Regulatory & Environment Insights

Community safety: considerations when imposing an ICO

(Stanley v Director of Public Prosecutions (NSW) & Anor [2023] HCA 3)

Key points

• Community safety must be the 'paramount consideration' when determining whether a sentence of imprisonment should be served by full-time custody or an intensive correction order (ICO).
• A failure to consider this 'paramount consideration', by reference to the assessment in s. 66(2) of the Crimes (Sentencing Procedure) Act 1999, may amount to jurisdictional error.
• The decision to make an ICO must be a separate and subsequent exercise after the sentence of imprisonment is imposed.

Background of judgment

Emma-Jane Stanley (the appellant) pleaded guilty in the Local Court NSW to offences under the Firearms Act 1996 (NSW). She was sentenced to a term of full-time imprisonment of three years, with a non-parole period of two years. On appeal to the District Court NSW against the severity of the sentence, Ms Stanley argued that she should be sentenced to a term of imprisonment directed to be served by way of an ICO in the community.

Sentences of full-time custody and an ICO are both forms of 'imprisonment'. However, an ICO allows the offender to serve the term of imprisonment by way of intensive correction in the community rather than full-time detention.  Section 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) provides that when a sentencing court is deciding whether to make an ICO, community safety must be the 'paramount consideration.' When considering community safety, s. 66(2) of the CSPA provides that the sentencing court is to assess whether making the ICO or serving the sentence by way of full-time custody is more likely to address the offender’s risk of reoffending.

The District Court dismissed the appeal and confirmed the Local Court’s original sentence, without making express reference to, or findings in relation to, s. 66 of the CSPA. The appellant had no appeal rights from the District Court’s decision and sought judicial review in the Court of Appeal on two grounds; that the failure of the Judge of the District Court to make any express reference to, or findings in relation to, the assessment required in s. 66(2) of the CSPA was a jurisdictional error of law, and that the Judge failed to make that assessment.

The Court of Appeal dismissed the summons for judicial review and found that while the District Court had not properly considered s. 66, the failure to do so did not constitute a jurisdictional error. The appellant then sought and was granted special leave to appeal the Court of Appeal’s decision to the High Court who, by majority, allowed the appeal.

Reasoning of the Court

The High Court of Australia was split 4:3 on the question of whether a failure to consider s. 66(2) of the CSPA would amount to a jurisdictional error. The majority considered that s. 66 is a condition on the sentencing court’s jurisdiction. Accordingly, the District Court’s failure to consider s. 66(2) when sentencing the appellant meant that the sentencing decision was affected by jurisdictional error. The District Court therefore failed to perform its duty and did not determine the appellant’s appeal according to law. The High Court set aside the order of the District Court dismissing the appellant’s appeal and ordered the Court to determine her appeal according to law.

The majority outlined three steps that sentencing courts in NSW must take prior to the imposition of a sentence of full-time imprisonment (in order):

1. Determine that no penalty other than imprisonment is appropriate under s. 5(1)
2. Determine the appropriate term of the imprisonment sentence
3. Determine whether the sentence of imprisonment can appropriately be served by way of intensive correction in the community under s. 7 (a discretionary power), including by reference to the mandatory considerations in s. 66 (see the majority at [59];[72]).

The decision to make an ICO therefore must be a subsequent and separate decision, made after a sentence of imprisonment is imposed (see the majority at [82]). The assessment in s. 66(2) is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO.

Implications for Prosecutors

Where the threshold in s. 5(1) of the CSPA is crossed, prosecutors should assist the court by ensuring that separate and subsequent consideration is given to the appropriateness of an ICO. In particular, prosecutors should take steps to ensure that public safety is the 'paramount' consideration of the court, and that the court undertakes the assessment required by s. 66(2). A court’s failure to do so may result in jurisdictional error.

The question of when jurisdictional error will arise in criminal proceedings, and the procedure that led to the appeal, will be further explored in the next issue of Regulatory & Environment Insights.

Contact

Claudia Pendlebury, Director

Email: claudia.pendlebury@cso.nsw.gov.au
Ph: 02 9474 9406>

Ryan Graham, Senior Solicitor

Email: ryan.graham@cso.nsw.gov.au
Ph: 02 9474 9099

Alexandra Haggerty, Paralegal

Email: alexandra.haggerty@cso.nsw.gov.au
Ph: 02 9474 9519

The CSO's Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.