Did failure to carry out assessment of community safety in accordance with Section 66 Crimes (Sentencing Procedure) Act 1999 (NSW) amount to jurisdictional error?

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 (15 February 2023)

Intro:

This is an appeal from the Supreme Court of New South Wales.

Facts:

In summary, the District Court Judge dismissed the appeal and imposed upon the appellant a sentence of imprisonment to be served by full-time detention without undertaking the assessment mandated by s 66(2) of the relative merits of full-time detention as against intensive correction in the community, for the purposes of considering the "paramount consideration" of community safety identified in s 66(1). In failing to undertake that assessment, the District Court Judge misconstrued s 66 and thereby both misconceived the nature of her function under s 7 of that Act and disregarded a matter that the Sentencing Procedure Act required to be taken into account as a condition or limit of jurisdiction.

Where the power to make an ICO is enlivened, a sentencing court does not have jurisdiction to decide that a sentence of imprisonment is to be served by full-time detention without assessing the comparative merits of full-time detention and intensive correction for reducing the offender's particular risk of reoffending. The District Court Judge's error of law can be understood as an instance of both the second and third examples of jurisdictional error on the part of an inferior court identified in Kirk v Industrial Court (NSW)[53]. It was properly conceded by counsel for the first respondent, in her clear and comprehensive written and oral submissions, that, s 66 aside, every other provision in Div 2 of Pt 5 of the Sentencing Procedure Act, headed "Restrictions on power to make intensive correction orders", contains one or more jurisdictional conditions. On a proper construction of s 66, that provision is no exception.

Issue:-

Did the District judge fail to consider Section 66 before declining to make an intensive correction order and was that failure jurisdictional error?

Consideration:-

Jurisdictional error by an inferior court

The Supreme Court's jurisdiction to determine proceedings for judicial review of a sentence has been held to be limited to review for jurisdictional error of law, due to the constraint of the privative clause in s 176 of the District Court Act 1973 (NSW), which provides that "[n]o adjudication on appeal of the District Court is to be removed by any order into the Supreme Court". The District Court is a court of limited jurisdiction, and an inferior court. Whether an error of law by an inferior court, such as the District Court, is jurisdictional will depend on the proper construction of the relevant statute.

In Craig v South Australia, the Court described the scope of an inferior court's ordinary jurisdiction in the following passage:-

"[T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."

The circumstances in which an inferior court may fall into jurisdictional error are not closed. In Craig, the Court gave examples of the circumstances in which an inferior court will fall into jurisdictional error, including, as is presently relevant, "if it misconstrues [the statute conferring its jurisdiction] ... and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case", or "if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist", or if it "disregards ... some matter in circumstances where the statute ... conferring its jurisdiction requires that that particular matter be taken into account ... as a pre-condition of the existence of any authority to make an order". For instance, in Samad v District Court of New South Wales, certiorari was granted to quash a decision based on the District Court Judge's misapprehension of the scope of his discretion to cancel a licence. In this case, it is not necessary to go beyond the instances of jurisdictional error by an inferior court that were identified in Craig and reinforced in Kirk.

Legislative framework

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 first step requires the court to be satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate[69]. The possible alternative penalties include a community correction order[, a conditional release order, conviction with no other penalty and a fine. An ICO is not an alternative penalty.

ICOs are of a different kind – an ICO is a sentence of imprisonment (for the purposes of s 5) that is directed, under s 7, to be served by way of intensive correction in the community rather than full‑time detention. Section 7, headed "Intensive correction orders", provides:

"(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."

Power arises after sentence of imprisonment imposed

There was no dispute that the power to order or decline to order an ICO under s 7(1) is a discrete function that arises after the sentencing court has imposed a sentence of imprisonment. That is clear from the words of s 7(1). The possibility of an ICO does not arise unless and until the sentencing court has first determined that no penalty other than imprisonment is appropriate and has sentenced an offender to imprisonment[75].

Power to make or refuse to make an ICO

Discretionary power, corresponding duty

The power to make, or refuse to make, an ICO is discretionary. However, as the parties accepted, that conferral of power comes with a corresponding duty. The court will come under a duty to consider whether to make an ICO where that matter is properly raised in the circumstances of the case, and where the disentitling provisions identified below are not engaged[76]. This is consistent with the general principle that, where a jurisdiction is conferred and "created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter"[77].

Provisions defining the jurisdiction to make an ICO

Once the power to make an ICO is enlivened, the sentencing court must address the requirements in the Sentencing Procedure Act relevant to the imposition of such an order.

Section 66 – Community safety and other considerations

Section 66, headed "Community safety and other considerations", provides (emphasis added):
"(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."

There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the "paramount consideration". In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety.

The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3)[89].

Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community.

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.

Failure to undertake assessment in s 66(2) is jurisdictional error

Whether s 66(2) imposed a condition or limit upon the power of the District Court Judge or affected the nature of the function to be performed by her Honour in deciding whether or not to make an ICO is a matter of statutory construction. The appellant did not seek to contend that the s 66(2) assessment was required to establish any jurisdictional fact[91]. Nor did the appellant treat the s 66(1) "paramount consideration" as merely a relevant consideration. As appears from Craig, a failure by a sentencing court to take into account a relevant consideration in the course of arriving at a sentencing decision will not ordinarily be jurisdictional error without more. Rather, the following matters combine to illustrate the jurisdictional nature of the paramount consideration in s 66(1) as directed by the assessment in s 66(2).

Assessment required by s 66

The inclusion of s 66 in Div 2 of Pt 5, which, as has been observed, is headed "Restrictions on power to make intensive correction orders", is an indication that the legislature intended s 66 to operate as an enforceable limit upon power. The Division heading is taken as part of the Act[92]. As identified above, Div 2 contains several restrictions on the power to make ICOs. As a general proposition, Div 2 reveals a clear legislative intention that sentencing courts are not "islands of power immune from supervision and restraint"[93] in respect of compliance with Div 2. The requirement for the assessment under s 66 is a limit that operates at the third step in the sentencing process, that is, the limit affects the power to decide whether or not to make an ICO under s 7; it does not operate at the first and second steps of deciding whether to impose a sentence of imprisonment and, if so, the term of the sentence.

A failure to undertake the assessment required by s 66(2) does not merely involve a mistake in the identification of relevant issues, the formulation of relevant questions or the determination of what was or was not relevant evidence[94]. Rather, it is a failure to undertake a task that is mandated for the purpose of deciding whether to make an ICO by reference to community safety as the paramount consideration. Such an error tends to defeat the evident statutory aim of improving community safety through provision of an alternative way to serve sentences of imprisonment by way of intensive correction in the community. The legislative importance of that aim is reinforced both by the characterisation of community safety as a "paramount" consideration and by the stipulation of the assessment task in s 66(2) to inform the consideration of community safety.

The jurisdiction conferred by s 7 is thus to decide whether community safety as a paramount consideration together with the subordinate considerations in s 66(3) warrant full-time detention or intensive correction in the community. The s 66(2) assessment is integral to the function of choosing between full-time detention and intensive correction in the community in compliance with the requirement in s 66(1) to treat community safety as the paramount consideration.

The question raised by this appeal is whether an error in undertaking this discrete task at the third step of the sentencing process can be characterised as one going to the jurisdiction of the sentencing court. There is no basis to assume that an error at that step is "necessarily" an error within the sentencing court's jurisdiction simply because it follows the imposition of a sentence of imprisonment. As explained, the jurisdiction to grant an ICO calls for a subsequent and separate decision to be made after a sentence of imprisonment is imposed. The fact that the sentencing court may have acted within jurisdiction at the first and second steps in imposing the sentence of imprisonment does not mean that the sentencing court will necessarily remain within jurisdiction when making the separate decision whether to order an ICO. Section 7 is not an inconsequential subsequent power after the sentencing process is complete. Section 66 is "more than one evaluative step amongst many" that the Act requires to be carried out after a sentence of imprisonment is imposed. Section 7 is itself a sentencing function that is to be exercised by reference to the paramount consideration in s 66(1). It is a discretionary power – which, when enlivened, comes with a corresponding duty – that fundamentally changes the nature of the sentence of imprisonment imposed from full-time detention to one of intensive correction in the community. The sentencing court may bring itself outside of jurisdiction if it misconceives the nature of that function or fails to comply with a condition on the jurisdiction when exercising the power. And, as will be seen, that is what the District Court did in this case.

Jurisdictional error

In addressing the appellant's application for an ICO, the District Court Judge did not refer to s 66 of the Sentencing Procedure Act specifically or in substance, although her reference to community safety as the paramount consideration indicated an awareness of the provision. Her Honour did not record any findings about whether an ICO or full-time detention was more likely to address the appellant's risk of reoffending. Nor did her Honour refer in any way to the conditions that might be suitably imposed in an ICO on the facts in this case. Without contemplating conditions of this kind, the risk of reoffending cannot have been measured.

The District Court Judge's reasons reveal no assessment of community safety based on whether the risk of reoffending by the specific offender – the appellant – would be better reduced by full-time imprisonment or by an ICO, giving consideration to the appellant's personal circumstances. It cannot be inferred from the reasons that she undertook any such assessment. Her Honour's statement that "[t]here are a substantial number of firearms. The firearms in my view pose a significant risk to the people of Dubbo" does not reveal a consideration of community safety in a forward-looking manner having regard to the appellant's risk of reoffending. In fact, the firearms posed no ongoing risk to community safety whether by future offending conduct on the part of the appellant or anyone else, as they had been seized. As is apparent, the District Court Judge purported to address community safety at the third step in the same manner that it might have been considered in step one or two by observing the safety risk posed by the offending conduct.

The inescapable conclusion is that the District Court Judge failed to undertake the assessment in s 66(2). A further conclusion is that the District Court Judge failed to apprehend that her function at the third stage of the sentencing process required her to assess the risks that the appellant would reoffend, in a manner that might affect community safety, depending upon whether she served her sentence of imprisonment by full-time detention or intensive correction in the community.

A further matter that supports the conclusion that the District Court Judge failed to undertake the assessment in s 66(2), identified by Beech-Jones JA, is the lack of any reference to the circumstances of the offending as a matter bearing upon the appellant's risk of future reoffending. As his Honour put it, the District Court Judge failed to address "whether the [appellant] was a dedicated gun runner or someone caring for five children who just wanted the guns out of her house". As earlier noted, the s 66(2) assessment required consideration, not merely of the appellant's risk of reoffending, but of her risk of reoffending in a manner that might affect community safety. That was a matter that almost certainly required consideration of the likelihood that the appellant would repeat offences of the kind for which she had been convicted. That assessment was not done.

Given the invalidity, there has been no decision on the issue of an ICO at all. As there is a duty to consider whether to grant an ICO in cases where the power is engaged (as it clearly was in this case), this duty remains unperformed. Therefore, the District Court failed to perform its duty and did not determine the appellant's appeal according to law. It was therefore appropriate to set aside the order of the District Court dismissing the appellant's appeal, and order the Court to determine her appeal according to law.

Conclusion:-

Appeal allowed.