Sentencing in NSW: The Three Stage Process When Considering Imprisonment

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By Paul Gregoire and Ugur Nedim

Sometime after 8 pm on 15 January 2022, the then 14-year-old Thomas entered the kitchen, where his mother SJ was making him dinner and his then 51-year-old stepfather SR was also present, with the older couple having recently returned from a six-hour-long celebratory lunch and drinks. 

SR commenced calling Thomas lazy and complaining that all he did was spend time in his room, forcing his mother to do everything for him. The teenager told the middle-aged man to shut up. He then threw the middle finger at his stepfather and returned to his bedroom. 

The moderately drunk 51-year-old man then followed his stepson into the room, to find the boy sitting on his bed. The stepfather then commenced punching the boy in the face, with a series of around ten to twenty blows to either side of his head, continuing on, for about 30 to 40 seconds. 

Thomas called on the older man to stop. At times, he started screaming, and as he curled up into the foetal position, SR continued to lay into his face. And the young man was taken to Sydney Children’s Hospital, where his right eye socket required surgical repair via the insertion of a titanium plate. 

The teenager continued to suffer blurred vision and reduced eye range for months after the assault, and he was further forced to relocate to his birth father’s residence following the attack and he was further obliged to commence a new school and leave his former friends behind. 

Sentenced to time inside 

At Sydney District Court, SR pleaded guilty to one count of recklessly causing grievous bodily harm, which is an offence under section 35(2) of the Crimes Act 1900 (NSW) that carries a maximum penalty of 10 years’ imprisonment. 

A standard non-parole period (SNPP) of 4 years also applies to this crime. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole. 

The court heard that SR’s criminal record was minimal and related to mainly traffic offences committed in the 1990s. And on sentencing, he was living in rented accommodation, as an apprehended domestic violence order (ADVO) prevented him from living at his wife’s home. 

Aggravating factors to the crime, the Crown argued, were that the victim was attacked at home, substantial damage resulted, and it was a breach of a position of trust and authority. Mitigating factors included pleading guilty early, being remorseful and having good prospects of rehabilitation. 

The prosecution and defence conceded that the threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) had been passed. And it provides that a court mustn’t sentence prison time, unless all alternatives have been considered, leaving gaol the only option. 

NSW District Court Judge Garry Neilson assessed the objective seriousness of the crime as “in the mid-range of the range between the bottom of the low-range and mid-range”. And he noted that as he posed no threat to the community, it had to be considered whether SR should be sent to gaol. 

His Honour outlined that SR could be made to serve an intensive correction order (ICO) living in the community, but he assessed that as the offender had “bashed” a 14-year-old boy, he thought it reasonable to apply a 1 year and 10 month prison sentence, with non-parole set at 1 year. 

And this sentence reflected a 25 percent discount due to the utilitarian value of the early guilty plea. 

The three steps to sentencing 

SR appealed the severity of his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 6 December last year, raising one ground of appeal, which was that Judge Neilson had been in error when not following the three stage sentencing process that’s required under sections 7 and 66 of the CSP Act. 

This meant that the option of allowing SR to serve time in the community under an ICO was not properly scrutinised, which included the mandatory considerations within section 66 of the CSP Act being overlooked, and the ICO option being rejected prior to contemplation of time in prison. 

Section 7 of the CSP Act provides that when a court is sentencing, it must consider whether an ICO is appropriate. This option is not open to those under 18. And consideration must be given to community safety and some serious crimes can’t be dealt with by way of ICO. 

ICOs are the most severe sentencing options to be served in the community. It is still considered custodial in nature. These orders involve mandatory supervision via a community corrections officer. The subject mustn’t reoffend, and supervisors have authority to deal with any breaches. 

ICOs can apply for up to 2 years for one offence or up to 3 years for multiple crimes. 

Section 66 of the CSP Act sets out the safety considerations to be contemplated prior to applying an ICO, which involve community safety being the “paramount consideration”, whether a custodial sentence would serve this purpose better and that the purposes of sentencing are served. 

The purposes of sentencing are set out in section 3A of the CSP Act, which involve adequate punishment, preventing reoffending, to protect the community from the offender, to promote rehabilitation, to make the offender accountable, to denounce them and recognise the harm done. 

These “three steps to the sentencing process” were set out by the majority of the High Court in last year’s Stanley versus the Director of Public Prosecutions ruling. And they involve contemplating the section 5 threshold, determining an appropriate sentence and then considering an ICO alternative. 

NSWCCA Justice Helen Wilson explained that SR’s legal team argued that the sentencing judge failed to consider the mandatory considerations of section 66, that he failed to consider community safety and that he’d dismissed the option of an ICO without first assessing the sentencing time. 

But her Honour found that the fact that Judge Neilson was able to dismiss the option of an ICO meant that, although not announcing it, he had already determined the time of sentence, as he was aware that it had not passed the 2-year threshold that applies to these orders. 

And, therefore, Justice Wilson dismissed the appeal. 

Appeal upheld 

However, NSWCCA Justice Mark Ierace did not agree with his colleague’s assessment of the case, as he considered the sentencing judge had failed to address the three step sentencing process, especially the mandatory provisions in section 66 and most of all, the stipulation in subsection 66(1). 

His Honour outlined that, based on the political aim at the time it was passed in 2017, this law, which had no predecessor, was enacted in order to fill a gap to prevent ineffective community-based options without proper supervision and short sentences that don’t prevent reoffending. 

“Although an ICO is the more lenient of the two alternatives by which a custodial sentence is to be served, it is important not to lose sight of the fact that it is not a light sentencing option,” explained Justice Ierace in the 26 March final findings of the court. 

His Honour added that the sentencing judge was well aware that the offender posed little risk, that he was progressing in rehabilitation, that the need for personal deterrence was low and that “the protection of the community” did not “loom at all large”. 

And he further asserted that if community safety had really been given the contemplation that it deserved and is required, then the judge may have determined it would be better for SR to remain in the community, in order to continue his rehabilitation program of which he was having success in. 

So, last week, Justice Ierace determined to quash the original 2022-imposed sentence and resentence the offender to a 12-month ICO, with two conditions applying, which involved receiving therapy from a specific doctor and abstaining from alcohol during the period. 

And as Chief Judge at Common Law Ian Harrison agreed with the reasoning of Justice Ierace, the majority of the NSWCCA held the appeal made out, and SR is now serving a 12-month-long ICO.

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