Did the District Court's failure to conduct the assessment contemplated by s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) amount to jurisdictional error?

Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 (21 December 2021)

Intro:-

The Applicant filed a Summons for judicial review on the sole ground that Judge Williams had committed jurisdictional error by failing to undertake the process of assessment specified in s 66(2) of the CSP Act.

Facts:-

Ms Emma-Jane Stanley (the Applicant) pleaded guilty to various offences against the Firearms Act 1996 (NSW), including: five counts of knowingly taking part in the supply of a firearm to a person unauthorised to possess it (s 51(1)(a)); two counts of knowingly taking part in the supply of a firearm part (s 51BA(1)); and three counts of having in possession for supply a shortened firearm (s 61(2)(c)). On 8 December 2020, the Applicant was sentenced in the Local Court of New South Wales to an aggregate term of three years’ imprisonment with a non-parole period of two years.

The Applicant appealed against the severity of that sentence to the District Court of New South Wales, pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW), such appeal being conducted “by way of a rehearing on the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings”: s 17. The Applicant was granted conditional bail pending the determination of her appeal.

At the hearing of the appeal before Judge Williams of the District Court on 28 May 2021, the Applicant submitted that it was appropriate for her sentence of imprisonment to be served in the community by way of an “intensive correction order” (ICO) pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act). This was opposed by the Crown. Section 66 of the CSP Act provides that:-

“(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.”

On 17 June 2021, Judge Williams dismissed the Applicant’s appeal, holding that it was not appropriate for the Applicant’s sentence to be served by way of an ICO.

It is not necessary to summarise the reasons of Judge Williams in any detail. They were lengthy and involved a careful review of the evidence and the submissions that were made before her, consistent with the nature of the appellate task her Honour was performing. Her Honour indicated that she had:-

“given very close consideration to the matters that were put before the Court, particularly in respect to the appropriateness of an ICO. I am very aware of the law which prescribes the availability of an ICO including such cases as Pullen, Fangaloka, Karout and Casella. I am aware of the three step process that must be followed by the Court in assessing whether or not an ICO is appropriate.”

For the purposes of this Summons for judicial review, it suffices to summarise what was said in support of the First Respondent’s submission in this Court that implicitly her Honour had complied with s 66(2). The First Respondent pointed to the fact that in assessing objective seriousness, her Honour had said:-

“Overall I take into account that last point, that the guns were not stored properly, and that they were in close proximity to the ammunition. Moreover the residence in which the appellant allowed the firearms to be kept is a suburban street in Dubbo, xxxx Drive which in my view is completely within the city limits of Dubbo which is a large regional city of course in New South Wales. They were not stored on a remote rural property which might have had them further away from the real danger which they presented to the community.”

In determining the length of the sentence to be imposed, her Honour took into account in the sentencing exercise “particularly general deterrence which must loom large particularly specific deterrence and of course community safety and denunciation”: at p 28. Her Honour concluded that the three-year sentence imposed by the Local Court was an appropriate term.

Her Honour then concluded:-

“The third and final task that the Court must do in assessing whether or not an ICO is an appropriate term of imprisonment is to determine whether or not an ICO is an appropriate sentence taking into account all of the factors including community safety and rehabilitation. I have as I said given very close consideration to this. In my view community safety is of paramount consideration. There are a substantial number of firearms. The firearms in my view pose [sic] a significant risk to the people of Dubbo.

Taking into account all of those matters I am not of the view that it is appropriate for the matter, for this sentence to be served by way of an Intensive Corrections Order.”

Because of my ultimate conclusion, there is no need in the present circumstances to make a definitive finding as to whether or not Judge Williams in fact engaged in the assessment process although I am inclined to agree with Beech-Jones JA’s assessment that her Honour did not do so.

These reasons proceed on the basis that no such assessment process was in fact undertaken. Had it been undertaken, absent some denial of procedural fairness, it could not have been impugned for jurisdictional error even if the Court took the view that the judge’s assessment was wrong. There was no suggestion of a denial of procedural fairness.

On the assumption, therefore, that the assessment process was not in fact undertaken, it is necessary to consider whether or not that posited failure constituted jurisdictional error.

Issue:-

Whilst Judge Williams undoubtedly considered whether an intensive correction order was appropriate in the circumstances of the case, her Honour did not, in the course of her consideration, conduct the assessment contemplated by s 66(2) of the CSP Act. As such, did her failure to do so amount to jurisdictional error?

Consideration:-

The starting point is, of course, that there is no right of appeal, even by way of leave, from a decision of a District Court judge hearing an appeal in a criminal matter from the Local Court. So much is reinforced by s 176 of the District Court Act 1973 (NSW): see, for example, Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [8]; see also and more generally, Gibson v Commissioner of Police (NSW) (2020) 102 NSWLR 900; [2020] NSWCA 160 at [20]–[21].

In Anderson v Judges of District Court (NSW) (1992) 27 NSWLR 701 at 718 (Anderson), Kirby P (with whom Meagher and Sheller JJA agreed) observed in relation to s 146 of the Justices Act, expressed in identical terms to s 176 of the District Court Act, that:-

“This Court may not simply ignore s 146 of the Justices Act. It is the provision of the law made with the authority of Parliament. It forbids intervention in the nature of certiorari in a case such as the present. If it did not, and this case were open to be brought up on certiorari, s 146 would be a dead letter despite its survival in the statute. Every error of law would circumvent its operation. Such a conclusion is incompatible with the purpose of Parliament as expressed in s 146. That section must be given effect. At least it operates in a case such as this where no excess of jurisdiction is shown and where no procedural unfairness has been demonstrated to permit this Court to avoid its prohibition.”

Where a privative clause such as s 176 of the District Court Act is engaged and no appeal (or no further appeal) is provided for from a decision of the District Court, the only other means of review available to a party seeking to challenge that decision requires the identification of jurisdictional error. The important legacy of Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) lies in the High Court’s constitutional insistence that judicial review for jurisdictional error may not be validly circumscribed or circumvented by privative clauses. In that case, the relevant clause was s 179(1) of the Industrial Relations Act 1996 (NSW).

“Jurisdictional error” is, thus, a concept of fundamental importance to the work of this Court. It is the only avenue available, for example, to a person such as the Applicant who has been convicted of an offence in the Local Court of New South Wales, was unsuccessful in his or her appeal to the District Court of New South Wales and who wishes to seek further review. Thus, perhaps somewhat paradoxically, a not insubstantial portion of the subject matter of the work of the New South Wales Court of Appeal (as opposed to the Court of Criminal Appeal) is criminal in nature, coming to this Court through the invocation of its supervisory jurisdiction. Proceedings for judicial review of this kind have been held, at least for certain purposes, not to change their character from civil to criminal despite the underlying subject matter: Klewer v Director of Public Prosecutions (NSW) (No 2) (2020) 101 NSWLR 864; [2020] NSWCA 69 at [38]–[44], [107]–[113] where it was held that proceedings for judicial review were not “criminal proceedings” within the meaning of s 8(9) of the Vexatious Proceedings Act 2008 (NSW); cf Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49 at [121].

Before Kirk, there was Craig (Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58). Decided just over 25 years ago, Craig ensured that, in Australian law, “jurisdictional error” remained conceptually discrete from other errors of law: at 177–180. This was by way of contrast with the position in England where, in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, there had been an elision of jurisdictional error and error of law: see also O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 at 278; R v Hull University Visitor, Ex parte Page [1992] UKHL 12; [1993] AC 682 at 701–702.

Whilst jurisdictional error may be described as an error of law, not every error of law will be “jurisdictional” or amount to jurisdictional error. This is not a matter of semantics. It is of cardinal importance. An error of law made within jurisdiction is not a jurisdictional error: Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 at [31]–[33], [48]–[53], [64] (Gibson) citing Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v New South Wales (2014) 242 IR 338; [2014] NSWCA 116; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379.

As Basten JA (with whom Bathurst CJ and Beazley P agreed) observed in Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 at [42], echoing the observations of Kirby P in Anderson set out above:-

“If every error of law constituted jurisdictional error, particularly in the case of a court such as the District Court, judicial review would transmogrify into an appeal for error of law, without regard to the requirement that certiorari is available only for error of law on the face of the record, and, in the case of a privative clause, only where an error is properly characterised as jurisdictional.”

To adopt an overly broad and open-ended conception of jurisdictional error would be illegitimately to emasculate the operation of privative clauses, denuding them of their intended effect, contrary to the requirements of purposive statutory construction.

The continuing vitality of the concept of jurisdictional error in Australian law as confirmed in Craig has not been matched by clarity in its definition or elucidation and, as the High Court was to point out some 15 years after Craig, eight different categories of jurisdictional error had been identified to that point in time: see Kirk at [71], citing M Aronson, “Jurisdictional Error Without the Tears” in M Groves and H P Lee, Australian Administrative Law: Fundamentals, Principles and Doctrines (2007, Cambridge University Press) at 335–336.

The lack of clarity as to what constitutes jurisdictional error was partly explained by the Kirk majority’s frank acknowledgement that the content of the concept of jurisdictional error has evolved over time and is not necessarily characterised or marked by logical coherence: at [62]–[63]. This was in part attributed to the varied usages and meanings of the word “jurisdiction”. Also acknowledged at [64] was the realist view of Professor Jaffe, in “Judicial Review: Constitutional and Jurisdictional Fact” (1957) 70 Harvard Law Review 953 at 963, that denominating some questions as "jurisdictional":

"is almost entirely functional: it is used to validate review when review is felt to be necessary ... If it is understood that the word 'jurisdiction' is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified."

A “rigid taxonomy of jurisdictional error” was eschewed by the majority in Kirk (at [73]), which was also at pains to point out that the three examples of jurisdictional error instanced in Craig were “just that – examples”.

A further dimension and level of complexity has arguably been added to the jurisprudence in this area by Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [31] (Hossain) where, building on the joint judgment of Gageler and Keane JJ in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [23]–[32], the concept of materiality was identified as relevant to a consideration of whether a jurisdictional error will result in invalidity; see also at [66] per Edelman J. In other words, it may now be necessary to speak of a tri-partite division between jurisdictional error the commission of which results in the invalidity of a decision or order; non-material jurisdictional error which does not; and error of law within jurisdiction (non-jurisdictional error). In the present case, no question of materiality arose. The debate was simply whether or not the error identified and relied upon by the Applicant was jurisdictional error.

Consistent with the notion that the class of what constitutes “jurisdictional error” continues to evolve and is not closed, in their sixth edition of Judicial Review of Administrative Action and Government Liability (2017, Lawbook Co) at [1.140] Professors Aronson, Groves and Weeks proffered a revised catalogue of 10 categories of jurisdictional error, with categories nine and 10 having been added to the list of eight categories compiled by Professor Aronson and referred to in Kirk at [71]. The revised list is as follows:

“1. A mistaken assertion or denial of the very existence of jurisdiction.

2. A misapprehension or disregard of the nature or limits of the decision-maker’s functions or powers.

3. Acting wholly or partly outside the general area of the decision-maker's jurisdiction, by entertaining issues or making the types of decisions or orders which are forbidden under any circumstances. An example would be a civil court trying a criminal charge.

4. Mistakes as to the existence of a jurisdictional fact or other requirement when the relevant Act treats that fact or requirement as something which must exist objectively as a condition precedent to the validity of the challenged decision. The fact or requirement is not such a condition precedent if it suffices for the decision-maker to come to its own opinion or satisfaction as to whether it exists. In that case, the opinion is challengeable only on the other grounds in this catalogue.

5. Disregarding relevant considerations or paying regard to irrelevant considerations, if the proper construction of the relevant Act is that such errors should result in invalidity.

6. Some, but not all, errors of law. In particular, if the decision-maker is an inferior or other legally qualified adjudicative body, the error is likely to be jurisdictional only if it amounts to a misconception of the nature of the function being performed or of the body’s powers.

7. Acting in bad faith.

8. Breaching the hearing or bias rules of natural justice.

9. Making decisions that are seriously illogical, irrational or unreasonable.

10. Committing a mistake which justifies the conclusion that the repository of power simply failed to perform his or her job, even though the mistake may not easily fit within any of the above categories.”

The scope for “terminological entanglement” was noticed by Kiefel CJ, Gageler and Keane JJ in Hossain at [17] and cases have continued to multiply as to what is and what is not jurisdictional error, with different views being taken at the intermediate appellate level: for recent examples in this Court, contrast Gibson at [31]–[33], [42] and Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83; Wany and Quinn. See also Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 at [34].

Such differences highlight the “difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction” (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163]) but, as cases such as the present illustrate, and as Leeming JA explained in Quinn, the drawing of the line may have immense practical significance. In that context, non-compliance with mandatory language in a statute is only the starting point of the analysis as to whether or not jurisdictional error has been committed.

As the plurality pointed out in Hossain at [27], statutory construction is critical to a consideration of the question; see also at [72] per Edelman J. As with any exercise in statutory construction, close attention must be given to the statute as a whole and statutory context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69].

Particular techniques of legislative drafting may assist in demarcating where the line is to be drawn between jurisdictional and non-jurisdictional error through the use of clear formulae such as “a relevant order is not invalidated by a failure to comply with this section” or some variation thereon. Examples of the use of such formulae are furnished by ss 5(4), 17I(2), 17J(4), 25F(8), 53A(5) and 100B(2C) of the CSP Act and non-compliance even in the face of unqualified mandatory language such as “must ensure”, “must cause”, “must indicate and ... must record”, and “must indicate ... and make a written record” employed in these sections will not constitute jurisdictional error

On the issue of legislative drafting, it should also be observed that infraction of a statutory prohibition which expressly conditions the Court’s jurisdiction on the existence of a particular objective fact will more obviously amount to jurisdictional error

The composite expression “identify, formulate and determine” a “relevant issue” seems to me aptly to capture what a sentencing judge is entrusted to do under s 66(2) of the CSP Act, namely to identify a relevant issue, being the offender’s risk of reoffending according to whether or not he or she is incarcerated or permitted to serve the sentence in the community, to formulate the competing matters bearing upon that risk and to determine the issue. This is an exercise in which the commission of demonstrable error would “not ordinarily constitute jurisdictional error” according to the Kirk majority.

One question which arises is what the majority meant by the phrase “not ordinarily”. In my view, although it is not entirely clear, their Honours may have here been allowing for the possibility that the conduct of the exercise entrusted to the Court, being an exercise within jurisdiction, could nonetheless amount to jurisdictional error if, for example, it was tainted by a denial of procedural fairness. That is not this case. Any other interpretation of the expression “not ordinarily” in the passage from Kirk would be to erode further the already limited certainty as to the meaning of the concept of “jurisdictional error”.

On the assumption that Judge Williams did not assess the Applicant’s risk of reoffending according to whether her sentence was to be served in prison or in the community under an intensive correction order, in accordance with s 66(2) of the CSP Act, such a demonstrable error was not jurisdictional in nature.

The nature of what was essentially propounded as a jurisdictional fact, namely the undertaking of what I have earlier described as “the assessment process” embedded in s 66(2), also points strongly against a conclusion that non-performance of it amounted to jurisdictional error. In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [57], French CJ observed, citing Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 at 303–304; [1997] HCA 10, that:-

“When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court.”

The assessment process embedded in s 66(2) of the CSP Act is a quintessential example of a matter which involves the making of “assessment and value judgments on the part of the decision-maker” who, in this case and context, is the sentencing judge.

Although the principal thrust of the Applicant’s argument was that undertaking the assessment contemplated by s 66(2) was a condition of the exercise of jurisdiction — an argument which I have rejected — to the extent it was put on the alternative basis that there was jurisdictional error based upon a misconception by the judge of her function – an argument that has found favour with McCallum JA – I would also reject that argument.

The function being performed by the District Court was hearing and determining the Applicant’s appeal against sentence. As noted at [16] above, that function was conferred by s 11 of the Crimes (Appeal and Review) Act.

Judge Williams was acutely aware of the Applicant’s contention that her sentence should be served in the community, subject to an intensive correction order: see, for example, the passages from her Honour’s judgment set out at [8], [9] and [11] above. I do not doubt that her Honour gave that matter earnest consideration. That her Honour may not have expressly or even impliedly made an assessment of how the Applicant’s risk of reoffending would be impacted by reference to where and how the sentence was served (an exercise she was not asked by the parties to undertake and in respect of which no submissions were made to her Honour) did not, in my view, mean that she misunderstood the nature of her function. Nor did it mean that community safety was not taken into account as the paramount consideration (see s 66(1) of the CSP Act). Judge Williams’ reasons make it explicit that that matter was considered together with other factors identified in s 3A of the CSP Act, as required by s 66(3). It was certainly not something that was “swept aside”: cf, McCallum JA at [176]. If there was any error as to how community safety was taken into account, it was an error within jurisdiction, not amenable to judicial review by this Court in its supervisory jurisdiction.

Her Honour’s function was dictated by the jurisdiction she was exercising, namely the hearing of an appeal de novo as to the sentence imposed on the Applicant in the Local Court, and a consideration of whether the sentence should have been made the subject of an intensive correction order. Her Honour performed and did not misconceive this function, let alone fundamentally so. To hold that a judge has “fundamentally misconceived” his or her function is a serious conclusion which should, in my view, only be made in a clear case. A misconception of function is not the simple corollary of a failure to comply with a statutory provision; were it otherwise, every such failure would translate into a jurisdictional error.

Conclusion:-

The summons for judicial review should be dismissed. Each party should bear her own costs of the proceedings.