Chan v R [2023] NSWCCA 206

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chan v R [2023] NSWCCA 206 Hearing dates: 3 July 2023 Date of orders: 23 August 2023 Decision date: 23 August 2023 Before: Kirk JA at [1]; Rothman J at [11]; N Adams J at [25]. Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed by Bright DCJ on 10 November is quashed and in lieu thereof the following sentence is imposed: (a) An aggregate sentence of 8 months and 17 days imprisonment to commence on 23 August 2023. (4) Pursuant to s 7(1) of the Crimes (Sentencing Procedure Act) 1999 (NSW)t, the sentence imposed on the offender is to be served by way of an intensive correction order commencing on 23 August 2023 and expiring on 9 May 2024. (5) The standard conditions of the order will apply. Namely, (a) The offender must not commit any offence; and (b) The offender must submit to supervision by a community corrections officer for the term of the order. (6) If the offender fails to comply with the conditions of the order, sanctions may be imposed by the Commissioner of Corrective Services. Those sanctions may include a formal warning, the imposition of more stringent conditions or may include revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full-time custody. (7) The offender is to report to Community Corrections office as soon as practicable but no later than within seven days. (8) A copy of this order will be forwarded to the offender. Catchwords: CRIME — sentence appeal — consideration of intensive correction order when sentencing for federal offence – three-step approach – whether sentencing judge required to consider s 3A of the Crimes (Sentencing Procedure Act) 1999 (NSW) – material differences between s 3A of the Sentencing Procedure Act and 16A of the Crimes Act 1914 (Cth) – error established – applicant resentenced – exceptional circumstances found CRIME — sentence appeal — consideration of intensive correction order – community safety paramount – community safety incudes non-violent harms to the community – other purposes of sentencing subordinate where sentencing judge found an ICO would be favourable for community safety Legislation Cited: Corporations Act 2001 (Cth), s 1308(2) Crimes Act 1900 (NSW), s 178BB Crimes Act 1914 (Cth), ss 16A, 17A, 20AB, 20(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 8, 66-69 Criminal Appeal Act 1912 (NSW), s 5(1)(c) District Court Act 1973 (NSW), s 176 Judiciary Act 1903 (Cth) National Health Act 1953 (Cth), s 103(5)(g) Cases Cited: Attorney-General (Cth) v Huynh (2023) 97 ALJR 298; [2023] HCA 13 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 Casella v R [2019] NSWCCA 201 Decision restricted [2023] NSWCCA 186 Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 Fangaloka v R [2019] NSWCCA 173 Homewood v R [2023] NSWCCA 159 Huynh v R (2021) 105 NSWLR 384; [2021] NSWCCA 148 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Mourtada v The Queen (2021) 290 A Crim R 514; [2021] NSWCCA 211 Patel v R (2022) 366 FLR 314; [2022] NSWCCA 93 Putland v The Queen (2014) 218 CLR 174; [2014] HCA 8 R v Agius; R v Zerafa (2012) 87 ATR 528; [2012] NSWSC 978 R v Boughen; R v Cameron (2012) 215 A Crim R 476; [2012] NSWCCA 17 R v Pogson; R v Lapham; R v Martin (2012) 218 A Crim R 396; [2012] NSWCCA 225 R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264 Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337 Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 The Queen v Gorgy (NSWDC 17 April 1998, unreported) Tonga, Samuel v R [2023] NSWCCA 120 Waterstone v R [2020] NSWCCA 117 Williams v The King [No 2] (1934) 50 CLR 551; [1934] HCA 19 Zheng v R [2023] NSWCCA 64 Texts Cited: Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017, Mark Speakman Category: Principal judgment Parties: Felix Yue-Sing Chan (Applicant) Rex (Respondent) Representation: Counsel: D Jordan SC with C O'Neill (Applicant) R Ranken with E Forsyth (Respondent)