Mourtada v R [2021] NSWCCA 211

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mourtada v R [2021] NSWCCA 211 Hearing dates: 4 August 2021 Date of orders: 3 September 2021 Decision date: 03 September 2021 Before: Basten JA at [1]; Adamson J at [34]; Campbell J at [40] Decision: (1) Grant the applicant leave to appeal against his sentence on grounds (1) and (2). (2) Refuse leave to appeal with respect to ground (3). (3) Dismiss the appeal. Catchwords: SENTENCING – appeal against sentence – aggregate sentence – intensive correction order –availability for sentence under 3 years – mandatory considerations – Crimes (Sentencing Procedure) Act 1999 (NSW) s 66 – consideration of "community safety" in deciding whether to make an intensive correction order – relevance of general and specific deterrence SENTENCING – federal offence – availability of State sentencing options - intensive correction order – operation of Crimes Act 1914 (Cth), s 20AB, in picking up State sentencing alternatives – application of sentencing alternatives under State legislation – consistency between State and federal sentencing options – whether custodial sentence SENTENCING – appeal against sentence – whether failure to consider mandatory consideration – relevance of submissions for offender – if matter considered, whether reasons inadequate – issues raised adequately addressed in reasons SENTENCING – appeal against sentence – co-offenders – disparity between sentences – different offences involved – material difference in roles Legislation Cited: Crimes Legislation Amendment Act (No. 2) 1989 (Cth), s 6 Judiciary Act 1903 (Cth), s 68 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 44, 66, 70; Pt 2, Div 2, Pt 5 Crimes Act 1914 (Cth), s 19AC, 19AF, 19AH, 20, 20A, 20AB; Pt 1B, Divs 4, 5 Cases Cited: Casella v R [2019] NSWCCA 201 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 R v Fangaloka [2019] NSWCCA 173 Selimoski v Picknoll (Supreme Court of Western Australia, unrep, 9 October 1992) Category: Principal judgment Parties: Mohamad Mourtada (Applicant) Regina (Respondent) Representation: Counsel: Mr G James QC (Applicant) Mr D Jordan (Respondent) Solicitors: One Group Legal (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2015/307778 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 26 August 2020 Before: Hunt DCJ File Number(s): 2015/307778