SR v R

Court of Criminal Appeal (NSW)|2023-12-06|Before: Harrison CJ, Wilson J, Ierace J

The Applicant's Case

The applicant did not give evidence. Instead, he tendered a letter directed to the sentencing judge, in which he gave his own account of the circumstances leading to the commission of the offence. The applicant's version differed from those before the sentencing court as agreed facts that had been signed by the applicant. In his letter, the applicant appeared to both maximise bad conduct attributed to Thomas, and somewhat minimise his own. He suggested that Thomas had taken a pugilist stance to fight him, and that what thereafter occurred occupied no more than 20 seconds. Rather than the 10 to 20 blows to the face and head that the applicant acknowledged by the agreed facts, over 30 to 40 seconds, his account in his letter suggested that only one punch had been thrown. He said: "This caused me to follow him into his room where he was standing on his bed, he had his hands up in a first position, I pushed him & he pushed me back, it was at this moment I hit him, he fell onto his bed & then his mother stepped in between us. I then walked back out into the lounge room, it was all over in 20 seconds".
The applicant said he was embarrassed, ashamed, and remorseful, and his conduct was out of character. He said what he had done had hurt Thomas and his wife, and had - in contrast to his account to the author of the SAR - led to the end of his marriage. The applicant referred to his long history as an accredited coach in community sport, and his good working record in a position of responsibility and trust. He said that, since the incident, he had abstained from alcohol use and had sought out counselling, both of which he intended to continue.
A number of testimonials were also tendered to the sentencing court. Those who wrote references on his behalf, many of whom had known him for decades through shared sporting activities, spoke highly of the applicant, commenting on his reliability, his excellence as a sports coach and mentor, his caring nature, and his strong work ethic. All expressed confidence that the offence was out of character.

The Submissions

The parties provided written submissions to the sentencing court. Whilst conceding that a fractured orbital socket was a less serious instance of grievous bodily harm than many injuries, the Crown pointed to features that aggravated the offending, being that it occurred in the victim's home, that substantial damage had been occasioned (by reference to the emotional and social consequences to Thomas); that it constituted a breach of a position of trust and authority; and that the victim was vulnerable. Mitigating features were submitted to be the plea of guilty, demonstrated remorse, unlikelihood of reoffending, good prospects of rehabilitation, no significant criminal record, and the spontaneous or unplanned nature of the offence. The Crown submitted that, whilst the offence fell towards the lower end of a notional range of gravity, "the s 5 threshold" had been crossed (that is, s 5(1) of the C(SP) Act, which prohibits a court from imposing a sentence of imprisonment unless satisfied that no alternative is appropriate), with principles of general and specific deterrence, denunciation, and accountability of particular importance to the exercise of the sentencing discretion.
The applicant accepted that the s 5 threshold had been passed because of the extent of the injury caused and the relationship of trust, but the offence was, nevertheless, one of low objective gravity having regard to its spontaneous nature and brief duration. Pointing to the applicant's solid work history, his good standing in the community, his plea of guilty, and his good prospects, the applicant submitted that a sentence served in the community was appropriate. The sentencing court was referred to the decision of this Court of Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97, at [54], wherein Simpson AJA observed: "In my opinion the intention behind s 66(1) was that if community safety were endangered by allowing an offender to serve his sentence in the community, that consideration would override any and all others that would have supported the making of an ICO. Otherwise, community safety remains the "paramount consideration". One factor which must be taken into account in the consideration of community safety is the likelihood of reoffending by the offender, and which of an ICO and full-time detention would be more likely to address that risk."
During oral submissions counsel for the applicant argued that: "I submit there is nothing to be gained by imprisoning this man. It would disrupt his ongoing rehabilitation. The only issue which I would submit the Crown could point to which would justify imprisonment would be general deterrence".
Responding to that submission the sentencing judge observed: "That looms extremely large in this case because if I were to place him on an ICO, what actually happens? The answer is nothing. He won't be supervised by Community Corrections. They haven't suggested he should do any rehabilitation courses or training. They said he should undergo such treatment was referred to".

The Remarks on Sentence

In his remarks, given immediately after submissions from the parties were received, his Honour set out the circumstances of the offending as they had been agreed between the parties. Referring to the injury he noted that: "At the hospital, the victim was found to have a fracture of the right orbital floor socket. The fracture was so large that fatty tissue protruded through the fracture of the bone. On Monday 17 January 2022, the victim underwent surgery. A titanium plate was attached to the orbital socket in order to restrain the soft tissue protruding the fracture".
The sentencing judge accepted that the features of aggravation referred to by the Crown had been made out, including that substantial harm had been occasioned to Thomas, referring in that regard to the consequences beyond the immediate physical injury to him. His Honour assessed the offence as below mid-range in terms of its objective gravity, and more specifically, because of the "frenzied onset of punching to the head done by a man who was affected by alcohol", "in the mid-range of the range between the bottom of the low-range and mid-range". His Honour observed: "Everything points to this assault being out of character and probably initiated by the offender's alcohol intake, because of disinhibition due to that alcohol intake. It has been submitted that the offender was trying to reprimand his step-son because of the perceived disrespect which the victim gave to [SR]. However, the proximate cause of the conduct was because of what the offender perceived as being disrespect to himself".
Referring to R v Sewell and Walsh (1981) 29 SASR 12 at 15 and Stewart v R [2012] NSWCCA 183 at [50] - [52] and [79], his Honour concluded that the applicant's intoxication at the time of offending could not be treated as a mitigating feature, although neither did it aggravate the offending. Having dealt with that aspect of the matter the sentencing judge observed: "It is common ground between the parties that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed. The question for my determination is whether the offender is sentenced to full-time custody, or whether, as has been submitted on his behalf, he should be placed on an Intensive Corrections Order ("ICO")".
The sentencing judge set out the detail of the applicant's case. Whilst accepting that the applicant was highly regarded by those who had provided references, his Honour observed that it was not clear that the authors were aware of the precise nature of the offence, since none referred to it. Further, his Honour was not inclined to give great weight to the applicant's claimed abstention from alcohol use during the period that had passed since the assault on Thomas, as a condition of bail had required the applicant to do so.
The applicant was, in his Honour's assessment, a man of essentially good character who had made a significant contribution to his local community, and who presented little if any prospect of committing further crimes of violence. His Honour accepted that there was no requirement for "great emphasis" to be placed on specific deterrence, and protection of the community was not a prominent feature of the sentencing exercise. Referring to the purposes of sentencing specified by s 3A of the C(SP) Act, the sentencing judge observed that the "substantive issue" was whether a full-time sentence of imprisonment should be imposed, or whether the sentence should be served by way of an ICO. Noting that the SAR stated that the applicant was not suited to an order for community work, and that no supervision would be imposed over him, the sentencing judge noted: "[48] Because of the offender's hip problem, he is not suitable to undertake community service work. In essence, an ICO would then involve the offender's abstaining from alcohol and continuing to see Dr Vu as Dr Vu recommends. The impact on the offender's life would be miniscule. True it is that if he, for example, were found to be drinking and driving, or otherwise found to have breached an alcohol abstention order, he might be called up for breach of the ICO, but that is highly problematic bearing in mind the fact that the offender drives for his living and has not had any drink driving offence since 2005, some 17 years ago. [49] The real question is whether an ICO would be adequate punishment for the offence committed by the offender, as s 3A(a) of the Crimes (Sentencing Procedure) Act 1999 requires the offender must be adequately punished for his offence. The sentence to be passed must deter not only the offender, but also all other step-fathers from committing similar offences against their stepsons. The punishment to be imposed must make the offender accountable for his actions and denounce his conduct. [50] Here we have a 14 year old boy who was, to put it in blunt terms, bashed, which led to his sustaining a substantive injury to a very delicate area of his body, his face, affecting a very delicate organ, his eye. The effects of the injury appear to be ongoing. [51] I have reached the view that only a sentence of full-time imprisonment would be adequate for this case. An ICO in the circumstances would hardly, in my view, be appropriate. [52] Consistent with what I already said about the seriousness of the assault, I have reached the view that the starting point for this sentencing exercise is a theoretical sentence of two years and six months imprisonment, that must be reduced by 25% for the offender's early plea of guilty. That is accepted as the result of the operation of the Early Appropriate Guilty Plea scheme. That reduces the head sentence to one year and ten months. [53] Applying the statutory ratio between the head sentence and the nonparole period, the non-parole period should be one year and four months. However, in this case I am prepared, bearing in mind all the circumstances, to find special circumstances. The offender is a man essentially of prior good character. At the age of 52, he will enter the custodial system. It is not pleasant. I have visited many gaols over the last 28 years, and I can assure anyone who reads what I say or hears what I say that gaol is not a pleasant place at all. The offender will find it particularly uncomfortable and the circumstances of that indicate that the non-parole period should be reduced. [54] I have reached the view that the appropriate non-parole period will be 12 months."

The Appeal

The applicant argues that the sentencing judge did not in his remarks on sentence refer to, consider, or make any evaluative assessments pursuant to ss 66(1), 66(2) or 66(3) of the C(SP) Act, in circumstances where he was obliged to do so, and announced the manner by which the sentence was to be served prior to determining its length. The applicant relies on the decisions of Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3 and Chan v The King [2023] NSWCCA 206 in support of his application.

Ground 1: The sentencing judge erred by not following the three stage process required by ss 7 and 66 Crimes (Sentencing Procedure) Act 1999 (NSW) in considering whether the applicant could be sentenced by way of an Intensive Corrections Order in that his Honour:

(a) Failed to consider the mandatory considerations in s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW); and

(b) Determined whether the applicant could be sentenced by way of an Intensive Corrections Order prior to setting the length of the term of imprisonment.

The issue before the sentencing court was, as the sentencing judge stated at [27] of his reasons, "whether the offender is sentenced to full-time custody, or whether, as has been submitted on his behalf, he should be placed on an Intensive Corrections Order".
By ground 1(a) and 1(b) the applicant complains of failure by the sentencing judge to comply with s 7 and s 66 of the C(SP) Act.
Section 7 is as follows: 7 Intensive correction orders (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. (2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence. (3) This section does not apply to an offender who is under the age of 18 years. (4) This section is subject to the provisions of Part 5.
Section 66 is in these terms: 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.
The applicant points to the High Court's decision in Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3 - in which both orders and reasons were handed down after sentence was imposed upon the applicant - where the majority (Gordon, Edelman, Steward, and Gleeson JJ) set out a "three step" sentencing process, at [59]. The majority said: "Three steps to the sentencing process There are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the Sentencing Procedure Act, or confirmed or varied on a sentencing appeal: first, a determination that the threshold in s 5(1), described below, is met; second, determination of the appropriate term of the sentence of imprisonment; and third, where the issue arises, consideration of whether or not to make an ICO. The identification of these steps does not conflict with the principle, stated in Markarian v The Queen, that sentencing does not involve a mathematical approach of increments to and decrements from a predetermined range of sentences. The sentencing court must engage in a process of instinctive synthesis of multiple factors at each stage of the sentencing process."
The applicant's submission is that the sentencing judge did not refer in terms to s 66 of the C(SP) Act and can therefore be assumed not to have had regard to the statutory provision. He contends that his Honour did not consider the paramount consideration of community safety and failed to engage in the mandatory assessment process of that aspect of the matter. The applicant submits that the sentencing judge misapprehended his task in regarding "the question" for the determination of the court in imposing sentence as whether an ICO represented an adequate punishment for the offence, particularly given that his Honour was concerned that an ICO would constitute little more than a requirement to be of good behaviour. The applicant relies upon the majority judgment in Stanley to argue that, in elevating the question of the adequacy of punishment over considerations of community safety, his Honour did not treat s 3A as a consideration "subordinate" to the latter feature, as s 66(1) requires.
Finally, the applicant points to the sentencing remarks and their structure to assert that the sentencing judge dismissed the availability of an ICO prior to having announced the term of the sentence, thus breaching the second step of the sentencing process as outlined by the majority at [59] in Stanley.
The Crown does not accept the applicant's characterisation of the remarks of the sentencing judge as demonstrating any failure to comply with s 66 of the C(SP) Act. The Crown points to the conclusions of the sentencing judge as to the unlikelihood of the applicant re-offending, and the low risk he posed to the community, as fulfilling the statutory requirements set out at s 66(1) and s 66(2) of the C(SP) Act. The Crown contends that the conclusion of the sentencing judge was "inconclusive", as the majority used that term in Stanley, at [76], in that inherent in it was the finding that it could not be said that community safety would be better enhanced whether a full-time sentence or an ICO was imposed. In the Crown's submission the conclusions reached by the sentencing judge placed this matter into the category of: "[…] cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative" (Stanley, at [76]).
Thus, albeit without referring specifically to s 66 of the C(SP) Act, the assessment it required was carried out. His Honour having in substance then turned to s 66(3), and considered the requirements of s 3A and common law sentencing principles, the conclusion of the sentencing court was that a sentence of full-time imprisonment must be imposed, one not, in the Crown's submission, attended by error.
The Crown also disputes the characterisation as error of the discounting of an ICO as the proper sentence, prior to the announcement of the term of that sentence. Highlighting the ex tempore nature of the sentencing judgment, the Crown submits that the sequence of the remarks cannot be assumed to correspond with the sequence of the formulation of sentence. It is argued that the sentencing judge had clearly determined the length of sentence to be imposed prior to delivering his reasons. It was the announcement of that conclusion that varied in sequence, not its formulation.

Determination

It must be recalled that the judgment in Stanley was handed down on 15 February 2023, 5 months after sentence was imposed in this matter. Thus, his Honour did not have the benefit of the reasons of the majority in structuring and delivering his ex tempore remarks. He had been directed in submission to the terms of s 66 of the C(SP) Act and, although his Honour did not refer to the section in terms, that is not of itself an error: Mourtada v R [2021] NSWCCA 211, at [37]. It is not necessary for a sentencing judge to meticulously cite each statutory provision or common law principle under which a sentence is determined and imposed for that sentence to be unattended by error. What is required is that the relevant provisions have been considered and applied, and that their application can be discerned, including by appellate court that is asked to review it. I do not accept the applicant's submission that his Honour's failure to refer to s 66 specifically is a reliable basis upon which to conclude that the sentencing judge overlooked the application of the provision completely. That is particularly so when proper regard is had to the ex tempore nature of the remarks.
His Honour imposed sentence immediately after the submissions to the court were received; he had no time in which to map out his remarks and perfect their structure and expression. The reality of the vast workload of the District Court makes proceeding in that expeditious way frequently unavoidable, and often necessary. It is a reality that may lead to some economy of reference, and even infelicity of expression, but such features do not automatically equate to error.
If careful regard is had to what his Honour did say it is tolerably clear that, in considering whether an ICO was the proper penalty to be imposed, he had firmly in his mind the questions of the protection of the community and the prospects of the applicant re-offending. With respect to those features, his Honour concluded: "I am persuaded that, therefore, there is not great emphasis to be laid on personal deterrence, and that the protection of the community does not loom at all large. I am also persuaded the offender himself has taken steps to promote his own rehabilitation".
The sentencing judge went on to refer to and quote extensively from the SAR as to the risk of re-offending, and the conditions that might attach to any supervised order as proposed by its author. Although not using the statutory language of s 66(1) and s 66(2), the sentencing judge gave adequate attention to the impact of the sentence upon the protection of the community (community safety), and to the risk of re-offending. His Honour's remarks, read as a whole, demonstrate his conclusions that, as the applicant was unlikely to commit an offence of violence again, the sentence to be imposed, whether served by full-time custody or an ICO, was unlikely to have any real impact upon community safety or re-offending. In terms of which mode of sentence would be most advantageous to those features, the conclusion was essentially neutral, or "inconclusive".
The conclusions of the sentencing judge are analogous to the position in Tonga, Samuel v R [2023] NSWCCA 120. In that case the applicant, in company with his brother, assaulted a road user whose driving had angered him, and was prosecuted for recklessly causing grievous bodily harm contrary to s 35(1) of the Crimes Act, an offence carrying a 14 year maximum sentence and a 5 year standard non-parole period. A crow bar was used in the assault and the victim was left with an open deep skull fracture that required surgical repair together with two wounds to his head. The sentencing judge concluded that the applicant has good prospects of rehabilitation, but was not able to conclude that he was unlikely to re-offend. The sentencing judge concluded that imposing a sentence to be served by way of full-time imprisonment was "not more likely" to address his risk of re-offending.
This Court (constituted by Basten AJA, Walton and Hamill JJ) found that the conclusion of the sentencing judge was in substance an inconclusive finding and there was no error in declining to order the sentence to be served by way of an ICO.
In this matter, his Honour was not persuaded that there was advantage in either mode of service of the sentence ahead of the other, a similarly inconclusive finding. Having come to that view, his Honour's attention turned to wider sentencing considerations, including those set out in s 3A of the C(SP) Act, an approach consistent with that required by s 66(3) of the Act. Having done so, his Honour concluded that an ICO was not appropriate. Despite the absence of direct reference to s 66, the requirements of the section were met in the analysis undertaken by the sentencing judge. It is consistent with what was said in Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97, at [50] - [51]: "Like Harrison J, I consider that s 66(1) subordinates (but does not exclude) other considerations to community safety. That is the inescapable consequence of declaring community safety to be "the paramount consideration". It is important to note, however, that is so only at the point when consideration is being given to whether to make an ICO. Thus, rehabilitation (s 3A (d)) will give way to community safety where appropriate; in an appropriate case, accountability and denunciation may be given less weight than they otherwise would. In this respect, it is not to be overlooked that the s 3A purposes have already been taken into account in the selection of the term of the sentence. By s 66(3), they are again to be taken into account in relation to the specific question whether the sentence is to be served by way of ICO. It is only in this context that they may be said to be "subordinate". That does not diminish their importance at the earlier point of the sentencing determination. This is what I think Harrison J had in mind in [86] of Pullen. Primacy must be given to the clear language of s 66(1) which, in terms, places community safety as the paramount consideration. Which of the two modes of serving the sentence is more likely to address the offender's risk of reoffending is one of the factors relevant to the assessment of community safety, which, as Harrison J observed in Pullen, may best be served, in different cases, in different ways. The better way of addressing an offender's risk of reoffending is but one of the considerations that contribute to the s 66(1) assessment."
That his Honour announced his conclusion as to the mode of sentence before announcing its term does not, in the particular circumstances of this matter, amount to error in my conclusion. The requirement that the term of sentence is determined before consideration is given to the manner in which it is to be served is a mechanism intended to prevent the length of sentences being tailored to ensure that an ICO can or cannot be imposed: see Mandranis at [35]. It is not a requirement to be fulfilled by the mere sequence in which term and mode of sentence are announced; that would be to elevate form over substance.
There can be no real doubt that the sentencing judge had determined the sentence to be imposed upon the applicant, including by applying the 25% discount for the plea of guilty, and fixing on the dates upon which the sentence would commence and expire, prior to commencing to deliver his reasons. The fact that his Honour dismissed the option of an ICO on the basis that it would fail to address many of the s 3A purposes, including adequate punishment, of itself establishes that the length of sentence, insofar as it fell below the 2 year statutory bar, must have been known to the sentencing court at that point. Had his Honour gone on to impose a term exceeding 2 years imprisonment, he would not have needed to consider those matters in s 66, because the prospect of an ICO being imposed would not arise. The inevitable and common sense view is that, when he began to give his remarks, his Honour had already determined the length of the sentence. The position is similar to that considered in Hawat v R [2020] NSWCCA 121 at [33]. It was the announcement of the term of sentence that did not conform to the required three step process, not its determination. It is the latter process which is erroneous and not the former.

Conclusion

In my conclusion, whilst a sentence to be served by way of an ICO was available to the sentencing court, his Honour did not err in the process adopted in determining that a full-time sentence of imprisonment was called for. For these reasons, although I would grant leave to appeal, the appeal should be dismissed. Because the applicant was admitted to bail on 28 November 2022, there must, however, be some adjustment to the commencement and consequential dates relating to the sentence imposed at first instance. The orders I propose are: 1. Grant leave to appeal; 2. Dismiss the appeal; 3. The date upon which the sentence imposed upon the applicant on 29 September 2022 is to commence is varied.
IERACE J: I have had the considerable benefit of reading the judgments of the Chief Judge at Common Law and Wilson J. I agree with their Honours' observations concerning the applicant's complaint that the sentencing judge failed to expressly acknowledge that he adhered to the three-stage sequence of steps that was mandated for a sentencing exercise concerning an intensive correction order (ICO) by s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). The real issue is whether the sentencing judge complied with the substance of those statutory obligations, in particular, s 66(1).

Relevant legislative provisions and authority

Section 7 of the Sentencing Procedure Act provides for the sentencing option of an ICO. Part 5 of the Act ("Sentencing Procedures for Intensive Correction Orders") sets out the procedure for considering and making an ICO. The current version of s 66 was introduced into the Act by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) (the Amending Act) which significantly amended Pt 5. It commenced on 24 September 2018 and provides as follows. 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.
Section 3A of the Sentencing Procedure Act is in these terms. 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
There was no counterpart to s 66 in Pt 5 of the Sentencing Procedure Act prior to September 2018. The only previous legislative guidance in Part 5 as to how a sentencing court was to determine whether to make an ICO was found within s 67 (since amended by the Amending Act): 67 Suitability of offender for intensive correction order (1) An intensive correction order may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied: (a) that the offender is of or above the age of 18 years, and (b) that the offender is a suitable person to serve the sentence by way of intensive correction in the community, and (c) that it is appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community, and (d) that the offender has signed an undertaking to comply with the offender's obligations under the intensive correction order. (2) In deciding whether or not to make an intensive correction order, the court is to have regard to: (a) the contents of the assessment report on the offender (prepared under section 70), and (b) such evidence from the Commissioner of Corrective Services as the court considers necessary for the purpose of deciding whether to make such an order. (3) A court may, for any reason it considers sufficient, decline to make an intensive correction order despite the contents of the assessment report. (4) A court may make an intensive correction order with respect to an offender's sentence of imprisonment only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community. (5) If a court declines to make an intensive correction order with respect to an offender's sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of intensive correction in the community, the court must indicate to the offender, and make a record of, its reasons for doing so. (6) A sentence of imprisonment is not invalidated by a failure to comply with subsection (5).
The policy objective of the amendments was noted in R v Fangaloka [2019] NSWCCA 173 by Basten JA (as his Honour then was), Johnson and Price JJ agreeing, at [57]: "… the underlying purpose of the new provisions was helpfully explained by the Attorney General in the Second Reading Speech (Legislative Assembly, Hansard, 11 October 2017, Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017, p 1). The purpose of the amendments appears to have been twofold, namely to avoid (i) the ineffectiveness of community-based corrections without supervision, and (ii) the ineffectiveness of short sentences in reducing recidivism. The Attorney stated, in relation to the new s 66 [Hansard, p 2]: 'New section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why new section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.'"
Although an ICO is the more lenient of the two alternatives by which a custodial sentence is to be served, it is important not to lose sight of the fact that it is not a light sentencing option. As observed in Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 by Simpson AJA, an ICO, despite being served in the community, is a custodial sentence: "24 Over the years, sentencing legislation has provided for a variety of options by which criminal conduct may be punished by non-custodial or partially custodial (for example, periodic detention, provided for by s 6, now repealed, of the Sentencing Procedure Act) alternatives. Non-custodial alternatives have included suspension of sentence (s 12, also now repealed). Currently, they include ICOs (s 7), community correction orders ('CCOs') (s 8) and conditional release orders ('CROs') (s 9). By s 7(1), a court that has sentenced an offender to imprisonment may make an order directing that the sentence (or sentences) be served by way of intensive correction in the community. By subs(2) of s 7 a court that makes an ICO is not to set a non-parole period for the sentence. 25 Because, as will be seen below, an ICO is a mode by which a sentence of imprisonment may be served, in contra-distinction to CCOs and CROs, it is not one of the alternatives required to be considered in the application of s 5 …. Indeed, it would be logically wrong to do so, because s 7 proceeds on the premise that a sentence of imprisonment has been imposed. As it was put by McCallum JA in Wany v DPP [2020] NSWCA 318: 'An ICO is a way of serving a term of imprisonment; it cannot, at the same time, be an alternative to imprisonment' (at [18]).'"
In Tonga, Samuel v R [2023] NSWCCA 120, Basten AJA (Walton and Hamill JJ agreeing) referred to the conditions of an ICO that are provided in the Sentencing Procedure Act, which is salutary to recall: "28 … the nature of the 'intensive correction' which the offender is to undergo turns on the conditions under which he or she is released into the community. As provided by s 72, there are 'standard conditions', 'additional conditions' and 'further conditions'. The standard conditions, identified in s 73 are as follows: 73 Standard conditions (1) The sentencing court must at the time of sentence impose on an intensive correction order the standard conditions of an intensive correction order. (2) The standard conditions of an intensive correction order are the following - (a) a condition that the offender must not commit any offence, (b) a condition that the offender must submit to supervision by a community corrections officer. Note - Regulations may be made under the Crimes (Administration of Sentences) Act 1999 to prescribe the offender's obligations under a standard condition of an intensive correction order. 29 As provided in the note to s 73, the obligations imposed by the standard conditions are set out in the Crimes (Administration of Sentences) Regulation 2014 (NSW), Pt 10, Div 2. The general supervision condition is identified in cl 187 in the following terms: 187 Obligations under supervision condition (ICO) (1) For the purposes of section 82 of the Act, an offender who is subject to a supervision condition of an intensive correction order has the following obligations - (a) to report to a community corrections officer - (i) on the day the order is made, if the order has a home detention condition or electronic monitoring condition, or (ii) as soon as practicable after (but not later than 7 days after) the order is made, if the order does not have a home detention condition or electronic monitoring condition, (b) to report to a community corrections officer at the times and places directed by the officer, (c) to comply with all reasonable directions of a community corrections officer relating to any of the following - (i) the place in which the offender is to reside, (ii) participating in programs, treatment, interventions or other related activities, (iii) without limiting subparagraph (ii), participating in employment, education, training or other related activities, (iv) not undertaking specified employment, education, training, volunteer, leisure or other activities, (v) not associating with a specified person, (vi) not frequenting or visiting a specified place or area, (vii) ceasing drug use, (viii) ceasing or reducing alcohol use, (ix) drug and alcohol testing, (x) requirements for the purposes of monitoring compliance with the order, (xi) giving consent to third parties providing information to a community corrections officer about the offender's compliance with the order, (d) to comply with any other reasonable directions of a community corrections officer, (e) to permit a community corrections officer to visit the offender at the offender's place of residence at any time and, for that purpose, to enter the premises, (f) to notify a community corrections officer of any change to the offender's place of residence, contact details or employment - (i) if practicable, before the change occurs, or (ii) if that is not practicable, within 7 days of the change occurring, (g) not to leave New South Wales without the permission of a community corrections manager, (h) not to leave Australia without the permission of the Parole Authority. (2) A community corrections officer may vary or waive the obligation to report to a community corrections officer under subclause (1)(a). (3) Supervision of an offender who is subject to a supervision condition is to be carried out by a community corrections officer. 30 The Regulation also provides for an obligation under a home detention condition (cl 189), an electronic monitoring condition (cl 189A), a curfew condition (cl 189B), a community service work condition (cl 189C) and a rehabilitation or treatment condition (cl 189D). There are also requirements in respect of less intrusive obligations. It may be seen that the substantive restrictions are to be found in subcl (1)(c) and are limited to certain reasonable directions of a community corrections officer. (There may be an issue as to whether a direction which might fall within an additional condition set out in s 73A(2) of the Sentencing Act, which has not been imposed by the Court, can be the subject of direction by a community correction officer as a 'standard condition' of 'supervision'.)"
In Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3, the plurality said: "75 The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending. 76 That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending. 77 While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment."
The sentencing judge did not have the benefit of the guidance provided by Stanley v Director of Public Prosecutions (NSW), which was handed down subsequently. However, as noted by Wilson J, the applicant's written submissions referred his Honour to Mandranis v R, which considered and sought to reconcile earlier judgments of this Court concerning the interpretation of Pt 5, as amended. The sentencing judge was taken to Simpson AJA's judgment at [54] of Mandranis, which was to the effect that the intention behind s 66(1) was that, unless allowing an offender to serve his sentence in the community would endanger community safety, it was the "paramount consideration". Simpson AJA continued: "One factor which must be taken into account in the consideration of community safety is the likelihood of reoffending by the offender, and which of an ICO and full-time detention would be more likely to address that risk."

The sentence judgment

In his judgment (R v SR [2022] NSWDC 542), the sentencing judge said that, as it was conceded by both parties that the threshold of s 5 of the Sentencing Procedure Act was crossed, he would move directly to "the issue", which was whether an ICO should be made. His Honour then reviewed the tendered subjective material and made findings as to some of the s 3A considerations. His Honour found that: as to personal deterrence (s 3A(b)), "there is not great emphasis to be laid on personal deterrence"; as to the protection of the community (s 3A(c)), there was "little if any prospect of the offender committing another crime of violence; the risk of recidivism is low … the need for "the protection of the community does not loom at all large"; and as to the need to promote his rehabilitation (s 3A(d)), "the offender himself has taken steps to promote his own rehabilitation".
The sentencing judge referred to the sentencing assessment report (SAR) that had been prepared by a Senior Community Corrections officer, in particular, where it stated that if the applicant served his prison sentence in the community pursuant to an ICO, there would be little monitoring of him, because of his "low" risk of reoffending. The SAR recommended that if an ICO was made, it be accompanied by two additional conditions to the standard conditions, that he not drink alcohol for the term of the ICO and that he comply with mental health treatment as recommended by his psychologist, Dr Vu. His Honour said, at [47]: "There is no actual recommendation from Dr Vu or any other medical practitioner, and I do not know to what extent Dr Vu's cognitive behaviour therapy, assuming it to be ongoing, will be necessary to complete what Dr Vu can do to assist [the applicant]."
I note that in his report, Dr Vu stated the applicant had successfully completed the course of cognitive behaviour therapy on 3 May 2022, which was four months before the sentence hearing.
The sentencing judge found that the applicant would be unsuitable for a community service condition to an ICO because of a physical health issue (a pending hip operation) and concluded that an ICO would have virtually no impact on his life, at [48]: "… In essence, an ICO would then involve [the applicant] abstaining from alcohol and continuing to see Dr Vu as Dr Vu recommends. The impact on [the applicant's] life would be miniscule."
His Honour said that "the real question", was "whether an ICO would be adequate punishment for the offence committed by [the applicant]", identifying at [48] considerations of the adequacy of punishment (s 3A(a)), general deterrence (s 3A(b)) and denunciation (s 3A(f)): "… [The applicant] must be adequately punished for his offence. The sentence to be passed must deter not only [the applicant], but also all other step-fathers from committing similar offences against their stepsons. The punishment to be imposed must make [the applicant] accountable for his actions and denounce his conduct."
The sentencing judge concluded, at [51]: "I have reached the view that only a sentence of full-time imprisonment would be adequate for this case. An ICO in the circumstances would hardly, in my view, be appropriate."

Determination

There can be no doubt that his Honour was well aware of the applicant's low level of risk, his progress in rehabilitation and his reduced need for personal deterrence, all leading to the inevitable conclusion that, as his Honour put it, "the protection of the community does not loom at all large". Nevertheless, it was open to his Honour ultimately to decide that the applicant's custodial sentence should be served in a prison rather than in the community. However, the issue on appeal is, whether in the process of arriving at that conclusion, his Honour complied with the obligations in s 66, in particular, whether he engaged with his statutory obligation to treat community safety as the paramount consideration. In my view, it is not reasonably possible to infer, and thus conclude, from the sentence judgment that community safety was "the paramount consideration", as s 66(1) of the Sentencing Procedure Act mandates.
Had the issue of community safety been accorded the status of the paramount consideration in weighing the two alternatives, the sentencing judge may have considered, for example, whether the applicant's continuing rehabilitation (and thus community safety) was better served by him remaining in the community, where he had successfully completed Dr Vu's sessions of cognitive behaviour therapy to treat his criminogenic factors, or by serving it within the prison system. If he remained in the community, Dr Vu would have been available for further rehabilitative treatment, if required, over the term of the ICO, consistently with the recommendation in the SAR that the applicant be subject to additional conditions to abstain from alcohol and receive mental health treatment.
Accordingly, I would grant leave and uphold the appeal.

Resentence

As noted by Wilson J, the applicant was released on bail, pending the determination of this application, on 28 November 2022, having served two months of his sentence. The conditions of bail include weekly reporting to police and not consuming alcohol or drugs. In an affidavit filed on 17 November 2023, the applicant states he has not consumed alcohol since the date of the offence.
In that affidavit, the applicant has provided an uncontested account of some other matters that are relevant to his resentence. He had two significant pre-sentence health issues. He was diagnosed with bowel cancer in August 2020, for which he underwent surgery and chemotherapy. That condition is currently in remission. In November 2021, he fractured his left femur and injured his left hip. He was placed on a waiting list for a hip replacement, receiving drug therapy for pain in the meantime. Following his release to parole, the hip replacement operation was rescheduled and was performed on 6 March 2023.
Annexed to the applicant's affidavit is a further report from Dr Vu, dated 6 November 2023, in which he states that the applicant continued to attend therapy sessions after the initial six sessions that ended on 3 May 2022. The applicant attended an additional 16 sessions, the most recent being in October 2023. Dr Vu stated: "[The applicant] is actively managing his depressive, anger and anxiety symptoms, and demonstrates appropriate levels of remorse, regret, insight and reflection when examining the precipitants and consequences of his behaviours related to his offences. The treatment consists of cognitive-behavioural interventions aimed to examine the beliefs, thoughts and consequences related to the offence and harm reduction strategies. I believe that this treatment is suitable and effective for the reduction of his adjustment difficulties, anger management difficulties and problematic drinking episodes. [The applicant] has shown high levels of engagement, consistent attendance and high motivation to make progress towards his therapeutic goals and there was no indication throughout treatment to suggest that his offences were of a chronic pattern. [The applicant] has also indicated he has maintained his abstinence from alcohol throughout treatment."
The applicant states that he intends to continue to see Dr Vu monthly, for as long as Dr Vu considers beneficial. The applicant has also benefited from engaging in the Self-Management and Recovery Training (SMART) program and on-going relationship counselling, although he and his wife have been separated since the offence. He resides alone and is in full-time employment. His employment would be terminated if he returned to custody. He expresses continuing remorse.
On resentence, I would make the same findings as did the sentencing judge, although the positive findings in respect of personal deterrence, rehabilitation and the need to protect the community would be even more positive, in view of the applicant's progress on appeal bail. Nevertheless, no sentence, other than one of imprisonment, is warranted by the offence: s 5(1) of the Sentencing Procedure Act. The length of the sentence is also to be determined in light of the applicant having already served two months imprisonment. Having regard to those matters, I would impose a sentence of 12 months. As to whether an ICO should be imposed, I note the content of the SAR, dated 13 July 2022, which is supportive of that particular sentencing option. To the extent that the report may be regarded outdated, I note s 17D(1A) of the Sentencing Procedure Act and the uncontested evidence on resentence.
In view of s 66(2) of the Sentencing Procedure Act, from the perspective of community safety, an ICO would enable the applicant to continue his therapy with Dr Vu and the relationship counselling, which address factors that contributed to his offending behaviour; and to continue his full-time employment, which is a pro-social factor. A return to prison would enhance the personal deterrence aspect of the sentence but would remove the protective factors of his continuing therapy and his employment. In my view, an ICO clearly outweighs prison as the sentencing alternative that enhances community safety. Although community safety is not determinative of the exercise (see Stanley v Director of Public Prosecutions (NSW) at [75]), when the evidence is evaluated in the context of all relevant provisions of s 3A of the Sentencing Procedure Act, with community safety being the paramount consideration, I find that the sentence of imprisonment should be served by way of an ICO. I would include additional conditions pursuant to s 73A(2)(e) and (f) of the Sentencing Procedure Act, that is, that the applicant attend therapy provided by Dr Vu and that he abstain from consuming alcohol.

Orders

Accordingly, I would make the following orders: 1. The sentence imposed in the District Court on 29 September 2022 is quashed. 2. The applicant is sentenced to an intensive correction order for a period of 12 months to date from 26 March 2024 and expire on 25 March 2025. 3. The following additional conditions are made: 1. The applicant is to continue to receive therapy from Dr Vu as frequently as Dr Vu advises; and 2. The applicant is not to consume alcohol.

Amendments 26 March 2024 - 16/03/24 - File number of District Court matter amended. 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: 26 March 2024

at 23 September 2018) Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017(NSW)

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017(NSW)

Crimes Act 1900(NSW)s 35(1)

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3(1), 3A, 5, 7, 17D(2), 66, 73, 73A(2)(e), (f), s 67

HEADNOTE [This headnote is not to be read as part of the judgment] On 29 September 2022, the appellant was sentenced by his Honour Judge Neilson in the Sydney District Court to a term of imprisonment of 1 year and 10 months, with a non-parole period of 1 year, for the offence of causing grievous bodily harm being reckless as to actual bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence was one committed by the appellant towards his stepson in the home that they shared, and as such the offence is a domestic violence offence. The appellant pleaded guilty in the District Court. Upon being sentenced, the appellant filed a notice of intention to appeal and was granted appeals bail. The appellant is currently in the community on appeals bail, having served 61 days in custody between the time of his arrest and being granted appeals bail. In his appeal, the appellant relied upon the decisions of Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3 and Chan v The King [2023] NSWCCA 206 to argue that the sentencing judge failed to follow the three stage process required by ss 7 and 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in considering whether the applicant could be sentenced by way of an Intensive Correction Order. Specifically, the appellant contended that the sentencing judge failed to consider community safety as a paramount consideration. The Court (Ierace J and Harrison CJ at CL agreeing with different reasons, Wilson J in dissent), allowing the appeal, held: That the appeal should be allowed and the appellant re-sentenced. Harrison CJ at CL came to the view that it is not necessary for a sentencing judge meticulously to cite all statutory or common law principles that should be considered if it is otherwise apparent that relevant principles have not been overlooked. It was not necessary for the sentencing judge in this case to refer to s 66 specifically (at [2]). However, the sentencing judge failed to explain how his finding that the "protection of the community does not loom at all large" correlated to the decision of imposing a custodial sentence on the appellant. Ierace J noted that whilst it was open for the sentencing judge to impose a custodial sentence to be served in prison rather than the community, it is not "reasonably possible to infer" that community safety was the paramount consideration (at [70]). Ierace J found that evidence of this consideration may, for example, have been elucidated with contemplation of whether the appellant's rehabilitation was better served in the community or within the prison system, specifically access to a psychologist he had seen in the community whilst on appeals bail.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (13)

Cited By (1)