Judges Must Consider Whether Prison Terms Can Be Served as Intensive Correction Orders

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Emma Stanley became aware that her cousin Seth Harvey had stored firearms, firearms parts and ammunition in the back of a vehicle in her yard and in a manhole under her home in the north central NSW regional town of Dubbo on 18 March 2019.

As it turned out, Stanley’s cousin was storing the guns prior to selling them, and after he refused to remove them, she agreed to hold onto them, in return for $500 if the weapons sold for at least $3,000.

However, following her arrest on 13 November 2019, Stanley outlined that she’d only received $50 in respect of the sale of the firearms that had gone for $6,000.

Stanley pleaded guilty to various firearm offences, and she was then sentenced by the Dubbo Local Court to 3 years imprisonment, with non-parole set at 2 years, on 8 December 2020.

The Dubbo woman then appealed her conviction to the NSW District Court in May 2021, arguing that she should have been allowed to serve her sentence in the community by way of an intensive correction order (ICO), which is the most severe community sentencing option, and it’s still considered a custodial sentence.

But NSW District Court Judge Nanette Williams found no error had occurred on the part of the sentencing magistrate and the appeal was dismissed on 17 June 2021.

With no appeal rights left, Stanely applied to have the NSW Court of Appeal (NSWCA) undertake a judicial review of the District Court decision, stipulating that Judge Williams had failed to properly consider the provisions of section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), which meant her Honour had not properly considered an ICO.

The NSWCA, however, dismissed Stanley’s contention, so the prisoner then sought special leave to appeal the matter to the High Court of Australia and this was granted.

Firearm offences

Stanley pleaded guilty in the NSW Local Court to five counts of knowingly taking part in the supply of a firearm to a person unauthorised to possess it, contrary to section 51 of the Firearms Act 1996 (NSW), which is an offence that carries up to 5 years imprisonment.

The offender also pleaded guilty to two counts of knowingly taking part in the supply of a firearm part, which is contrary to section 51BA of the Firearms Act. And a person convicted of this crime is too liable to up to 5 years gaol time.

Amongst the weapons Stanley’s cousin had stored at her house were a number of shortened firearms, which led to her further pleading guilty to three counts of having in possession an unsafe firearm, contrary to section 61 of the Firearms Act. This crime carries up to 2 years in prison.

A further ten section 51 Firearms Act offences were taken into consideration on sentencing. And the sentencing magistrate then handed down of a 3 year prison term, with parole becoming available after 2 years.

The Form 1 process involves crimes related to a principal offence being placed on a document referred to as a Form 1. The offender does not plead guilty to these additional charges, but rather acknowledges responsibility for them, and the sentencing magistrate or judge then takes them into account on determining a term in gaol for the main crime.

Stipulations on considering an ICO

Following two appeals in the NSW court system, Stanely then appealed her sentence to the High Court on 15 November 2022, arguing that the lower courts had been in error as their various Honours had failed to determine whether a sentence might be best served by way of an ICO, as they hadn’t undertaken the assessment set out in section 66(2) of the Sentencing Procedure Act.

Section 66(1) of the Sentencing Procedure Act maintains that “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”.

Section 66(2) of the Act requires that “when considering community safety”, sentencing magistrates and judges must “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 third subsection of section 66 outlines that in considering whether an ICO should be imposed, the court must consider the purposes of sentencing contained under section 3A of the Act, as well as relevant common law principles and any other matters considered to apply.

The section 3A purposes for sentencing include to ensure adequate punishment, to deter others from committing similar crimes, to protect the community from the offender, to promote rehabilitation, to make the offender accountable, to denounce the conduct and recognise harm done to any victims and the community at large.

High Court determination

In their 15 February 2023 published reasons, High Court Justices Michelle Gordon, James Edelman, Simon Steward and Jacqueline Gleeson explained that the appeal raises two issues.

The first is whether the District Court made a jurisdictional error in failing to consider section 66(2) of the Act, and the second was whether Judge Williams did fail to make that assessment.

Their Honours found that the sentencing judge had failed to consider section 66(2) when imposing a prison term, which means that her Honour had misconstrued the provisions of section 66 and the terms of section 7 of the Act, which relates to ICOs.

Section 7 of the Act maintains that a court that has sentenced a convicted individual to imprisonment may then consider whether to instead impose an ICO, and if it considers that this is the best option, no non-parole period should be set, however this does not apply to offenders under 18 years old.

“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,” their Honours explained.

Further, a judicial review of a sentence made by a lower court with limited jurisdiction, of which the NSW District Court is, is confined to considerations of jurisdictional error, which occurs when a decisionmaker acts outside of their authority or power.

The NSW sentencing regime is set out in the Sentencing Procedure Act, and it serves to set limits upon the jurisdiction of a sentencing court.

The three steps of sentencing

Their Honours then explained that there are three steps pertaining to the sentencing process. The first entails that all other sentencing alternatives have been considered prior to determining a sentence. And these alternatives include community correction orders, conditional release orders, convictions without a penalty and fines.

ICOs, however, are not considered an alternative penalty, and their imposition is to be considered following a sentence having been come to. 

So, the second sentencing step is setting a term of imprisonment and the third then consists of consideration as to whether an ICO should rather be imposed.

While the consideration of whether to impose an ICO is discretionary, the requirement to make this determination is not. A sentencing judge must consider whether to impose an ICO following having decided upon a sentence. And there are a number of reasons that rule out ICO detention, which include whether an offender has committed a domestic violence offence.

Section 66(1) of the Act requires that community safety is paramount when considering an ICO. And section 66(2) then requires that the court make a specific assessment of whether an ICO can be imposed in regard to the safety of the community.

However, a positive assessment doesn’t guarantee that the order should then be imposed, as the other section 3A purposes for sentencing have to be considered, as required by section 66(3) of the Act.

“The requirement for the assessment under section 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 section 7,” their Honours made clear.

“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.”

Failure to complete the process

The majority of the High Court found that a jurisdictional error had taken place as no consideration of section 66(2) of the Act, or whether an ICO could be served by Stanley with the paramount concern being community safety.

Their Honours found that all three NSW courts had failed to weigh up Stanely’s subjective circumstances against the seriousness of the charges.

Stanley was a 38-year-old mother-of-five at the time of offending, and when she’d discovered the firearms, she didn’t want them to remain on the property. She’d also had a difficult upbringing. And a sentencing assessment produced by Corrective Services NSW, which was considered on appeal, stated that ICO consideration was warranted.

In handing down the sentence, Judge Williams said she’d given “very close consideration” to the possibility of an ICO. However, she gave no thorough explanation as to what this close consideration had been and the reasons she considered an ICO was inappropriate.

Her Honour even mentioned the three step sentencing process and went on to adequately address the first two steps, but then failed to make the third, including any assessment about community safety.

“The inescapable conclusion is that the District Court Judge failed to undertake the assessment in section 66(2),” their Honours found, adding that her Honour had failed to apprehend what the third step was, and for this reason the appeal was made out.

Orders of the day

Their Honours found on 15 November 2022 that the assessments of the NSWCA and the NSW District Court were in error and should be set aside. And the original NSW Lower Court case should be remitted to the NSW District Court for reassessment in light of the High Court findings.

And High Court Chief Justice Susan Kiefel, and Justices Stephen Gageler and Jayne Jagot all provided dissenting opinions.

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About Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on civil rights, drug law reform, gender and Indigenous issues. Along with Sydney Criminal Lawyers®, he writes for VICE and is the former news editor at Sydney’s City Hub.