AM v R [2024] NSWCCA 26

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AM v R [2024] NSWCCA 26 Hearing dates: 30 January 2024 Date of orders: 01 February 2024 Decision date: 01 March 2024 Before: Davies J at [1] Hamill J at [2] Huggett J at [66] Decision: (1) Leave to appeal is granted. (2) The appeal against sentence is allowed. (3) Quash the sentence imposed in the District Court on 27 April 2023 and in lieu thereof: (i) The applicant is sentenced to imprisonment for a period of two years commencing on 27 April 2023 and expiring on 26 April 2025; (ii) Pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), the Court makes a recognizance release order directing the release of the applicant after he has served nine months of the sentence (that is, on 26 January 2024) and upon the applicant giving surety in the sum of $100 without security and entering a recognizance to be of good behaviour for the remainder of the term of imprisonment. (4) Noting the applicant has already served the nine months in accordance with order 3(ii) above, the Court directs the applicant's immediate release upon entering the recognizance to be of good behaviour. Catchwords: CRIMINAL LAW – sentencing – conspiracy to assist a person to engage in hostile activities in Syria – offence against Commonwealth Criminal Code – intensive correction order – requirement to take into account purposes of punishment in state sentencing act – whether requirement satisfied by considering matters in Commonwealth Crimes Act – where issue considered by Court of Criminal Appeal after current sentence imposed – error established despite otherwise impeccable and well-reasoned sentencing judgment – re-sentencing – where intensive correction order no longer appropriate – sentence reduced and applicant entitled to immediate release Legislation Cited: Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 7(1)(e) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66, 66(3), 71 Crimes Act 1914 (Cth), Pt IB, s 16A Criminal Appeal Act 1912 (NSW), s 6(3) Criminal Code Act 1995 (Cth), s 11.5 Cases Cited: Casella v R [2019] NSWCCA 201 Chan v R [2023] NSWCCA 206 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260 Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 R v Fangaloka [2019] NSWCCA 173 R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509 R v Todd (1982) 2 NSWLR 517 R v Winchester (1992) 58 A Crim R 354 Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337 Stanley v Director of Public Prosecutions (NSW) (2023) 296 ALJR 107; [2023] HCA 3 Tenenboim v R [2024] NSWCCA 1 Turnbull v R [2019] NSWCCA 97 Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318 Category: Principal judgment Parties: AM (Applicant) Rex (Respondent) Representation: Counsel: S Howell (Applicant) P McDonald SC and C Akthar (Respondent)