SENTENCING — Crown appeal — intensive correction order — federal offence — whether intensive correction order available sentencing option — where federal offence had a “corresponding case” under State law — where corresponding State offence was subject to a disentitling provision — error conceded — concession accepted
SENTENCING — Crown appeal — inadequacy of sentence — manifest inadequacy — where material error resulted in imposition of a sentence not available at law
SENTENCING — Crown appeal — power to remit matter for resentencing — appropriateness of remittal — matter remitted to sentencing court
Quick Take
1Where a Commonwealth child abuse material offence (s 474.22A(1) Criminal Code) is not expressly listed in s 67(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the disentitling provision in s 67(1)(g) nonetheless precludes an intensive correction order if commission of the federal offence necessarily includes the commission of a prescribed sexual offence under s 67(1)(a)–(f), such as s 91H of the Crimes Act 1900 (NSW).
2Under s 20AB(1) of the Crimes Act 1914 (Cth), a State court sentencing a federal offender may only impose an ICO if empowered to do so in corresponding State cases, which requires satisfaction of all disentitling provisions limiting ICO availability — including the catch-all in s 67(1)(g) of the Sentencing Procedure Act.
3Where a Crown appeal establishes that the sentence imposed was not available at law, this may constitute one of the rare cases warranting intervention without a separate finding of manifest inadequacy, and remittal for resentencing under s 12(2) of the Criminal Appeal Act 1912 (NSW) may be appropriate to preserve both parties' appeal rights.
