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Mourtada v The Queen [2021] NSWCCA 211

The offender was sentenced to 2 counts of importing tobacco products on which excise and GST would not be paid contrary to the Customs Act 1901 (Cth). The original sentence on 26 August 2020 imposed 19 months and 3 weeks imprisonment for the first offence and 14 months and 3 weeks imprisonment for the second offence, to be released on a recognizance release order after 14 months and 3 weeks. The original sentence imposed failed to conform with s 19AC requirements. The sentencing judge set both sentences aside and resentenced the offender in conformity with s 19AC to an aggregate sentence of 21 months and 3 weeks commencing on 26 August 2020, to be released on recognizance release order after 15 months. The offender appealed on grounds that the sentencing judge erred in failing to take into consideration s 66 of the Crimes (Sentencing Procedure) Act 1999 when deciding whether to make an intensive corrections order, that the sentencing judge erred in failing to order that the sentence to be served by way of intensive corrections order and that the offender had a legitimate sense of grievance regarding the sentence imposed in comparison with that of a co-offender.
Intensive Correction Order: Section 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth) picks up s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which provides the power to make an intensive correction order. The engagement of s 7 is preconditioned by a sentence of imprisonment being imposed. Absent such a sentence, a state court has no power to make an intensive correction order. In picking up the power under state law to impose an ICO, s 20AB also picks up procedural steps governing the operation of the State provision. Sentencing judge was required to apply s 66 Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing court was not required to favour an ICO over full-time custody but was required to have specific regard to community protection and to bear in mind that short sentences were not necessarily effective as a means of deterring further offending. The sentencing judge did not err in having regard to specific deterrence in assessing the particular purpose of community protection. There is no basis in s 66 to disregard other sentencing principles, including the need for general deterrence. If some period of full-time custody was warranted, there was no room for the imposition of an ICO.

Parity: Offender’s aggregate sentence in relation to two offences was difficult to compare to the sentences imposed on the co-offenders. No basis was identified for interfering with the sentencing judge’s evaluative judgments as to the respective levels of culpability and personal circumstances of each co-offender.

Leave to appeal on grounds relating to intensive corrections order allowed. Leave to appeal on the ground of parity refused. Appeal dismissed.
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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