AM v R [2024] NSWCCA 26

AM v R [2024] NSWCCA 26

The sentencing judge's reasons did not show that all purposes of sentencing in s 3A, particularly the promotion of the applicant's rehabilitation, were considered when deciding whether to impose an intensive correction order rather than full-time custody. That failure established error under s 66(3). On re-sentencing, an intensive correction order was no longer a sensible or fair disposition because it could not be backdated and the applicant had already served nine months in custody. Having regard to the seriousness of the offence, the applicant's rehabilitation, delay, plea and other mitigating factors, a sentence of two years imprisonment with release after nine months on a...

Jurisdiction
Australia
Judgment Date
01 March 2024
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales; Leave Granted and Applicant Re Sentenced
Outcome
Leave to appeal granted; appeal against sentence allowed; District Court sentence quashed; applicant re-sentenced to two years imprisonment with release after nine months on a recognizance release order and immediate release directed upon entering the recognizance.
Legal Topics
['conspiracy to Assist Hostile Activities in a Foreign State' 'intensive Correction Orders' 'purposes of Sentencing' 'recognizance Release Order' 're Sentencing on Appeal' 'delay in Prosecution' 'rehabilitation and General Deterrence']
['criminal Law' 'sentencing' 'commonwealth Criminal Offences'] ['conspiracy to Assist Hostile Activities in a Foreign State' 'intensive Correction Orders' 'purposes of Sentencing' 'recognizance Release Order' 're Sentencing on Appeal' 'delay in Prosecution' 'rehabilitation and General Deterrence']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales; Leave Granted and Applicant Re Sentenced

Legal Issues

  1. 1 ['Whether the sentencing judge erred by not considering the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) when deciding whether to impose an intensive correction order.' 'Whether, after error was established, a different and less severe sentence was warranted on re-sentencing.' 'Whether an intensive correction order remained an appropriate disposition where the applicant had already served most of the custodial component of the original sentence.']

Ratio Decidendi

The sentencing judge's reasons did not show that all purposes of sentencing in s 3A, particularly the promotion of the applicant's rehabilitation, were considered when deciding whether to impose an intensive correction order rather than full-time custody. That failure established error under s 66(3). On re-sentencing, an intensive correction order was no longer a sensible or fair disposition because it could not be backdated and the applicant had already served nine months in custody. Having regard to the seriousness of the offence, the applicant's rehabilitation, delay, plea and other mitigating factors, a sentence of two years imprisonment with release after nine months on a...

Court Disposition

Leave to appeal granted; appeal against sentence allowed; District Court sentence quashed; applicant re-sentenced to two years imprisonment with release after nine months on a recognizance release order and immediate release directed upon entering the recognizance.

Orders

  • ['Leave to appeal is granted.' 'The appeal against sentence is allowed.' 'Quash the sentence imposed in the District Court on 27 April 2023.' 'The applicant is sentenced to imprisonment for a period of two years commencing on 27 April 2023 and expiring on 26 April 2025.' 'Pursuant to section 20(1)(b) of the Crimes...