R v Fangaloka [2019] NSWCCA 173 (2 August 2019)

Last Updated: 15 August 2019

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	R v Fangaloka
Medium Neutral Citation:	[2019] NSWCCA 173
Hearing Date(s):	22 July 2019
Date of Orders:	2 August 2019
Decision Date:	2 August 2019
Before:	Basten JA at [1]; Johnson J at [77]; Price J at [78]
Decision:	(1) Allow the Director’s appeal and set aside the sentence imposed on the offender in the District Court on 2 April 2019. (2) Sentence the offender to a non-parole period of 20 months, with an additional term of 10 months, giving a sentence of 2 years 6 months. (3) Direct that the sentence commence on 2 August 2019. (4) Note that the offender will first be eligible for parole on a date 20 months after the sentence is imposed, namely on 1 April 2021.
Catchwords:	CRIMINAL LAW – sentencing – robbery in company – application of Henry criteria – causing actual bodily harm – wholly concurrent sentences – imprisonment to be served by intensive correction order CRIMINAL LAW – sentencing – appeal against inadequacy of sentence – misapprehension of facts – failure to give effect to expressed intent to accumulate sentences – misapplication of principle in The Queen v De Simoni – manifest inadequacy CRIMINAL LAW – sentencing – intensive correction order – community safety as paramount consideration – extent to which additional purposes of sentencing affect determination – consideration of statements in R v Pullen WORDS AND PHRASES – “adequately punished” – “community safety” – “paramount consideration”
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW), s 158 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 8, 9, 66, 67, 68; Pts 5, 7, 8 Crimes Act 1900 (NSW), ss 4, 97 Criminal Appeal Act 1912 (NSW), s 5D Weapons Prohibition Act 1998 (NSW), Sch 1
Cases Cited:	Davies v R [2019] NSWCCA 45 Douar v The Queen (2005) 159 A Crim R 154; [2005] NSWCCA 455 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Liao v R [2007] NSWCCA 132 Newman (a pseudonym) v R [2019] NSWCCA 157 R v Carroll; Carroll v The Queen (2010) 77 NSWLR 45; [2010] NSWCCA 55 R v Dodd (1991) 57 A Crim R 349 R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Pullen [2018] NSWCCA 264 R v Zamagias [2002] NSWCCA 17 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Texts Cited:	Legislative Assembly, Hansard, 11 October 2017, Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017
Category:	Principal judgment
Parties:	Director of Public Prosecutions (NSW) (Appellant) Tevita Fangaloka (Respondent)
Representation:	Counsel: Ms T Smith (Appellant) Ms M Avenell (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Catherine Hunter (Respondent)
File Number(s):	2016/376018
Decision under appeal:
Court or Tribunal:	District Court
Jurisdiction:	Criminal
Date of Decision:	02 April 2019
Before:	Tupman DCJ
File Number(s):	2016/376018

JUDGMENT

1. BASTEN JA: On the afternoon of 10 June 2016, Tevita Fangaloka accompanied a younger acquaintance, Solomon Kupu, to assist in recovering what Mr Fangaloka understood was a debt, from Justin Shah. Mr Shah was at home with another man, Shaun Hoffman, for whom Mr Shah was caring, Mr Hoffman suffering from early onset dementia due to a medical condition. There was confrontation inside Mr Shah’s unit at Dulwich Hill which resulted in Mr Kupu and Mr Fangaloka being charged with a number of offences. In particular, Mr Fangaloka was charged with:
   • (1) robbery whilst being in company with Mr Kupu; and
   • (2) assaulting Mr Hoffman thereby occasioning actual bodily harm, whilst in the company of Mr Kupu; and
   • (3) assaulting a third man, an acquaintance of Shah and Hoffman.

Offences (2) and (3) involved assaults by Mr Kupu for which, as part of a joint enterprise, Kupu and Fangaloka were both responsible. Offence (3) was dealt with on a Form 1.

2. On 2 April 2019, following guilty pleas to each offence, the judge imposed the following sentences on Mr Fangaloka:

(1) For the robbery in company, he is sentenced to a term of 2 years imprisonment commencing today.

I order that that be served by way of intensive correction order.

I order standard conditions plus two additional conditions pursuant to s 73A that he:

(a) abstain from using illegal drugs.

(b) undertake 250 hours of community service work, and for that purpose he is to report to Leichhardt Community Corrections by Friday 12 April, between 10am and 4pm.

I have taken into account the form 1 offence for sentencing on this matter.

(2) For the offence of assault occasioning actual bodily harm he is sentenced to a term of imprisonment of 12 months to commence on 2 October 2019.

I order that that be served by way of intensive correction order subject to the standard conditions with an additional condition that he abstain from illegal drugs.

3. It may be seen that the order relating to the assault operated entirely concurrently with the order relating to the robbery in company; the former order commenced six months after the commencement of the order relating to the robbery in company, but concluded six months before the expiry of the latter order.
4. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW) alleging three specific errors and manifest inadequacy of the sentences. The three specific grounds alleged that the sentencing judge erred in:
   • (1) applying a mistaken view of the facts which formed the basis of the two offences when assessing their objective seriousness;
   • (2) acting upon a wrong principle of law by stating that although a knife was used, it was not an armed robbery charge and that it was important that the sentence not breach the principle stated in De Simoni;^[1] and
   • (3) imposing entirely concurrent sentences and not giving effect to her intention to accumulate the two sentences by six months.
5. The respondent accepted that the three specific errors had occurred but submitted that, except with respect to the failure to accumulate, they had had no effect on the sentencing process. With respect to the failure to accumulate, the respondent submitted that this was a technical error which could be corrected by adjusting the commencement date for the assault offence, so that it commenced on 2 October 2020. Counsel submitted that no further resentencing was required.
6. In these circumstances, it is possible to deal with the conceded errors concisely. However, because, for reasons explained below, the Court should proceed to resentencing, it is convenient to set out first the factual parameters of the offending.

Circumstances of offending

7. The background to the events of 10 June 2016 are not entirely easy to follow from the statement of agreed facts. It is said that in late March 2016 Mr Shah’s bag containing house keys and motorbike keys, together with a wallet and iPhone, was stolen. A week later his motorcycle was stolen from inside his garage. Mr Shah reported the matter to police. Some 11 days later, Mr Kupu was arrested in possession of the motorcycle and other property belonging to Mr Shah. He was subsequently charged.
8. At about 4.30pm on 10 June 2016 Mr Shah and Mr Hoffman were in their unit waiting for a friend, Mr Kurt to arrive. Mr Kurt made his way upstairs at the same time that Mr Kupu and Mr Fangaloka came downstairs from the third level. Mr Shah opened the door for Mr Kurt and they all entered the apartment together.
9. Upon entry, both Mr Kupu and Mr Fangaloka directed Mr Shah and Mr Kurt into the living room; Mr Kupu told Mr Kurt to sit down on the lounge next to Mr Hoffman, which he did.
10. Mr Fangaloka asked Mr Shah for his wallet and told him to empty his pockets, which he refused to do. Mr Kupu then asked him why he had involved the police and said that he had now been charged and was going to gaol. Mr Shah said he had reported the matter for insurance purposes; Mr Fangaloka told him he was “gonna have to pay.” Mr Fangaloka then said “We’ve got boys downstairs”, made a phone call and then used a switch in the unit to open the security door downstairs. A third man came in, but apparently played no further part in the events. (There was no suggestion of a legitimate “debt”.)
11. At some stage, Mr Shah had removed a Stanley knife from his bag and placed it on the lounge. Mr Fangaloka picked up the knife and asked what he was planning to do with it and said “give me your wallet.” Mr Shah replied he put it there so they could see it and he did not want to fight them.
12. Mr Kupu then turned to Mr Hoffman and asked him to empty his bag.
13. The following paragraphs of the statement of agreed facts were critical to the offences and read as follows:

“11. Kupu then said to Shah ‘I want my bike back’. Shah replied ‘What the fuck are you talking about? It’s a write off’. Kupu then said ‘Fine. I’ll take your money. I’m going to gaol because of you’.
12. Fangaloka pointed the knife at Shah with the blade exposed. Shah stood up. They were standing 30 centimetres apart when Fangaloka held the knife close to Shah’s neck. Shah began screaming for help. Fangaloka then punched Shah to the face twice knocking him on to the couch where he continued to scream for help.
13. Hoffman also began screaming and Kupu then punched him to the body about 5-6 times. At some point during the struggle Hoffman managed to take his phone back from Kupu. Kupu then stopped punching Hoffman and ran over to Shah. He then took Shah’s wallet and removed $300 from it. Shah managed to kick Kupu’s hand causing him to drop the wallet. Kupu then punched Shah a number of times to the face.
14. Fangaloka and the unknown male then ran out of the unit. Fangaloka carried Shah’s Lacoste bag, as well as the Stanley knife, a pair of black fingerless gloves, out with him when he ran out. Kupu also ran for the door and threw at least two punches at Kurt who was standing by the door. One of the punches hit him in the neck. Shah ran to the front door and locked it behind them.
15. As a result of being punched Shah sustained bleeding and swelling to his lower lip, and Hoffman sustained pain to his abdomen and kidneys. As a result of the assault Hoffman sustained bruising on the left side of his waist, and a sore head, wrist and thumb.”

14. As appears from this account of the fracas in the unit, Mr Fangaloka did not hit Mr Hoffman. The charge relating to the assault on Mr Hoffman was based on the principle of joint liability of the co-offenders for the assaults committed by each other. Importantly, the charge involving robbery in company relating to Mr Shah was separate from the assault occasioning actual bodily harm, for which the victim was Mr Hoffman. There was no charge of assaulting Mr Shah. In addition, a charge of common assault, relating to the punch received by Mr Kurt from Mr Kupu, was the third offence taken into account on a Form 1 in sentencing Mr Fangaloka.

Ground 1: mistake as to underlying facts

15. There were three stages of the sentencing relevant to this issue. First, at the beginning of her judgment, Tupman DCJ set out correctly the offending, noting that the offence of aggravated assault occasioning actual bodily harm involved an assault upon Mr Hoffman. In recounting the agreed facts, the judge noted the injuries sustained by Mr Hoffman.
16. The second stage involved an assessment of the objective seriousness of the offending by reference to particular features of such offences contained in the guideline judgment of R v Henry.^[2] In describing the role of the knife, the judge stated:^[3]

“He threatened Mr Shah whilst in possession of this knife, but he did not take [bring] the knife with him. In fact, it was produced by Mr Shah. He held it close to the victim’s neck, but when the victim started screaming he punched him. The latter is the subject matter of the second offence of assault occasioning actual bodily harm.”

17. Having dealt with the robbery in company offence, the judge turned to consider the assault occasioning actual bodily harm, considering why Mr Fangaloka “punched Mr Shah”, referring to the bleeding lip which resulted. She continued:^[4]

“Most importantly it seems to me that this is largely an integral part of the robbery in company, but not entirely so. The robbery in company could have been committed, albeit clearly not to be encouraged, but could have been committed without the additional offence of assaulting Mr Shah. For that reason there should be some partial accumulation between the two sentences. They should not in this case be completely subsumed.”

18. The third stage occurred after the sentencing had been completed, when counsel for the offender drew to the judge’s attention the fact that in her reasons she had “identified the victim of the assault occasioning actual bodily harm offence as being Mr Shah when, in fact, it’s Mr Hoffman.”^[5] On noting the mistake, the judge then referred to the actual blows being landed by Mr Kupu, suggesting that Mr Fangaloka may have had a lesser responsibility, but expressing the view that no lesser sentence was appropriate if the error were corrected. Counsel then pointed out that the assault on Mr Hoffman was not part of the robbery in company offence, but the separate offence. The judge then stated:^[6]

“There is a couple of mistakes in there. I cannot unravel that at this stage.”

The prosecutor agreed with counsel’s submissions but neither party invited the judge to change the sentences.^[7]

19. It is unfortunate that the significance of the error was not properly identified before the sentencing was completed. The prosecutor appears not to have identified the fact that, in treating the assault as part of the robbery in company, the judge almost certainly underestimated the extent to which accumulation was required. Indeed, as will be noted shortly, the prosecutor did not draw to the judge’s attention to the fact that, while expressing an intention to accumulate part of the sentence for the assault on the robbery sentence, she did not in fact do that. Indeed, neither party noticed that error.
20. This was a matter in which the sentencing hearing had been completed on 29 March and sentencing was reserved until 2 April. Both legal representatives appeared on 2 April, at which point, before delivering her sentencing judgment, the judge outlined precisely what she intended to do. The Court was entitled to expect that if an error were made, it would have been pointed out by counsel. It is most unfortunate that that did not happen with respect to one error, and that the significance of the other error was not appreciated.

Ground 2: application of De Simoni principle

21. The reference to the “De Simoni principles” was puzzling. In R v Henry, Spigelman CJ identified a category of cases having seven criteria in common, including use of a weapon like a knife, capable of killing or inflicting serious injury.^[8] No doubt having that feature in mind, the judge stated:^[9]

“There was a knife used but this is not an armed robbery charge and it is important that the sentence not breach the De Simoni principles.”

22. The Director submitted that the effect of this statement was to diminish the weight given to the use of the knife in circumstances where De Simoni had no application. In De Simoni, the High Court identified a principle of general law applicable to sentencing, which prohibits a sentencing judge from taking into account circumstances of aggravation that would render the offender liable to a greater maximum punishment than that prescribed for the offence with which he or she is charged. In De Simoni, the offender was charged with robbery, in the course of which he struck the victim a blow on the back of the head, causing a wound to her scalp. Under the relevant State legislation, robbery with wounding carried a more severe penalty than robbery without that circumstance of aggravation.
23. The situation in the present case was not analogous. Section 97(1) of the Crimes Act 1900 (NSW) renders a person liable to imprisonment for 20 years for robbing another person “being armed with an offensive weapon, or instrument, or being in company with another person”. That is, robbery in company and robbery with an offensive weapon are alternative forms of the same offence, carrying the same maximum penalty of 20 years’ imprisonment.^[10] On the other hand, there is an aggravated form of the offence, under s 97(2), where the offender is armed with a “dangerous weapon”, the offence then carrying a maximum penalty of 25 years imprisonment. However, the term “dangerous weapon” is defined in s 4 of the Crimes Act to refer to a firearm, spear gun or “prohibited weapon” under the Weapons Prohibition Act 1998 (NSW). A variety of knives are identified in Sch 1 of the latter Act, but there was no suggestion that the judge had in mind that the Stanley knife fell within such a category. Rather, it seems likely that the judge was simply mistaken as to the relevance of De Simoni in the present context. As this Court noted in Davies v R^[11] there can be uncertainty as to the scope of the principle:

“[34] That principle has been applied routinely since the decision in De Simoni in 1981. The uncertainty arises in a case, such as the present, where a plea is accepted to the non-aggravated form of the offence, but where a circumstance which is, at the least, similar to a circumstance of aggravation forms part of a statement of agreed facts prepared for the purposes of sentencing. On any view it would be an error to sentence the offender on the basis that he was liable to an offence which carried a maximum penalty in excess of that to which he had entered a plea; on the other hand, in assessing matters relevant to the sentence for the lesser offence, there is no express indication in De Simoni that the judge would be obliged to ignore an element in a statement of agreed facts.”

24. It was accepted by counsel for the offender in the present case, correctly, that the De Simoni principle had no application with respect to a single offence which could be established by proof of one or other of two elements, so as to preclude taking the second element into account when the first is the basis on which the charge is formulated. Rather, the issue was whether the statement that this was “not an armed robbery charge” demonstrated that the judge had incorrectly downplayed the significance of the use of the knife. Counsel for the offender noted that the judge had continued to refer to the statements as to the use of the knife contained in the agreed facts after the reference to De Simoni. On the other hand, in assessing the seriousness of the offending, there is surprisingly little weight given to the use of the knife, held to the victim’s throat. Further, the judge stated:^[12]

“There is no suggestion in the evidence that he ever intended to use the knife physically against the victim except in the way the facts indicate by way of a threatening gesture.”

25. With great respect, that statement might strike one as something which is easier to say in retrospect when the knife has not been used to inflict a wound; to have a large man holding a knife close to one’s neck would usually be a terrifying experience. The evidence that Mr Shah began to scream at that point demonstrates with some force the actual effect on him. Mr Hoffman also began screaming. On balance, it appears that the erroneous reference to the De Simoni principle did lead the sentencing judge into error in the respect identified by the Director.

Ground 3: Failure to accumulate sentences

26. As has been noted, the sentencing judge fixed a sentence with respect to the assault occasioning actual bodily harm for a period which was entirely subsumed within the sentence for robbery in company. That result contradicted her clear statement in her judgment:^[13]

“That gives rise then to an overall term of imprisonment of two years and six months comprising a sentence of two years for the robbery in company and a sentence of 12 months for the assault occasioning actual bodily harm.”

27. There was no doubt that a period of accumulation was indeed intended. Precisely the same statement was made on the morning of sentencing before delivering judgment, the judge seeking assurance that such a course was consistent with the requirements of s 68(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”), noting that the proposal would involve no individual term of imprisonment exceeding 2 years and the term imposed for both offences in total did not exceed 3 years. Whilst emphasising that the prosecution considered that no sentence other than fulltime imprisonment was warranted, the prosecutor agreed that the proposed regime did not contravene s 68.
28. If that were the only error, it would be necessary to consider whether an adjustment to the commencement date for the order relating to the assault occasioning actual bodily harm could be undertaken without a full resentencing, consistently with the principles established in Kentwell v The Queen.^[14] The Director has succeeded in demonstrating two other specific errors which were also capable of affecting the outcome and, as will be noted below, has made good a fourth ground, namely that the sentence was manifestly inadequate. Subject to the question as to the discretion to intervene, the errors require this Court to resentence.

Ground 4: manifest inadequacy

29. As the sentencing judge accepted, in order to impose a sentence of imprisonment of 2 years (or even 2 years 6 months) with no part of the sentence to be served in custody, it was necessary to distinguish the guideline sentence discussed in Henry. There the Court concluded that for an offence falling within the identified category of cases the sentence “should generally fall between four and five years for the full term.”^[15] As the qualifying adverb “generally” indicates, departure from the range is undoubtedly permissible, and does not require special or exceptional circumstances. It does, however, usually require attention being given to the reason for departure in a particular case. So much was recognised by the sentencing judge.
30. The seven criteria referred to in Henry were as follows:

“(i) Young offender with no or little criminal history;
(ii) Weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.”

The last criterion was stated in R v Thomson; R v Houlton^[16] to refer to a late plea of guilty; that is commonly treated as involving a 10% discount.

31. Mr Fangaloka was 33 years of age at the time of the offence and could not be described as a young offender; he did, however, as the sentencing judge noted, have little of any relevance on his criminal record. That factor was not, as the sentencing judge stated, a point of distinction from Henry.^[17]
32. As to the second criterion, a knife was used to threaten the victim. With respect to the third criterion, the judge found that there was “limited planning but initially no planning at all.”^[18] That did not mean it was a spontaneous event; clearly it was not. There was, for example, the need to obtain entry to the unit and the agreed facts that Mr Fangaloka said “We’ve got boys downstairs”, made a phone call and “buzzed in an unknown male through the door.”^[19] However, the finding of “limited planning” was not challenged by the Director on the appeal.
33. Criterion (iv) involved an actual threat of violence with a knife and the infliction of harm through two punches to Mr Shah’s face. Mr Kupu also punched Mr Shah in the face a number of times. The physical harm caused was not at a high level, and did not involve the use of the knife; nevertheless, there was significant actual violence.
34. So far as criterion (v) was concerned, Mr Shah was in his home in a secure unit and, in that sense, not “vulnerable”. However, the intrusion into the home was itself a serious aggravating factor, as was the fact that Mr Shah had no means of escaping the threats and intimidation. So much was accepted by the sentencing judge.^[20]
35. Criterion (vi) was applicable. With respect to criterion (vii), the judge made the point that Mr Fangaloka entered a plea of guilty at “the very first opportunity, not a late plea of guilty as referred to in [Henry].”^[21]
36. With respect to his subjective case, the sentencing judge made entirely favourable findings. Mr Fangaloka wrote a letter to the Court expressing remorse; he also gave brief evidence at the sentencing hearing. The judge accepted that he was genuine in his expressions of shame, remorse and empathy for his victims. The judge said that he had “acknowledged the connection between [his] drug and alcohol use and his increased aggression, and on this occasion his offending, and has stopped using both drugs and alcohol.”^[22]
37. The delay between the laying of the charge in December 2016 and the sentencing in April 2019 was lengthy. At least in part it appears to have resulted from Mr Fangaloka’s difficulties in obtaining legal representation. He was on bail during that period and the judge noted that he had “done everything required of him, whilst on bail awaiting his sentence, towards his own rehabilitation and it would appear has done so in large part without any assistance. His prospects of rehabilitation in my view are excellent.”^[23]
38. The judge had sentenced Mr Kupu in August 2017. She noted that parity was a significant issue in relation to Mr Fangaloka.^[24] Mr Kupu was the moving party in the joint criminal enterprise: the judge described the other points of distinction in the following terms:^[25]

“Mr Kupu is about ten years younger than Mr Fangaloka but had a much more serious criminal history, including robbery in company offences and more recent convictions for drug offences. He had received control orders in the Children’s Court for several offences of robbery in company in the past. He was also in custody serving another sentence by the time his sentence for these matters was pronounced. He was subject to bail at the time he committed these offences and thus was on that form of conditional liberty. He thus, to that extent, presented with a less favourable subjective case than this offender. There were positive aspects of his subjective case in terms of his dysfunctional upbringing, but he had a more pervasive drug history than Mr Fangaloka and was yet to prove his rehabilitation in the community.”

39. Although the statement of agreed facts by reference to which Mr Kupu was sentenced included reference to Mr Fangaloka (not named) pointing the knife at Mr Shah and flicking the blade up, and then holding the knife blade about five centimetres from Mr Shah’s neck, Mr Kupu gave evidence before the sentencing judge that he had no knowledge of the knife. The sentencing judgment in dealing with this issue made contradictory statements, but the better reading appears to be that, despite the agreed facts, the judge was not satisfied that he knew there was a knife present at the time of the offending.^[26] The judge stated that it removed one of the factors that might have aggravated the seriousness of Mr Kupu’s offending.
40. Mr Kupu received a sentence of 3 years’ imprisonment with an 18 month non-parole period. As Mr Kupu entered a plea on the earliest occasion, the starting point for that sentence must have been 4 years imprisonment.
41. Were it not for the favourable subjective circumstances of Mr Fangaloka, together with the significant delay in sentencing, it would be difficult to avoid the conclusion that the seriousness of the offending placed him squarely within the terms of the Henry guidelines. That would have warranted a term of fulltime imprisonment of some 4 years, before the discount for the early plea. A two year intensive correction order was manifestly inadequate. Although this was not charged as an armed robbery, robbery in company is treated by the Crimes Act as an equivalent offence.

Discretion to intervene

42. The manifest inadequacy of the sentence, even taking into account the delay between charge and sentence and Mr Fangaloka’s positive steps toward rehabilitation, constitute one factor, though not a determinative one, in favour of intervention on the application of the Director. There is, however, an important issue of principle underlying the adoption by the sentencing judge of an intensive correction order, the resolution of which favours intervention.
43. From 24 September 2018 new provisions were included in the Sentencing Act for making an intensive correction order (ICO). Amendments which commenced on that date provided for such orders in s 7 and Pt 5 of the Act (Pt 5 comprising ss 64-73B). Such orders are to be distinguished from community correction orders which constitute a non-custodial sentence pursuant to s 8 and Pt 7; and from conditional release orders, also a non-custodial sentence, pursuant to s 9 and Pt 8.
44. Being characterised as a form of custodial penalty, the making of an ICO requires the sentencing judge to follow a three stage process in accordance with the principles stated in R v Zamagias^[27] and Douar v The Queen^[28] with respect to periodic detention. The first step is to determine, pursuant to s 5 of the Sentencing Act, that no penalty other than imprisonment is appropriate. The sentencing judge made such a finding in the present case.^[29] The second step, as explained by Johnson J in Douar, is to determine the length of the sentence.^[30] That step was taken by the sentencing judge in determining that an overall term of imprisonment should be 2 years 6 months, comprising a sentence of 2 years for the robbery in company and a further sentence, partly accumulated, of 12 months for the assault occasioning actual bodily harm.^[31]
45. The third, and critical stage for present purposes, was to determine whether the sentence should be served by way of an ICO. The reasoning by which the judge concluded that such an order should be made implicitly treated the amendments to Pt 5 of the Sentencing Act as qualifying the need to have regard to the general purposes of sentencing set out in s 3A; the question is whether the amendments had that effect. That question requires reference to the legislative history, the Second Reading Speech introducing the amendments and the case law.

Part 5 – original procedures

46. The original form of Pt 5 introducing ICOs commenced on 1 October 2010. Its emphasis was restrictive. Then s 66 identified a category of sexual offences for which such orders were not available. Then s 67 also prohibited the making of an ICO unless the court were affirmatively satisfied that, “the offender is a suitable person to serve the sentence by way of intensive correction in the community” and that it was “appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community”. Section 68 imposed a limitation, somewhat inelegantly expressed, on the length of an order, which was not to exceed 2 years.

Part 5 – the 2018 amendments

47. The amendments which took effect on 24 September 2018 reformulated a number of aspects of the scheme. First, they required a purposive approach to the use of such orders, expressed in the following terms in new s 66:

66 Community safety and other considerations
(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.
(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.
(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.

48. The purposes of sentencing set out in s 3A are as follows:

3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.

49. Section 67, identifying offences for which an ICO was not available, was expanded to exclude “murder or manslaughter” (presumably both), prescribed sexual offences, terrorism offences, contraventions of serious crime prevention orders and public safety orders, offences involving the discharge of a firearm, together with attempts and conspiracies with respect to such offences. It is not necessary to identify the list precisely, although it is significant that the list, whilst omitting many serious forms of criminality, is expanded beyond the limited exclusions in the earlier form of Pt 5.
50. The temporal limitation was reformulated as follows:

68 Intensive correction orders not available where imprisonment exceeds limits
(1) An intensive correction order must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years.
(2) An intensive correction order may be made in respect of an aggregate sentence of imprisonment. However, the order must not be made if the duration of the term of the aggregate sentence exceeds 3 years.
(3) Two or more intensive correction orders may be made in respect of each of 2 or more offences. However, the orders must not be made if:
(a) the duration of the term of any individual term of imprisonment exceeds 2 years, and
(b) the duration of the term of imprisonment imposed for all the offences exceeds 3 years.

51. The effect of s 68 is to permit an ICO with respect to multiple offences or an aggregate sentence not exceeding 3 years, so long as, in a case where individual sentences are imposed, no single sentence exceeds 2 years.
52. The sentencing judge approached the application of these provisions in the following manner:^[32]

“In these circumstances s 68(3) of the [Sentencing Act] would permit the Court, where it is otherwise appropriate to do so, to order that the sentences be served other than by way of full-time custody. The only alternative available would be by way of intensive correction order.
Section 66 of the [Sentencing Act] provides that the paramount consideration when deciding whether or not [it] is appropriate in any particular case to order that a sentence be served by way of ICO is community safety. There is no evidence that community safety would be in any way compromised if the sentences for this offender are ordered to be served by way of ICO. ...
... There is nothing either to suggest that serving the sentences full-time is more likely to address his risk of reoffending. In fact, to the contrary, his risk of reoffending is likely to be better addressed if he remains in the community, continuing the rehabilitation that he has been undertaking for the last 28 months.
...
I thus propose to order that the sentences be served by way of [ICOs]. I have taken into account the overall general purposes of sentencing when coming to this decision, but in particular have taken into account that which appears to be a general overriding principle in the recent amendments to the [Sentencing Act], placing considerable importance on supervision in the community where that is not otherwise a risk to community safety.”

53. Although the judge made reference to the overall general purposes of sentencing, which are identified in s 3A of the Sentencing Act, she also treated s 66 as providing a “general overriding principle”. This approach would operate, in the particular circumstances in which ICOs are available, to place addressing the “risk of reoffending” as a higher level objective than those identified in s 3A.

Whether s 3A purposes rendered “subordinate”

54. The concept of “community safety” identified in s 66 undoubtedly covers protection of the community from the offender and the rehabilitation of the offender, referred to in s 3A(c) and (d). The other purposes identified in s 3A are not reflected in the concept of “community safety” identified in s 66(2). Nevertheless, there remains a question as to whether s 66(1) is intended to confer paramountcy on community safety over other considerations which must be taken into account pursuant to s 66(3).
55. The argument in favour of the paramountcy approach gains support from three considerations. First, the Sentencing Act prohibits the imposition of a sentence of imprisonment unless the court is satisfied that no other penalty is appropriate (s 5(1)) and further requires that reasons be given for sentencing an offender to imprisonment for 6 months or less (s 5(2)).
56. Although, in practice, Pt 5 is unlikely to be applied to very short sentences (for 6 months or a lesser period) it does apply only in the case of individual sentences of 2 years or a lesser period. Further, it excludes from the leniency provided by an ICO an extensive range of serious offending.
57. Secondly, the underlying purpose of the new provisions was helpfully explained by the Attorney General in the Second Reading Speech.^[33] The purpose of the amendments appears to have been twofold, namely to avoid (i) the ineffectiveness of community-based corrections without supervision, and (ii) the ineffectiveness of short sentences in reducing recidivism. The Attorney stated, in relation to the new s 66:^[34]

“New section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why new section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.”

58. Thirdly, as the lawyer appearing for Mr Fangaloka at the sentencing noted, this Court has recently addressed the operation of Pt 5 in R v Pullen.^[35] Pullen involved an appeal by the Director of Public Prosecutions against a sentence for dangerous driving occasioning grievous bodily harm and attempting to run from the scene. Mr Pullen was sentenced in the District Court to an aggregate sentence of imprisonment for 15 months to be served by way of ICO. On appeal to this Court, the sentence was quashed and an aggregate period of 3 years was imposed, to be served by way of an ICO. In resentencing, the Court had regard to the appropriateness of an ICO under the new scheme. After explaining the operation of s 66(1) and (2),^[36] and the requirement to refer to the purposes identified in s 3A, pursuant to s 66(3),^[37] the Court stated:

“[86] ... The prioritisation of the consideration of community safety as the ‘paramount consideration’ necessarily means, however, that other considerations, including those enunciated in s 3A of the Act, become subordinate.
[87] This is likely to occur most frequently in the case of a young offender with limited or no criminal history and excellent prospects of rehabilitation. In every case, however, a balance must be struck and appropriate weight must be given to all relevant factors which must be taken into account in arriving at the sentence, by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].
...
[93] I accept that the imposition of an ICO in this case represents some degree of leniency. However, as I intend to impose a number of conditions in addition to the mandatory conditions, I am satisfied that the imposition of an ICO in this case still incorporates a substantial degree of punishment, having regard as well to the significant increase in the length of the ICO. This is particularly so when one has regard to the obligations which are prescribed by the regulations and which attach to those conditions. I accept that the emphasis on general and specific deterrence and denunciation in offences of this kind as well as the guideline in R v Whyte are factors that militate against the imposition of an ICO. However, in this case, these considerations should be considered in light of the paramount consideration of community safety introduced by the new s 66.”

59. In determining that Mr Pullen should be dealt with by way of an ICO, the sentencing judge had stated:^[38]

“In circumstances where the sentence is less than two years, I am required to consider whether it is appropriate that it be served by way of an intensive correction order.”

60. The basis for the stated obligation was not explained in the passage extracted in the judgment of this Court. However, there was no such express obligation under the provisions introduced in 2010, nor is there such an obligation expressed in the current provisions. If there were such an obligation, the Local Court (where the power to impose imprisonment for an individual offence is limited to 2 years) would be required to consider imposing a sentence by way of ICO in every case in which imprisonment was appropriate.
61. I would not construe the relevant provisions in s 7 and Pt 5 of the Sentencing Act as imposing such an obligation. However, the fact that the power to consider imposing an ICO exists invites a further question as to the basis upon which a court should decline to consider imposing an ICO. That must include cases where the court is satisfied, not only that there is no alternative to a sentence of imprisonment, but also that factors not limited to deterrence and rehabilitation of the offender require no lesser sentence than one involving a fulltime custodial term. That may be because of the need for adequate punishment, for general deterrence, for denunciation, or for recognising the harm done to the victim and the community. That being so, it would be strange if those broader considerations were reduced to a subordinate role immediately the court gave consideration to making an ICO. Such a conclusion would achieve a high degree of inflexibility and artificiality in the process of sentencing. There is no indication that the statutory scheme intended such a result.
62. There is also a question as to how the court should assess “community safety” by reference to means of addressing the offender’s risk of reoffending. As the Attorney noted in his Second Reading Speech, short term imprisonment may not be effective at reducing offending, whereas community supervised programs may be more effective. Is the court required to apply a presumption to that effect in sentencing individual offenders? If it is, how will it determine the cases in which the presumption may not apply? Alternatively, if the presumption is not the appropriate course, how will the court determine in a particular case the nature of the punishment which is “more likely to address” his or her risk of reoffending?

Preferred construction of s 66

63. An alternative reading of s 66 is restrictive, rather than facilitative. Thus, the paramount consideration in considering whether to make an ICO is the assessment of whether such an order, or fulltime detention, is more likely to address the offender’s risk of reoffending. That is, unless a favourable opinion is reached in making that assessment, an ICO should not be imposed. At the same time, the other purposes of sentencing must all be considered and given due weight.
64. The first purpose of sentencing, identified in s 3A(a) of the Sentencing Act is “to ensure the offender is adequately punished for the offence.” It is a fundamental principle of long-standing and requires that the sentence be reasonably proportional to the offending.^[39] One would expect a clear statement or necessary implication of legislative intention for the 2018 amendments to alter that fundamental principle. Equally, there is no doubt that a sentencing court must have regard to the personal circumstances of the offender; but they should not divert the court from imposing adequate punishment, having regard to the objective gravity of the offence.^[40]
65. The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender’s risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration.
66. There is no doubt that community safety can operate in different ways in different circumstances. It is conventionally accepted that a purpose of punishment, including by way of imprisonment, is to deter the offender from further offending; it is also accepted that removal of an offender from the community for a period may have a protective function. The purpose of s 66, on this approach, is merely to ensure that the court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity. Consistently with that view, s 66 does not seek to address potentially conflicting demands of community safety in the short term, as opposed to the longer term, and the risk that leniency will be abused. In short, there is nothing in s 66 which favours an ICO over imprisonment by way of fulltime custody. Further, while s 66 expressly referred to s 3A, it did so, not by identifying it as a set of “subordinate” considerations, but as mandatory considerations. It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration.
67. Although the sentencing judge in the present case did not expressly refer to Pullen; she adopted an approach which had the effect of giving little weight to other purposes. No doubt there will be cases in which a person otherwise likely to serve fulltime custody will obtain an ICO, because general deterrence is largely disregarded in favour of a possible reduction in the risk of reoffending by the particular offender, if not sent to gaol. On the other hand, there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of punishment.
68. In the present circumstances, even if a sentence of 2 years imprisonment were appropriate for the robbery in company, the additional element of leniency conferred by an ICO would not be justified, even if the court were satisfied that an ICO was “more likely to address the offender’s risk of reoffending.” That is because, before considering whether to impose an ICO, the judge had already accepted that the respondent was no longer using drugs or alcohol; that his own rehabilitation was underway, so far without any assistance, and that his prospects of rehabilitation were “excellent.”^[41] The judge made a finding that incarceration would have an adverse effect on his family, “but not significant enough to alter what might otherwise be the appropriate sentence.” There was no finding that it would have an adverse effect on his efforts towards rehabilitation in other respects. In other words, in assessing “community safety” there was no evidence to support the view that one form of imprisonment was more likely to reduce the risk of reoffending than another.

Resentencing

69. The statement of relevant principles in relation to the imposition of an ICO pursuant to the scheme introduced in 2018 provides a proper basis for this Court to intervene. The correction of error requires the imposition of a custodial sentence. The remaining question is the period of imprisonment. The material facts have been set out in considering the ground of manifest inadequacy.
70. The sentencing judge determined that an appropriate period of imprisonment was 2 years 6 months. For reasons explained above, it is not easy to see why, in circumstances where Mr Fangaloka wielded the knife in a threatening manner, and Mr Kupu was sentenced on the basis that he did not know of the existence of the knife, any lesser sentence should apply with respect to Mr Fangaloka. Further, Mr Kupu received an unusual degree of leniency in that a 3 year sentence for robbery in company was accompanied by no accumulation for the aggravated assault occasioning actual bodily harm and a non-parole period of 18 months (50% of the sentence period) was imposed.
71. The first error complained of by the Director in the present case is that the sentencing judge misapprehended the circumstances of the assault for which Mr Fangaloka was convicted, namely that on Mr Hoffman, gave inadequate weight to the use of the knife, and understated the objective seriousness of the offending. Those submissions should be accepted.
72. As a starting point, but after the discount for the plea, no lesser penalty than that imposed on Mr Kupu was appropriate in the circumstances. That would involve a sentence of 3 years imprisonment.
73. However, some allowance must be made for the fact that Mr Fangaloka has now served a limited part of his ICO. The degree of intensity of the order is open to doubt. Over a period of 2 years, he was required to perform 250 hours of community service work. He reported at the appropriate office on 11 April 2019 and was told to start community service on 16 May 2019. He missed that day because he was sick. A further two appointments were cancelled. Accordingly, he appears to have undertaken a total of 41 hours over some 15 weeks since the date of sentencing. (By contrast, his participation in the work for the dole scheme requires 30 hours per fortnight for the remainder of this year.)
74. Accepting the work he has undertaken towards his own rehabilitation, and making allowance for the three months of the ICO already served with respect to the robbery in company, in my view the appropriate sentence is an aggregate period of imprisonment equivalent to that proposed by the sentencing judge of 2 years and 6 months (30 months). After allowance for the service of the initial ICO, the individual discounted sentences which would otherwise have been imposed would have been (i) with respect to the robbery in company, imprisonment for a period of 22 months, and (ii) with respect to the assault occasioning actual bodily harm, imprisonment for a period of 16 months.
75. As this will be the first period of fulltime custody he has been required to serve, there should be a finding of special circumstances. To the extent that supervised assistance will benefit his further rehabilitation, that will permit a slightly longer period of release on parole, with the expected level of supervision. A non-parole period of 20 months should be imposed, with a balance of term of 10 months.
76. The sentence will be imposed when he appears before the Court for re-sentencing. The offender will be entitled to release to parole pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) upon completion of his non-parole period, subject to a statutory parole order. He will be entitled to release on a date 20 months after the sentence is imposed.
77. JOHNSON J: I agree with the proposed orders and reasons of Basten JA. As a member of the Court in R v Pullen, I express my complete agreement with Basten JA’s approach to s 66 Crimes (Sentencing Procedure) Act 1999.
78. PRICE J: I agree with Basten JA’s reasons and proposed orders. I am particularly grateful for his Honour’s careful consideration of s 66 Crimes (Sentencing Procedure) Act 1999.

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Amendments

15 August 2019 - Rewording beginning of [56] to now read: "Although, in practice, Pt 5 is unlikely to be applied...."

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^[1] The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
^[2] (1999) 46 NSWLR 346; [1999] NSWCCA 111.
^[3] Sentencing judgment, p 8.
^[4] Sentencing judgment, p 9.
^[5] Tcpt, 02/04/19, p 16.
^[6] Tcpt, p 17.
^[7] Tcpt, p 18.
^[8] Henry at [162].
^[9] Sentencing judgment, p 8.
^[10] See Liao v R [2007] NSWCCA 132 at [12] (McClellan CJ at CL; Hulme and Hoeben JJ agreeing).
^[11] [2019] NSWCCA 45 at [31]- [35].
^[12] Sentencing judgment, p 8.
^[13] Sentencing judgment, p 14.
^[14] (2014) 252 CLR 601; [2014] HCA 37, discussed in Newman (a pseudonym) v R [2019] NSWCCA 157 at [11]- [13].
^[15] Henry at [165].
^[16] (2009) 49 NSWLR 383 at [161]
^[17] Sentencing judgment, p 7.
^[18] Sentencing judgment, p 8.
^[19] Agreed facts, par 8.
^[20] Sentencing judgment, pp 8-9.
^[21] Sentencing judgment, p 8.
^[22] Sentencing judgment, p 11.
^[23] Sentencing judgment, p 11.
^[24] Sentencing judgment, p 12.
^[25] Sentencing judgment, pp 12-13.
^[26] R v Solomon Kupu, sentencing judgment, 7 August 2017, pp 5-6.
^[27] [2002] NSWCCA 17.
^[28] [2005] NSWCCA 455; 159 A Crim R 154.
^[29] Sentencing judgment, p 9.
^[30] Douar at [61].
^[31] Sentencing judgment, p 14.
^[32] Sentencing judgment, pp 14-15.
^[33] Legislative Assembly, Hansard, 11 October 2017, Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017, p 1.
^[34] Hansard, p 2.
^[35] Tcpt, 29/03/19, p 10(20); R v Pullen [2018] NSWCCA 264; 87 MVR 47 at [22].
^[36] Pullen at [84].
^[37] Pullen at [85].
^[38] Pullen at [30].
^[39] See generally, R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554, 556 (Jordan CJ); R v Dodd (1991) 57 A Crim R 349, 354 (Gleeson CJ, Lee CJ at CL and Hunt J).
^[40] R v Carroll; Carroll v The Queen (2010) 77 NSWLR 45; [2010] NSWCCA 55 at [62] (Allsop P and Johnson J; Spigelman CJ, Kirby and Howie JJ agreeing).
^[41] Sentencing judgment, p 11.