Quinn v Commonwealth Director of Public Prosecutions - [2021] NSWCA 294 - NSWCA 2021 case summary — Zoe

NSWNSWCA

Quinn v Commonwealth Director of Public Prosecutions

[2021] NSWCA 294

Court of Appeal (NSW)|2021-10-06|Before: Leeming JA, Johnson J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2021-10-06

Before

Leeming JA, Johnson J

Catchwords

[2014] NSWCA 409 Achurch v The Queen (2014) 253 CLR 141
(2003) 77 ALJR 1088 Elphick v R [2021] NSWCCA 167 FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45
[2018] HCA 34 Hughes v R [2021] NSWCCA 238 Jago v District Court of New South Wales (1989) 168 CLR 23
[1989] HCA 46 JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320

Source

Original judgment source is linked above.

Catchwords

[2014] NSWCA 409 Achurch v The Queen (2014) 253 CLR 141(2003) 77 ALJR 1088 Elphick v R [2021] NSWCCA 167 FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45[2018] HCA 34 Hughes v R [2021] NSWCCA 238 Jago v District Court of New South Wales (1989) 168 CLR 23[1989] HCA 46 JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320[2014] NSWCA 228 Johnston v R [2017] NSWCCA 53 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2010] HCA 1 Lazarus v Independent Commission Against Corruption [2019] NSWCA 100343 FLR 260 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36[2017] NSWCA 37 Mandranis v R [2021] NSWCCA 97 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1[2016] FCAFC 11 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99[2013] FCA 317 Mourtada v R [2021] NSWCCA 211 Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Judgment (32 paragraphs)

[1]

c Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228 Johnston v R [2017] NSWCCA 53 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; 343 FLR 260 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 Mandranis v R [2021] NSWCCA 97 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Mourtada v R [2021] NSWCCA 211 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 R v Elphick [2021] NSWDC 1 R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 R v Hull University Visitor; ex parte Page [1993] AC 682 R v Pullen [2018] NSWCCA 264; 275 A Crim R 509 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Yaman v R [2020] NSWCCA 239 Texts Cited: L Burton Crawford and J Boughey, "The Centrality of Jurisdictional Error: Rationale and Consequences" (2019) 30 Public Law Review 18 HLA Hart, Essays on Bentham: Jurisprudence and Political Theory (Clarendon Press, Oxford, 1982) M Kopcke, A Short History of Legal Validity and Invalidity (Intersentia, 2019) J Spigelman, "The centrality of jurisdictional error" (2010) 21 Public Law Review 77 S Swaminathan, (2021) 80 Cambridge Law Journal 203 Category: Principal judgment Parties: Glenn Patrick Quinn (Applicant) Commonwealth Director of Public Prosecutions (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: J Agius SC; B Searson (Applicant) R Rodger (First Respondent)

[2]

Solicitors: Bell Lawyers (Applicant) Commonwealth Director of Public Prosecutions (First Respondent) New South Wales Crown Solicitor's Office (Second Respondent submitting) File Number(s): 2021/00237261 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 02 July 2021 Before: O'Brien AM DCJ File Number(s): 2020/00148213

[3]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] From October 2019 to May 2020 Mr Glenn Patrick Quinn sent over 10,000 text messages to his estranged wife, from whom he had separated in May 2019. The messages (which were not all reproduced in evidence) were abusive and threatening, and appeared directed toward undermining the victim's relationship with their children, financial security and reputation. Mr Quinn effected extensive damage to the marital home that he and the victim were selling. He encouraged the children, when they visited, to participate in the damage and sent photographs to the victim, referring to the impact the damage would have on the value of the house. He threatened to show others intimate images that the victim had sent him during their marriage, including by putting them up in the home while it was being sold. On 22 June 2021, Mr Quinn was sentenced in the Local Court after pleading guilty to three offences. One was using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Commonwealth Criminal Code. The other two were domestic violence offences contrary to ss 195(1)(a) and 91R(2) of the Crimes Act 1900 (NSW) in respect of the property damage and threats to distribute intimate images without consent. Other offences were taken into account on sentencing. Sentences of imprisonment of 12 months in respect of the federal offence and 32 months in respect of the State offences were imposed, to be served partially concurrently. Mr Quinn appealed against his sentence to the District Court, contending that it was excessive and should be served by way of intensive correction order pursuant to Pt 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 66(1) and (2) of that Act provided: (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. The District Court confirmed the sentence for the federal offence but reduced the sentence for the State offences, resulting in a total effective sentence of 30 months imprisonment with an 18 month non-parole period. The District Court declined to order that the sentence be served by way of intensive correction order. Mr Quinn filed a summons in the New South Wales Court of Appeal seeking judicial review of the District Court's decision. Section 176 of the District Court Act 1973 (NSW) limits review to jurisdictional error. Mr Quinn's grounds were based on failure to consider and have regard to community safety in accordance with s 66. It emerged prior to the hearing that there had been an error in the agreed statement of facts before the Local and District Courts. The error was that Mr Quinn had sent 24,459 text messages over 158 days, when in fact he sent 11,204. This error became the subject of grounds 4-5. The principal issues before the Court were whether: (i) in deciding whether to impose an intensive correction order, the District Court fell into jurisdictional error by: (a) failing to take into account community safety as the paramount consideration, as required by s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (ground 1); or (b) failing to consider whether making an intensive correction order was more likely to address the offender's risk of reoffending, as required by s 66(2) (grounds 2-3). (ii) the imposition of sentence based on the wrong number of text messages caused the decision to be vitiated by jurisdictional error (grounds 4-5). The Court held, dismissing the summons: As to issue (i), per Leeming JA, Johnson J agreeing:

[5]

Judgment

LEEMING JA: Mr Glenn Patrick Quinn asks this Court to set aside orders made by the District Court of New South Wales which allowed his appeal against the sentence imposed upon him by the Local Court following his pleas of guilty to three offences. He perceives that the sentence of full-time imprisonment imposed on appeal, while more lenient than that imposed by the Local Court, is nonetheless too severe. He says that the appropriate sentence is an intensive correction order.
Mr Quinn's claim, necessarily, is that the District Court's decision is vitiated by "jurisdictional error". That is because no second appeal lies from the District Court to this Court (or to the Court of Criminal Appeal). It is also because s 176 of the District Court Act 1973 (NSW), which provides that "No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court", removes this Court's jurisdiction to review decisions affected by error of law on the face of the record. Mr Quinn is therefore forced to rely on the constitutionally entrenched jurisdiction of the Supreme Court to review for jurisdictional error.
These reasons take the following form: Jurisdictional error The grounds of jurisdictional error upon which Mr Quinn relied Sentences imposed by the courts below The agreed statement of facts Use carriage service to menace, harass or offend Threaten to distribute intimate image - domestic violence related Destroy or damage property - domestic violence related Record of interview The hearing of the appeal to the District Court The decision of the District Court Applicable legislation The appeal from the Local Court to the District Court Provisions applicable to intensive correction orders Grounds 1-3 - jurisdictional error based on s 66 Is s 66 the starting point? Wany v Director of Public Prosecutions The consequences of s 66(2) being a condition of jurisdiction The reasoning in [67]-[68] of Wany Insofar as Wany holds that a breach of s 66(2) is jurisdictional error, it is wrong The parties' submissions in Wany Is compliance with s 66(1) and (2) a condition of jurisdiction? Grounds 4 and 5 The way the error in the number of text messages on the agreed facts came about Ground 5 - procedural fairness Ground 4 - fraud, absence of good faith and constructive failure to exercise jurisdiction Orders

[6]

Jurisdictional error

Jurisdictional error has assumed much greater prominence following Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1. Indeed, the term has been described, rightly, as "the central concept in Australian administrative law": L Burton Crawford and J Boughey, "The Centrality of Jurisdictional Error: Rationale and Consequences" (2019) 30 Public Law Review 18 at 23, echoing J Spigelman, "The centrality of jurisdictional error" (2010) 21 Public Law Review 77. However, determining what amounts to "jurisdictional error" has proven somewhat elusive. In part that is because the term has a lot of work to do. Jurisdictional error identifies a class of decisions made in the exercise of executive or judicial power in respect of which, as a matter of a constitutional limitation on Commonwealth and State legislative power, neither the Commonwealth nor the State Parliaments can remove the supervisory jurisdictions of the High Court or the State Supreme Courts: Plaintiff S157/2002 at [98]; Kirk at [100]. Jurisdictional error is thus a concept which is unique in the Australian legal system, simultaneously linking all three aspects of the tripartite division of government power at both Commonwealth and State levels.
The focus at all times is jurisdictional. Jurisdiction in this sense is best understood as the body's authority to decide. Jurisdictional error turns on the limits of the authority that has been conferred on the body. In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24], Kiefel CJ, Gageler and Keane JJ gave this description: "Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction."
Useful guidance may also be found in the joint judgment of Basten, Ward and McCallum JJA in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]: "Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case."

[7]

The grounds of jurisdictional error upon which Mr Quinn relied

Mr Quinn's summons was filed on 19 August 2021. It contained three grounds. The first was that in failing to take into account community safety as the paramount consideration, as required by s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court fell into jurisdictional error. The second was that in failing to consider whether making an intensive correction order was more likely to address the offender's risk of reoffending, as required by s 66(2) of that statute, the Court fell into jurisdictional error. The third was in circumstances where a cogent argument for an intensive correction order was raised, the Judge failed to discharge his duty to assess whether making an intensive correction order or serving the sentence by way of full-time detention was more likely to address the offender's risk of reoffending, and so fell into jurisdictional error. All three grounds overlap and in particular it is hard to discern any material distinction between the second and the third. All three were treated collectively in the parties' submissions.
All three grounds are based upon the submission that the District Court failed to comply with its obligations under s 66 of the Crimes (Sentencing Procedure) Act, which requires when deciding to make an intensive correction order that community safety be the "paramount consideration", and in particular requires the Court to assess whether such an order would be more likely than a sentence served by way of full time imprisonment to address the offender's risk of offending.
In addition to his initial three grounds, Mr Quinn was permitted (without opposition) to amend his summons at the hearing, so as to raise two new grounds, which had only emerged in the days prior, following the Crown alerting the applicant to an error. The error was that the sentencing hearing in the District Court was conducted on the basis that, in relation to the federal offence, Mr Quinn had sent some 24,459 text messages over a period of 158 days. Although that number was on the statement of agreed facts signed by him, the number was wrong. The correct number was 11,204. Grounds 4 and 5 maintain that the imposition of sentence based on the wrong number of text messages caused the decision to be vitiated by jurisdictional error. These latter grounds require regard to be had to the underlying facts, as well as to the reasons of the District Court.

[8]

Sentences imposed by the courts below

Mr Quinn pleaded guilty to the following three offences: 1. The first was that of using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth), which carried a maximum penalty of three years imprisonment. 2. The second was intentionally or recklessly destroying or damaging property - domestic violence related, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW), which carried a maximum penalty of five years imprisonment. However, because the Crown had elected to proceed summarily in the Local Court, the maximum penalty was two years. 3. The third was threatening to distribute an intimate image without consent - domestic violence related, contrary to s 91R(2) of the Crimes Act 1900 (NSW), which carried a maximum penalty of three years imprisonment, subject as above to the jurisdictional limit of the Local Court.
Other offences were taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) and pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). They will be described below.
The Local Court imposed sentence on 22 June 2021. It imposed a fixed term of imprisonment for the federal offence of 12 months commencing that day. It also imposed an aggregate sentence of 32 months imprisonment with a non-parole period of 18 months, commencing 6 months later on 22 December 2021. There was thus a substantial measure of concurrency between the sentences imposed for the federal and state offending. The total effective sentence was 38 months, with the earliest date on which Mr Quinn was entitled to apply for parole occurring two years after sentence was imposed.
Mr Quinn filed an appeal against sentence pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) on the same day. His appeal was heard by the District Court, with commendable speed, on Friday 2 July 2021, less than a fortnight later. The principal submission on appeal was to the effect that the sentence was excessive, that the total sentence imposed should be less than three years (so as to satisfy s 68(3)(b) of the Crimes (Sentencing Procedure) Act) and that it should be served by way of an intensive correction order pursuant to Part 5 of that statute.
The Crown conceded, both in the Local Court and in the District Court, that it was open for an intensive correction order to be made, although having regard to the purposes required to be taken into account under s 16A of the Crimes Act 1914 for the federal offence, and the purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 for the state offending, a sentence of full time imprisonment was required.

[9]

The agreed statement of facts

It seems that Mr Quinn did not give evidence when sentenced by the Local Court (unless perhaps the materials made available in this Court are incomplete). He did not give evidence in the District Court which conducted an appeal by way of de novo hearing. Instead, the appeal and resentencing proceeded on the basis of an agreed statement of facts.
The agreed statement of facts recorded that the victim was Mr Quinn's estranged wife at the time of the offending. The couple had separated in May 2019, were awaiting a divorce and had two children who lived primarily with the victim but also spent time with Mr Quinn.

[10]

Use carriage service to menace, harass or offend

The conduct the subject of the federal offending was divided into two periods. From 17 October 2019 to 5 December 2019 (sequence 1), Mr Quinn sent 1,184 text messages to the victim. Where reproduced below, they are quoted verbatim in the form they were sent, which often included spelling and grammatical errors.
The nature of the text messages was agreed to have involved him repeatedly calling the victim and her family "cunts" and telling her "fuck you" or "go fuck yourself", telling the victim to "show him some respect" and stating that her feelings of being scared of him were "BS" (the victim had repeatedly asked Mr Quinn to stop "threatening" and "being aggressive" towards her). Mr Quinn blamed the victim for the breakdown of their relationship, stated that he would never be "amicable" towards her, and made reference to sharing private or intimate parts of their marriage. The messages also related to the children. Mr Quinn told the victim that the children "will suffer" and "I warned you from the start your an idiot… I will show who you really are. I hate you now I have no respect". He referred to a conversation where he told the victim he could take the children if he wanted (in a record of interview with the police, Mr Quinn admitted to having told the victim "U only have 1 thing left to lose, the kids" and "there's no family law court orders in place, if I wanted to I could take the kids and go and be gone for a long time"). It is noted in the agreed statement of facts that "[t]he offender's conduct became more aggressive and abusive over time".
The sending of 1,184 text messages in late 2019 was not the subject of a separate sentence. Rather, it was dealt with in accordance with s 16BA of the Crimes Act 1914 (Cth) and taken into account in confirming the sentence of 12 months imprisonment for the federal offence, to which I now turn.
From 8 December 2019 to 17 May 2020 (sequence 8), Mr Quinn in fact sent 10,020 text messages. Through the error which gives rise to grounds 4 and 5, the agreed statement of facts incorrectly stated that he sent 23,275 messages over this period. How this came about will be explained when dealing with those grounds.
Again, Mr Quinn blamed the victim for the relationship breakdown, saying "you chose this not me" and "its all your mess not mine". He repeatedly told her "get fucked", "fuck you all", "cunt fuck off" and called her a "cunt of a human", "heartless cunt", "lying deceitful cunt", "selfish cunt", "selfish and egotistical asshole", "dick", "liar", "idiot".

[11]

Threaten to distribute intimate image - domestic violence related

In May 2020, the victim told police that since separating from Mr Quinn a year earlier, he had threatened to share without her consent sexual images of her, which she had sent him during their marriage. She said he told her that in respect of the images: 1. he was not allowed to distribute them on social media but would happily show his ex-police friends and colleagues; 2. he had shown them to people and would continue to do so; 3. he was allowed to show them to people, and 4. he would blow them up and put them all over the house so that when people went to look at the house (which the victim and Mr Quinn were in the process of selling), he could show what a proud husband he was.
A number of specific threats, sent in October and November 2019 and March and April 2020 were reproduced, apparently verbatim, in the agreed statement of facts. These included: "[R]emember you have a lot to be embarrassed about also. Out of the sexy photos/videos you sent me which one is your favourite?" "I can't wait till you bring in real estate and photos/open house tbh you wanted decorations and pictures on the walls" "Me decorating house with your pictures you shared proudly, and meaningful objects is not harassment or threats it the fact I was a proud husband" "l will be framing your sexual photos in my home; this is getting framed and so much more and will adorn my walls, it shows what we shared" "[I]t's illegal to distribute them photos you sent me, it all good to frame them in my home."
Mr Quinn acknowledged that the first, second and third of those messages each constituted a threat to distribute intimate images of the victim contrary to s 91R(2) of the Crimes Act 1900 (NSW), and they were taken into account on a Form 1 in imposing sentence for the offence under that section constituted by the fourth and fifth of those messages.

[12]

Destroy or damage property - domestic violence related

In May 2019, when Mr Quinn and the victim separated, he remained living in the property they had shared and the victim left. The house had been under renovations which were substantially completed by that time. The house was placed on the market and sale pictures taken; there was no damage to it at that time.
Throughout the offending period, Mr Quinn sent the victim messages, often accompanied by images, relating to extensive damage to the property. The most serious damage, apparent from a walkthrough conducted by police in June 2020, was "extensive holes in the walls and ceilings" and "cracks, breaks and chips to stone benchtops" in and around the kitchen.
Mr Quinn made repeated references to the damage reducing the value of the house. The following messages were among those sent with pictures of internal walls and ceilings with holes in them, spray-painted internal walls, cupboards pulled apart, water on the floor in the laundry, and the children drawing on the walls: "[M]e and the girls will have a great last weekend before this shithole sells you have nothing left now ... you be lucky to get 550K after the weekend ... you still laughing?" "… me and the girls have a great weekend of art planned. Just totally forget 617K ... you wont be getting anywhere that tbh." "I don't give a fuck what this house sells for, its all my hard work that wasn't appreciated in the end not yours." "[G]irls learn to spray paint tomorrow." "[T]he girls will now finish it off believe me we ait getting nothing from this shit hole ... wait till auction day we be lucky to cover the debts." "[W]ater pissing into the laundry, that whole wall will fall apart now, its all too funny ... just adds to the financial loss." "[T]hink im leaving my hard work that I can't make $$ off for a selfish laying ex wife or some other filthy cunt."
There were many more. Some of the photographs of the damage to the house were annexed to the statement of facts. There was, during the course of negotiations culminating in Mr Quinn's pleas, some debate about the cost of repairing the damage. Ultimately, this was agreed at around $31,000. This offending constituted the offence under s 195(1)(a) of the Crimes Act 1900 (NSW).

[13]

Record of interview

The remainder of the agreed statement of facts set out a number of admissions and comments made by Mr Quinn when he was interviewed by the police. These included that he burnt photos and photo albums, sent the victim a picture of him urinating on a picture of her brother and sister in law, sent the victim a video of the children calling her mother "a cunt", and considered any property not subject to property orders his to do with as he liked.
Mr Quinn maintained that if he wanted to put up intimate pictures of the victim in his own home he could, and that it was neither here nor there that he had shown someone the pictures. He then denied having done so. He also noted that his Instagram was not a private account but, apparently, the victim did not follow him. He denied that he ever sent her 100 messages in a day and claimed the messages were not harassing. He said that the first time the victim told him to stop he did so right away and that she should have told him not to contact her earlier if she was frightened or intimidated.
The statement of agreed facts stated that Mr Quinn was 41 years old at the time of the offending, lived apart from the victim, and had no criminal history.

[14]

The hearing of the appeal to the District Court

Mr Quinn acknowledged in the District Court that the offending warranted a term of imprisonment for the purposes of s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) but maintained that the term of imprisonment was most appropriately served by an intensive correction order and subject to a condition that he engage in a psychological treatment plan.
Mr Quinn's written submissions reproduced lengthy extracts from the judgments of Harrison J in R v Pullen [2018] NSWCCA 264; 275 A Crim R 509 and Simpson AJA in Mandranis v R [2021] NSWCCA 97 which squarely addressed s 66(1) making community safety the paramount consideration in determining whether an intensive correction order should be imposed. The submissions referred to the sentencing assessment report assessing the risk of reoffending at low-medium, and observed that he had not breached the court orders which had been in place over the last 13 months. They also pointed to sentencing statistics in support of the submission that the sentence imposed by the Local Court should be adjusted downwards. Mr Quinn's principal oral submission was that a term of imprisonment was warranted, but that it should be served by way of an intensive correction order.
The sentencing hearings in the Local Court and the District Court were conducted on behalf of the Commonwealth Director of Public Prosecutions. The solicitor who appeared for the Director acknowledged that Mr Quinn was entitled to a 25% discount for his plea. She also confirmed that the Director had accepted that an intensive correction order was available, but that the sentence imposed by the Local Court was not outside the Court's discretion. After exchanges dealing with the number of text messages, a passage in the assessment report suggesting that Mr Quinn saw little need for changes in his behaviour, the nature of the appeal, and whether it would be necessary to impose one or two intensive correction orders, counsel for Mr Quinn returned to state that an intensive correction order was appropriate. There followed this exchange: "HIS HONOUR: Can I just clarify something, I just want to get something absolutely plain from the Crown, I just want to make it clear that you say that an ICO is in range. WAKEFIELD: Yes. If I might just briefly - the Crown's position is an ICO - HIS HONOUR: But that doesn't bind me but it's an important factor. WAKEFIELD: Yes. The Crown's position is that an ICO is in range, however the sentence imposed is not outside the discretion. HIS HONOUR: Yes, I understand that. Both would be within range. WAKEFIELD: Yes, that's correct."

[15]

The decision of the District Court

The District Court adjourned briefly and gave an oral judgment. His Honour commenced by setting out the offending and the sentence imposed by the Local Court. Because of the nature of some of the submissions advanced in this Court, it is best to reproduce much of the rest of the reasons verbatim. "The offender is 42. He has no prior criminal history. The offending is on any view a serious example of domestic violence. The offending occurred within the context of the separation of the appellant from his estranged wife following a 15 year relationship and a 10 year marriage. There are two young children of the marriage. I do not propose to recite the factual matrix of the offending. What I will observe is that the carriage service matters and indeed all of the offending, can be properly described as highly controlling coercive behaviour and examples of domestic violence at a high level, over an extended period in circumstances where it was both sustained and persistent. These are examples of ongoing manipulation by this appellant of his estranged wife which had the result of causing her very significant fear and distress. In my view she was terrorised by this appellant who, because of a former occupation that he had, thought that he was bullet proof and apparently could not be sanctioned, for what was on any view disgraceful conduct. In respect of the carriage service matter alone, there were 24,500 messages sent by the appellant in a period of just less than six months. It is hard to conceive that he had time to do anything else but send text messages, when you consider how many he sent. The destruction of the property that he engaged in, was of the former matrimonial home. The steps he took in relation to that offending, some of which are depicted in the photographs I have seen and which is further borne out by some of the text messages he sent, were clearly aimed at causing maximum distress and harm to his estranged wife. His threatening to distribute intimate images is a most callous, and in my view, quite disgraceful piece of behaviour. Those images were apparently generated in circumstances where there was no expectation that they would be viewed by any person other than the appellant and his wife. It is not hard to imagine the level of distress which would have been occasioned to her by his threats to distribute them. Domestic violence of any type, including of this type, is a blight on our community and calls for the imposition of deterrent sentences and sentences that reflect the need for denunciation and retribution. Right thinking members of the community properly regard behaviour of this type and indeed any type of domestic violence as abhorrent and totally unacceptable. The Courts have long recognised the special dynamics of domestic violence. Typically as is the case here, it involves the exercise and abuse of power and dominance by the perpetrator over the victim. Often, as appears to be the case here, the perpetrator believes that their conduct is somehow justified and that they are really the victim. So that it is abundantly clear, it never is justified conduct, and they never are really the victim. I have come to the conclusion that the appellant is of the belief that his conduct was justified and that he was really the victim, particularly from a consideration of a Sentencing Assessment Report which indicates amongst other things, that the appellant told the author of that report that these things were taken out of context, that he was provoked, that he was only responding to the victim, that he denied that this was really domestic violence, and that he denied that he required anger management. Not one of those things is correct. All of that having been observed, I accept the submission of Mr Searson that this is a matter where all of the offending is at or about midrange of objective seriousness. The appellant is a man with no criminal history. He is also a man who served in the New South Wales Police Force for an extended period of time and I accept, having read the report of Ms Webster, that he was exposed to multiple traumatic events in his occupation as a police officer and now suffers from posttraumatic stress disorder as a consequence. I also note that he has the ongoing support of his parents and a new partner. That report also indicates that he was suffering from an adjustment disorder with a depressed mood at the time, and to some extent I will accept as the magistrate did, that was the case, and I also accept that impacts upon my assessment of his moral culpability. His motivation for treatment is described as somewhat below average, or alternatively, substantially lower than those who are currently being treated. According to the report he sees little need to change his behaviour, which is again consistent with the lack of insight that he has demonstrated and which is also reflected in the Sentencing Assessment Report. These appeals proceed upon the basis that the Judge brings a fresh set of eyes to them. It is not a case where error must be demonstrated. The matter is heard de novo. In effect, I am sitting as if I were the Local Court Magistrate, and I am required to impose the sentence that I think I would have imposed if I had been dealing with the matter at first instance. It is suggested to me that this is a matter that ought be dealt with by the imposition of an intensive correction order. I do not accept that submission. In my view, the offending is too serious to warrant being disposed of in that way. To deal with the matter by the imposition of an intensive correction order would not appropriately meet the purposes of sentencing nor would it reflect the parliamentary intention reflected in s 4A of the Crimes (Sentencing Procedure) Act. In my view there is no alternative but for the sentence to be imposed to be served by way of full-time custody, so serious was the course of conduct engaged in by this appellant."

[16]

The appeal from the Local Court to the District Court

Section 166 of the District Court Act provided that the District Court had the criminal jurisdiction conferred or imposed on it by or under, relevantly, any other Act. Section 11 of the Crimes (Appeal and Review) Act 2001 (NSW) conferred a right of appeal against the sentence imposed by the Local Court. Section 17 provided that an appeal against sentence was "to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings." (The third last paragraph of the reasons of the District Court reproduced above correctly eschewed a submission advanced on the part of the Director that it was necessary for Mr Quinn to establish error.)
Section 20(2) authorised the District Court to determine an appeal against sentence (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. Relevantly, s 71 prevented the District Court from varying or imposing a sentence which could not have been imposed by the Local Court.

[17]

Provisions applicable to intensive correction orders

Section 5(1) of the Crimes (Sentencing Procedure) Act provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Section 7(1) provides that a court that has sentenced an offender to imprisonment in respect of one or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community. The power to do so is confined to offenders who are aged 18 or over (s 7(3)) and is subject to the provisions of Part 5 (s 7(4)).
Part 5 of the Crimes (Sentencing Procedure) Act is titled "Sentencing procedures for intensive correction orders". Section 64 provides that the Part applies when the Court is considering making an intensive correction order. Evidently that was the case when the District Court was determining Mr Quinn's appeal.
Division 2 comprises ss 66-69. Sections 66-68 are, relevantly, in the following form: "Division 2 Restrictions on power to make intensive correction orders 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. 67 Intensive correction order not available for certain offences (1) An intensive correction order must not be made in respect of a sentence of imprisonment for any of the following offences - (a) murder or manslaughter, (b) a prescribed sexual offence, (c) a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth or an offence under section 310J of the Crimes Act 1900, (d) an offence relating to a contravention of a serious crime prevention order under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016, (e) an offence relating to a contravention of a public safety order under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002, (f) an offence involving the discharge of a firearm, (g) an offence that includes the commission of, or an intention to commit, an offence referred to in paragraphs (a)-(f), (h) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraphs (a)-(g). [Subsection (2) contains definitions of firearm and prescribed sexual offence] (3) To avoid doubt, subsection (1) extends to a sentence of imprisonment for 2 or more offences any 1 of which includes an offence referred to in that subsection. 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."

[18]

Grounds 1-3 - jurisdictional error based on s 66

The submissions advanced on behalf of Mr Quinn were directed to the concluding two paragraphs of his Honour's reasons reproduced above. It was put that (a) whether or not an intensive correction order should be imposed was at the forefront of the appeal, and (b) his Honour did not explicitly address community safety. I agree with both submissions.
It was then said that by dint of s 66(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, and that in any event by reason of s 66(2) the Court must consider whether making an intensive correction order is more likely to address the offender's risk of reoffending than a sentence of full-time imprisonment. I agree that that is the import of the statute. I also agree that the words "is to" in s 66(2) are words imposing an obligation upon the court. That is their natural meaning. The word "must" in s 66(3) is stronger and a clearer way of imposing an obligation, but I see no reason to depart from the ordinary meaning of "is to" in the present context, noting that "must also" in s 66(3) presupposes that "is to" connotes an obligation.

[19]

Is s 66 the starting point?

Parts of Mr Quinn's submissions were to the effect that s 66 had to be the starting point of the Court's consideration. This seemed to be because of the word "paramount" in s 66(1) and from the fact that it was the first subsection in the Part. I disagree, and indeed I did not understand Mr Agius ultimately to maintain the submission. This point warrants elaboration, because it bears on the submissions concerning jurisdictional error.
The sensible starting point is of course power. Section 66 presupposes that the power to make an intensive correction order is available. Many provisions forbid the Court from making such an order. If a court is forbidden to make an order, it need never reach the consideration required by s 66.
An intensive correction order may not be available because the offending is not sufficiently serious. Section 5(1) requires the sentencing Court first to be satisfied that no penalty other than a sentence of imprisonment is appropriate.
Or an intensive correction order may not be available because the offending is too serious. If any of the offending falls within the categories listed in s 67(1), then the court is forbidden from imposing an intensive correction order. If the term of any individual term of sentence exceeds 2 years, or if the term of imprisonment for all sentences exceeds 3 years, then once again an intensive correction order must not be made.
In any of those cases, s 66 imposes no requirement upon the Court to consider community safety. Indeed, it would be artificial and arid to ask whether the offender's prospects of reoffending would be better addressed by an intensive correction order as opposed to full-time imprisonment when a sentence of full-time imprisonment is not available at all, or indeed is the only sentencing option open to the Court. That reflects the practice adopted over many years, recently restated by Simpson AJA in Mandranis v R at [35]: "[I]t 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."

[20]

Wany v Director of Public Prosecutions

Mr Wany sought to set aside a decision of the District Court which reduced a sentence imposed by the Local Court but nonetheless declined to order that it be served by way of an intensive correction order on two grounds. The second ground, as to which all members of the Court agreed, was that the District Court had erred in determining whether the reasons of the Local Court were logical and appropriate, rather than determining the appeal de novo as required by s 17 of the Crimes (Appeal and Review) Act 2001 (NSW).
The leading judgment was given by McCallum JA, who upheld both grounds. Meagher JA did not express a view on the first ground. Simpson AJA agreed with McCallum JA.
Nothing in these reasons gives rise to any doubt as to the correctness of the outcome in Wany. All members of the court in Wany considered that the District Court had fundamentally misapprehended the basis of the sentence appeal by reviewing and agreeing with the Magistrate's reasons, rather than itself determining the objective seriousness of the offending and the other matters which contributed to the instinctive synthesis in the process of imposing sentence.
However, in the course of argument in the present proceedings, members of the Court expressed doubt as to the correctness of the reasoning on ground 1 upon which Mr Quinn relied. Attention fastened upon the following passage at [67]-[69]: "67. It remains to consider the difficult question of whether the failure to consider the matter identified in s 66(2) amounted to jurisdictional error. Ms Mitchelmore submitted that a failure to take into account a provision of a sentencing law would not, without more, constitute jurisdictional error. The question is whether the statute requires that matter to be taken into account 'as a condition of jurisdiction' in the sense described in the second category of example given in Kirk at [72]. As already noted, it has been accepted that there is not a duty in every case where the sentence is less than two years to consider whether it is appropriate that it be served by way of an intensive correction order: Fangaloka at [60]. However, such a duty does arise whenever a cogent argument in favour of making an ICO is raised. In such a case, the error could well be characterised as jurisdictional. Alternatively, such error may perhaps more appropriately be characterised as a misconception as to the nature of the function that was being performed in the circumstances of the particular case (the third example given in Kirk). 68. Mr Game noted that, in Kirk, both the description of the offence and what was regarded as a defence in the relevant legislation were regarded as being jurisdictional, as was the fact that the offence was determined not according to the rules of evidence, because the defendant was called as a witness by the prosecution. In circumstances where Parliament has provided for different ways of serving a custodial sentence and has conferred power on the sentencing court to make the determination as to which should be adopted, I see no reason why the method of serving the sentence to be imposed should not be regarded as jurisdictional. The language of the statute is clear. Community safety 'must be' the paramount consideration. When considering community safety, the sentencing court 'is to' make the assessment specified. As Basten JA explained in Fangaloka, that obligation '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)' but it is mandatory. 69. But if my conclusion as to ground 1 is wrong, my conclusion as to ground 2 is enough to sustain the relief sought."

[21]

The consequences of s 66(2) being a condition of jurisdiction

The magnitude of the proposition may readily be seen from the terms of ss 66(2) and (3). For if the failure to comply with s 66(2) amounts to jurisdictional error, then it is difficult to see why a failure to comply with the identically imperative requirements of s 69(1) or the more strongly worded obligation in s 66(3) would not also be jurisdictional error.
Section 69(1) provides that in considering whether or not to make an intensive correction order, the sentencing court "is to have regard to" the contents of any assessment report and evidence from a community corrections officer. The obligation is framed in the same language as s 66(2) and the subject matter will invariably overlap with s 66(2). I find it hard to see why if a failure to comply with s 66(2) amounts to jurisdictional error, the same does not apply to a failure to comply with s 69(1). It may be expected that the submissions made at a sentencing hearing will refer to an assessment report, but it is quite possible that the Court might not in its reasons refer in terms to the report. That raises fairly starkly the difficulty in Mourtada where the obligation is to consider a matter but there is no obligation to record the court's consideration of the matter in its reasons.
Section s 66(3) introduces difficulties of a different order. It requires the Court to have regard to the range of matters in s 3A, as well as common law sentencing principles. Section 3A identifies as the purposes for which a court may impose sentence as "(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". The language of s 66(3) is stronger ("must"). Prima facie if the consideration required by s 66(2) goes to jurisdiction, then so too is the consideration required in stronger language by the immediately following subsection. That is doubly problematic. In part that is because s 66(3) picks up virtually the entirety of considerations relevant to the sentencing discretion, and it seems unlikely that failing to consider any one of them would, if demonstrated, lead to the sentence being vitiated by jurisdictional error. In part it is because s 66(3) also provides that the court "must also consider ... any relevant common law sentencing principles". There can be ample scope for debate in particular cases as to the relevance of any particular common law sentencing principle, but it seems unlikely that whether or not a decision which did not consider that particular principle was affected by jurisdictional error would turn on the result of such a debate. And in part it is because community safety, the purposes in s 3A and common law sentencing principles point in different directions. Promoting rehabilitation may be opposed to ensuring adequate punishment and denouncing the offender's conduct. As was said in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14 and reiterated in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [20], the principles are overlapping and at times conflicting. It seems most unlikely that the failure to consider a principle, even one which overlaps with or conflicts with another principle, will lead to jurisdictional error.

[22]

The reasoning in [67]-[68] of Wany

Paragraph [67] in Wany correctly identifies that the issue is whether the statute requires the matter to be taken into account as a condition of jurisdiction. "As a condition of jurisdiction" means just that: the court's jurisdiction - which is to say its authority to decide the controversy - is conditioned upon taking that matter into account. Obviously enough, that is a question of statutory construction (see for example Hossain v Minister for Immigration and Border Protection at [27]). Such a construction is relatively unusual. The point is perhaps best illustrated by an example. One could in theory have a statute which stated "When a court is not denied power to order an intensive correction order, then the court must consider whether such an order will more likely address the risk of reoffending than a sentence of full-time imprisonment, and if the court fails to do so, then the Court's decision is void for jurisdictional error and is a nullity". Of course, no such language appears in the statute. The question of statutory construction arising on grounds 1-3 of Mr Quinn's summons is whether s 66 read in its context should be understood as bearing that meaning. For that is precisely what Mr Quinn submits.
Paragraph [67] in Wany then turns to a different question, which is when the court becomes subject to a duty to consider whether an intensive correction order should be made. That is a necessary condition in the chain of reasoning that leads to a conclusion of jurisdictional error. But it is not a sufficient condition. Even if there is a duty, the failure to do so is only jurisdictional error if the consideration is required as a condition of jurisdiction.
The concluding three sentences of [67] may conveniently be repeated: "However, such a duty does arise whenever a cogent argument in favour of making an ICO is raised. In such a case, the error could well be characterised as jurisdictional. Alternatively, such error may perhaps more appropriately be characterised as a misconception as to the nature of the function that was being performed in the circumstances of the particular case (the third example given in Kirk)."
That passage reasons from the proposition that there is a duty to consider whether to make an intensive correction order to the possibility ("could well be characterised") that failing to do so amounts to jurisdictional error. That is so, if the failure to do so is a condition of the court's jurisdiction. But there is no analysis of whether or not the failure to do so is such a condition.

[23]

Insofar as Wany holds that a breach of s 66(2) is jurisdictional error, it is wrong

I agree that s 66(2) imposes an obligation upon the District Court 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. I also agree that that obligation is an important one, and its importance is undiminished by the fact that this is an aspect of community safety which is (by dint of s 66(1)) "the" "paramount" consideration. For the classes of offending for which an intensive correction order is available, it is important that attention be given to this sentencing option. Mandranis is an example of the way in which heightened attention is to be given to s 66(2) within the consideration of community safety, but not so as to exclude regard being had to the other purposes of sentencing, as is illustrated by the reasoning at [50]-[54].
But the issue that arises on Mr Quinn's summons is a different one. It is merely as to the consequences of a breach of the obligations in s 66. I do not agree that the consequence of a breach is that the District Court's decision is vitiated by jurisdictional error.
The statutory language of obligation in s 66(2), coupled with the statement that community safety "must be the paramount consideration" in s 66(1) is strong. But it does not follow that a breach of that obligation entails that the District Court's decision is not merely contrary to law, but that it discloses jurisdictional error.
The critical point is whether the failure to adhere to a requirement imposed by statute is a condition of the court's jurisdiction. The reasoning in Wany does not address that point.
Another way of making this point is to observe that the fact that a statute requires a court to consider some thing means that the thing is a mandatory relevant consideration in the sense stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40. Failure to do so means that the decision is susceptible to judicial review. It will disclose error of law on the face of the record. But s 176 of the District Court Act forbids review of a District Court's decision on an appeal for error of law on the face of the record.
Mere failure by a court to comply with a statutory obligation does not of itself entail jurisdictional error, as well as error of law on the face of the record. As the High Court observed in Kirk, if the failure by a court to comply with the statutory obligation is to lead to jurisdictional error, then the statute must require that consideration as a condition of the court's jurisdiction.

[24]

The parties' submissions in Wany

I have read the written submissions advanced by the parties in Wany and the transcript of oral argument of 15 October 2020. Both the written and oral submissions of the Director emphasised that it was not sufficient for Mr Wany to establish that the District Court had failed to consider something statute required it to consider. It was put by reference to Kirk that: "But what I'm seeking to emphasise is the question for this Court is, is s 66 and specifically 66(1) a matter that the relevant statute requires to be taken into account as a condition of jurisdiction. The point that we've made in our written submissions is that it identifies a matter that is important to be taken into account, it's mandatory, but we say happily construed it is not a condition of jurisdiction." (transcript, 15 October 2020, p 24)
In contrast, Mr Wany did not engage with that distinction at all in oral submissions (to be fair, his written submissions fully reproduced the passage from Kirk reproduced above). In oral address he said: "But my point is this, that regardless of that, in jurisdictional language one has to step through s 66. There's no choice about it. Wherever you land ultimately you have no choice but to step through s 66, and they are considerations in the administrative law sense." (transcript, 15 October 2020, p 12)
The tenor of the submissions advanced on behalf of Mr Wany, with force and doubtless with considerable effect, was to emphasise the mandatory aspect of s 66. So much is uncontroversial, and if the decision impugned had been made by a body which was not a court, the result would have been judicially reviewable for failing to take into account a relevant consideration. But as I have endeavoured perhaps at undue length to explain at the outset of these reasons, the submission is incorrect in relation to courts. The point was made recently by this Court in Hariz v Director of Public Prosecutions (NSW) [2021] NSWCA 264 at [6]: "Much of the jurisprudence concerning the nature of jurisdictional error is found in cases reviewing administrative decisions, often decisions made by officers of the Commonwealth. Findings made in relation to administrative decision-making must be applied cautiously in relation to review of a court exercising judicial power."
At no stage did Mr Wany direct submissions to the critical point, which was why the mandatory consideration in s 66 was a condition of the District Court's jurisdiction. That may explain why ground 1 of Wany was decided as it was.

[25]

Is compliance with s 66(1) and (2) a condition of jurisdiction?

That is not an end to the legal analysis. The question which requires analysis, but which has not hitherto been addressed directly, is whether the obligations in s 66(1) and (2) to have regard to community safety is a condition of the District Court's jurisdiction. That is a question of statutory construction which proceeds on the basis that ss 66(1) and (2) impose mandatory obligations upon the Court, and then asks whether failure to comply with those obligations means the orders imposed by the District Court are nullities in the sense explained in Pelechowski and Kable. What has already been said enables this question to be answered concisely.
First, s 66(1) and (2) are different from provisions which are preconditions to the making of an intensive correction order. The premise of s 66(1) and (2) is that the Court has power to make such an order in the exercise of the sentencing discretion. It is nonetheless possible for a statute to provide that in certain circumstances the District Court's order is a nullity for jurisdictional error (which is to say, the District Court has failed to adhere to the limits or scope of its authority to exercise the sentencing discretion). But that is a decidedly unlikely construction, and not one that finds any explicit basis in the text or purpose or context of the statute.
Secondly, although the focus in these reasons has been on intensive correction orders, it is to be borne firmly in mind that they are but one of a range of sentencing options which may be imposed in the exercise of the sentencing discretion. Not uncommonly, as occurred in the present case, the debate will be between a sentence to be served in the community by way of an intensive correction order and a sentence to be served in prison. In such cases, the Court will have conferred on it the power to determine the means by which the sentence will be served either because the Court is re-exercising the discretion of the Local Court in an appeal against sentence, or because it is exercising the discretion following a plea or a guilty verdict after trial. In short, the Court will be squarely seized with the matter. It is unlikely that the failure to have regard to one particular mandatory consideration among many has the effect not merely that the result does not comply with statute, but also that it is a nullity in the sense explained in Pelechowski and Kable.

[26]

Grounds 4 and 5

Ground 4 asserted that the unintentional misrepresentation by the Director of the number of text messages, upon which the District Court acted, amounted to jurisdictional error. Ground 5 claimed that Mr Quinn was denied procedural fairness in the sentencing proceedings and as a result was denied the opportunity to make submissions upon a material fact critical to the sentencing process. I shall follow the order adopted in oral submissions, and deal first with ground 5. It is necessary before doing to so to say something more as to the facts.

[27]

The way the error in the number of text messages on the agreed facts came about

As noted at the outset, there was an error in the statement of agreed facts signed by Mr Quinn. The error was an obvious one, once one is aware that there is an error.
The "rolled-up" sequence 8 for which Mr Quinn was ultimately sentenced comprised eight separate periods, according to the following table in the statement of agreed facts:
The number "1,4727" in the third row is an error. On an earlier iteration of the proposed statement of agreed facts which were exchanged between the parties prior to Mr Quinn's guilty pleas, the corresponding row for the messages sent between 17 January 2020 and 2 February 2020 was correctly stated at 1,472 (which is to say, around one hundred per day on average). If "1,4727" is understood to mean 14,727, then that is not only dramatically more than the number sent in the weeks preceding and the weeks following the last fortnight of January 2020, it also amounts to about one thousand a day. Anyone who paused to consider what is involved in sending text messages at a rate of more than 40 messages an hour 24 hours a day for slightly more than a fortnight would appreciate that it could not be done.
Both sides devoted a deal of effort to attributing blame to the other for the error. Both waived privilege in the negotiations leading to the plea. Briefly, Mr Quinn was charged with 13 counts of using a carriage service to menace, harass or cause offence contrary to s 474.17(1), based on the text messages. By letter dated 5 February 2021 his solicitor advised that he had received instructions that he accepted his guilt, but requested that they be replaced by a single count based on the 3,389 messages sent between 8 December 2019 and 5 January 2020, with the balance being taken into account on a Form 1 (this was intended as a reference to s 16BA of the Crimes Act 1914 (Cth)). That offer was rejected by letter dated 23 March 2021 but the Director proposed a counter offer involving a guilty plea to a single rolled up charge in relation to 8 of the counts, with the remaining five counts to be rolled up into a single charge to be taken into account on a s 16BA Schedule. The Director attached an amended statement of agreed facts to accompany that counter-offer, and it was that schedule which introduced the erroneous "1,4727" instead of "1,472". The error appears to have been unnoticed by either side in the Local Court sentencing, the District Court appeal, and the further proceedings in this Court until a few days before the hearing, after which the Director alerted Mr Quinn to it, leading to his (unopposed) application to amend to add grounds 4 and 5.

[28]

Ground 5 - procedural fairness

I would reject this ground for two separate reasons.
First, there was nothing procedurally unfair in the District Court deciding the sentencing appeal on the basis of the agreed statement of facts. The statement contained an error. The error was obvious on its face, and although it was introduced by the Commonwealth Director of Public Prosecutions, it is plain that Mr Quinn had months to review it before it was signed by him and tendered as the basis upon which he was to be sentenced. The fact that a court relies on evidence which is incorrect does not mean that there has been procedural unfairness.
In short, there was no denial of procedural fairness when the Court proceeded to impose sentence on the basis agreed between the parties, and where that agreement was procured in a transparent process whereby Mr Quinn and his lawyers had the proposed statement of agreed facts for some months before sentence was imposed.
Secondly, in accordance with binding authority, Mr Quinn accepted that he bore the burden of establishing materiality. Most recently, in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2], the joint judgment of Kiefel CJ, Gageler, Keane and Gleeson JJ said that: "[e]xistence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof".
The Director conceded that the number of messages was "material". This Court is not bound by the concession, as was made clear during the hearing. The difficulty is that it is unclear what the concession means.
Although it is easy to say that the applicant was sentenced on the basis of many thousands of text messages more than those which in fact he sent over the period, what turns on that? On any view, this was extremely serious offending, by a man determined to inflict pain and distress upon his estranged wife over an extended period of time, by an extraordinarily large number of messages. In a real sense, whether there be 10,000 or 12,000 or 15,000 or 25,000 or 30,000 text messages is not to the point. There is no suggestion that the quality of the messages was in any way misstated, nor the duration of time throughout which Mr Quinn was sending them.

[29]

Ground 4 - fraud, absence of good faith and constructive failure to exercise jurisdiction

Ground 4 is difficult to encapsulate, and so I shall closely follow the submissions made on behalf of Mr Quinn.
It was put that by the Director mispresenting, albeit unintentionally, the number of text messages sent, which was "critical to the sentencing process", the judge fell into jurisdictional error by acting upon that material fact. It was said that it was reasonable for Mr Quinn's legal representatives to expect to be advised if the Commonwealth Director of Public Prosecutions was altering the factual basis upon which sentence would be imposed, and this did not occur. Mr Quinn relied upon SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35, save that Mr Quinn disavowed actual fraud. However, he claimed there was a want of good faith. He relied upon a passage from the then current edition of Wade and Forsyth's Administrative Law which was reproduced in the judgment, including: "It is extremely rare for public authorities to be found guilty of intentional dishonesty: normally they are found to have erred, if at all, by ignorance or misunderstanding. Yet the courts constantly accuse them of bad faith merely because they have acted unreasonably or on improper grounds. Again and again it is laid down that powers must be exercised reasonably and in good faith. But in this context 'in good faith' means merely 'for legitimate reasons'. Contrary to the natural sense of the words, they impute no moral obliquity."
It was then put that while there was no intentional wrongdoing, the Director acted unreasonably and on improper grounds by including the inflated figure in the facts sheet tendered and in making oral submissions referring to the inflated number. The submission continued: "They did not include the inflated number of texts in the facts sheet for legitimate reasons. In this sense, they did not act in good faith. Not acting in good faith amounts to fraud."
It was said that the decision making process was "corrupted" and concluded thus: "Applying the logic within paragraphs [51] and [52] of SZFDE, while the primary judge undoubtedly acted on an assumption of regularity, in truth, by reason of the error of the first respondent, he was disabled from due discharge of his imperative statutory functions with respect to the conduct of the appeal. The consequence is that the decision made by the primary judge is properly regarded, in law, as no decision at all. The jurisdiction remains constructive unexercised."

[30]

Orders

It follows that the amended summons must be dismissed. Although Mr Quinn sought costs in the event that he succeeded, the Director did not do so. I propose that the amended summons filed 1 October 2021 be dismissed.
SIMPSON AJA: I have had the advantage of reading in draft the judgment of Leeming JA. His Honour's comprehensive statement of the relevant facts, circumstances and issues enables me to confine my references to a minimum. I am particularly grateful for his Honour's exposition of legal principle with respect to jurisdictional error. I agree with the disposition of grounds 4 and 5, leave to rely on which was given at the hearing, proposed by Leeming JA.
The following are my reasons for agreeing with the orders proposed by Leeming JA. My reasons assume familiarity with the facts, circumstances and issues as stated by Leeming JA.
I reproduce below grounds 1 to 3 of the summons in full:

[31]

"Grounds 1. In sentencing the appellant to a sentence of full-time detention, when deciding whether to make an intensive correction order the Judge failed to take into account community safety as the paramount consideration as required by s 66(1) of the Crimes (Sentencing Procedure) Act 1999 and so fell into jurisdictional error. 2. In the alternative to ground of appeal 1, when considering whether to make an intensive correction order, the Judge did not consider whether making an intensive correction order was more likely to address the appellant's risk of reoffending as required by s 66(2) of the Crimes (Sentencing Procedure) Act 1999, and so fell into jurisdictional error. 3. In circumstances where a cogent argument in favour of making an intensive correction order was raised, the Judge failed to discharge his duty to assess whether making the order or serving the sentence by way of full-time detention was more likely to address the appellant's risk of reoffending and so fell into jurisdictional error." Ground 3 is not pleaded with clarity.

Provision is made for a sentence of imprisonment to be served in the community pursuant to an intensive correction order by s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). Subsection (1) of s 7 provides as follows: "(1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community."
Section 7(1) does not have the broad and general application that may appear on its face. Its application is significantly circumscribed by other provisions of the Sentencing Procedure Act, to which it will be necessary later to refer.
Section 66 of the Sentencing Procedure Act provides: "(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."

[32]

Amendments 16 December 2021 - [121] - "District Court had filed to consider" changed to "District Court had failed to consider" 03 June 2022 - [64] - "following" changed to "followed" [95] - "the sentence imposed is affected" changed to "the sentence imposed which is affected" [131] - "rehabilitation would be better served" changed to "rehabilitation would not be better served" [162] - "nothing turns on" changed to "nothing turns on it" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2022

Section s 66(2) imposed an important obligation to assess whether making an intensive correction order or serving the sentence by way of full-time detention was more likely to address the offender's risk of reoffending: at [72], [107]. However, breach by a court of a mandatory requirement of a statute does not of itself mean the court commits jurisdictional error: at [111]-[120]. The question in the present case was whether the statute requires the matter to be taken into account as a condition of jurisdiction: at [99], [110], [112], [124]. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 applied
The obligation in s 66(1) and (2) to have regard to community safety is not a condition of jurisdiction: at [126], [130]. Failure to consider s 66(1) or (2) does not amount to jurisdictional error: at [89], [131]. Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 disapproved: at [85]-[90], [99]-[125]. Discussion by Leeming JA of: jurisdictional error on the part of inferior courts: at [3]-[24], [123]; the need to consider questions of power to make an intensive correction order before turning to s 66: at [73]-[84]. Discussion by Johnson J of: compliance by the trial judge with s 66, in particular that in the course of an ex tempore decision in a busy List, his Honour did not explicitly refer to each component in s 66 although each had been considered in determining sentence: at [197]-[202]; the nature and gravity of the offences for which sentence had been imposed: at [203]-[208]. As to issue (i), per Simpson AJA, agreeing in the result for separate reasons:
Section 68 and, where applicable, s 4B are impediments to the making of an intensive correction order: at [180]-[181]. Section 66(3) directs the sentencing court, when deciding whether to make an intensive correction order, to consider, inter alia, the matters in s 3A: at [182]-[185]. If, in the opinion of the sentencing judge, any of the considerations in s 68, s 4B, or s 3A foreclose making an intensive correction order, s 66(1) and (2) become otiose, and it is unnecessary for the sentencing judge to direct attention to them: at [186].
In this case, the seriousness of the offending brought the consideration of making an intensive correction order to an end. Once the primary judge concluded that the offending was too serious to be dealt with by way of a sentence served otherwise than by way of full time imprisonment, considerations of community safety (in the context of s 66) did not arise: at [187]. There was no error in the approach taken by the primary judge: at [188]. As to issue (ii), per Leeming JA, Johnson J and Simpson AJA agreeing:
There was nothing procedurally unfair in the District Court deciding the sentencing appeal on the basis of the agreed statement of facts, in circumstances where the error was obvious on its face and Mr Quinn had months to review it before it was signed by him and tendered as the basis upon which he was to be sentenced: at [144]-[145].
No assessment of the offending at less than mid range of objective seriousness was available, so that Mr Quinn failed to establish that the error in the number of text messages was material: at [146]-[154].
Nor was there a constructive failure to exercise jurisdiction by the District Court in acting upon the evidence before it, notwithstanding that the evidence contained an error which was introduced by the Commonwealth Director of Public Prosecutions. The error was patent, introduced in a process that was quite transparent, and not detected by either side for some months before the hearing in the Local Court: at [155]-[164], [166].

This distinction between jurisdictional error on the part of inferior courts and other tribunals exercising government powers was articulated in Kirk at [67]-[68] as follows: "The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between 'on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ'. The Court said that: 'If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' By contrast, demonstrable error on the part of an inferior court 'entrusted with authority to identify, formulate and determine' relevant issues, relevant questions, and what is and what is not relevant evidence was held, in Craig, not ordinarily to constitute jurisdictional error. The Court held that: 'a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error'. The basis for the distinction thus drawn between courts and administrative tribunals was identified in the lack of authority of an administrative tribunal (at least in the absence of contrary intent in the statute or other instrument establishing it) 'either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law'. By contrast, it was said that 'the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine.'" (footnotes omitted)

But there are other preconditions to the exercise of power not hitherto mentioned. One is s 17D(1), which provides that the sentencing court must not make an intensive correction order in respect of an offender unless it has obtained a relevant assessment report in relation to the offender. Another is s 69(3), which deals with offenders who intend to reside outside the State. A third, which was raised during the hearing of the summons, is s 4B, which is best considered together with s 4A (both were introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)): "4A Domestic violence offenders - requirement for full-time detention or supervision (1) If a court finds a person guilty of a domestic violence offence, the court must impose on the person either - (a) a sentence of full-time detention, or (b) a supervised order. (2) However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view. (3) For the purposes of this section, a supervised order is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition. 4B Domestic violence offenders - protection and safety of victims (1) An intensive correction order must not be made in respect of - (a) a sentence of imprisonment for a domestic violence offence, or (b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence, unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason). (2) If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence. (3) Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence."

True it is, as senior counsel for Mr Quinn maintained, those two instances are different from the obligation in s 66. But the point remains that merely pointing to a mandatory obligation which is breached does not mean that the decision of the court is affected by jurisdictional error. In fact an example of the same mode of drafting appears in Part 5 of the Crimes (Sentencing Procedure) Act. Section 73A provides that when making an intensive correction order, "the sentencing court must at the time of sentence impose on an intensive correction order at least 1 of the additional conditions referred to in subsection (2)". Subsection (2) identifies various conditions, such as electronic monitoring, non-association, community service and abstention from alcohol or drugs. Subsections (1A) and (1B) provide: "Despite subsection (1), the sentencing court is not required to impose an additional condition if the court is satisfied there are exceptional circumstances. (1B) The sentencing court must make a record of its reasons for not imposing an additional condition. The failure of the sentencing court to do so does not invalidate the sentence." There can be no doubt that there is a mandatory obligation to make a record of the sentencing court's reasons if satisfied there are exceptional circumstances for not imposing an additional condition. Nor can there be any doubt in light of the second sentence in s 73A(1B) that the failure to comply with that obligation is not jurisdictional error. True it is that these provisions go to a matter of detail. They may be contrasted with s 5(1) of the same statute, which makes provision as to a fundamental matter, namely, that "A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate". Section s 5(2) obliges a court which imposes a sentence of imprisonment for 6 months or less to state reasons for taking that course. Even so, s 5(4) provides that "A sentence of imprisonment is not invalidated by a failure to comply with this section". Once again, there can be no doubt that a court which sentences an offender to a term of imprisonment contrary to the prohibition in s 5(1) does not commit jurisdictional error.

The provisions of s 3A are important. That section states the purposes for which a court may impose a sentence on an offender. The purposes are: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; 6. to denounce the conduct of the offender; and 7. to recognise the harm done to the victim of the crime and the community.
These purposes have already been taken into account and applied in two previous stages of the sentencing decision - first, when the court is deciding, as it is required by s 5 of the Sentencing Procedure Act to do, whether, having considered all possible alternatives, no penalty other than imprisonment is appropriate; and, second, having reached that satisfaction, in fixing the term of the sentence. The s 3A purposes remain relevant, by reason of s 66(3), when the court is deciding whether to make an intensive correction order.
In oral argument senior counsel for the applicant accepted that, by reason of the incorporation of the s 3A purposes into the decision whether to make an intensive correction order, a relevant circumstance is the seriousness of the offending.
The flaw in the applicant's argument is that it assumes, wrongly, that the criteria stated in subss 66(1) and (2) override, or at least precede, all other considerations. The truth is that, logically, the subss 66(1) and (2) criteria come into play at the end, not the beginning, of the process. If, in the opinion of the sentencing judge, any of the considerations in s 68, s 4B, or s 3A foreclose making an intensive correction order, subss 66(1) and (2) become otiose, and it is unnecessary for the sentencing judge to direct attention to them.
In this case, it was the seriousness of the offending that brought the consideration of making an intensive correction order to an end. Once the primary judge concluded that the offending was too serious to be dealt with by way of a sentence served otherwise than by way of full time imprisonment, considerations of community safety (in the context of s 66) did not arise. It may be observed that s 66(1) requires community safety to be taken into account as the paramount consideration when a court is "deciding whether to make an intensive correction order". Where a court has concluded, having regard to the relevant material, that the seriousness of the conduct precludes such an order, there is no further decision to be made.
There was no error, far less jurisdictional error, in the approach taken by the primary judge.
In the light of these conclusions it is necessary that I reconsider my concurrence in Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318. The circumstances in Wany were, in material respects, similar to (and perhaps indistinguishable from) the circumstances of the present case. Mr Wany pleaded guilty to and was sentenced in the Local Court for an offence of operating a vessel in a manner dangerous to the public and thereby occasioning grievous bodily harm to a passenger on the vessel. He was sentenced to imprisonment for 18 months with a non-parole period of 9 months. He appealed to the District Court. On his behalf a submission was put that any sentence to be imposed could be served by way of an intensive correction order. While arguing against an intensive correction order, the prosecution accepted that such order was an available sentencing option.
The analogy with Wany is slightly complicated by the fact that the District Court judge, rather than making his own assessment, relied upon and adopted the reasoning and conclusions of the Local Court magistrate. The magistrate had rejected an argument in favour of an intensive correction order on the basis that the objective seriousness of the offending conduct, the need for a strong measure of both general and specific deterrence, the need to ensure adequate punishment, and to make the offender accountable for his actions, and the need to recognise the harm done to the victim, overwhelmed other considerations (including, presumably, the subss 66(1) and (2) criteria). The considerations that led the magistrate to refuse to make an intensive correction order are those drawn from s 3A. The magistrate (and therefore the District Court judge) did not address subss 66(1) or (2) because, having decided that the s 3A considerations precluded a non-custodial means of serving the sentence, those further considerations did not arise.
I acknowledge that the approach I have taken and the conclusions I have reached in these reasons are incompatible with the reasons of McCallum JA in Wany with which I agreed. On further reflection, that concurrence was misplaced. I have considered whether the views I have here expressed are inconsistent with those I expressed In Mandranis v R [2021] NSWCCA 97 at [50]-[51]. At present, I think that the two can be reconciled, although I might have expressed my conclusions in Mandranis differently. However, should others perceive any inconsistency, precedence should be given to what is contained in these reasons.
JOHNSON J: I have had the considerable advantage of considering, in draft, the judgment of Leeming JA. I agree with the order proposed by his Honour and with his Honour's reasons.
I express my explicit agreement with his Honour's analysis and conclusion that the reasoning in Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318 at [67]-[68] is incorrect and should not be followed.
I agree with his Honour's analysis which leads to the clear conclusion that jurisdictional error is not demonstrated in the present case.
What follows constitutes my additional reasons for concluding that the Amended Summons should be dismissed.
At different points in his judgment (at [20], [98]), Leeming JA has referred to the volume of cases dealt with by the Local Court and the District Court and the regular use of ex tempore decisions when passing sentence. As his Honour has emphasised, the question whether an intensive correction order ("ICO") may be appropriate in a particular case (considered by reference to s.66 Crimes (Sentencing Procedure) Act 1999) arises in the context of a process of instinctive synthesis, where the Court is considering sentence in a case of sufficient gravity to prima facie warrant a sentence of imprisonment.
In considering whether there was compliance with s.66 in the present case, it is necessary to read fairly, and as a whole, his Honour's sentencing remarks. Regard may be had to what is implied, as well as express statements made in the course of passing sentence.
In Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75, the Court rejected a claim of jurisdictional error on the part of a District Court Judge determining a sentence appeal from the Local Court. Macfarlan JA (Basten JA agreeing with additional reasons; White JA agreeing), said at [29]-[31]: "29. It is clear however that her Honour used the expression a 'full-time custodial sentence' to distinguish a sentence of imprisonment that was not to be served by way of an ICO from one that was. This can arguably be inferred from the terms of the judgment but the inference is put beyond doubt when regard is had to the transcript of the submissions to her Honour on sentence. Recourse to the transcript is permissible at least in a case 'where an ex tempore judgment is given in brief terms immediately following submissions in which it is apparent that the judge is relying upon an understanding reached in the course of submissions' (You, Jae Bok v R [2020] NSWCCA 71 at [20] per Basten JA). As well, in considering the terms of ex tempore sentencing judgments the following remarks of Johnson J in R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at [34] must be borne in mind: 'In doing so, it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]).' 30. In the present case her Honour delivered the judgment immediately after the conclusion of addresses, on a day when the transcript reveals that she had other matters listed before her. She commenced her reference to a 'full-time custodial sentence' with a statement that the Crown's submission was in her Honour's view correct. The transcript shows that the Crown's submission was that the applicant be sentenced to 'full time custody' without an order that his sentence of imprisonment be served by way of an ICO. 31. In these circumstances, it is clear that the judge considered and rejected the possibility of the applicant's term of imprisonment being served by way of an ICO. Accordingly, this ground of review should be rejected."
It is appropriate to consider what may be implied, on a fair reading of the whole of the sentencing remarks in this case, concerning his Honour's approach to s.66 and the possible use of an ICO in sentencing the Applicant.
Leeming JA (at [131]) referred to possible constructions arising from the approach of the District Court Judge in the present case. There was no express reference to s.66(2) in the sentencing remarks. For my part, there is considerable force in the submission made for the Director in this Court that his Honour had heard submissions by reference to s.66 and a number of authorities concerning that provision, and had considered those submissions in the context of the facts and circumstances of the present case, before expressing the conclusion that nothing other than a sentence of fulltime imprisonment was appropriate.
His Honour had identified, in the passage set out by Leeming JA (at [63]), factors which would operate against a finding in favour of the Applicant that community safety would be best served by the use of an ICO in this case. In particular, the sentencing Judge expressed the conclusion that the Applicant lacked insight and was of the belief that his conduct was justified and that he was really the victim, with support for that finding being found in the Sentencing Assessment Report. Further, the sentencing Judge found that the Applicant's motivation for treatment was described as "somewhat below average, or alternatively, substantially lower than those who are currently being treated" and that, according to the Sentencing Assessment Report, the Applicant "sees little need to change his behaviour, which is again consistent with the lack of insight that he has demonstrated and which is also reflected in the Sentencing Assessment Report".
I am not persuaded that the District Court Judge failed to consider the components of s.66, including s.66(2). Rather, the better view is that, in the course of an ex tempore decision in a busy List, his Honour did not explicitly refer to each component in s.66 although each had been considered by the Court in determining sentence. Although it may be said that there is some imprecision in his Honour's reasons, it has not been demonstrated that there is error in this case, let alone jurisdictional error.
Although the resolution of the Applicant's claim for relief turns on legal questions and the assertion of jurisdictional error, the Court should not lose sight of the nature and gravity of the offences for which sentence had been imposed.
The Applicant had obtained, through negotiations with the Crown, the use of rolled-up charges for the offences of using a carriage service to menace, harass or cause offence contrary to s.474.17(1) Criminal Code Act 1995 (Cth) (see Leeming JA's judgment at [37]-[49], [136], [138]). As a result, he obtained the significant advantage whereby the maximum penalty for a single offence was to apply instead of the total theoretically available maximum penalties for multiple charges: Johnston v R [2017] NSWCCA 53 at [68]-[69]; Hughes v R [2021] NSWCCA 238 at [12].
Concerning the offences for which the Applicant was being sentenced in the District Court, the characterisation by the sentencing Judge of the gravity of these offences (as described in the extract from the sentencing remarks by Leeming JA at [63]) cannot be doubted (apart from the reference to the number of text messages, which has since been identified as erroneous). As Leeming JA has observed (at [148]), this was extremely serious offending over an extended period of time by a man determined to inflict pain and distress upon his estranged wife.
Although the Applicant's offences did not include acts of physical violence directed to the victim, they involved domestic violence offences of a threatening, controlling and strongly abusive type over a long period of time (including destruction of property), all of which were clearly intended to cause psychological harm and severe distress to the victim.
The sentencing Judge was very much alive to sentencing principles which have emphasised the gravity of criminal conduct of this type and the need for denunciation and deterrence (both specific and general) to be reflected on sentence for domestic violence offences: R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at [77], [86]; Cherry v R [2017] NSWCCA 150 at [78]; Yaman v R [2020] NSWCCA 239 at [131]-[136]. Application of these principles was reflected in his Honour's remarks extracted by Leeming JA (at [63]). The victim impact statement of the Applicant's former wife illustrated vividly the consequences of the protracted and multi-faceted pattern of criminal conduct which had been directed at her, including the sinister threats which constituted the offences under s.91R Crimes Act 1900 (NSW) noted by Leeming JA (at [50]-[52]).
It is entirely understandable that the sentencing Judge concluded that a sentence of fulltime imprisonment was the only appropriate sentencing outcome in this case, albeit one reduced from the sentence passed in the Local Court.
Since the commencement of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 on 24 September 2018, there have been many decisions of the Court of Criminal Appeal and an increasing number of decisions of this Court which have grappled with the construction and operation of s.66. Assistance for sentencing courts may be found in what was said by Adamson J (Basten JA and Walton J agreeing) in Elphick v R [2021] NSWCCA 167. In dismissing a ground of appeal which asserted that the sentencing Judge had failed to properly assess an application for an ICO, Adamson J observed that the sentencing Judge (Lerve DCJ) had appropriately considered the issue, with his Honour's "summary of the applicable law and his application of it to the facts of the case" being "model". In expressing this view, her Honour was referring to the sentencing remarks in R v Elphick [2021] NSWDC 1 at [100]-[103], which contain the model summary commended by the Court of Criminal Appeal. To the extent that it may assist sentencing courts, I endorse the comment made in Elphick v R that the sentencing Judge's approach in that case was a "model".
Since writing this judgment, I have had an opportunity to read the judgment of Simpson AJA. I express my agreement with her Honour's analysis (at [180]-[187]) concerning the construction and operation of s.66 Crimes (Sentencing Procedure) Act 1999. Her Honour's analysis fortifies my conclusion that there was no error, let alone jurisdictional error, in the approach taken by the District Court Judge in this case.

Quinn v Commonwealth Director of Public Prosecutions

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