R v Edelbi [2021] NSWCCA 122

R v Edelbi [2021] NSWCCA 122

The sentencing judge did not err in assessing objective seriousness or in finding a breach of trust, but erred by failing to address the intensive correction order option in accordance with s 66 after service of imprisonment in the community had been raised and the judge had undertaken to consider it. On resentencing, although the offences were serious and warranted imprisonment, the applicant had already served about 13 months in full-time custody and his risk of reoffending was more likely to be addressed by an intensive correction order, having regard to community safety, rehabilitation prospects, remorse and assistance to authorities.

Jurisdiction
Australia
Judgment Date
16 June 2021
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court of NSW
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to an aggregate term of imprisonment of 1 year and 11 months to be served by way of intensive correction in the community.
Legal Topics
['fraud Offences' 'aggregate Sentence' 'intensive Correction Order' 'objective Seriousness' 'breach of Trust' 'form 1 Offences']
['criminal Law' 'sentencing'] ['fraud Offences' 'aggregate Sentence' 'intensive Correction Order' 'objective Seriousness' 'breach of Trust' 'form 1 Offences']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to consider an intensive correction order in accordance with s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the sentencing judge erred in finding that the offences involved a significant breach of trust by the applicant in the performance of his duties as sole director of the company.' 'Whether the sentencing judge failed adequately or appropriately to assess the objective seriousness of Counts 2-11.' 'Whether the sentencing judge erred in concluding that the objective seriousness of Counts 2-11 fell around the mid-range.']

Ratio Decidendi

The sentencing judge did not err in assessing objective seriousness or in finding a breach of trust, but erred by failing to address the intensive correction order option in accordance with s 66 after service of imprisonment in the community had been raised and the judge had undertaken to consider it. On resentencing, although the offences were serious and warranted imprisonment, the applicant had already served about 13 months in full-time custody and his risk of reoffending was more likely to be addressed by an intensive correction order, having regard to community safety, rehabilitation prospects, remorse and assistance to authorities.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to an aggregate term of imprisonment of 1 year and 11 months to be served by way of intensive correction in the community.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed; sentence imposed in the District Court on 12 May 2020 quashed.' 'In lieu thereof the applicant be sentenced to an aggregate term of imprisonment for 1 year and 11 months, commencing on 16 June 2021 and expiring on 15 May 2023.' 'Pursuant to s 7(1) of the Crimes...