Stanley v DPP (NSW)

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

EMMA-JANE STANLEY  APPELLANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS
(NSW) & ANOR  RESPONDENTS

Stanley v Director of Public Prosecutions (NSW)

[2023] HCA 3

Date of Hearing: 15 November 2022
Date of Order: 15 November 2022
Date of Publication of Reasons: 15 February 2023

S126/2022

ORDER

1.Appeal allowed.

2.Set aside Order 1 of the Orders made by the Court of Appeal of the Supreme Court of New South Wales on 21 December 2021 and, in its place, order that:

(1)the orders of the District Court of New South Wales of 17 June 2021 dismissing the appellant's appeal under s 20(2)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) are set aside; and

(2)the appellant's appeal to the District Court of New South Wales be heard and determined by the District Court of New South Wales according to law.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with T Quilter and C E O'Neill for the appellant (instructed by Legal Aid NSW)

C O Gleeson with A Poukchanski for the first respondent (instructed by Solicitor for Public Prosecutions (NSW))

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Stanley v Director of Public Prosecutions (NSW)

Administrative law – Judicial review – Jurisdictional error – Sentencing powers of inferior court – Where s 7 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") empowered sentencing court to make intensive correction order ("ICO") directing that a sentence of imprisonment be served by way of intensive correction in community – Where power to make ICO was a discrete function arising after sentence of imprisonment imposed – Where s 66(1) of Sentencing Procedure Act provided community safety was paramount consideration in exercising discretion to make ICO – Where s 66(2) of Sentencing Procedure Act required sentencing court, when considering community safety, to assess whether making ICO or serving sentence by way of full-time detention more likely to address offender's risk of reoffending – Whether failure to comply with s 66(2) amounted to jurisdictional error – Consideration of categories of jurisdictional error in Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Sentence – Sentence imposed by State court – Discretion to make ICO – Where community safety was paramount consideration in exercising discretion to order ICO – Where sentencing judge declined to make ICO and ordered sentence of imprisonment be served by way of full-time detention – Whether sentencing judge undertook assessment of community safety in accordance with s 66 of Sentencing Procedure Act.

Words and phrases – "community safety", "error of law", "error of law by an inferior court", "full-time detention", "intensive correction order", "jurisdictional error", "misconception of function", "paramount consideration", "risk of reoffending", "sentencing process".

Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 66, Pt 2 Div 2, Pt 5.
Supreme Court Act 1970 (NSW), s 69B.

1. KIEFEL CJ.   The appellant pleaded guilty in the Local Court of New South Wales to multiple offences against the Firearms Act 1996 (NSW). In a statement of agreed facts, it was said that her cousin stored numerous firearms, firearm parts and ammunition at the appellant's house in Dubbo. When the appellant became aware of their presence, she allowed them to remain there until sold to a known person. She received a small sum for her participation.

2. The appellant was sentenced in the Local Court to an aggregate term of imprisonment of three years with a non-parole period of two years. On her appeal to the District Court the appellant conceded that no penalty other than imprisonment was appropriate. However, she argued that the term of imprisonment should be served in the community by way of an intensive correction order ("ICO") rather than by way of full-time detention. The District Court Judge said that she had given "very close consideration" to the argument for an ICO but dismissed the appeal.

3. The District Court Judge had a discretion to make an ICO under s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), which relevantly provides that:

   "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."

4. Section 66 of the Sentencing Procedure Act provides:

   "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."

5. Section 3A, which is referred to in s 66(3), provides that there are a number of purposes for which a court may impose a sentence on an offender. They include to ensure that an offender is adequately punished, to prevent crime by deterring the offender and others from committing similar offences, to promote the rehabilitation of the offender, and to protect the community from the offender.

6. The appellant sought relief from the Supreme Court in the nature of certiorari to quash the sentence, and to remit the matter to the District Court to be dealt with according to law. A privative clause[1] had the effect of limiting the supervisory jurisdiction of the Supreme Court to review for jurisdictional error.

   [1]District Court Act 1973 (NSW), s 176.

7. It was either found or assumed by members of the Court of Appeal that the District Court Judge had not undertaken the assessment required by s 66(2) of the Sentencing Procedure Act. The question for the Court was whether that failure amounted to jurisdictional error. The majority (Bell P, Basten, Leeming and Beech-Jones JJA, McCallum JA dissenting) held that it did not and dismissed the application for review[2].

   [2]Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1.

8. At the conclusion of oral argument, this Court by a majority ordered that the appeal from the decision of the Court of Appeal be allowed and made consequential orders. I did not agree in the making of those orders. I considered that the majority of the Court of Appeal were correct to hold that there was no jurisdictional error. That was essentially because s 66(2), read with s 66(1), of the Sentencing Procedure Act does not condition the authority of the sentencing court to make or refuse to make an ICO under s 7(1)[3].

   [3]See also Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154.

9. As the Court of Appeal recognised, whether a failure to conduct the assessment referred to in s 66(2) amounts to an error going to jurisdiction is to be determined by reference to the Sentencing Procedure Act. I gratefully adopt the analysis of Jagot J of that statute's provisions.

10. Section 66 is not expressed in terms to condition the discretion under s 7(1). It does not by its terms effect a constraint upon the powers of a sentencing court. As Basten JA observed[4], it is better described as a direction to the sentencing court that considerations which may promote the safety of the community are to be given special weight and that one factor to be included in the process of assessment is whether the risk of re-offending would be more likely under an ICO or by requiring full-time detention. It serves as a reminder to the court that giving paramount effect to community safety does not require incarceration.

    [4]Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1 at 34 [138].

11. On any view, the Sentencing Procedure Act does not make the outcome of the s 66(2) assessment or the consideration of community safety mandated by s 66(1) determinative of a sentencing judge's decision as to whether or not to make an ICO[5]. The decision to make or refuse to make an ICO is required to be informed by other considerations. Section 66(3) is equally emphatic[6] in mandating that a sentencing court must also consider the sentencing purposes contained in s 3A and any relevant common law sentencing principles. It may also consider any other matters it considers relevant. One of the sentencing purposes to which s 3A refers is community safety, of which the assessment in s 66(2), undertaken by reference to the consideration in s 66(1), is but a factor.

    [5]Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1 at 47-48 [193] per Beech‑Jones JA.

    [6]Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1 at 34 [138] per Basten JA; see also at 36-37 [145]-[147] per Leeming JA.

12. The clear legislative intention is that a sentencing court is to undertake an evaluative process in which the various considerations to which attention is directed are weighed. Some will be accorded greater weight. It is not possible to infer that Parliament intended the obligation under s 66(2) to condition the validity of the sentencing process. Section 66(2) cannot be read in isolation and thereby elevated to a condition upon the exercise of the power under s 7(1).

13. The appeal should not have been allowed. It should have been dismissed.

14. GAGELER J.   Within a system of government in which power to affect a legal right or interest is limited to that authorised by law, there is utility in having a standardised means of expressing a conclusion that a purported exercise of power pursuant to an authority conferred by law exceeds the limits of that authority. Within our system, a conclusion to that effect has come to be expressed in the terminology of "jurisdictional error".

15. When used to express a conclusion that a decision made in a purported exercise of judicial power exceeds the limits of decision-making authority legislatively conferred on a court, "jurisdictional error" has the same meaning as it has when used to express a conclusion that a decision made in a purported exercise of non-judicial power exceeds the limits of decision-making authority legislatively conferred on a person or body other than a court. Except in the case of an order of a superior court[7], the import of the conclusion is the same[8]. The import of the conclusion is that the purported exercise of power lacks the authority of law: the decision made in fact "is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as 'no decision at all'"[9].

    [7]New South Wales v Kable (2013) 252 CLR 118 at 133 [32], 140-141 [56].

    [8]Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476 at 485 [27]; 400 ALR 1 at 8.

    [9]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 133 [24], quoting Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 615 [51]. See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 374-375 [41].

16. Applied to a purported order of an inferior court of a State, such as the District Court of New South Wales[10] or the Local Court of New South Wales[11], "jurisdictional error" expresses the conclusion that the order is and was from the moment of its making lacking in legal authority: that it "is not an order at all"[12]. The purported order can be set aside in the constitutionally entrenched supervisory jurisdiction of a State Supreme Court such as that exercisable by the Supreme Court of New South Wales under s 69 of the Supreme Court Act 1970 (NSW)[13]. The purported order can also be impeached collaterally in any proceeding in any court in which it might be sought to be relied upon to support or deny a claim for relief[14].

    [10]Section 8 of the District Court Act 1973 (NSW).

    [11]Section 7 of the Local Court Act 2007 (NSW).

    [12]Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 375. See also at 391-392.

    [13]Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 578-581 [91]-[100].

    [14]Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 445-446 [27]-[28]; New South Wales v Kable (2013) 252 CLR 118 at 140-141 [56].

17. The manifest inconvenience which would arise from the uncertainty of never knowing whether an order made in fact by an inferior court was valid unless and until its validity had been raised in and determined by the same or another court in a subsequent proceeding, in combination with the potentially extreme consequences for those who might have acted in the interim on the faith of the order, has long been thought to provide reason to pause before reaching a conclusion that a perceived error on the part of the court in deciding to make the order is jurisdictional[15]. There is accordingly no novelty in the proposition that a mistake on the part of an inferior court, even as to the proper construction of a statute which invests that court with jurisdiction, will not necessarily or even ordinarily deprive a resultant order of the authority conferred on the court to make an order of that kind: there are mistakes, and then there are mistakes[16].

    [15]Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391. See also R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 125-126; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at 375 [31].

    [16]Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420. See also Wang v Farkas (2014) 85 NSWLR 390 at 400 [42].

18. The decisions of this Court in Craig v South Australia[17] and Kirk v Industrial Court (NSW)[18] bear that out. Emphasised in Craig[19] and reiterated in Kirk[20] was that a defining characteristic of any court is that it is an institution the decision-making authority of which is to quell controversies about legal rights through the conclusive determination of questions of law as well as questions of fact. To that end, the decision-making authority of a court, whether superior or inferior, routinely encompasses "[t]he identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence"[21]. So it was noted in Craig[22] and repeated in Kirk[23] that, whilst an inferior court would fall into jurisdictional error were it to misconceive the nature of the function it was required by statute to perform or to disregard some matter which statute required it to take into account as a condition of its jurisdiction, "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 ... will not ordinarily involve jurisdictional error".

    [17](1995) 184 CLR 163 at 176-180.

    [18](2010) 239 CLR 531 at 571-573 [66]-[68].

    [19](1995) 184 CLR 163 at 179-180.

    [20](2010) 239 CLR 531 at 571-573 [66]-[68]. See also Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 29 [73].

    [21]Craig v South Australia (1995) 184 CLR 163 at 179-180. See also Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 572 [67].

    [22](1995) 184 CLR 163 at 177-178, 179-180.

    [23](2010) 239 CLR 531 at 572 [67], 573-574 [72].

19. Whether non-compliance with a statutory provision expressed in terms that a court take a specified consideration into account in a decision-making process to be undertaken before making an order of a specified kind gives rise to jurisdictional error turns on the construction of the statute in question. The question of construction is not whether the statute requires the court to take the consideration into account. A mandatory consideration is not, without more, a jurisdictional consideration. The ultimate question of construction is whether the statute makes taking the consideration into account a condition of the authority which the statute confers on the court to make an order of that kind. Determining that question, like determining any question of whether non-compliance with a mandated step in a decision-making process transgresses the limits of decision-making authority conferred by statute, requires attention to "the language of the relevant provision and the scope and object of the whole statute"[24].

    [24]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391 [91], quoting Tasker v Fullwood [1978] 1 NSWLR 20 at 24.

20. The opinion I formed during the hearing of this appeal and still hold is that the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") does not condition the authority of a sentencing court to sentence an offender to a term of imprisonment on the sentencing court taking the consideration to which s 66(2) refers into account when deciding under s 7(1) to make or refuse to make an intensive correction order ("ICO") in respect of a term of imprisonment. That is for each of two sufficient and distinct reasons. One is that the authority of the sentencing court to sentence an offender to a term of imprisonment is not conditioned on the proper exercise of the power under s 7(1) to make an ICO. If an order sentencing an offender to a term of imprisonment is otherwise within jurisdiction, that order remains within jurisdiction even if the sentencing court exceeds its jurisdiction when making or refusing to make an ICO in the purported exercise of the authority conferred by s 7(1). The other is that s 66(2) does not in any event condition the authority of the sentencing court to make or refuse to make an ICO under s 7(1). Non-compliance with s 66(2) does not result in the sentencing court exceeding the limits of the decision-making authority conferred on it by s 7(1).

21. Having formed that opinion, I did not join in the orders made by majority at the conclusion of the hearing of this appeal. The orders then made allowed the appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales[25] and set aside an order of the Court of Appeal dismissing an application to it under ss 69 and 69B of the Supreme Court Act. In place of that order, they set aside orders made by the District Court on an appeal[26] by way of hearing de novo[27] from an order of the Local Court which had sentenced the appellant to an aggregate term of imprisonment of three years for offences against the Firearms Act 1996 (NSW). By those orders, the District Court had dismissed the appellant's appeal[28] and had confirmed the appellant's sentence to the three-year term of imprisonment subject to variation of the commencement date of the sentence[29]. If within the authority of the District Court, the sentence of imprisonment so varied had the same effect and was enforceable in the same way as if it had been imposed by the Local Court[30].

    [25]Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1.

    [26]See s 11 of the Crimes (Appeal and Review) Act 2001 (NSW).

    [27]See s 17 of the Crimes (Appeal and Review) Act 2001 (NSW). See also Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [92].

    [28]See s 20(2)(c) of the Crimes (Appeal and Review) Act2001 (NSW).

    [29]See s 20(2)(b) of the Crimes (Appeal and Review) Act2001 (NSW).

    [30]See s 71(3) of the Crimes (Appeal and Review) Act2001 (NSW).

22. My opinion as to the proper construction of the Sentencing Procedure Act aligns in material respects with the views expressed in separate reasons for judgment by each member of the majority of the Court of Appeal in the decision under appeal (Bell P, Basten, Leeming and Beech-Jones JJA) and with the reasoning of Leeming JA (with the concurrence of Johnson J) and Simpson JA in Quinn v Commonwealth Director of Public Prosecutions[31].

    [31](2021) 106 NSWLR 154.

23. My opinion accords also with the analysis now undertaken by Jagot J, whose reasoning I gratefully adopt insofar as her Honour explains the scheme of the Sentencing Procedure Act and addresses issues of statutory construction. Unlike her Honour, but like most members of the majority of the Court of Appeal in the decision under appeal (Bell P, Basten and Leeming JJA), I do not find it necessary to resolve the question of whether the District Court in fact took the consideration to which s 66(2) refers into account when deciding under s 7(1) to refuse to make an ICO.

24. Being in dissent on a question of the construction of a statute peculiar to New South Wales and having the benefit of the reasons of Jagot J, I propose to confine these reasons to highlighting key points.

    Section 7(1) of the Sentencing Procedure Act does not condition the authority of a sentencing court to impose a sentence of imprisonment

25. In the language of s 5(5) of the Sentencing Procedure Act, a sentence of imprisonment can become the "subject of" an ICO made under s 7(1). The sentence of imprisonment is not "subject to" an ICO.

26. Section 7(1) of the Sentencing Procedure Act makes clear that the authority of a sentencing court to make an ICO arises only where that court has first sentenced an offender to a term of imprisonment. Section 7(1) also spells out that an ICO takes effect as a direction as to how that sentence to a term of imprisonment is to be served. An ICO is a direction that the term of imprisonment is to be served by way of intensive correction in the community.

27. To that end, unless it is sooner revoked, an ICO automatically has the same term as the term of imprisonment in respect of which it is made[32] and an ICO can only be made by the sentencing court subject to conditions imposed under Div 4 of Pt 5 of the Sentencing Procedure Act.

    [32]Section 70 of the Sentencing Procedure Act; s 83 of the Crimes (Administration of Sentences) Act 1999 (NSW).

28. Under the Crimes (Administration of Sentences) Act 1999 (NSW) ("the Administration of Sentences Act")[33], compliance with the conditions of an ICO is monitored by a community corrections officer subject to the oversight of the Parole Authority. The Parole Authority is empowered to alter or supplement the conditions of an ICO and to revoke an ICO in the event of non-compliance or other specified circumstances[34]. The Parole Authority is also empowered to reinstate a revoked ICO on application by the offender or of its own initiative[35].

    [33]Part 3 and Div 1 of Pt 7 of the Administration of Sentences Act.

    [34]Sections 81A, 164 and 164AA of the Administration of Sentences Act.

    [35]Section 165 of the Administration of Sentences Act.

29. That the sentence of imprisonment in respect of which an ICO is or might be made has a distinct and concurrent ongoing operation which is independent of the ICO is confirmed by the interlocking and complementary operation of s 62(4) of the Sentencing Procedure Act and s 181 of the Administration of Sentences Act. Section 62(4) of the Sentencing Procedure Act makes the standard requirement of s 62(1) – that a sentencing court issue a warrant for the committal of an offender to a correctional centre as soon as practicable after sentencing the offender to a term of imprisonment – inapplicable while action is being taken under Pt 5 in relation to the making of an ICO or where the sentence of imprisonment is the subject of an ICO. Section 181 of the Administration of Sentences Act provides for the Parole Authority to issue a warrant committing the offender to a correctional centre to serve the remainder of the sentence by way of full-time detention in the event of the ICO being revoked.

30. The Court of Criminal Appeal of the Supreme Court of New South Wales has held, repeatedly and correctly, that whether an offender is to be sentenced to a term of imprisonment, and (if so) for what term, are questions to be asked and answered within the scheme of the Sentencing Procedure Act before any question can arise as to whether or not to make an ICO and (if so) on what conditions[36].

    [36]See Mandranis v The Queen (2021) 289 A Crim R 260 at 264-265 [22]-[26], referring to R v Zamagias [2002] NSWCCA 17. See also R v Fangaloka [2019] NSWCCA 173 at [44]-[45].

31. Consideration of the making of an ICO (where raised[37]) forms part of the sentencing procedure to be engaged in by a sentencing court, and an ICO (if made) forms part of the sentence (being the penalty[38]) that is imposed for an offence. The sentence of imprisonment and an ICO (if made) are commonly expressed in the form of a compendious order.

    [37]See Blanch v The Queen [2019] NSWCCA 304 at [68]-[69].

    [38]See s 3(1) of the Sentencing Procedure Act (definition of "sentence").

32. Nevertheless, the decision of the sentencing court as to whether to sentence an offender to a term of imprisonment and the decision of that court as to whether to make an ICO directing the term of imprisonment to be served by way of intensive correction in the community involve distinct and consecutive exercises of decision-making authority separately conferred on the sentencing court. Imposition of a sentence of imprisonment is a precondition to the subsequent making of an ICO. Want or excess of authority in making or refusing to make an ICO cannot affect the validity of the prior sentence of imprisonment in respect of which the ICO is made or sought.

33. Assuming a sentence of imprisonment to be otherwise within jurisdiction, the sentence of imprisonment stands whether or not consideration is given by the sentencing court to the making of an ICO under s 7(1) of the Sentencing Procedure Act and whether or not any consideration that is given is brought to valid completion.

    Section 66(2) of the Sentencing Procedure Act does not condition the authority of the sentencing court to make or refuse to make an ICO under s 7(1)

34. Section 7(3) of the Sentencing Procedure Act limits the authority conferred on a sentencing court to make an ICO under s 7(1) to an offender who is 18 years of age or over. Section 7(4) points to the authority conferred on the sentencing court to make an ICO being further limited by provisions within Pt 5.

35. Division 2 of Pt 5 is headed "Restrictions on power to make intensive correction orders". A restriction on power does not necessarily condition, and thereby limit, the authority to exercise that power[39].

    [39]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 373-374 [37]-[39].

36. The protection that is given by a privative clause to sentencing decisions of the District Court on appeal from the Local Court[40] provides reason to consider that not every restriction set out in Div 2 of Pt 5 conditions, and thereby limits, the decision-making authority of a sentencing court to make an ICO under s 7(1). The availability of appeals to correct errors within jurisdiction in any decision to make or refuse to make an ICO at first instance by both the Local Court[41] and the District Court[42] is another. Section 101A of the Sentencing Procedure Act specifically provides that a failure to comply with a provision of that Act may be considered by an appeal court in any appeal against sentence. Non-compliance with a restriction on power can therefore be corrected on an appeal against sentence whether or not the restriction is jurisdictional.

    [40]Section 176 of the District Court Act 1973 (NSW).

    [41]Sections 3(1) (definition of "sentence"), 11, 17 and 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW).

    [42]Sections 2(1) (definition of "sentence"), 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW).

37. Within Div 2 of Pt 5 are three provisions which undoubtedly limit the authority of a sentencing court to make an ICO. The first is s 67, the effect of which is that an ICO is not available for certain offences. The second is s 68, the effect of which is that an ICO is not available in respect of a term of imprisonment which exceeds a two-year or three-year limit. The third is s 69(3), the effect of which is that an ICO is not available in respect of an offender who resides, or intends to reside, in another State or Territory.

38. Like an ICO purportedly made in contravention of s 7(3), an ICO purportedly made in contravention of any of s 67, s 68 or s 69(3) would exceed the authority of a sentencing court to make an ICO under s 7(1). A purported order made in contravention of any one or more of them would be no order at all, although for reasons already stated its invalidity would not detract from the validity of the sentence of imprisonment.

39. Within Div 2 of Pt 5 also are ss 66 and 69(1). The restrictions those provisions impose on the authority of a sentencing court to make an ICO are quite different in their substantive content and in their manner of expression. Unlike s 7(3), and ss 67, 68 and 69(3), the restrictions in ss 66 and 69(1) do not speak to whether the sentencing court has authority to make an ICO in respect of a class of offender or a class of offence or a particular term of imprisonment. They speak rather to how the authority of a sentencing court to make or refuse to make an ICO under s 7(1) is to be exercised. Section 66 speaks to the considerations to be taken into account and how those considerations are to be weighted. Section 69(1) speaks to the sources of information to which regard is to be had. Those are subject matters of a kind typically, indeed quintessentially, within the decision-making authority of a court.

40. That the restrictions imposed by s 66 are legislatively intended to operate within the decision-making authority of the sentencing court is apparent from the language of the section. Importantly, s 66(1) and (3) are both expressly addressed to what the sentencing court must consider "when" the sentencing court is "deciding" whether to make an ICO. The language is suggestive of the drafters' advertence and adherence to "the clear distinction ... between want of jurisdiction and the manner of its exercise"[43]. The language signifies what the sentencing court is required to do in the course of exercising the decision-making authority conferred by s 7(1).

    [43]Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 389.

41. Further support for the restrictions imposed by s 66 being construed to operate within the decision-making authority of the sentencing court is to be found in the structure of the section and in the nature of the considerations which the provision mandates be taken into account. The considerations which s 66(1) and (3) of the Sentencing Procedure Act combine to mandate that the sentencing court take into account in deciding whether to make or refuse to make an ICO comprise:

    ·"community safety", which s 66(1) says must be "the paramount consideration", meaning that the consideration must be treated as of the highest level of importance[44];

    ·the purposes of sentencing set out in s 3A of the Act, being to ensure that the offender is adequately punished for the offence, prevent crime by deterring the offender and other persons from committing similar offences, protect the community from the offender, promote the rehabilitation of the offender, make the offender accountable for his or her actions, denounce the conduct of the offender and recognise the harm done to the victim of the crime and the community; and

    ·any relevant common law sentencing principles.

    In addition, s 66(3) permits the sentencing court to take into account any other matters that the court thinks relevant.

    [44]cf Storie v Storie (1945) 80 CLR 597 at 611-612.

42. Not unimportant within the structure of s 66 is that s 66(2) does not operate to impose a freestanding restriction. It does not even mandate the taking into account of an additional consideration. Rather, s 66(2) mandates an assessment which the sentencing court is required to undertake when considering community safety for the purposes of s 66(1). The outcome of the mandated assessment, of whether intensive correction in the community pursuant to an ICO or full-time detention is more likely to address the offender’s risk of re-offending, then feeds into the paramount consideration of community safety and through it into the mix of considerations which s 66(1) and (3) together require and permit to be taken into account in deciding whether to make or refuse to make an ICO.

43. Implicit in the legislative prescription that the sentencing court must take account of all of the numerous, evaluative, amorphous, overlapping and potentially competing considerations referred to in s 66(1), as informed by s 66(2), and in s 66(3) is a legislative contemplation that the sentencing court is to synthesise them in making an overall evaluative decision whether to make or refuse to make an ICO. The weightings of the consideration referred to in s 66(1), as informed by s 66(2), and of the considerations referred to in s 66(3) are different. But all bear upon the making of the decision under s 7(1) in the same way. No one consideration can be construed to be a condition of the authority of the court to make or refuse to make an ICO unless all are construed as conditions of its authority to do so. To construe all as conditions of the authority of the sentencing court to make or refuse to make an ICO would be to treat every failure of the court to take account of a relevant consideration as amounting to jurisdictional error.

44. Moreover, for s 66 to condition the authority of a sentencing court to make or refuse to make an ICO under s 7(1) would be incongruous in light of the clear indication of legislative intention in s 5(4). The indication is that a failure on the part of the sentencing court to comply with s 5(1) – which requires that the court consider all possible alternatives so as to be satisfied that no penalty other than imprisonment is appropriate – is not to take a sentence of imprisonment beyond the authority of the sentencing court. Given the express statement of legislative intention that a sentence of an offender to a term of imprisonment is not to be invalidated by a failure on the part of a sentencing court to comply with the requirement of s 5(1), it is difficult to discern a rational basis in terms of legislative policy for inferring that the legislature impliedly intended that a failure on the part of the court to take account of one or more of the considerations specified in s 66 would invalidate the making of or refusal to make an ICO under s 7(1), which governs how the sentence is to be served.

45. The absence from s 66 of a provision along the lines of s 5(4), explicitly preserving validity in the event of non-compliance, cannot be taken to indicate that such an odd result was contemplated in the legislative design. The presence of s 5(4) is explained by an evident legislative concern to avoid the potential for a court to infer that the satisfaction required of a sentencing court by s 5(1)[45] was legislatively intended to be a "jurisdictional fact" absence of which would deprive the court of authority to impose the sentence[46]. Applying orthodox principles of construction, the language and structure of s 66, and the essentially evaluative nature of the decision for which it calls[47], do not carry the same potential for an inference to be drawn that any element of the section was intended to be treated as a jurisdictional fact.

    [45]cf Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654 [130]-[137]; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at 188-189 [34].

    [46]Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 574 [72], citing Craig v South Australia (1995) 184 CLR 163 at 177-178.

    [47]See Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 179 [57], citing Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304.

    Conclusion

46. The appeal should not have been allowed. It should have been dismissed.

47. GORDON, EDELMAN, STEWARD AND GLEESON JJ.   The appellant is a woman from a background of disadvantage with five children and a significant employment history. In 2019, in contravention of the Firearms Act 1996 (NSW), she committed offences of knowingly taking part in the supply of a firearm and having in possession for supply a shortened firearm. The offences were committed after she became aware that her cousin had stored firearms under her house in regional New South Wales and in the back of a vehicle parked in her back yard. She said that she wanted the guns out of her house but did not want to get her cousin "into trouble". The appellant allowed the firearms to remain in her house for eight days and she accepted $50 of the sale price of the firearms.

48. In October 2020, the appellant pleaded guilty in the Local Court of New South Wales at Dubbo to the contraventions of the Firearms Act, and was granted bail pending sentence. In December 2020, she was sentenced to an aggregate term of imprisonment of three years with a non-parole period of two years. She was again granted bail, pending an appeal to the District Court of New South Wales. The appellant appealed to the District Court against the severity of the sentence and asked the District Court, under s 7(1) in Div 2 of Pt 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") (read with Pt 5 of that Act), to make an intensive correction order ("ICO") that would have directed that the appellant's sentence of imprisonment be served "by way of intensive correction in the community"[48].

    [48]Sentencing Procedure Act, s 7.

49. Section 66(1), within Pt 5, of the Sentencing Procedure Act provides that community safety must be the paramount consideration when the court is deciding whether to make an ICO in relation to an offender. Section 66(2) provides that, when considering community safety, the court is to assess whether making the ICO or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.

50. The appellant's appeal to the District Court was pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act"). By s 17 of that Act, the appeal was "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". Accordingly, the District Court Judge was required to engage in a fresh sentencing task and form her own view as to the appropriate sentence[49]. The District Court Judge confirmed the sentence imposed in the Local Court and dismissed the appeal[50]. The District Court's reasons for dismissing the appeal failed to make any express reference to, or findings in relation to, the assessment in s 66(2) of the Sentencing Procedure Act.

    [49]    Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [91]-[92]; Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620 at 626-627 [22]-[28].

    [50]Under s 20(2)(c) of the CAR Act.

51. Having no appeal rights[51], the appellant filed a summons in the New South Wales Court of Appeal seeking, pursuant to s 69B(1) of the Supreme Court Act 1970 (NSW), relief in the nature of certiorari quashing the decision of the District Court. The Court of Appeal[52] concluded, by majority (Bell P, Basten, Leeming and Beech-Jones JJA, McCallum JA dissenting), that non-compliance with s 66(2) was not a jurisdictional error of law, but merely an error of law within the jurisdiction of the District Court. Consequently, the Court of Appeal concluded that its jurisdiction did not extend to the correction of such an error and dismissed the summons.

    [51]    Gibson v Commissioner of Police (NSW Police Force) (2020) 102 NSWLR 900 at 906 [20].

    [52]To which the proceeding was assigned by Supreme Court Act 1970 (NSW), s 48.

52. The appellant was granted special leave to appeal to this Court. This appeal raises two issues: (1) whether failure by a judge of the District Court to make the assessment required by s 66(2) in declining to make an ICO is a jurisdictional error of law reviewable by the Supreme Court of New South Wales; and, if so, (2) whether the District Court Judge failed to make that assessment. At the completion of the hearing before this Court, at least a majority of Justices had concluded that the answer to both those questions was "Yes". As a result, orders were made allowing the appeal, setting aside the orders made by the Court of Appeal, and, in their place, ordering that the orders of the District Court dismissing the appellant's appeal be set aside and the appellant's appeal to the District Court be heard and determined by the District Court according to law.

53. These are the reasons for those orders.

54. 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.

    [53](2010) 239 CLR 531 at 573-574 [72].

    Jurisdictional error by an inferior court

55. 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"[54]. The District Court is a court of limited jurisdiction[55], and an inferior court[56]. 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[57].

    [54]Ex parte Blackwell; Re Hateley [1965] NSWR 1061 at 1062-1065; Attorney-General (NSW) v Dawes [1976] 1 NSWLR 242 at 247-248; Reischauer v Knoblanche (1987) 10 NSWLR 40 at 46-47; Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 at 717; Spanos v Lazaris [2008] NSWCA 74 at [14]-[15]; Director of Public Prosecutions (NSW) v Emanuel (2009) 193 A Crim R 552 at 561 [45].

    [55]District Court Act 1973 (NSW), s 9.

    [56]    Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 456-457 [71], 474 [121]; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at 370 [11].

    [57]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 [91]; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 14-15 [34]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 133-134 [27], 147-148 [72]; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 452 [30]; 390 ALR 590 at 597; Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819 at 827 [31]; 403 ALR 604 at 612-613.

56. In Craig v South Australia[58], 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."

    [58](1995) 184 CLR 163 at 179-180.

57. 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"[59], 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"[60], 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"[61]. For instance, in Samad v District Court of New South Wales[62], 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[63].

    [59]Craig (1995) 184 CLR 163 at 177-178.

    [60]Craig (1995) 184 CLR 163 at 177.

    [61]Craig (1995) 184 CLR 163 at 177.

    [62](2002) 209 CLR 140 at 151 [27].

    [63](2010) 239 CLR 531 at 573-574 [72].

    Legislative framework

58. The regime for sentencing criminal offenders in the Sentencing Procedure Act is complex and highly prescriptive. The core sentencing task of identifying the appropriate sentence to be imposed on the offender requires the sentencing court to identify the relevant limits of the court's jurisdiction and the available sentencing options. The Act prescribes the process required to be undertaken, and a multiplicity of relevant considerations, which may be competing and contradictory[64]. There is no dispute that many prescriptions in the Sentencing Procedure Act constitute limits upon the jurisdiction of the sentencing court. Examples include provisions that are stated not to apply to offenders under 18 years of age, such as the power to decline to set a non-parole period[65]. In many other cases, as noted later in these reasons, the legislature has also stated explicitly that non-compliance with a prescription in the Act does not operate to invalidate a sentence or other order made under the Act.  

    [64]Wong v The Queen (2001) 207 CLR 584 at 612 [77].

    [65]Sentencing Procedure Act, s 54D. See also ss 7(3), 25A(1)(b) and 61(6).

    Three steps to the sentencing process

59. 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[66]. The identification of these steps does not conflict with the principle, stated in Markarian v The Queen[67], 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[68].

    [66]R v Zamagias [2002] NSWCCA 17 at [24]-[30]; R v Fangaloka [2019] NSWCCA 173 at [44]; Wany (2020) 103 NSWLR 620 at 625 [17].

    [67](2005) 228 CLR 357 at 373 [37], quoting Wong (2001) 207 CLR 584 at 611 [74].

    [68]Blanch v The Queen [2019] NSWCCA 304 at [51].

60. 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[70], a conditional release order[71], conviction with no other penalty[72] and a fine[73]. An ICO is not an alternative penalty.

    [69]Sentencing Procedure Act, s 5(1).

    [70]Sentencing Procedure Act, s 8.

    [71]Sentencing Procedure Act, s 9.

    [72]Sentencing Procedure Act, s 10A.

    [73]Sentencing Procedure Act, s 15.

61. 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[74]. 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."

    [74]Sentencing Procedure Act, ss 5(1), 5(5) and 7(1)-(2).

    Power arises after sentence of imprisonment imposed

62. 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].

    [75]Wany (2020) 103 NSWLR 620 at 625 [18].

63. The discrete character of an ICO is reinforced by the consequences of failure to comply with an ICO. Where an offender fails to comply with obligations under an ICO, the consequences are prescribed by the Crimes (Administration of Sentences) Act 1999 (NSW) ("the CAS Act"). If a community corrections officer is satisfied that an offender has failed to comply with the offender's obligations under an ICO, the community corrections officer may take any of several actions ranging in seriousness from recording the breach and taking no further action (s 163(2)(a) of the CAS Act) to referring the breach to the State Parole Authority because of the serious nature of the breach (s 163(3) of the CAS Act). A failure to satisfy an obligation under an ICO may also come to be considered by the Parole Authority on that authority's own initiative, by exercise of its power of inquiry under s 162(1) of the CAS Act.

64. If the Parole Authority is satisfied that an offender has failed to comply with their obligations under an ICO, s 164 will apply and will authorise the Parole Authority in taking any of a suite of actions including (at the most serious end of the range) the action of revoking the ICO (s 164(2)). If the Parole Authority does revoke the ICO, the Parole Authority is empowered by s 181(1) to issue a warrant committing the offender to a correctional centre to serve the remainder of their sentence by way of full-time detention. The Parole Authority may on its own initiative or on an application order the reinstatement of a previously revoked ICO (s 165(1)).

    Power to make or refuse to make an ICO

    Discretionary power, corresponding duty

65. 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].

    [76]    Blanch [2019] NSWCCA 304 at [68]-[69].

    [77]R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398-399. See also R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 18.

    Provisions defining the jurisdiction to make an ICO

66. 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.

67. Section 4B of the Sentencing Procedure Act restricts the making of an ICO in respect of a domestic violence offender, and s 7(3) provides that an ICO may not be made in respect of an offender under 18 years old. Further, a sentencing court must not make an ICO in respect of an offender unless it has obtained a relevant assessment report in relation to the offender or it is satisfied that there is sufficient information before it to justify the making of such an order without an assessment report[78]. When considering the imposition of a home detention condition on an ICO, the court must not request an assessment report relating to the proposed condition unless it has imposed a sentence of imprisonment on the offender for a specified term[79].

    [78]Sentencing Procedure Act, s 17D(1)-(2); Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 12A.

    [79]Sentencing Procedure Act, s 17D(3).

68. Part 5 of the Sentencing Procedure Act applies when a sentencing court is considering, or has made, an ICO[80]. It includes provisions that define the jurisdiction to make an ICO. So, for example, an ICO commences on the date on which it is made[81] and, unless revoked sooner, the term of an ICO is the same as the term or terms of imprisonment in respect of which the order is made[82]. Division 4 of Pt 5 makes provision for the conditions of an ICO, including that the sentencing court must impose certain standard conditions and at least one of the "additional conditions" of an ICO[83]. The court may also impose further conditions provided they are not inconsistent with the standard or additional conditions[84].

    [80]Sentencing Procedure Act, ss 7(4) and 64.

    [81]Sentencing Procedure Act, s 71.

    [82]Sentencing Procedure Act, s 70.

    [83]Sentencing Procedure Act, s 73A(1)-(2).

    [84]Sentencing Procedure Act, s 73B.

69. Division 2 of Pt 5, comprising ss 66 to 69, is entitled "Restrictions on power to make intensive correction orders". Division 2 contains prohibitions on the making of an ICO: in respect of certain offences (for example, an offence involving the discharge of a firearm)[85]; where the term of imprisonment exceeds certain limits including, relevantly, an aggregate sentence of imprisonment exceeding three years[86]; and where an offender resides or intends to reside interstate[87]. The first respondent accepted that these prohibitions, as well as the prohibitions in ss 4B and 7(3) mentioned earlier, are conditions upon the sentencing court's jurisdiction to make an ICO so that non-compliance with those provisions is a jurisdictional error of law.

    [85]Sentencing Procedure Act, s 67.

    [86]Sentencing Procedure Act, s 68.

    [87]Sentencing Procedure Act, s 69(3).

70. Read with s 73A(3), s 69 contains yet another condition upon the court's jurisdiction. It provides that, while the sentencing court is not bound by an assessment report obtained in relation to the offender, the court must not impose a home detention condition or community service work condition on an ICO unless the assessment report states that the offender is suitable to be subject to such a condition[88]. There is no reason to doubt that this restriction is a condition upon the sentencing court's jurisdiction to make an ICO.

    [88]Sentencing Procedure Act, ss 69(2) and 73A(3). Compare s 69(1).

    Section 66 – Community safety and other considerations

71. 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."

72. 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.

73. 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].

    [89]R v Pullen (2018) 275 A Crim R 509 at 531 [86]; Mandranis v The Queen (2021) 289 A Crim R 260 at 270-271 [50]-[51]; cf Fangaloka [2019] NSWCCA 173 at [61].

74. 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.

75. 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.

76. That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending.

77. While aspects of community safety underpin some of the general purposes of sentencing[90], such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment.

    [90]Sentencing Procedure Act, s 3A.

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

78. 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).

    [91]cf Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 174 [44].

    Assessment required by s 66

79. 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.

    [92]Interpretation Act 1987 (NSW), s 35(1).

    [93]Kirk (2010) 239 CLR 531 at 581 [99].

80. 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.

    [94]cf Craig (1995) 184 CLR 163 at 179-180.

81. 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.

82. 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.

    Purpose of ICOs

83. The power to make an ICO was introduced into the Sentencing Procedure Act by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW) ("the 2010 Act"). The second reading speech records that the ICO was designed "to reduce an offender's risk of re-offending through the provision of intensive rehabilitation and supervision in the community" and to address some of the documented shortcomings of periodic detention, which was abolished by the 2010 Act[95].

    [95]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 22 June 2010 at 24426.

84. In 2017, the statutory scheme for ICOs was substantially amended by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) ("the 2017 Act"). In his second reading speech, the New South Wales Attorney-General, Mark Speakman SC, stated that the legislation "introduce[d] new, tough and smart community sentencing options that will promote community safety by holding offenders accountable and tackling the causes of offending"[96]. The Attorney-General stated that "[w]e know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending ... We also know that community supervision is better at reducing reoffending than a short prison sentence ... With the new [ICO], offenders who would otherwise be unsuitable or unable to work will be able to access intensive supervision as an alternative to a short prison sentence"[97].

    [96]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 273.

    [97]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 273-274.

85. In his second reading speech for the 2017 Act, the Attorney‑General also stated[98]:

    "New section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why new section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending."

    [98]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 274.

86. These extrinsic materials reinforce what is evident from the terms of s 66: that the conduct of the assessment in s 66(2) is a prescribed and essential aspect of giving "paramount consideration" to community safety, as s 66(1) requires.

    Mandatory language of s 66(1) and (2)

87. By itself, and particularly in the context of the privative clause, the mandatory language of s 66(1) ("Community safety must be the paramount consideration") and s 66(2) ("the sentencing court is to assess") is a relevant, but not conclusive, indication that the consideration of community safety is a condition or limit on jurisdiction. In the Sentencing ProcedureAct, mandatory language is used in several instances in which it is unlikely that the legislative intention was that non-compliance would result in invalidity – for example, in ss 9(2), 10(3) and 21A, all of which require the court to take into account certain matters. Nevertheless, the mandatory language of s 66(1) and (2) is consistent with the mandatory language used for the jurisdictional condition or limit in every other provision in Div 2.

    Discretion and corresponding duty of the s 66 decision

88. As noted earlier, the power to make or refuse to make an ICO at the third step is a discretionary decision separate from the decision to impose a sentence of imprisonment at the first step. That conferral of power comes with a corresponding duty[99]. But the discretionary nature of the decision under s 7 does not mean that an error cannot be jurisdictional. Every statutory discretion, whether conferred on a judicial or an administrative officer, is constrained by the statute under which it is conferred[100]. Similarly, the evaluative nature of the task under s 66 does not tell against a conclusion that its performance was intended by the legislature to be a condition of the jurisdiction to decide whether or not to make an ICO[101]. A person entrusted with a discretion or an evaluative judgment "must call [their] own attention to the matters which [they are] bound to consider"[102]. While a failure by an inferior court to consider a matter which it is required by law to take into account in determining a question within jurisdiction will not ordinarily involve jurisdictional error[103], a failure to consider the paramount consideration in s 66(1) by reference to the assessment in s 66(2) goes beyond that ordinary case. It demonstrates a misconception of the function being performed under s 7 by failing to ask the right question within jurisdiction.

    [99]See [65] above.

    [100]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 348-349 [23]-[24]; see also 363 [65], 365 [71], 370-371 [90].

    [101]cf Kioa v West (1985) 159 CLR 550 at 586; BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at 37 [10].

    [102]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, quoting Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229.

    [103]Craig (1995) 184 CLR 163 at 180.

    Absence of a "saving" provision

89. Throughout the Sentencing Procedure Act, there are many provisions which state expressly that non-compliance with a provision does not lead to invalidity. There is no such provision in s 7 or s 66.

90. As originally enacted, the Sentencing Procedure Act included such saving provisions in s 45(4) (concerning a requirement to make a record of reasons for declining to set a non-parole period for a sentence of imprisonment); s 48(3) (concerning a requirement to give information about the likely effect of a sentence of imprisonment); ss 71(2), 83(2), 92(2) and 96(2) (concerning requirements to take all reasonable steps to explain the offender's obligations under, and the consequences of failure to comply with, a periodic detention order; a home detention order; a community service order; and a good behaviour bond); and ss 72(3) and 93(3) (concerning requirements to give written notice to the offender and the Commissioner of Corrective Services of a periodic detention order and a community service order).

91. The 2010 Act, which introduced the ICO, contained five saving provisions, all of which were directed to aspects of the scheme for making ICOs. Section 67, which was replaced by ss 7(3) and 66 in the 2017 Act, contained a saving provision in s 67(6), limited to a requirement on the court in s 67(5) to indicate to the offender and record reasons for declining to make an ICO in certain circumstances. The former s 67 reveals a deliberate choice by the legislature to include a saving provision only for a procedural aspect of the section that applied to an error made after the decision to decline to make an ICO.

92. Also in the 2010 Act, new ss 71, 72 and 73 corresponded with the former ss 70, 71 and 72, concerning periodic detention orders. By s 71(3), an ICO was not invalidated merely because it specified a date of commencement of the sentence of imprisonment that did not comply with the requirements of s 71. Section 72(2) provided that non-compliance with requirements to take all reasonable steps to explain the offender's obligations under an ICO and the possible consequences of failure to comply with the relevant order did not invalidate the ICO. Section 73(3) provided that an ICO was not invalidated by a failure to comply with the notice requirements in s 73. The fifth saving provision was contained in an amendment to the Fines Act 1996 (NSW), and concerned the notice requirements following the making of an ICO in relation to a fine defaulter[104].

    [104]Fines Act 1996 (NSW), s 89A(5).

93. By the 2017 Act, similar provisions to the former s 67(5) and (6) were added to Div 4C of Pt 2 in the form of ss 17I and 17J. Section 71 was amended to remove the saving provision for an error in specifying the commencement date of an ICO. Additionally, in Div 4 of Pt 5, s 73A(1B) was inserted, providing that, where the sentencing court exercises the discretion in s 73A(1A) not to impose an additional condition on an ICO, the court must have a record of its reasons for not imposing an additional condition but the failure of the sentencing court to do so does not invalidate the sentence.

94. Contemporaneously with the 2017 Act, the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) amended the Sentencing Procedure Act, including by introducing a saving provision in s 25F(8). Section 25F(8) provides that the failure by a court to comply with Div 1A of Pt 3 of the Sentencing Procedure Act does not invalidate any sentence imposed by the court. Division 1A comprises ss 25A to 25F and broadly concerns sentencing discounts for guilty pleas to indictable offences.

95. This survey of the history of the Sentencing Procedure Act reveals a pattern of deliberate inclusion by the New South Wales legislature of saving provisions in the Sentencing Procedure Act purporting to identify when non-compliance with the Act does not invalidate a sentence imposed by a sentencing court, including an ICO[105]. Section 5(4) stands in contradistinction to the absence of an analogous provision in s 66 in the exercise of the discretion in s 5(1). Section 5(4) illustrates a choice by the legislature to save from invalidity a sentence affected by an error that otherwise might be regarded as a jurisdictional error. Section 5 supports a conclusion that s 66(2) operates as a limit upon the power of the sentencing court to make or refuse to make an ICO.

    [105]cf Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at 164-165 [55]-[56].

    Consequences of invalidity

96. In the Court of Appeal, Basten JA (Bell P and Leeming JA agreeing[106]) considered that the adverse consequences of invalidity told against a conclusion that non-compliance with s 66(2) was a jurisdictional error of law[107]. Basten JA noted that the issue was not fully explored[108]. In this Court, the issue was again, wisely, not put at the forefront of the first respondent's argument. Ultimately, it tells against the first respondent's argument.

    [106]Stanley v Director of Public Prosecutions(NSW) (2021) 107 NSWLR 1 at 14-15 [56] and 38 [157].

    [107]Stanley v Director of Public Prosecutions(NSW) (2021) 107 NSWLR 1 at 32-34 [127]-[137]; cf Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 375-376, 391; Project Blue Sky (1998) 194 CLR 355 at 388-389 [91].

    [108]Stanley v Director of Public Prosecutions(NSW) (2021) 107 NSWLR 1 at 34 [134].

97. The central adverse consequence was said to be that if the failure by a Local Court to comply with the condition in s 66(2) was a jurisdictional error, then a person who was refused an ICO would be unlawfully imprisoned. This consequence could not arise in a case such as the present appeal. Even if the jurisdictional error by the District Court Judge invalidated the entire sentence, the imprisonment orders of the Local Court would prevent any conclusion of unlawful imprisonment. Further, even in a case where the jurisdictional error is made by the Local Court judge, there is serious reason to doubt the correctness of the assumption underlying Basten JA's reasoning.

212. In the Court below, only Beech‑Jones JA (McCallum JA agreeing)[167] dealt with the question whether the District Court judge erred in the manner the appellant proposed, by failing to perform the function of assessment required by s 66(2) of the Crimes (Sentencing Procedure) Act. Beech‑Jones and McCallum JJA accepted that the District Court judge did so err.

     [167]Stanley (2021) 107 NSWLR 1 at 46-47 [189]-[192] per Beech‑Jones JA, 39 [161], 45-46 [181]-[186] per McCallum JA.

213. The starting point, as noted, is that the assessment function required under s 66 is to be performed by the District Court as part of a hearing de novo requiring that Court to exercise the sentencing discretion afresh. While the reasons of the District Court are styled as a "judgment" in that they also dispose of the appeal from the Local Court, the reasons, insofar as they involve a fresh exercise of the sentencing evaluation task, are remarks on sentence. While there is some debate apparent in the authorities in respect of the status of remarks on sentence[168], this descriptor accurately conveys that the remarks are intended to be delivered orally at the time of sentence, to explain to the offender, any victim, and the community, as clearly and as briefly as possible, why the sentence is being imposed.

     [168]eg, R v Hamieh [2010] NSWCCA 189 at [29]-[32]; R v Speechley (2012) 221 A Crim R 175 at 180-181 [34]; Maxwell v The Queen [2020] NSWCCA 94 at [139]-[147]; cf You v The Queen [2020] NSWCCA 71 at [21].

214. In this context, it has been said that remarks on sentence serve an important function[169], but it is also "important to recognise ... that there is a practical tension between the principles requiring oral reasons, delivered in plain English and with brevity (usually in a busy list) and the need for reasons to satisfy the requirements of the law in the particular case"[170]. Spigelman CJ was right to observe that the "conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed"[171]. The desirability of remarks on sentence being given with despatch and as briefly as possible has prompted experienced sentencing judges to say that these circumstances may mean that the "remarks are not as robustly structured as they might otherwise have been"[172]. As Simpson J has put it, "[e]x tempore judgments not infrequently lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing"[173]. This observation equally might apply to oral reasons given by a busy court such as the District Court, even if the oral reasons are delivered some weeks after the hearing. This said, the remarks on sentence must still be adequate[174]. A material argument specifically put must be addressed one way or another[175].

     [169]R v Hamieh [2010] NSWCCA 189 at [29].

     [170]R v Hamieh [2010] NSWCCA 189 at [32].

     [171]R v McNaughton (2006) 66 NSWLR 566 at 577 [48], 578 [60], 580 [76], [80].

     [172]Simkhada v The Queen [2010] NSWCCA 284 at [24].

     [173]Rotner v The Queen [2011] NSWCCA 207 at [57].

     [174]R v Thomson (2000) 49 NSWLR 383 at 394 [42].

     [175]Blanch v The Queen [2019] NSWCCA 304 at [69].

215. The course of the hearing, particularly the arguments put to the judge, may also be relevant. While propositions put by a judge in argument can never form part of the judge's reasons for the purpose of establishing error, I agree that submissions put to the judge may demonstrate the issues which had to be determined and may be used to supplement the judge's reasons if the reasons are brief and if "the adversely affected party is fully apprised of the judge's thinking from recent exchanges"[176]. The course of the hearing may also assist in understanding a judge's reasons, particularly if given orally and soon after the hearing. This must be so given the nature of the business of an inferior court dealing with numerous cases for which remarks on sentence must be given orally and as quickly and efficiently as possible.

     [176]eg, Mohindra v The Queen [2020] NSWCCA 340 at [37]. See also Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75 at [29]; DK v Director of Public Prosecutions(NSW) (2021) 105 NSWLR 66 at 77 [46]-[47], 79 [56]; Mourtada v The Queen (2021) 290 A Crim R 514 at 520-521 [19], 521-522 [22], 525 [40]-[41].

216. The District Court judge's reasons in the present case were not given ex tempore. However, they were delivered orally about three weeks after the hearing. While, in one sense, the oral reasons might be described as comprehensive, it is important to recognise that in giving the reasons, the judge repeatedly referred to submissions put during the hearing. Given this, it is legitimate to have regard to the hearing to determine, at the least, the issues which had to be determined.

217. The transcript of the hearing in the District Court on 28 May 2021 records that the appellant's counsel said that the appeal was about "one issue", being the appropriateness of an intensive correction order. The appellant's counsel referred to the three step process set out in R v Zamagias[177]. The submissions by the appellant's counsel otherwise focused on the appellant's remorse and good prospects of rehabilitation, as well as the supervision plan proposed as part of the assessment report if an intensive correction order was to be made.

     [177][2002] NSWCCA 17 ("Zamagias").

218. The District Court judge said in her oral reasons:

     "I turn now to the submissions that were made. Firstly in short form Mr Fren on behalf of the appellant submitted that this was an appeal really as to whether or not an ICO could effectively replace a full time custodial sentence. It was submitted that an ICO was the most appropriate sentence. ...

     Mr Fren respectfully submitted to the Court that taking all of the relevant factors into account on the sentencing exercise including recent appellant authorities on ICOs, community safety and what he submitted was a powerful subjective case that the purposes of sentencing were more appropriately met by the imposition of an ICO."

219. Accordingly, it is beyond doubt that the District Court judge understood that the only issue was the making of an intensive correction order. No complaint was made about the sentence of imprisonment or its term. The only issue was the way in which that sentence should be served – by way of full‑time detention or by way of intensive correction in the community. This issue called up for consideration a limited number of provisions of the Crimes (Sentencing Procedure) Act – ss 7, 66, 69, and 73 to 73B. No issue about any other provision, such as s 67 or s 68, arose.

220. In the context of the objective seriousness of the offences and the relevance of general and specific deterrence, the District Court judge quoted Truong v The Queen as follows[178]:

     "Events in Australia and overseas demonstrate the ghastly consequences of illicit lethal weapons being at large in the community. Parliament has indicated by way of the maximum penalty and standard non‑parole period that those who profit from trading in lethal weapons should receive condign punishment."

     [178][2013] NSWCCA 36 at [66].

221. The District Court judge also quoted from R v Howard, where Spigelman CJ said[179]:

     "Where it appears that there are elements within the community who refuse to accept that firearms offences must be regarded as serious, the objectives of general and personal deterrence are entitled to substantial weight in sentencing for such offences. The availability of such weapons poses a major threat to the community particularly where, as here, an accused is completely indifferent to the persons who were to acquire them. The community has determined that trade in such weapons on any other than a strictly regulated basis is to be regarded as a serious offence. That must be reflected in the sentence imposed."

     [179][2004] NSWCCA 348 at [66].

222. The primary judge also recorded in her oral reasons that:

     "It was submitted [by the Crown] that given all of those factors that the objective seriousness of the offending warranted a full time custodial situation particularly to denounce the appellant's conduct and to deter the appellant and others from similar offending. ...

     With respect to objective seriousness I have had close regard to the submissions made by the Crown with respect to where I would find the objective seriousness of each of the offences."

223. Accordingly, it is also beyond doubt that the District Court judge understood that the Crown's case was that the objective seriousness of the offences and considerations of general and specific deterrence were such that the sentence of imprisonment (which the appellant's counsel accepted had to be imposed) should be served by way of full‑time detention despite the appellant's risk of reoffending being characterised in the assessment report as "medium" and the other subjective circumstances weighing in favour of the making of an intensive correction order.

224. In the concluding part of her oral reasons, the District Court judge said:

     "I have 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. In all the circumstances I am of the view that a sentence of three years as imposed by the learned Local Court magistrate is completely appropriate and I would not cavil with that. The second step is to determine – I beg your pardon the first step is to determine whether a sentence of imprisonment is appropriate.

     In all the circumstances there is no question that the s 5 threshold has been crossed. Accordingly I determine that a term of imprisonment is appropriate. The next step is to determine the length in all the circumstances taking into account all the matters that the Court must consider in the sentencing exercise particularly general deterrence which must loom large particularly specific deterrence and of course community safety and denunciation. I am of the view that a sentence imposed of three years is an appropriate sentence.

     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 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.

     Taking into account all of the factors that have been submitted to me by both the Crown and by Mr Fren I have formed the view that the appeal should be dismissed."

225. The three step process to which the District Court judge referred in her oral reasons is explained in Zamagias[180]. In that case, Howie J explained that step one is whether "the court is satisfied, having considered all possible alternatives, that no other penalty other than imprisonment is appropriate"[181]. If the answer is yes, step two is to determine what the term of that sentence should be[182]. Step two is answered "without regard to whether the sentence will be immediately served or the manner in which it is to be served", as the alternatives "can only be considered once the sentence has been imposed"[183]. Step three is "whether any alternative to full‑time imprisonment is available in respect of that term and whether any available alternative should be utilised"[184].

     [180][2002] NSWCCA 17.

     [181]Zamagias [2002] NSWCCA 17 at [25].

     [182]Zamagias [2002] NSWCCA 17 at [26].

     [183]Zamagias [2002] NSWCCA 17 at [26].

     [184]Zamagias [2002] NSWCCA 17 at [28].

226. In R v Pullen[185], referred to in the District Court judge's oral reasons as a case about "the law which prescribes the availability of an ICO" of which her Honour was "very aware", Harrison J quoted the relevant provisions, including s 66[186], and said[187]:

     "In determining whether an ICO should be imposed, s 66(1) makes 'community safety' the paramount consideration. The concept of 'community safety' as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the Court to consider whether an ICO or a full‑time custodial sentence is more likely to address the offender's risk of re‑offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community."

     [185](2018) 275 A Crim R 509.

     [186](2018) 275 A Crim R 509 at 528 [77].

     [187](2018) 275 A Crim R 509 at 530 [84] (emphasis added).

227. In R v Fangaloka[188], referred to in the District Court judge's oral reasons as another case about "the law which prescribes the availability of an ICO" of which her Honour was "very aware", after quoting the relevant provisions, including s 66[189], Basten JA said that[190]:

     "[T]he 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."

     [188][2019] NSWCCA 173.

     [189][2019] NSWCCA 173 at [47].

     [190][2019] NSWCCA 173 at [63] (emphasis added); see also at [65].

228. In Karout v The Queen[191], referred to in the District Court judge's oral reasons as a further case about "the law which prescribes the availability of an ICO" of which her Honour was "very aware", Brereton JA quoted s 66[192] and said[193]:

     "This has the effect that in making a decision whether to make an intensive correction order, community safety – including 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 – is the paramount, though not the only, consideration. An ICO may be appropriate where prospects of rehabilitation are good and the risk of re‑offending may be better managed in the community."

     [191][2019] NSWCCA 253.

     [192][2019] NSWCCA 253 at [54].

     [193][2019] NSWCCA 253 at [55] (emphasis added, footnotes omitted), cf Hoeben CJ at CL and Fullerton J at [2] and [80]-[95] respectively.

229. The final case which the District Court judge identified in her oral reasons as one about "the law which prescribes the availability of an ICO" of which her Honour was "very aware" was Casella v The Queen[194]. In that case, Beech‑Jones J quoted s 66[195] and said[196]:

     "On its face, s 66(2) only requires an assessment of 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."

     [194][2019] NSWCCA 201 ("Casella").

     [195]Casella [2019] NSWCCA 201 at [106].

     [196]Casella [2019] NSWCCA 201 at [108] (emphasis added); see also at [110]-[111].

230. Lest it be assumed that the present case is one in which the result itself, the sentence of imprisonment for an aggregate term of three years with a non‑parole period of two years, exposes the alleged error[197] of a failure to comply with s 66(2) of the Crimes (Sentencing Procedure) Act, the statement of agreed facts should be considered.

     [197]eg, House v The King (1936) 55 CLR 499 at 505.

231. The appellant was one of four accused (the other co‑accused being Gray, Harvey and Webb). Gray was under investigation by police for the unlawful supply of firearms. Harvey (accepted elsewhere to be the appellant's cousin) introduced and stored numerous firearms, firearm parts and ammunition at the appellant's home without her knowledge.

232. The appellant subsequently became aware of the firearms stored at her home. She and Gray agreed that she would hold the firearms, firearm parts and ammunition for Harvey and Webb until Gray supplied them to a known male person. She also spoke with Harvey and indicated to Gray that Harvey would accept $2,500 for all the items. Gray agreed and told the appellant he would try to get $3,000 and would give her $500 for allowing the items to be stored at her home.

233. The appellant liaised with Gray, Webb and the known male person to inspect the firearms stored at her home and Gray sold the firearms, firearm parts and ammunition to the known male person.

234. Police seized the firearms, firearm parts and ammunition that were supplied to the known male person. The items amounted to eight firearms, 12 firearm parts and ammunition. The eight firearms (some of which were missing parts) included single shot and repeating rifles, including three shortened rifles, and shotguns.

235. The appellant pleaded guilty to 10 offences involving possession and sale of firearms and firearm parts, including three offences relating to shortened firearms, each carrying a maximum sentence of imprisonment of two years if dealt with summarily by the Local Court.

236. These circumstances provided a proper basis for the District Court judge to reach a rational and reasonable conclusion that the appellant's risk of reoffending was more likely to be addressed by not making an intensive correction order and the appellant instead serving her sentence of imprisonment in full‑time detention.

237. It must be accepted that in her reasons, the District Court judge did not refer to s 66 of the Crimes (Sentencing Procedure) Act. But the question of an alleged (complete) failure to perform the function in s 66(2) involves an inference. Whether that inference should be drawn requires consideration of all of the circumstances.

238. As noted, the only issue in the appeal before the District Court judge was whether an intensive correction order should be made. The District Court judge could not have given "very close consideration" to the issue whether the sentence of imprisonment should be served by way of an intensive correction order and could not have been "very aware" of the cases about "the law which prescribes the availability of an ICO" to which she referred without recognising not only that community safety was the paramount consideration (as provided for in s 66(1)), but that in considering community safety the Court was required to assess whether making the order or serving the sentence by way of full‑time detention would be more likely to address the appellant's risk of reoffending (as provided for in s 66(2)).

239. It is one thing to conclude that the District Court judge's reasons were inadequate. It is another to infer that in these circumstances the District Court judge did not assess at all whether making the intensive correction order or requiring the appellant to serve the sentence by way of full‑time detention was more likely to address the appellant's risk of reoffending. The phrases "community safety" and "paramount consideration", which the District Court judge used in her reasons, are taken directly from s 66. It is difficult to accept that the District Court judge could have been "very aware" of "the law which prescribes the availability of an ICO" in the four cases identified and could have used these two phrases which appear in s 66(1), and yet infer that her Honour overlooked s 66(2), despite it being quoted in full and explained in all four cases.

240. The better inference is that, in saying that "community safety is of paramount consideration", in the context in which she did, the District Court judge performed the task required by s 66(2). It should be inferred that the District Court judge assessed either that: (a) the appellant serving the sentence of imprisonment by way of full-time detention was more likely to address the appellant's risk of reoffending than making an intensive correction order; or (b) if making the intensive correction order was more likely to address the appellant's risk of reoffending, this paramount consideration and other subjective circumstances in the appellant's favour did not outweigh the objective seriousness of the offences and the factors of general and specific deterrence.

241. I accept that it is not possible to infer from the District Court judge's reasons which of these two conclusions her Honour reached. I accept also that this means the District Court judge has not adequately discharged her obligation to give reasons for her decision. But inadequacy of reasons is not the complaint made, presumably because, in the statutory context of the Crimes (Sentencing Procedure) Act, such an error would not be jurisdictional. The argument that is put – that, despite what the District Court judge did say and the context in which the judge said it, she did not undertake the assessment required by s 66(2) at all – to my mind is untenable.

242. For these reasons, I would have dismissed the appeal.