Wany v DPP

Court of Appeal (NSW)|2020-10-15|Before: Meagher JA, McCallum JA

District Court of New South Wales (Second Respondent) Representation: Counsel: T Game SC, P Lange, D McMahon (Applicant) A M Mitchelmore SC, B K Baker (First Respondent)

Solicitors: Murphy's Lawyers Inc (Applicant) Solicitor for Director of Public Prosecutions (First Respondent) File Number(s): 2020/240881 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 27 July 2020 Before: King SC DCJ File Number(s): 2018/00286636

[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.]

HEADNOTE [This headnote is not to be read as part of the judgment] Timothy Wany pleaded guilty to an offence of operating a vessel in a manner dangerous to the public causing grievous bodily harm contrary to s 13(1)(c) of the Marine Safety Act 1998 (NSW). The offence involved a boating accident which occurred while Mr Wany was taking two of his cousins for a ride in a motorboat on the Georges River one evening. The vessel collided with a port marker and all three men suffered injuries. The most serious were those of Mr Wany's cousin, David Fares, who suffered a severe traumatic brain injury. That constituted "grievous bodily harm" in the required sense and was the basis for the charge to which Mr Wany pleaded guilty. None of the men could remember the circumstances of the collision. Mr Wany was breath-tested shortly afterwards and returned a negative result. In the Local Court, the Crown accepted the plea of guilty on the basis of "momentary inattention" but the magistrate did not accept that characterisation. Despite a sentencing assessment report which indicated he posed a low risk of reoffending and was suitable for community service work, the magistrate refused to make an intensive correction order (ICO) and determined that the appropriate sentence was a term of imprisonment for 18 months (9 months non-parole period) to be served by way of full-time detention. Mr Wany appealed to the District Court where the sentencing judge ordered another sentencing assessment report to consider whether Mr Wany was suitable for home detention. He was. The judge nevertheless concluded that full-time detention was appropriate but reduced the sentence to 12 months (6 months non-parole period). Mr Wany sought judicial review of that decision, asserting that the sentencing judge fell into jurisdictional error. The key issue on appeal was determining the proper approach to the exercise of the discretion to order that a custodial sentence be served by way of ICO. Held (per McCallum JA; Meagher JA and Simpson AJA agreeing), allowing the appeal: (1) That an ICO is an alternative way of serving a sentence of imprisonment is clear from the language of the Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 5A, 7 and the Crimes (Administration of Sentences) Act 1999 (NSW), Pts 2, 3, 4A: at [4]. R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [99]; R v Zamagias [2002] NSWCCA 17 at [32] cited. (2) A sentence appeal pursuant to ss 11 and 17 of the Crimes (Appeal and Review) Act 2001 (NSW) is a hearing de novo and properly characterised as a fresh sentencing task: at [27]-[28]. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [29]; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [91]-[92]; Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 at [51] applied. (3) The sentencing judge's purported adoption of the magistrate's reasons reveals a constructive failure to engage with the task imposed on the court under s 17 of the Crimes (Appeal and Review) Act: at [49]. His Honour was required to engage in an evaluative assessment of the objective seriousness of the offence: at [48]. Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66 at [46]; Veness v Hodge [2015] NSWCA 20 at [1]; Robbins v Commissioner of Taxation (1974) 129 CLR 332; (1974) 48 ALJR 367; Turnbull v R [2019] NSWCCA 97 at [44]-[46] cited. Held (per McCallum JA; Simpson AJA agreeing; Meagher JA not deciding): (4) Where the court is considering an ICO, community safety is a mandatory element for consideration. That requires, in accordance with s 66(2) of the Crimes (Sentencing Procedure) Act, an assessment as to whether an ICO or full-time detention is more likely to address an offender's risk of reoffending: at [56], [60]. R v Fangaloka [2019] NSWCCA 173 at [60], [65] discussed. (5) Section 66 does not preclude the imposition of an ICO except where the sentencing court reaches a positive determination that an ICO (as opposed to full-time detention) is more likely to address an offender's risk of reoffending: at [62]. Casella v R [2019] NSWCCA 201 at [108]; Karout v R [2019] NSWCCA 253 at [57]-[60]; Pogson cited. (6) The weight given to the determination of an offender's risk of reoffending is a matter within the discretionary judgment of the sentencing judge: s 66(3). Here, neither the magistrate nor sentencing judge considered those issues, which amounted to a constructive failure to exercise jurisdiction: at [65], [71]. Fangaloka at [65]; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 cited.

Judgment

MEAGHER JA: I agree for the reasons given by McCallum JA that relief in the nature of certiorari should be granted on the basis of ground 2 identified by her Honour. Accordingly, I agree that the orders proposed by her Honour should be made. This makes it unnecessary to determine whether the sentencing judge's failure to address the matter in s 66(2) involved jurisdictional error.
McCALLUM JA: A sentence of imprisonment in New South Wales is not necessarily served in prison. In limited circumstances, the sentencing court may direct that imprisonment be served in one of two other ways: by intensive correction in the community or by compulsory drug treatment detention.
The possibility of directing an offender to serve a sentence of imprisonment by way of intensive correction in the community was first introduced by amendment to the Crimes (Sentencing Procedure) Act 1999 (NSW) in 2010. It was explained in the second reading speech that this new sentencing option, termed an intensive correction order or "ICO", was designed "to reduce an offender's risk of reoffending through the provision of intensive rehabilitation and supervision in the community". However, the power to make an ICO is not confined to persons who pose a risk of reoffending or have an identified need for rehabilitation: R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [99] (McClellan CJ at CL and Johnson J; Price, RA Hulme and Button JJ agreeing at [152], [155] and [156]).
That an ICO is to be regarded as an alternative way of serving a sentence of imprisonment is clear from the language of the relevant provisions: ss 5, 5A and 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and see Pts 2, 3 and 4A of the Crimes (Administration of Sentences) Act 1999 (NSW). In Pogson at [35] the Court of Criminal Appeal described an ICO as a form of custodial sentence, albeit one that (as the legislation then stood) may have reflected "a significant degree of leniency": at [108].
It follows as a matter of logic that the mere fact that an offence is serious enough to warrant the imposition of a sentence of imprisonment cannot of itself preclude the making of an ICO. The introduction of the ICO provisions reflected an acknowledgment that, in some cases, serving a custodial sentence by intensive correction in the community would better serve the objects of sentencing than removing the offender from the community and keeping him or her in gaol.
The perception of gaol as the place for punishment nevertheless persisted. The New South Wales Law Reform Commission Report on Sentencing published in July 2013 noted that home detention and ICOs had "some significant advantages" over full-time imprisonment (including allowing an offender to retain employment and remain in contact with family networks while serving the sentence; being "much less costly than full-time custody" and avoiding any "potential contaminating effects" from exposing offenders to other offenders in the prison environment): at pars 9.16-9.17. However, the Report recorded that, despite such advantages, those sentencing options had not been used to any significant extent: at pars 9.19-9.20. The Report identified potential reforms to address those concerns.
The Crimes (Sentencing Procedure) Act was amended after that Report was presented to Parliament. Accordingly, regard may be had to its contents to confirm the meaning conveyed by the text of the Act that an ICO should properly be regarded as a form of custodial sentence rather than as something less than a custodial sentence: s 34(1) of the Interpretation Act 1987 (NSW).
The amendments were made by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) as part of a suite of reforms building on the Law Reform Commission Report and asserting the government's commitment to "a tough and smart criminal justice system that puts community safety first". The Attorney General said in the second reading speech concerning those amendments: "We know from Australian and international research that community supervision combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence."
The Attorney General said that the amendments would strengthen the intensive correction order, explaining: "It will be available for offenders sentenced to up to two years imprisonment and will require all offenders to submit to supervision. As well as mandatory supervision, the intensive correctional order will have a range of additional conditions to help courts ensure that offenders address their offending behaviour and are held accountable."
In that way, Parliament reiterated its recognition that responsibility and accountability are as much able to be reflected by the successful completion of a period of supervision within the community, possibly with the addition of one of the more draconian conditions, as by the service of a short term of imprisonment. The amendments reflected a policy that a criminal justice system that put community safety first could achieve that end more effectively by taking a nuanced ("smart") approach to rehabilitation than by the blunt tool of punishment and prevention by incarceration in all cases. The Law Reform Commission Report at 2.24 quoted the remarks of Howie J in R v Zamagias [2002] NSWCCA 17 at [32] on this issue: "It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation."
Under the current legislation, an ICO must include a condition requiring the offender to accept supervision by a community corrections officer and may also include additional, more intensive conditions such as home detention, a curfew, electronic monitoring or a community service component: ss 73, 73A.
This application raises an important question as to the proper approach to the exercise of the discretion to order that a custodial sentence be served by way of ICO. The applicant, Timothy Wany, pleaded guilty to an offence of operating a vessel in a manner dangerous to the public causing grievous bodily harm contrary to s 13(1)(c) of the Marine Safety Act 1998 (NSW). The offence involved a boating accident which occurred while Mr Wany was taking two of his cousins for a ride in a motorboat on the Georges River one evening. The vessel collided with a port marker off Shag Point. The agreed facts noted that the port marker was surrounded by "an open expanse of water on all sides" and stood 3 metres above the water with a flashing red light on top. The force of the collision was such as to cause extensive damage to both the vessel and the port marker. All three men suffered injuries. The most serious were those of Mr Wany's cousin, David Fares, who suffered a severe traumatic brain injury. Obviously, that was "grievous bodily harm" in the required sense and was the basis for the charge to which Mr Wany pleaded guilty. The other passenger and Mr Wany each had various bruises and abrasions but also both suffered a short period of unconsciousness. None of the men could remember the circumstances of the collision. However, a witness who was fishing at Shag Point at the time said the vessel was travelling at a normal speed immediately before the collision. Mr Wany was breath-tested shortly afterwards and returned a negative result.

Sentencing proceedings

It may be seen that there was little in the evidence to explain what went wrong. The record of proceedings in the Local Court noted that the plea of guilty was accepted on the basis of "momentary inattention". The offence carries a maximum penalty of imprisonment for two years and so was required to be dealt with summarily: s 6(1) of the Criminal Procedure Act 1986 (NSW). The sentencing magistrate (Viney LCM) indicated to the parties during submissions that she was proposing to refer Mr Wany for a sentencing assessment report. Such a report must be obtained before a sentencing court can make an ICO: s 17D(4) of the Crimes (Sentencing Procedure) Act.
Mr Wany was assessed to pose a low risk of reoffending and to be suitable for community service work. However, when the matter came back for sentence, the magistrate indicated that she had formed the view that she could not accept the agreed characterisation of the offending conduct as "momentary inattention". Her Honour determined that the appropriate sentence was a term of imprisonment for 18 months and that the sentence should be served by way of full-time detention. She explained that, in her view, the factors in Mr Wany's favour were overwhelmed by "the seriousness of the offending conduct, the need for a strong measure of both general deterrence and specific deterrence, the need to ensure adequate punishment to make the offender accountable for his actions and recognise the harm done to the victim". The structure of the sentence imposed was a term of imprisonment for 18 months with a non-parole period of 9 months.
Mr Wany appealed to the District Court as allowed under s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). As explained below, the task for the court in such an appeal is to undertake the sentencing task afresh. At Mr Wany's request, the sentencing judge (King SC DCJ) again referred him for a sentencing assessment report, this time to determine whether he was suitable for home detention. He was. The sentencing judge nonetheless concluded that no sentence other than full-time detention would properly reflect "the need for both specific and general deterrence as was referred to by the magistrate". Having reached that conclusion, however, his Honour proceeded to reduce the term of the sentence to 12 months with a non-parole period of 6 months.

Grounds for review of the decision of the District Court

Mr Wany seeks judicial review of the decision of the District Court. He acknowledges that the effect of the privative clause in s 176 of the District Court Act 1973 (NSW) is that the review is limited to the identification of jurisdictional error. The grounds for review specified in the summons filed 18 August 2020 are: 1. The judge fell into jurisdictional error by asking himself the wrong question for the purposes of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when determining whether the custodial sentence could be served by way of intensive corrections order. 2. The judge fell into jurisdictional error by conducting the appeal by reference to the reasons on sentence of the Magistrate in the Local Court, and whether her conclusions were logical and appropriate, rather than determining for himself de novo the appropriate sentence as required by s 17 of the Crimes (Appeal and Review) Act 2001 (NSW).

Steps to be undertaken before imposing a sentence of imprisonment

Before considering those grounds, it is helpful to recall the sequence of determinations to be made by a sentencing court before sentencing an offender to a term of imprisonment to be served by way of full-time detention. The relevant principles were the subject of careful exposition in the judgment of Howie J (with whom Hodgson JA and Levine J agreed) in Zamagias where his Honour identified the need for a three-stage process. That approach was recently approved in R v Fangaloka [2019] NSWCCA 173 at [44] (Basten JA, Johnson and Price JJ agreeing).
The first task is to determine whether the threshold in s 5 of the Crimes (Sentencing Procedure) Act is met. That section 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". It is important to note that, as a matter of statutory construction, the "possible alternatives" for the purpose of this task cannot include the possibility of directing that a sentence of imprisonment be served by intensive correction in the community. An ICO is a way of serving a term of imprisonment; it cannot, at the same time, be an alternative to imprisonment. It is to be noted in this context that a breach of the conditions of an ICO can result in its revocation by the Parole Authority, whereupon the offender is taken into custody to serve the sentence imposed: s 164 of the Crimes (Administration of Sentences) Act 1999 (NSW).
In Zamagias at [23], Howie J explained that, while each step on the path to imposition of a sentence of imprisonment requires the court to weigh the objective gravity of the offence and the subjective circumstances of the offender, "it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt" because the sentence "must be commensurate with the seriousness of the crime."
The second step, after determining that no penalty other than imprisonment is appropriate, is to determine the appropriate term of the sentence of imprisonment to be imposed. That determination is to be made without regard to, and cannot be adjusted to reflect, the manner in which the sentence is to be served: Zamagias at [26].
The third step, where the issue is raised, is to consider whether to make a direction under s 7 of the Crimes (Sentencing Procedure) Act that the sentence be served by way of intensive correction in the community. Consideration of the s 5 threshold may inform but does not determine the question as to the way in which the sentence should be served. The sentencing court does not reach s 7 without first having concluded that no penalty other than imprisonment is appropriate. The task of determining how that sentence is to be served is a discrete task governed by additional provisions.

Nature of the appeal to the District Court

The applicant's appeal to the District Court was an appeal as of right: s 11 of the Crimes (Appeal and Review) Act.
Section 17 of that Act provides: An appeal against sentence is 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.
Mr Game SC, who appeared with Mr Lange and Mr McMahon for Mr Wany, submitted that the term "rehearing" is a misnomer to describe an appeal under s 11 because such an appeal is not by way of rehearing in the sense in which that term is understood for the purposes of s 75A(5) of the Supreme Court Act 1970 (NSW). Mr Game submitted that the jurisdiction of the District Court under s 11 of the Crimes (Appeal and Review) Act is a de novo hearing in which the District Court judge is simply exercising the sentencing function. He submitted that the only relevance of what happened in the Local Court is that the evidence placed before that Court is placed before the District Court (possibly with the addition of fresh evidence) and for the purpose of a "Parker warning" if the District Court comes to the view that some longer sentence should be imposed: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.
It would be inappropriate to sweep the word used in the statute aside as a "misnomer". However, as explained by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [29], the term "rehearing" is a description which can "fail to identify all of the statutory incidents of the appeal".
The nature of the function to be exercised by the District Court in such an appeal was considered by McColl JA in Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [91]-[92], where her Honour said: "The text of ss 17, 18 and 26 of the Appeal and Review Act all use the expressions 'appeal' and provide in substantially the same terms for the appeal being by way of a rehearing of the evidence given in the original Local Court proceedings. However, the fact that leave is not required to adduce fresh evidence in a s 17 appeal is significant. As I have explained, a 'special power' to receive further evidence subject to a leave requirement such as found in s 18 and s 26 indicates that such appeals, albeit described as a 'rehearing', do not call for a fresh hearing or a hearing de novo, but, rather, are error based. Conversely, the omission of a leave requirement for the admission of 'fresh evidence' indicates, in my view, that the s 17 appeal is a hearing de novo requiring the sentence proceedings consequent upon the conviction to be heard afresh. As I have said, on such an appeal, the Court exercises original jurisdiction and the sentence is that of the District Court judge and must represent his or her 'view of the matter', not whether the Magistrate's view was appropriate." (citations omitted)
The distinction identified in those remarks between the nature of a sentence appeal governed by s 17 and a conviction appeal governed by s 18 makes sense when regard is had to the nature of the sentencing task. In SZVFW, at [30], Gageler J explained that an appeal by way of rehearing is "a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, required to 'give the judgment which in its opinion ought to have been given in the first instance'" (citation omitted). In the case of sentencing, the function of forming an opinion as to the sentence that ought to have been imposed requires the court to undertake the process of instinctive synthesis described by McHugh J in Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 at [51]: "…the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case."
As further explained by Gageler J in SZVFW at [31], the judgment that ought to have been given (here, the sentence that ought to have been imposed) is to be determined in retrospect having regard to any fresh evidence. It makes no sense to characterise such a function, the central aspect of which is "a value judgment" to be undertaken according to the evidence at the time of the hearing of the appeal, as something other than a fresh sentencing task.

Ground 2: conducting the appeal by reference to the reasons of the magistrate

As noted by Ms Mitchelmore SC, who appeared with Ms Baker for the Director of Public Prosecutions, there is a measure of overlap in the applicant's two grounds for review. While each alleges a different species of constructive failure to exercise jurisdiction, the complaint of failure to have regard to mandatory considerations (ground 1) is, to a degree, comprehended within the complaint that the judge conducted the appeal by reference to the reasons of the magistrate rather than undertaking the sentencing task himself (ground 2). For that reason, it is convenient to address ground 2 first.
Mr Wany submitted that an approach contrary to the remarks of McColl JA in Engelbrecht ("requiring the sentencing proceedings consequent upon the conviction to be heard afresh") would constitute jurisdictional error, being an example of the third kind of error described in the decision of the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72], namely, "misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case". Ground 2 contends that the judge's decision entailed error of that kind in that he approached the appeal "by way of analysis of the appropriateness of the magistrate's findings rather than determining the appropriate sentence afresh."
The Director of Public Prosecutions accepted that if a District Court judge misunderstood the scope of his or her jurisdiction so as not to conduct a rehearing of the kind required in an appeal under s 17, that would constitute jurisdictional error. However, the Director submitted that the judge in the present case did not misunderstand the jurisdiction he was exercising.
In order to resolve that question, it is necessary to consider his Honour's determination of the appeal in a little more detail. Unusually, the "severity appeal bundle" tendered by the Crown in the proceedings in the District Court included the transcript of the sentencing proceedings in the Local Court and the magistrate's sentencing decision. The applicant submitted that the judge's decision reveals an "unwarranted preoccupation" with the magistrate's decision.
Mr Wany did not seek to persuade the judge that the s 5 threshold was not met. The focus of the submissions was the argument that the sentence should be served by way of intensive correction in the community. In that context, counsel for Mr Wany drew his Honour's attention to the notation on the record of proceedings indicating that the plea was accepted on the basis that the case was one involving momentary inattention. The judge indicated at an early point during argument that he was not going to accept that.
After hearing the parties' submissions, the judge indicated that he was not minded to consider an intensive correction order but said he was minded to reduce the sentence imposed by the magistrate, maintaining the relationship between the non-parole period and the balance of term. Counsel for the applicant pressed the issue, asking whether his Honour would consider having the applicant assessed for home detention, which had not previously been done. It was submitted that the imposition of a home detention condition would be a "more condign way of serving an intensive corrections order than merely releasing him with a community service component". The primary judge acceded to the request but indicated that the applicant should not "take it as given" that if he was suitable for a home detention order, that would be the order made. Those events were later recorded in the sentencing judgment in the following terms: "On 15 June 2020 the matter first came before me, and during the process of indicating my view as to the appeal, when I was about to pronounce what I would do, Mr McMahon, who then appeared for the defendant, was interrupted by Mr Wrench of Murphy's Lawyers and then sought a further delay in order that a sentence assessment report could be obtained in relation to home detention assessment only. There was already a sentence assessment report prepared for the Local Court."
The description of Mr Wrench's conduct as an "interruption" that caused "further delay" is confounding. As I will explain, a cogent argument having been put for a direction that the sentence be served by way of intensive correction in the community, it was necessary for the judge to make a determination on that issue. If, by the time of the so-called interruption, the judge had already decided that he would not make an ICO in this case, no matter how favourable any further sentencing assessment report might be, he should have said so and proceeded to pronounce sentence. If his Honour had not yet determined to refuse the application, obtaining a further report directed to that issue was not only not fairly described as "further delay" at the request of the offender but was arguably a requirement of the Act: s 17D of the Crimes (Sentencing Procedure) Act.
On the adjourned date, the further sentencing assessment report was tendered indicating that Mr Wany was suitable for home detention. Mr Wany also tendered a letter from his wife stating that she was expecting their fifth child. The pregnancy was unexpected and she had not been aware of it at the time of the proceedings on sentence before the judge. She recounted her experience of having suffered post-natal depression after her previous pregnancies, most seriously after she gave birth to their fourth child, and stated that the applicant had been "the most supportive husband".
After going off the bench for a short period to consider the new material, the judge proceeded to give his sentencing decision. His Honour noted that he had read all of the material including the submissions before the magistrate and her Honour's "reasons for imposing a full-time period of imprisonment". His Honour continued: "Her Honour's reasons were logical and accurately represented all of the material and all of the submissions that had been made."
After noting the sentence imposed by the magistrate, the judge continued: "In re-reading all of the material, I have been almost tempted to return to the sentence as imposed by the learned Magistrate as being entirely appropriate, and not to accede to any of the submissions that have been made on behalf of the appellant in the circumstances where, in my view, it was entirely appropriate that the Magistrate rejected the submission made by both parties that this matter was a matter of momentary inattention."
The judge then recited the facts in summary form and concluded: "The learned Magistrate's decision carefully examined all of the submissions that had been made and the relevant sentencing legislation including, although not directly relevant, the guideline judgment of Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 before reaching the decision that she did make. I can find no fault in the logic or in the appropriateness of the sentence imposed by her; however, I accept that the offender is genuinely remorseful and contrite, as did the Magistrate. I accept that he has suffered some adverse consequences to himself and his family and business life as a result of the offending conduct. However, in my view, it cannot be that a sentence otherwise than of a period of full-time imprisonment properly reflects the need for both specific and general deterrence as was referred to by the Magistrate. However, in the circumstances, I am prepared, as I indicated on the last occasion, to make a reduction in the term of imprisonment that was imposed by the learned Magistrate. I note that having found special circumstances, she imposed a non-parole period that was 50% of the 18 months total term. I have no doubt that the offender's conduct in this offending has caused difficulties in respect of his family and his business but, in my view, it is essential that both specific and general deterrence be reflected in the sentence. I will, however, reduce the sentence to a term of imprisonment of 12 months and retain the same relationship of the non-parole period to the balance of term as imposed by the Magistrate, and accordingly the non-parole period will be six months."
The applicant submitted that the judge's remarks indicate that his Honour did not engage in any meaningful way with the task of exercising the appellate function under s 17 of the Crimes (Appeal and Review) Act. Instead, his Honour merely adopted the reasons of the magistrate.
The Director of Public Prosecutions submitted that the requirement to consider the matter afresh does not preclude a District Court judge from approving, adopting or endorsing what is said by the magistrate, provided that the magistrate's findings accord with or reflect the judge's own views. In principle, so much may be accepted. Certainly, as submitted by Ms Mitchelmore, it cannot be said that the judge is bound to disregard the reasons. However, in my respectful opinion, determining an appeal by reference to the reasons of the magistrate is fraught with danger where the task on appeal is a sentencing task. The authorities cited by the Director to support this submission were cases involving conviction appeals or appeals of that nature. The Director referred first to the remarks of Sackville AJA in Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66 at [46] (Emmett AJA and Adamson J agreeing) where his Honour said "the adoption by an appellate court of the reasons given by a trial court does not of itself bespeak error and may be taken into account in determining the reasoning of the appellate court". That was an application for judicial review of the determination of an appeal against conviction under s 11 of the Crimes (Appeal and Review) Act. The issue was whether the judge in the District Court had failed to turn his mind to an essential element of the offence in circumstances where he had made no express finding on that issue. It was in that context that the judge's approval of the finding of guilt by the magistrate (whose reasons made plain that she understood that fraudulent conversion was an element of the offence) assisted this Court in concluding that the judge had turned his mind to that issue.
The relevant passage in Liristis in turn cites the decision of this court in Veness v Hodge [2015] NSWCA 20 at [1] (Barrett JA; Adamson J agreeing at [58]), upon which the Director also relies. That decision concerned an appeal from a domestic violence order which was of a similar kind to an appeal against conviction under s 18 of the Crimes (Appeal and Review) Act. In support of the proposition that it is permissible, in such an appeal, to endorse the conclusions reached by the magistrate and adopt the magistrate's reasons for those conclusions, Barrett JA described the judgment of the High Court in Robbins v Commissioner of Taxation (1974) 129 CLR 332; (1974) 48 ALJR 367 as "an unexceptionable adoption by an appellate court of reasons given by the judicial officer whose decision was subject to appeal". Robbins was an appeal from a single judge of the High Court in an estate duty case. The entire judgment of the Full Court at 341 was: "The Court, having considered the judgment of Walsh J and having noted the criticisms made of it by counsel for the appellant, is of the opinion that that judgment is correct and that [the] appeal should be dismissed. The appeal is dismissed with costs."
None of those kinds of decision can be likened to the exercise of the sentencing discretion afresh. The appeals under review in Liristis and Veness presented a binary choice (the ground of appeal would either be made out or not; the appeal would either succeed or fail accordingly); an appeal against sentence where the task is to sentence afresh is quite different. There is an analogy here with the task of the Court of Criminal Appeal in resentencing where error has been established. The preferable approach to that task is to put aside the sentence imposed at first instance: Turnbull v R [2019] NSWCCA 97 at [44]-[46] (Simpson AJA, Ierace J agreeing, Wilson J not deciding); approved in RO v R [2019] NSWCCA 183 at [89] (Beech-Jones J, Bathurst CJ and N Adams J agreeing at [1] and [117]. There is good reason for doing so. It would be extraordinary if, undertaking the task of instinctive synthesis of all of the relevant factors in accordance with the approach approved in Markarian, two judges independently gave exactly the same weight to exactly the same factors and reached exactly the same "appropriate sentence".
The remarks of Simpson AJA in Turnbull at [44], while directed to a different issue, warrant repetition in this context: "In my opinion, where error has been established, the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that 'no lesser sentence is warranted in law'. This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in Simpson and Baxter, and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender's prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon."
In any event, putting aside the desirability of adopting that more disciplined approach, the difficulty in the present case is that it is plain on the face of the judge's reasons that the magistrate's findings did not accord with or reflect the judge's own views. So much is clear from the fact that his Honour reduced the sentence. Inconsistently, he both adopted and departed from the decision of the magistrate. Having stated that he could find "no fault in the logic or in the appropriateness of the sentence imposed" by her Honour, he proceeded, without explanation, to impose a different sentence. It is no answer to that complaint to point to the fact that it was a more lenient sentence. The point is that, while professing to approve and adopt the decision of the magistrate, in fact he did not.
The applicant submitted that, having rejected the agreed basis on which the plea was accepted by the Crown of "momentary inattention", the judge was required then to make his own assessment as to why the applicant's conduct amounted to operating a vessel in a "manner dangerous" to the public and to grapple with the objective seriousness of the offence. I agree that it was necessary for his Honour to grapple with the objective seriousness of the offence. It is well established that that is an essential aspect of the sentencing task. However, it was not open to question why the applicant's conduct amounted to operating the vessel in a manner dangerous; that it did was determined by the plea of guilty. It would be more accurate to say that the judge was required to make his own assessment of the extent or degree to which the applicant's conduct departed from conduct that was not dangerous.
The judge could not be said to have adopted and acted upon the magistrate's assessment or evaluation of that question. It was not enough for that purpose simply to reject the concession that the accident was due to momentary inattention. If the offending conduct was not captured in that expression, the task was to determine, so far as the evidence established, how it was to be characterised. In the face of the judge's indication that he agreed with the magistrate on that issue, counsel for the applicant submitted that the offending must nonetheless be towards the bottom of the range "because it must be accepted it involves a degree of inattention and nothing else". He noted that there was "no skylarking, no speed, no drugs or alcohol" (factors which would have taken the offence towards the higher end of the measure of objective seriousness). The prosecutor in turn sought to explain the position adopted by the Crown when the plea was accepted. In response to a mild rebuke from the judge for making the concession as to "momentary inattention" when the plea was accepted, the prosecutor accepted that it may have been "a clumsy way to have phrased the case" but nonetheless pointed to the fact that there was "no positive evidence of those other factors that lead into dangerousness."
The judge did not engage with any of those submissions. While joining in the magistrate's rejection of the agreed basis on which the plea was accepted, his Honour undertook no evaluative assessment of the objective seriousness of the offence on any different basis. That assessment was essential if the sentence imposed was to give appropriate weight to the objects of sentencing. For example, the weight to be given to either specific or general deterrence could not be assessed without a determination as to the nature of the conduct to be deterred. Further, in order to assess the risk of reoffending for the purposes of s 66 (considered below), it was necessary to consider the nature of the offending conduct with a view to determining the risk that it would be repeated.
In my view, the judge's purported adoption of the magistrate's reasons reveals a constructive failure to engage with the task imposed on the court under s 17.

Ground 1: failure to consider community safety

That conclusion is fortified by my consideration of the applicant's argument in support of ground 1.
Section 7 of the Crimes (Sentencing Procedure) Act, which is the source of power to make an ICO, is subject to the provisions of Pt 5 of the Act: s 7(4). That is not to say that a sentencing court is required to consider whether to direct that a sentence of imprisonment be served by way of intensive correction in the community in every case that meets the requirements of Pt 5. That proposition was rejected by Basten JA in Fangaloka at [60]. The correctness of his Honour's view is supported by the text of s 64 of the Act, which provides that Pt 5 applies where the court "is considering" (or has made) an intensive correction order.
However, as explained by Campbell J in Blanch v R [2019] NSWCCA 304 at [68]-[69], the obligation to consider making an ICO may be enlivened (as a requirement of practical justice if not a matter of legal duty) where a cogent argument is advanced for taking that course. There will be cases in which it will be open to the sentencing judge to reject such an argument without adjourning the proceedings to obtain a sentencing assessment report. However, that is not the approach the judge took in the present case. It may be inferred that he was "considering" an ICO. As already noted, that consideration was governed by the provisions of Pt 5 which include s 66 (the provision referred to in the applicant's first ground for review).
Section 66 provides: 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 submitted that, where an ICO is being considered, the provisions of that section are mandatory considerations in the sentencing task. Mr Game SC drew a distinction in this context between "factors" relevant to the sentencing exercise and "considerations in the administrative law sense". He submitted that the matters identified in s 66 are mandatory considerations in the latter sense. As noted by Mr Game, that submission finds support in the remarks of Basten JA in Fangaloka, where his Honour stated at [65] that s 66 identifies community safety as "a mandatory element for consideration". Mr Game accordingly submitted that "in jurisdictional language one has to step through s 66".
The Director of Public Prosecutions rejected that characterisation, relying on the judgment of Fullerton J in Karout v R [2019] NSWCCA 253. In that case, the sentencing judge had refused to make an ICO, finding that such a direction "would not recognise just how serious this matter is and would not take into account properly the principles of general deterrence": at [52]. In reaching that conclusion, the sentencing judge made no reference to s 66 or to community safety. Fullerton J (with whom Hoeben CJ at CL agreed) was prepared to infer that the judge had nonetheless considered those factors, saying at [93]: "when his Honour stated that he had carefully considered whether an ICO should be imposed, the question of community protection, as one amongst a number of discretionary considerations having an impact upon the ultimate sentencing order, was given appropriate weight in the discretionary sentencing process." (emphasis added)
As submitted by Mr Game, her Honour may not have intended by those remarks to suggest that the approach required by s 66(2) was not mandatory; rather, I apprehend her Honour's use of the word "discretionary" may have been a shorthand way of referring to the discretionary nature of the sentencing task, which calls for an evaluative judgment to be made as to the weight to be given to the various relevant factors. If I am wrong about that and her Honour did intend to characterise the issue of community safety addressed in s 66 as something other than a mandatory consideration, I respectfully disagree. Her Honour appears to have understood the remarks of Basten JA in Fangaloka at [60] to be directed to the issue whether, when the court is considering an ICO, community safety is a mandatory consideration. However, those remarks were, rather, directed to the question whether there is a duty in every case that falls within the constraints of Pt 5 to consider an ICO. Once the court is considering an ICO, it is clear from the text of the statute and is supported by what Basten JA himself said in Fangaloka at [65] that community safety is a mandatory element for consideration in the manner prescribed by s 66(2). As Mr Game submitted, there is an obligation to consider it, regardless of what weight it is ultimately given. I would agree that the consideration of community safety is mandatory.
The Director submitted that, even if the judge in the District Court did fail to consider community safety, that would not establish jurisdictional error because consideration of that factor should not be understood as a condition of the court's jurisdiction to sentence the offender. It will be necessary to return to that issue. The first question is whether the judge did have regard to community safety in the manner required by s 66.
On that issue, the Director again relied on the argument that it is permissible for a District Court judge exercising de novo appellate jurisdiction under s 11 of the Crimes (Appeal and Review) Act to incorporate a magistrate's findings and reasons into his or her own reasons for decision. I have already indicated my view that, while I accept that to be the case in principle, it is an undesirable approach in the case of a sentence appeal governed by s 17. This case provides a good illustration of the problems that can arise. The judge made no reference to s 66 or to community safety. In that circumstance, the Director was left to defend his Honour's decision by reference to the fact that he adopted the reasons of the magistrate, who did expressly consider the matters identified in that section. It is appropriate to set out her Honour's reasons on that issue in full: "I now turn my mind to how this sentence is to be imposed and I now consider s 66 of the Crimes (Sentencing Procedure) Act. Section 66 provides, subs (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.' The offender will not be able to operate a vessel for a considerable amount of time, so I concede that subs (1) is not an issue. In relation to subs (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 offender has a pattern of disobedience for driving matters as outlined in his criminal antecedents. Subsection (3): 'When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of s 3A and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.' Concerning s 66(3), I have had regard to s 3A and the relevant case law. I have found that the offender is unlikely to reoffend in this particular way in relation to the navigation of a vessel. I have found that his prospects of rehabilitation are reasonably good. I am prepared to make a finding of special circumstances given his anxiety and depression issues."
Guided by the remarks of Fullerton J in Karout, the magistrate concluded: "In my opinion, the objective seriousness of the offending conduct, the need for a strong measure of both general deterrence and specific deterrence, the need to ensure adequate punishment and to make the offender accountable for his actions and recognise the harm done to the victim overwhelm other considerations that were in play".
Those remarks reveal, with respect, that the magistrate failed to engage in any meaningful way with the requirements of s 66. That section provides that, where the court is considering an ICO, the paramount (mandatory) consideration is community safety; in considering that issue, the sentencing court is required by s 66(2) to make an assessment as to "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".
As I will explain, there is a separate controversy as to the proper construction of s 66 but, on any view, it requires the sentencing magistrate or judge to form a view as to which method of serving the sentence of imprisonment (by ICO or in detention) is more likely to address an offender's risk of re-offending. The controversy arises from a suggestion offered by Basten JA in Fangaloka at [63]: "An alternative reading of s 66 is restrictive, rather than facilitative. Thus, the paramount consideration in considering whether to make an ICO is the assessment of whether such an order, or fulltime detention, is more likely to address the offender's risk of reoffending. That is, unless a favourable opinion is reached in making that assessment, an ICO should not be imposed. At the same time, the other purposes of sentencing must all be considered and given due weight."
The correctness of the proposition identified in the third sentence ("unless a favourable opinion is reached in making that assessment, an ICO should not be imposed") has been doubted. The competing views are summarised in the dissenting judgment of Brereton JA in Karout at [57]-[60]. The contested proposition was not part of the ratio in Fangaloka and the controversy has not been required to be resolved in any case since; nor is it required to be resolved here. However, as noted by Mr Game, it may be important if (as I propose) the present matter is to be remitted. In that context, for what it is worth, I would respectfully agree with the view expressed by Beech-Jones J in Casella v R [2019] NSWCCA 201 at [108], with whom N Adams J agreed at [111], and which Brereton JA appeared to approve in his dissenting judgment in Karout, that s 66 is not restrictive; it should not be understood to preclude the imposition of an ICO except where the sentencing court reaches a positive determination that an ICO (as opposed to full-time detention) is more likely to address an offender's risk of reoffending. Some support for that conclusion may be found in the reasoning in Pogson, which was concerned with a similarly restrictive interpretation of the original ICO provisions.
In any event, the authorities are at least consistent as to the task identified in s 66(2), which requires the court to make a determination: which method of serving the sentence is more likely to address the offender's risk of reoffending?
That is not to say that, having reached a conclusion favouring an ICO on that issue, the sentencing court cannot still refuse to make such an order. The weight to be given to the outcome of that determination is then a matter within the discretionary judgment of the sentencing judge. So much is made plain by s 66(3); and see the remarks of Basten JA in Fangaloka at [65]. But the point of the section is to require the sentencing court to consider that question without any preconception in favour of incarceration as the only path to rehabilitation.
I am persuaded that the judge did not do that in the present case. The only thing the magistrate (whose reasons he adopted) had said on the issue posed by s 66(2) was "the offender has a pattern of disobedience for driving matters as outlined in his criminal antecedents." That was not a determination as to which method of serving a custodial sentence was more likely to address Mr Wany's risk of reoffending. It was not even a finding that he posed a risk of reoffending. Elsewhere, the magistrate had accepted that he was unlikely to reoffend "in this particular way" and that his prospects of rehabilitation were "reasonably good". I do not mean here to argue the case for an ICO but only to explain my conclusion that the task mandated by s 66(2) was not undertaken. For that purpose, it was necessary first to identify any risk of reoffending and then to assess which manner of serving the sentence was more likely to address it. There was no consideration of those issues by either the magistrate or the judge.
Further, before forming a view as to whether other sentencing considerations "overwhelmed" the factors pointing in favour of an ICO, the judge had to consider the further sentencing assessment report which accepted Mr Wany to be suitable for home detention. As submitted to the judge, the power under s 73A to impose a home detention condition offered "a more condign way" of serving an ICO. In the absence of the relevant assessment, that option was not before the magistrate. In simply adopting her Honour's reasons, the judge failed to engage with the strengthened form of ICO introduced by the 2018 amendments for the very purpose of addressing the apparent perception that such an order entailed too much leniency.
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).
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.
But if my conclusion as to ground 1 is wrong, my conclusion as to ground 2 is enough to sustain the relief sought.
There is a further difficulty with the sentencing judgment in the present case. Instead of taking the three-step approach explained in Zamagias and approved in Fangaloka, the judge first concluded that any sentence other than a period of full-time imprisonment could not properly reflect the need for specific and general deterrence and only then proceeded to determine the appropriate term of the sentence to be imposed. The Director submitted that, while those issues may have been determined the wrong way around, it does not follow that his Honour failed to consider a matter that would sound in jurisdictional error. I respectfully disagree. In my view, the failure to engage with the necessary tasks of first assessing the objective seriousness of the offence as an aspect of the task of determining the appropriate sentence before turning to the task required by s 66 reveals a misconception as to the nature of the function his Honour was required (a cogent case for an ICO having been put) to perform in the circumstances of the particular case. In particular, as already explained, I do not see how the judge could form a view as to any risk of reoffending (which would be critical to the s 66 issues) without having first assessed the nature of the offending conduct and the measure of its seriousness.
On either analysis, I am persuaded that the judge constructively failed to exercise his jurisdiction. For those reasons, I propose the following orders: 1. An order that the record of the District Court proceedings in matter No 2018/00286636 be removed into this Court; 2. Pursuant to s 69B of the Supreme Court Act 1970, an order quashing the sentencing order imposed upon the plaintiff on 27 July 2020; 3. An order that the proceedings be remitted to the District Court to be heard and determined according to law; and 4. Costs.
Simpson AJA: I agree with McCallum JA.

Amendments 15 December 2020 - Amendment to practitioner's name at [34], [35]. 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: 15 December 2020

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

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