252 CLR 601
R v Assaad [2009] NSWCCA 182
R v Fangaloka [2019] NSWCCA 173
R v JCE [2000] NSWCCA 498
Source
Original judgment source is linked above.
Catchwords
252 CLR 601
R v Assaad [2009] NSWCCA 182
R v Fangaloka [2019] NSWCCA 173
R v JCE [2000] NSWCCA 498
Judgment (4 paragraphs)
[1]
The applicant's personal circumstances
The applicant was born in April 1979 and was 40 at the time he committed the offences. As indicated above, he operated a legitimate motor mechanic's business. He was himself a drug user, and had been since late adolescence. He had some criminal record, almost exclusively connected with drug possession or drug use. Nothing in his family background explained his resort to drugs, which appears to have been initiated through a former partner and to have continued after the cessation of that relationship. His background is otherwise conventional, his family life happy, and his parents supportive.
The applicant is the father of four children, the eldest of whom (a girl) is now 12 years of age. She is the daughter of a former partner of the applicant, but has no contact with her biological mother who was, and apparently is, a drug user. There are also twin girls, now aged seven, and a son, now aged four. The three youngest children are the children of a later relationship. In 2018 the mother of the three younger children (whom the eldest daughter also regarded as her mother) was diagnosed with a rare form of cancer which subsequently proved (in November 2019) to be inoperable. She died on 27 April 2020, after the applicant's arrest.
A Sentencing Assessment Report was generally favourable. The author of the report recorded the applicant's expressed regret for his offences, and his assertion that his previous associates, with whom he had used drugs, were no longer part of his "social circle". She assessed him as having a "medium low risk of reoffending", and as suitable to undertake light community service work. (This report was made at a time when the applicant was on bail and at large in the community). A Forensic Psychologist, Mr Bradley Jones, who also provided a report, concurred in that assessment.
The author of the Sentencing Assessment Report indicated that, given the assessed medium-low risk of reoffending, any order for supervision would be suspended in accordance with the provisions of the Crimes (Administration of Sentences) Act 1999 (NSW) (Administration of Sentences Act) and the Regulation made thereunder.
In his report, Mr Jones considered the effect on the applicant's children of separation from their mother and their consequent reliance on the applicant.
Mr Jones considered that the impending separation from their father would be very likely to have a negative impact on their emotional functioning, their ability to make strong affectionate bonds, and their ability to understand and manage the various forms of emotional distress to which unwilling separation and loss give rise.
Resentencing of the applicant is to take account of the circumstances that exist at the date of resentencing. That includes (but is not limited to) such evidence as there is of rehabilitation, and the circumstances (to the extent that it is permissible to take those into account) of the applicant's family.
The children are now in the care of the applicant's parents who are 69 and 70 years of age and are finding meeting the needs of the children (in the light of the loss of their mother, and, subsequently, the loss of their father to incarceration) difficult and demanding. Each has provided an affidavit describing the difficulties experienced. (It is, however, well established that hardship to third parties, including family members, may be taken into account for sentencing purposes only in "highly exceptional" circumstances: R v Edwards (1996) 90 A Crim R 510).
Also in evidence for the purposes of resentencing was an affidavit sworn by the applicant who also spoke of the limited contact he is able to have with his children. He has undertaken such courses as are available to him in custody, including one called "Dads that are Distant for Kids" and others of a vocational character. He deposed that, since his incarceration, he has not had any access to illicit drugs, and has no desire to do so. The sentencing judge found that his chances of rehabilitation were "reasonable"; in the light of the further evidence, I consider that his prospects are somewhat better than reasonable.
In the interests, no doubt, of transparency, the Crown provided evidence of the applicant's conduct while in custody. He has had one disciplinary infringement which occurred when he was found to be in possession of a rolled cigarette and a packet of cigarette papers, for which he was penalised by the loss of privileges (buying food). He acknowledged this infringement in his affidavit.
[2]
Resentencing
It was once thought that, in cases of drug trafficking to a substantial degree, a sentence of full-time imprisonment was, other than in exceptional circumstances, mandatory: see Robertson v R [2017] NSWCCA 205. It is now clear that in such cases all sentencing alternatives are available for consideration, although it is equally clear that the circumstances that would justify a non-custodial sentence will be rare: Robertson at [50], Parente v R [2017] NSWCCA 284 at [112]. Examples of cases where a non-custodial option have been taken are EF v R [2015] NSWCCA 36 and Robertson.
On behalf of the applicant it was urged that this Court should resentence by way of an Intensive Correction Order ("ICO"), for which s 7 and Pt 5 (ss 64-73B, stating in detail the procedures relevant to making ICO's) of the Sentencing Procedure Act make provision. That submission directs attention to some well-established procedural requirements in sentencing; it will also be necessary to consider some conflicting views expressed by members of this Court with respect to the statutory provisions.
The starting point in any sentencing exercise is the statutory maximum and any applicable standard non-parole period specified in Pt 4, Div 1A of the Sentencing Procedure Act: see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The process thereafter was clearly and sequentially set out by Howie J in R v Zamagias [2002] NSWCCA 17. The next step is the application of ss 5 and 3A of the Sentencing Procedure Act; s 5 precludes the imposition of a sentence of imprisonment unless, after all possible alternatives have been considered, the court is satisfied that no penalty other than imprisonment is appropriate; s 3A states the purposes for which a court may impose a sentence on an offender.
This is not a case in which it could be said, in the application of s 5, that a penalty other than a term of imprisonment would be appropriate. No contrary submission was advanced.
Over the years, sentencing legislation has provided for a variety of options by which criminal conduct may be punished by non-custodial or partially custodial (for example, periodic detention, provided for by s 6, now repealed, of the Sentencing Procedure Act) alternatives. Non-custodial alternatives have included suspension of sentence (s 12, also now repealed). Currently, they include ICOs (s 7), community correction orders ("CCOs") (s 8) and conditional release orders ("CROs") (s 9). By s 7(1), a court that has sentenced an offender to imprisonment may make an order directing that the sentence (or sentences) be served by way of intensive correction in the community. By subs(2) of s 7 a court that makes an ICO is not to set a non-parole period for the sentence.
Because, as will be seen below, an ICO is a mode by which a sentence of imprisonment may be served, in contra-distinction to CCOs and CROs, it is not one of the alternatives required to be considered in the application of s 5: R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18 at [15], as explained in Zamagias at [25]. Indeed, it would be logically wrong to do so, because s 7 proceeds on the premise that a sentence of imprisonment has been imposed. As it was put by McCallum JA in Wany v DPP [2020] NSWCA 318:
"An ICO is a way of serving a term of imprisonment; it cannot, at the same time, be an alternative to imprisonment" (at [18])."
Once s 5 has been applied, and satisfaction has been reached that no penalty other than imprisonment is appropriate, the next step is determination of the term of the sentence. It is of considerable importance that this be done in the correct sequence because some statutory alternatives (of which an ICO is an example) have been available only where a sentence of imprisonment has been imposed, (in contrast to CCOs and CROs, each of which is stated to be an option available to be imposed "instead of" a sentence of imprisonment). That was also so in the case of suspended sentences under the then s 12, the subject of consideration in Zamagias.
Another development since the decision in Zamagias is the introduction, by s 53A, of aggregate sentencing (inserted into the Sentencing Procedure Act in 2010, with effect from 3 March 2011). By subs (1) of s 53A a court sentencing an offender for more than one offence may, instead of imposing separate sentences for each offence, impose a single aggregate sentence with respect to all, or two or more, of the offences.
[3]
Intensive Correction Orders
The final step in the process is to consider the mode by which the sentence is to be served. Currently, only two options are available - the sentence is to be served by way of full-time custody, or in the community by way of an ICO. Specific provisions apply where an ICO is under consideration or has been made. In circumstances where the court has made or is considering making an ICO, Pt 5 (ss 64 to 71) of the Sentencing Procedure Act applies. By s 66(1), the paramount consideration in such a decision is community safety. By subs (2) of s 66, the 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 re-offending. By subs (3) the court is also required to address the provisions of s 3A (Purposes of sentencing), any relevant common law principles, and any other matters the court considers relevant.
By s 68 an ICO is not available if:
(i) in respect of a single offence, the duration of the term of imprisonment imposed exceeds two years; or
(ii) in respect of an aggregate sentence, the duration of the sentence exceeds three years.
By s 17D(1) the court may not make an ICO unless it has obtained a relevant assessment report (made by a community corrections officer or, in the case of juvenile offenders, a juvenile justice officer under Pt 2). By subs (1A) of s 17D the court is not required to obtain an assessment report if it is satisfied that there is already sufficient material before it to justify the making of an ICO. By s 69 the court is to have regard to the contents of any assessment report obtained in relation to the offender, but, subject to s 73A, is not bound by any such report.
By s 70, unless sooner revoked, the term of an ICO is the same as the term or terms of imprisonment in respect of which it is made. By s 71(1), an ICO commences on the date on which it is made. These two provisions present problems to which it will be necessary return.
By s 72 an ICO is subject to:
(i) standard conditions imposed under s 73;
(ii) any additional conditions imposed under s 73A;
(iii) any further conditions imposed by the sentencing court under s 73B;
(iv) any conditions imposed by the Parole Authority under s 81A or 164 of the Administration of Sentences Act.
Section 73 states the standard conditions which a court is required to impose as:
(i) a condition that the offender must not commit any offence;
(ii) a condition that the offender must submit to supervision by a community corrections officer.
Section 73A(1) requires the sentencing court, other than in exceptional circumstances, to impose at least one of eight additional conditions specified in subs (2); s 73B permits the sentencing court to impose further conditions provided they are not inconsistent with any of the standard conditions or additional conditions. Subsection (3) permits the sentencing court to limit the period during which a further condition is in force.
Having regard to the approach taken in Zamagias, (which has repeatedly been endorsed in this Court and applied to the various sentencing options that have been enacted over the years: (see, for example, Douar v R [2005] NSWCCA 455; R v Assaad [2009] NSWCCA 182; Wany v DPP), it would be wrong to start with an intention to make an ICO and then to select the sentence in order to bring it within s 68 and activate s 7. A principled approach requires that the term of the sentence be first determined. If, and only if, that sentence (if an aggregate one) does not exceed 3 years (ie, is 3 years or less) or 2 years (for a single offence) consideration may be given to ordering that it be served by way of an ICO.
It being uncontroversial in this case that no penalty other than a term of imprisonment is appropriate, the first question for present determination is the term of the sentence. On the authority of Zamagias, Douar, Assaad and the cases that have followed them, that has to be done before, and without regard to, the manner in which the sentence is to be served. It would be contrary to those decisions to select the term of the sentence by reference to, and for the purpose of utilising, the alternative means, provided by s 7, by which the sentence may be served. In part, the term of the sentence will depend upon whether separate sentences for the two offences are, or, under s 53A, an aggregate sentence encompassing both offences is, to be imposed, in which case it might be thought that the aggregate sentence would exceed that which would be imposed in relation to each of the individual offences (although, on the approach taken by the sentencing judge in this case, making the second sentence wholly concurrent with the first, no additional penalty was in fact imposed).
I see no reason not to take the course made available by s 53A. I would impose an aggregate sentence for the two offences. The term of that sentence is then to be determined on conventional sentencing principles, taking into account the statutory maximum of 20 years, the objective criminality disclosed and the matters personal to the applicant in mitigation, including those that were before the sentencing judge, and also the additional evidentiary material before this Court. Those matters are of considerable weight. I refer, specifically, to:
the evidence of the applicant's progress towards rehabilitation;
the evidence of parental support the applicant can anticipate after sentencing;
the evidence concerning the welfare of the applicant's children;
the evidence concerning the burden placed on the applicant's parents in caring for his children.
I accept that the third and fourth of these circumstances raise questions as to the applicability of the principles stated in Edwards, referred to above at [17].
The sentencing judge considered that a reduction of 25% in sentence attributable to the applicant's early pleas of guilty was appropriate; there is no reason to depart from that assessment.
I would take as a starting point an aggregate sentence of imprisonment for 3 years. Applying a reduction of 25% in recognition of the early pleas of guilty yields a sentence of 2 years and 3 months. Applying the statutory proportion to the non-parole period (Sentencing Procedure Act, s 44(2)) would give a non-parole period of a little over 20 months. However, by subs 7(2), if an ICO is made, no non-parole period is to be set. This is, accordingly, the point at which consideration must be given to an ICO.
I mentioned earlier (at [21]) that a division of opinion has emerged in this Court with respect to the construction of some provisions of Pt 5 of the Sentencing Procedure Act. Although this decision will not resolve that conflict, it is necessary to recognise the competing positions and elect to adhere to one or the other.
The conflict primarily concerns the construction of s 66 and its interaction with s 3A, each of which I set out in full below:
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.
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.
Although, since 2010, s 7 of the Sentencing Procedure Act has made provision for sentences to be served by way of intensive correction in the community, a new regime was introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), which took effect from 24 September 2018. That regime is to be found in Pt 5, the principal provisions of which have been outlined above. Section 66 in its current form replaced the previous s 66. The effect of the amendment was set out by Harrison J (with whom Johnson and Schmidt JJ agreed) in R v Pullen [2018] NSWCCA 264. Harrison J quoted from the Second Reading speech delivered by the Attorney-General when the bill was put before the Parliament. The Attorney-General said:
"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 2 years is commonly not effective at bringing about medium-to long-term behaviour change that reduces offending. 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 a sentence by way full-time detention is more likely to address the offender's risk of offending.": NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 2 (emphasis added by Harrison J).
[4]
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Decision last updated: 14 May 2021
The sentence proceedings took place on 6 August 2020; the sentencing judge reserved overnight and passed sentence the following day, 7 August. He opened his sentencing remarks by observing, correctly, that the maximum penalty for the offence against s 25A(1) of the DMT Act was imprisonment for 20 years and that no standard non-parole period was applicable. However, at a later stage in his sentencing remarks, he said:
"I take note that the maximum penalty is 20 years imprisonment and there is a standard non-parole period of 5 years. I have given thought to these figures as guideposts in the sentencing exercise and also as matters which indicate the seriousness with which the Parliament and the community regard such offences as these."
It is this that gives rise to the sole ground of the proposed appeal. As indicated above, the Crown has (properly in my view) conceded that appellable error of law has been established and that this Court should therefore exercise the sentencing discretion afresh. That is an inevitable outcome of the application of the principles stated by the High Court in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.
That being so, it is unnecessary further to consider the sentencing remarks made by the sentencing judge, except to note that relevant findings (as, for example, to the assessment of objective seriousness of the offending, matters personal to the applicant, his prospects of rehabilitation, and the availability of non-custodial sentencing options) have not been challenged by either party.
Nor is it necessary to make any assessment of the effect the error had, or may have had, on the sentence ultimately imposed. The appropriate course is to proceed on a fresh and independent assessment of all relevant sentencing considerations. The sentences imposed at first instance are not a factor in that assessment: Turnbull v R [2019] NSWCCA 97 at [44]-[46]; RO v R [2019] NSWCCA 183 at [89].
Harrison J then said:
"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 …
…
89 The result of these amendments is that in cases where an offender's prospects of rehabilitation are high and where their risk of reoffending will be better managed in the community, an ICO may be available, even if it may not have been under the old scheme. The new scheme makes community safety the paramount consideration. In some cases, this will be best achieved through incarceration. That will no doubt be the case where a person presents a serious risk to the community. In other cases, however, community protection may be best served by ensuring that an offender avoids goal. As the Second Reading Speech makes plain, evidence shows that supervision within the community is more effective at facilitating medium and long term behavioural change, particularly when it is combined with stable employment and treatment programs."
In R v Fangaloka [2019] NSWCCA 173 Basten JA took a different view. His Honour said:
"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)."
His Honour went on to say:
"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 full-time 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 purpose of sentencing must all be considered and given due weight.
…
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 full time 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 full-time 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 offending as a subordinate consideration." (italics added)
In concurring with the orders proposed by Basten JA and his reasons, both Johnson J (who noted that he had been a member of the court in Pullen) and Price J expressly endorsed Basten JA's approach to s 66.
The judgment in Fangaloka was delivered on 2 August 2019. On 29 August 2019 a differently constituted bench of the court was also called upon to consider and apply the relevant provisions of the Sentencing Procedure Act: Casella v R [2019] NSWCCA 201. Referring to that part of [63] of Fangaloka that is emphasised in the above extract, Beech-Jones J said:
"108 Read literally, the emphasised statement that appears to extract from s 66 a prohibition on the imposition of an ICO unless the Court positively concluded that an ICO is more likely to address the offender's risk of reoffending as opposed to serving a sentence of full time custody. If that is what was meant then it appears to travel well beyond s 66. Nothing in s 66 purports to operate as a prohibition to that effect. On its face, s 66(2) only requires an assessment of 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. It does not appear to necessarily preclude the imposition of an ICO if, say, the outcome of the assessment is neutral because the offender has good prospects of rehabilitation and does not represent a danger to the community, irrespective of whether he or she is incarcerated or subject to an ICO. The imposition of an ICO in such a case would still be consistent with community safety. If this is truly the effect of Fangaloka, then I have significant doubts about whether it is correct. However, this matter was not the subject of argument and its correctness need not be resolved to determine this appeal."
Both the Chief Justice and N Adams J stated their agreement with Beech-Jones J. In Wany McCallum JA (with whom I agreed) stated her preference for that approach.
For my part I also prefer the approach taken by Beech-Jones J. Since it is necessary, in this case, to make a somewhat invidious choice between the guidance given by two powerfully reasoned and supported decisions of this Court, I will adopt the approach taken by Beech-Jones J. In other words, I do not accept that the determinative consideration in the decision whether to make an ICO is which of the two modes of serving the sentence is more likely to address the offender's risk of reoffending, and that, unless a favourable opinion in that respect is reached, an ICO is excluded. I do not accept that, unless the balance of those two considerations falls in favour of an ICO, an ICO should not be imposed. I do not see any reason why subs (2) of s 66 should be elevated to dominate or override the more general consideration required by subs (1).
Like Harrison J, I consider that s 66(1) subordinates (but does not exclude) other considerations to community safety. That is the inescapable consequence of declaring community safety to be "the paramount consideration". It is important to note, however, that is so only at the point when consideration is being given to whether to make an ICO. Thus, rehabilitation
(s 3A (d)) will give way to community safety where appropriate; in an appropriate case, accountability and denunciation may be given less weight than they otherwise would. In this respect, it is not to be overlooked that the s 3A purposes have already been taken into account in the selection of the term of the sentence. By s 66(3), they are again to be taken into account in relation to the specific question whether the sentence is to be served by way of ICO. It is only in this context that they may be said to be "subordinate". That does not diminish their importance at the earlier point of the sentencing determination. This is what I think Harrison J had in mind in [86] of Pullen.
Primacy must be given to the clear language of s 66(1) which, in terms, places community safety as the paramount consideration. Which of the two modes of serving the sentence is more likely to address the offender's risk of reoffending is one of the factors relevant to the assessment of community safety, which, as Harrison J observed in Pullen, may best be served, in different cases, in different ways. The better way of addressing an offender's risk of reoffending is but one of the considerations that contribute to the s 66(1) assessment.
Since I have, as stated above, concluded that an aggregate sentence of 2 years and 3 months is appropriate, s 68(2) does not preclude making an ICO. The evidence does not persuade me that the applicant's risk of reoffending would be more likely to be addressed by his continued full-time detention; true it is that he has made progress towards rehabilitation while in custody, but that does not mean that further detention would further advance his rehabilitation. If anything, I lean to the view that, the applicant having served 8 months in custody, the subs (2) balancing exercise favours the making of an ICO.
It is, nevertheless, necessary to consider the other purposes of sentencing stated in s 3A. I acknowledge that ensuring adequate punishment (par (a)) accountability (par (e)), denunciation (par (f)), and recognition of the harm done to the community (and, no doubt, those to whom the applicant supplied drugs) (par (g)) are important purposes to which weight must be given and which point towards a sentence to be served by way of full-time detention. In the light of the consensus that the applicant poses a medium to low risk of reoffending, I see no contribution to the prevention of crime (par (b)), or protection of the community from him (par (c)), by a sentence of full-time detention.
In my opinion the intention behind s 66(1) was that if community safety were endangered by allowing an offender to serve his sentence in the community, that consideration would override any and all others that would have supported the making of an ICO. Otherwise, community safety remains the "paramount consideration". One factor which must be taken into account in the consideration of community safety is the likelihood of reoffending by the offender, and which of an ICO and full-time detention would be more likely to address that risk. The latter is the specific purpose of s 66(2).
I have concluded, on balance, that this is an appropriate case for making an ICO. That gives rise to significant other difficulties to which I have alluded above (see [31]). In part, these difficulties arise from the circumstance that the applicant has already served 8 months of the sentence imposed. Both s 24(a) and s 47(3) oblige a sentencing court (including this Court when resentencing) to take into account any period of pre-sentence custody served by the offender. Ordinarily, this is done by backdating the sentence to the date on which the offender is taken into custody, or, in the case of resentencing after a successful appeal, the date on which the original sentence was fixed to commence. However, ss 70 and 71 would preclude the making of an ICO in any such case.
As mentioned above, by s 71(1) an ICO commences on the date on which it is made. By s 70 (unless it is earlier revoked) the term of an ICO is the same as the term or terms of the imprisonment in respect of which the order is made. I find it impossible to see how ss 70 and 71 admit of the making of an ICO where a sentence is fixed to commence at an earlier time than the date on which it is imposed. That means that an offender who has served a substantial period in pre-sentence custody may be forced to choose between seeking an ICO and having the sentence backdated. That would be an injustice. The position is even more invidious where this Court resentences after a successful appeal (whether the appeal is as to severity by the offender, or as to inadequacy by the Crown). It would be virtually impossible for this Court to take into account pre-sentence custody in the usual way (by backdating) and making an ICO.
This is not an issue limited to the relatively rare case where this court resentences after a successful appeal. Sentencing offenders who have served a period of pre-sentence custody is a daily occurrence in the District Court.
It would be unjust (and contrary to ss 24 and 47) to impose a sentence that did not take account of pre-sentence custody. It would be equally unjust to deprive an offender of the opportunity to serve the sentence in the community by way of intensive correction because such an order is not possible when the commencement of the sentence is backdated to take account of pre-sentence custody.
From time to time established procedures have to be moderated in order to meet changing circumstances. The process laid down in Zamagias and repeatedly endorsed was and remains appropriate for the circumstances to which it applies. When Howie J wrote his judgment in Zamagias, there was no provision for an offender to serve a sentence by way of intensive correction in the community. An offender who had served time in custody prior to sentencing was entitled to have that time recognised without sacrificing other options that might be available.
The provision for ICOs, as explained by the Attorney General in the Second Reading Speech, was designed not only to benefit offenders, but also the community by the rehabilitation of offenders and thereby the prevention of crime. That provision should not be rendered inoperable by ss 70 and 71.
There is, in my opinion, a solution to this problem. It involves a degree of departure from the Zamagias three-step process. Provided that the appropriate term of the sentence is determined before consideration is given to an ICO, it would, if an ICO is found to be appropriate, be acceptable for that term to be adjusted by the deduction of a period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it is made (in compliance with s 71) and is co-extensive with the term of imprisonment (as required by s 70). The sentence actually recorded and imposed would be less (by the length of the pre-sentence custody) than the sentence found to be appropriate to meet the purpose of sentencing.
I acknowledge (as was pointed out on behalf of the Crown) that taking this course has the potential to distort sentencing statistics maintained by the Judicial Commission of New South Wales, which have proved a useful resource for sentencing judges and for this court. That is an inevitable consequence of ss 70 and 71. It is the legislation that has caused the problem, wholly unanticipated as I am confident that it was. Should the process I have suggested become a problem, the remedy lies in the hands of the legislature.
It is also possible that this process might open more sentences to being served by ICOs. For example, a 4 year aggregate sentence, reduced to 3 by reason of 12 months presentence custody, would not be precluded by s 68(2) from being served by way of ICO. Whether that would be a legitimate exercise of the sentencing discretion does not arise in this case and therefore need not (and cannot) be decided.
In any event, in this case, I propose to adopt the process I have suggested. I have already determined that the two offences should be dealt with by way of an aggregate sentence. I have already determined that the sentence should be 2 years and 3 months and that it is appropriate that it be served in the community by way of an ICO. I am satisfied, having regard to the contents of the Sentencing Assessment Report (see [13] above) and the report of Mr Jones that, for the purposes of s 17D(1A), the court is in possession of sufficient information to justify the making of an ICO without obtaining a further assessment report. In recognition of the period the applicant has served in custody I would deduct 8 months from that term, giving a sentence of 19 months. I propose the following orders:
1. Leave to appeal granted;
2. appeal allowed; sentences imposed in the District Court on 7 August 2020 set aside;
3. in lieu thereof the applicant be sentenced to an aggregate term of imprisonment for 19 months, commencing on 14 May 2021;
4. pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), (Sentencing Procedure Act) the sentence be served by way of intensive correction in the community.
5. the standard conditions prescribed by s 73 of the Sentencing Procedure Act apply, that is:
1. the applicant must not commit any offence;
2. the applicant must submit to supervision by a community corrections officer;
3. (6) The following additional conditions apply:
4. the applicant must abstain from the consumption of any drug other than prescribed by a medical practitioner or authorised nurse practitioner;
5. the applicant must not associate with Natasha Johnson, Felicity Anscombe, Kristy Woods, Jed Leighton or any other person from whom he received, or to whom he supplied, drugs.
Note that:
The applicant is entitled to immediate release, subject to whatever procedures are required for the implementation of the above orders.
GARLING J: I agree with Simpson AJA.
N ADAMS J: I have had the considerable advantage of reading the judgment of Simpson AJA in draft. I agree with her Honour for the reasons she has provided. The process laid down by Howie J in R v Zamagias [2002] NSWCCA 17 is still the proper approach to take when imposing an ICO in cases where there has been no pre-sentence custody. It is only in cases where the statutory requirement in ss 24(2) and 47(2) of the Sentencing Procedure Act cannot be otherwise met because of ss 70 and 71 of the Sentencing Procedure Act that the alternative approach proposed by Simpson AJA at [61] is to be taken.
As for her Honour's observation at [63], it seems to me that it would be a rare case in which an ICO could be considered appropriate for an aggregate sentence the starting point of which exceeds three years (before the pre-sentence custody has been taken into account). The fact that s 68(3)(b) sets an upper limit of three years for an aggregate sentences before an ICO is available is consistent with a legislative intention that any aggregate sentence that exceeds three years would be inconsistent with s 68 and reflect criminality too serious for an ICO As her Honour has noted at [63] imposing an ICO in such circumstances may not be a legitimate exercise of the sentencing discretion. Despite this, and as her Honour has also noted, the question does not arise in this case and therefore does not need to be decided.