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Chan v R [2023] NSWCCA 206

See full judgment: Austlii.

The offender was sentenced following pleas of guilty to 3 counts of making false claims on the Pharmaceutical Benefits Scheme for prescriptions that were not dispensed contrary to s 103(5)(g) of the National Health Act 1953 (Cth). Original sentence imposed 2 years of imprisonment with offender to be released on recognizance after 14 months. Offender appealed on the grounds that in determining whether to impose an intensive correction order the sentencing judge did not consider the provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), in determining whether to impose an intensive correction order the sentencing judge did not take into account community safety as the paramount consideration, and that the sentence was manifestly excessive.

Manifest Excess: Although the sentencing judge was required to sentence offender under the Crimes Act (and to have regard to s 16A in doing so), they were also asked to impose an aggregate sentence on the applicant and to consider the imposition of an ICO, both of which required them to apply NSW law. The Crown relied upon the similarity between the s 3A purposes of sentencing and corresponding s 16A(2) factors to establish immateriality. Although there are significant similarities as between the two provisions, it could not be said that they are sufficiently similar that it made no difference which one the sentencing judge had regard to. Ground 1 is made out. When the court is deciding the discrete question of whether to make an ICO, other considerations must be subordinated to the consideration of community safety. Not only did the sentencing judge fail to state that they were giving paramount consideration to community safety, their reasons do not disclose why their Honour was satisfied that principles of punishment, denunciation and general deterrence were more important than community safety, and other s 3A factors such as rehabilitation. Ground 2 is made out.

Leave to appeal granted. Appeal allowed. Offender resentenced to 8 months and 17 days of imprisonment to be served by way of an intensive correction order.

The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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