabilitation centre and was on relatively strict bail conditions from June 2022 until the date of sentence. However, we do not regard those additional periods as sufficient to extend the period of pre-time custody beyond the period of 29 days.

19. [174]

    The applicant is currently 56 years old and was approximately 50 years old at the time this offending conduct commenced. He is married with one child who is now 18. We take into account that the applicant has a limited criminal history although, significantly, it consists of two counts of using a carriage service to menace and harass.

20. [175]

    The applicant was exposed to acts of war and death during the civil war in Sri Lanka at a young age. His family house was burned down and he reported physical and emotional abuse from his parents, sexual assault perpetrated upon him by a paternal uncle, and bullying at school. He has developed PTSD as a consequence of these experiences. As the sentencing judge did, we also take into account that the applicant has engaged in treatment, it would seem quite successfully, since June 2022, and that he retains the support of his family. We have taken into account the medical reports and the various opinions that he suffers from PTSD, depressive disorder and alcohol use disorder, and that he has taken significant and positive steps to address his mental health problems and to refrain from the abuse of alcohol. We do not accept that a proper basis has been established to find that the applicant’s mental health condition contributed to the commission of these offences in a material way. Although we accept that many of the telephone calls were made at night and whilst the applicant was inebriated, it is clear that many of the calls were made during the day, at least one very early on a Sunday morning and that the applicant on some occasions met some of the victims face to face. We cannot on that basis, accept that the applicant’s offending conduct occurred at all times while the applicant was inebriated. Clearly, that is not so. In any event, self-induced inebriation is not a form of mitigation. In addition, many of his telephone calls were targeted, intentional and designed as retribution to people with who the applicant had had some previous dealings.

21. [176]

    We are not satisfied that the applicant’s moral culpability is reduced or that he is an inappropriate vehicle for general deterrence. We are not satisfied that the applicant’s mental health conditions reduce the significance of specific deterrence, particularly in the context of his prior offending.

22. [177]

    The sentencing judge took into account the applicant’s history as representing a degree of deprivation and disadvantage, and acknowledged that the effects of profound deprivation do not diminish over time and should be given full weight in determining sentence. Referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, his Honour found that the applicant’s background moderated the significance of the need for general and specific deterrence. We take into account the applicant’s traumatic background, which has caused PTSD and depressive disorder, as relevant, including in the way contemplated by the High Court in Bugmy. We view this background and mental health disorder as reducing somewhat the applicant’s moral culpability and the role of general deterrence in this case. However, like the sentencing judge, we are of the view that this background and disorder does not render the applicant an inappropriate vehicle for general deterrence, and we have referred elsewhere to the importance of general deterrence arising from the circumstances of the offending. We are satisfied that because of his mental health, custody may weigh more heavily on the applicant such that any sentence of custody imposed on him will be more onerous and we take his mental health conditions into account in that regard.

23. [178]

    In relation to prospects of rehabilitation, we find that the applicant has taken active and positive steps towards rehabilitation. He has participated in 91 sessions of treatment with Ms Kelly Tow, a clinical psychologist, who described him as very committed and actively engaged. He has completed a four-week recovery program at the Sydney Retreat Rehabilitation centre and was continuing to attend Alcoholics Anonymous meetings until he was sentenced. We note that he was an inpatient at the Sydney Clinic in July and August 2022. The material led by the applicant on re-sentence (referred to at [157] and [158]) is taken into account favourably to him on his prospects of rehabilitation and likelihood of reoffending.

24. [179]

    The Crown did not specifically challenge the finding of the primary judge that the applicant established he has good prospects of rehabilitation and we make the same finding. We accept the concessions of the Crown prosecutor made to the sentencing judge that the applicant “has taken significant steps, and I’m going to call it towards rehabilitation of sorts”, that he has “shown commitment towards therapy of sorts” and that “if a term of imprisonment is served by fulltime custody, it would have an inevitable result of disrupting [the applicant’s] ongoing commitment to therapy”.

25. [180]

    We take into account the evidence that established that the applicant was the sole financial provider for his wife and daughter and that his daughter is currently at university as an undergraduate and, thus, we take into account the hardship on his family and dependants.

Conclusion on resentence

1. [181]

   Error having been established in the sentencing process, the decision in Kentwell makes clear that the duty of this Court is to exercise the sentencing discretion afresh. The applicant’s appeal is to be dismissed unless this Court is satisfied that “some other sentence, whether more or less severe is warranted in law and should have been passed”: s 6(3) of the Criminal Appeal Act 1912 (NSW).

2. [182]

   In deciding whether any lesser sentence is warranted in law (and in particular whether, as the applicant submits, an intensive correction order should be made), this Court has applied s 16A of the Crimes Act, and not s 66 of the NSW Sentencing Act. Having exercised the sentencing discretion afresh we have arrived at an aggregate sentence which is slightly longer than that imposed on the applicant. Further, we are not satisfied that making an intensive correction order would be an order of a severity appropriate in all the circumstances of the offence. The approach to be taken if this Court arrived at a sentence that is more severe is to dismiss the appeal on the basis that no lesser sentence is warranted in law: see for example RO v R [2019] NSWCCA 183 at [84]-[89] and [118]-[119]. It follows that no lesser sentence is warranted in law.

3. [183]

   In circumstances where the objective seriousness of the offending was high, where the need for general deterrence is substantial, and there is some continued need to specifically deter the applicant, an intensive correction order would not be an order of a severity appropriate in all the circumstances of these offences, even though we have accepted that a term of full-time imprisonment would cause some disruption to the applicant’s rehabilitation.

4. [184]

   Having regard to all of our findings, and applying Part IB of the Crimes Act in the way we have described, we would not impose any lesser sentence on the applicant.

5. [185]

   Finally, we have not addressed the resentencing exercise on the hypothesis that our construction of s 20AB of the Crimes Act is wrong. If we were to do so, the implications of the applicant’s submission that “the work of s 16A of the [Crimes] Act is done in every case by s 66(3) [of the NSW Sentencing Act]” would need to be considered. It may be, even on the basis that s 66 of the NSW Sentencing Act applies to intensive correction orders made under s 20AB of the Crimes Act, that given the need for general and specific deterrence in the present case that no lesser sentence would in any event be warranted. But given our conclusions about construction of Part IB of the Crimes Act, it is unnecessary to consider this hypothetical exercise further.

Orders

1. [186]

   For the foregoing reasons leave to appeal should be granted but as we would not impose a lesser sentence, the appeal should be dismissed. Accordingly, the appropriate orders are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.