Mustafa v R [2021] NSWCCA 164

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mustafa v R [2021] NSWCCA 164 Hearing dates: 9 July 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Before: McCallum JA at [1]; Rothman J at [2]; Ierace J at [138] Decision: (1) Leave to appeal granted; (2) Appeal allowed; (3) The sentence imposed by the District Court on the applicant, Omer Mustafa, on 2 December 2020 be quashed and in lieu thereof the following sentence be imposed: (a) Conviction recorded; (b) The Court imposes an aggregate sentence of imprisonment of 2 years, 4 months and 14 days, being the remainder of the term otherwise imposed, the indicative sentences for which are: Robbery in Company, imprisonment for 2 years, 4 months and 14 days; Common Assault, 3 months' imprisonment; (c) The foregoing aggregate sentence of imprisonment shall be served by way of an Intensive Correction Order, commencing 16 July 2021 and expiring 30 November 2023. (d) The Intensive Correction Order is subject to the following conditions: (i) The applicant must not commit any offence; (ii) The applicant must submit to supervision by a Community Corrections Officer; (iii) The applicant must participate in any program or intervention recommended by a Community Corrections Officer; (iv) The applicant is to abstain from consuming alcohol and drugs; (v) The applicant shall report to the Liverpool Community Corrections Office within seven days of the making of this order, by telephone if permitted by Corrective Services, in order to receive instructions about his obligations if and while supervision is suspended. (4) Leave granted to the parties to make application for any different or additional conditions in the aforesaid Intensive Corrections Order. Catchwords: CRIME – Appeal against sentence – sentencing judge precluded aggregate sentence and order of ICO – effective sentence of 3 years from 2 offences fully concurrent – aggregate sentence available and, if imposed, ICO available – appeal allowed – aggregate sentence imposed – ICO ordered. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 7(1), 25D, 53A, 68(1)-(3), 73A Cases Cited: Abel v R [2020] NSWCCA 82 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Douar v R [2005] NSWCCA 455 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kutchera v Regina [2007] NSWCCA 121 Mandranis v The Queen [2021] NSWCCA 97 Ng v R (2011) 214 A Crim R 191; [2011] NSWCCA 227 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Faraj [2020] NSWDC 171 R v Fangaloka 2019] NSWCCA 173 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264 R v Stanley [2003] NSWCCA 233 RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47 Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81; [1988] HCA 4 Sullivan v Department of Transport (1978) 20 ALR 323 Category: Principal judgment Parties: Omer Mustafa (Applicant) Regina (Respondent) Representation: Counsel: P Lange (Applicant) E Wilkins SC (Respondent)