See full judgment: Austlii.
The offender was sentenced following a plea of guilty to 1 count of advocating terrorism contrary to s 80.2C of the Commonwealth Criminal Code. Offender also sentenced for state ammunition offence. Original sentence imposed 2 years and 7 months of imprisonment with a non-parole period of 1 year and 11 months. Offender appealed on the ground that that the sentencing judge erred in deciding whether to make an intensive correction order directing that the sentence for the terrorism offence be served by way of intensive correction in the community.
Intensive Correction Order: The offender submitted that although s 20AB(6) provides that s 20AB(1) does not permit a court ‘to pass a sentence, or make an order, that involves detention or imprisonment’ in respect of a person convicted of a minimum non-parole offence, the term ‘imprisonment’ should be understood as referring to ‘actual imprisonment’ to distinguish it from ‘something other than actual imprisonment’. Since s 20AB(1A) avoids a candidate for an ICO having to be first sentenced to a term of imprisonment, there is a pathway for a person convicted of a minimum non-parole offence to receiving an ICO. The judge rejects this submission. The ordinary meaning of s 20AB(6) of the Crimes Act 1914 is that a court that is sentencing a person for a minimum non-parole offence (including that in s 80.2C) cannot make an order of a type identified in s 20AB(1AA) if, in order to do so, it first determines that a sentence of detention or imprisonment is the appropriate sentence. Given the legislative history and purpose of ICOs, if an ICO is not to be treated as something imposed once a sentencing court has determined that a sentence of imprisonment is appropriate.