Chan v R [2023] NSWCCA 206

Chan v R [2023] NSWCCA 206 · Read the judgment on AustLII

Catchwords: Federal sentencing – Intensive Correction Orders

For anybody worried that it wasn’t already sufficiently complicated to sentence federal offenders, fear not, because this decision of the Court of Criminal Appeal (‘CCA’) provides that when sentencing a federal offender, a court applying the three-step test in deciding whether to impose an Intensive Correction Order (‘ICO’) must take into account the federal purposes of sentencing for the first two steps, and then the NSW purposes of sentencing for the third step. The decision also provides some tantalising obiter comments about possible future developments of ICO sentencing law.

The applicant, a pharmacist, pleaded guilty and was sentenced in the District Court for lodging over 105 false claims on the Pharmaceutical Benefits Scheme, amounting to 1,070 pharmaceuticals, netting him about $290,000 to which he was not entitled. When confronted with his misconduct, he voluntarily admitted to it – indeed, disclosed further misconduct – and explained that the financial stresses of his three pharmacies led him to take matters into his own hands. He expressed regret at his conduct and a commitment to giving a genuine account of his non-genuine claims. He repaid the full amount.

Despite having invited the sentencing judge to impose an ICO, the applicant was sentenced to 2 years imprisonment and, the matters being federal offences, was to be subject to a Recogizance Release Order after 14 months. In her sentencing remarks, the sentencing judge had commented that, because she was sentencing for a federal offence, she had taken into account the factors set out in s 16A of the Crimes Act 1914 (Cth) (‘Crimes Act’), but crucially not the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Procedure Act’).

The applicant appealed the sentence, asserting that the sentencing judge had erred in declining to consider s 3A, had failed to take into account community safety as the paramount consideration and, ultimately, had erred in not imposing an ICO.

The CCA (N Adams J, Kirk JA and Rothman J agreeing as to the ultimate outcome, but each with additional reasons, and each declining to determine ground 2) considered that the sentencing judge had been in error in declining to take into account s 3A.

Although the sentencing judge was required to sentence the applicant under the Crimes Act and have regard to s 16A in doing so, she was invited to impose an aggregate sentence and to consider the imposition of an ICO, both of which required her Honour to apply NSW sentencing procedures (i.e. the Sentencing Procedure Act) (at [92]-[97]). Although it is well settled that a federal offender can be placed on an ICO, the extent to which that State law is picked up was the particular focus of this part of the appeal (at [98]).

In Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3, the High Court set out a three-step process when considering the imposition of an ICO:

• First, the court must be satisfied no other penalty other than imprisonment is appropriate.
• Second, it must determine the length of the sentence.
• Third, if the sentence to be imposed is less than two years (for one offence) or three years (for an aggregate sentence), then the court must consider whether an ICO should be imposed (at [59] of Stanley)

The Court here observed that s 66(3) of the Sentencing Procedure Act requires a NSW court which is considering the imposition of an ICO to have regard to the factors set out in s 3A. The result is that when considering an ICO for a federal offence, a sentencing court is to have regard to s 16A for the first two steps set out above, and is then obliged to have regard to s 3A for the purpose of the third step. To that end, and consistently with Stanley, because of s 66 of the Sentencing Procedure Act, community safety is required to be considered again, but this time in a different manner. It is implicit in the reasons of the majority of the High Court in Stanley that this includes consideration of the general principles of sentencing in s 3A ([99]-[100]).

Although there are significant similarities between s 16A and s 3A, it cannot be said that they are sufficiently similar that there is no difference (at [104]). For example, s 3A(c) speaks of protecting the community from the offender, but there is no corresponding provision in s 16A(2). Similarly, s 3A(e) directs attention to making the offender accountable for their actions, but there is no equivalent in s 16A(2). Section 3A(d) speaks of promoting the rehabilitation of the offender, whereas s 16A(2)(n) lists the ‘prospect of rehabilitation’ of the offender, which represents a material difference (at [106]-[112]). That is, although s 16A and s 3A are similar, it could not be said that they are relevantly analogous: some factors are not common to both and, significantly, the emphasis in some respects is different (at [113]). That was (for the majority) sufficient to dispose of the appeal; the appeal was allowed and an ICO imposed instead. However, N Adams J went slightly further.

In the context of considering whether the sentencing judge had erred in failing to make community safety the paramount consideration, her Honour’s judgment includes a helpful recap of where the law on imposition of ICOs now stands, covering all the significant pre- and post-Stanley decisions (at [129]-[144]).

An important point arises as to how, given the reasons of the majority of the High Court in Stanley, a sentencing court is to apply sentencing principles of general deterrence, punishment, and denunciation in relation to white collar offenders, given that those offenders will often receive the benefit of a positive finding as to their risk to community safety (at [145]). Her Honour expressed the view that, although the applicant was a very low risk to community safety, it could not be said that he posed no risk to community safety, just because he is no risk of committing an offence of violence (emphasis in original). Community safety principally concerns the ‘possible harms’ to the community that might occur from the risk of any reoffending by the offender. Although a non-violent offender like the applicant might not pose any risk to the safety of individual people in the community, it must be accepted that if he was to reoffend in the same way, the community would be ‘harmed’ (at [146]). It should be noted that Rothman J – presumably keen to ensure that this author’s job in summarising the judgment should not be rendered too easy – explicitly distanced himself from the comments of N Adams J in relation to this broader approach to risk to the question of community safety (at [20]-[23]), and Kirk JA simply left this issue untouched.

Interestingly for the future, N Adams J agreed with comments made by Beech-Jones CJ at CL in a restricted (that is, currently unpublished) judgment that there is scope for an argument that, following Stanley, a sentencing judge cannot decline to impose an ICO on an offender who otherwise meets the tests for community safety set out in ss 66(1) and (2) on the basis that such a result would result in too lenient a sentence. However, as it had been with Beech-Jones CJ at CL, this question was strictly obiter (at [149]-[150]), again not least because the other two judges in this case explicitly declined to consider this ground.

The appeal was allowed and an ICO was substituted.