Casella v R [2019] NSWCCA 201
Casella v R [2019] NSWCCA 201 · Read the judgment on AustLII
Catchwords: Intensive Correction Orders – competing authorities – supremacy of legislative provisions
In this decision the Court of Criminal Appeal (‘CCA’) has thrown more fuel on the fire in the competing decisions around Intensive Correction Orders (‘ICOs’). First, by finding that ICOs of 6 months or less are fine. And secondly, by challenging whether a court is obliged to positively determine that an ICO (rather than full-time imprisonment) would address the offender’s risk of reoffending before imposing an ICO (finding instead that it would be sufficient if the assessment on that question were neutral). This decision follows the very recent decision (and summary in these pages) in relation to the decision of R v Fangaloka [2019] NSWCCA 173, which itself had case doubt on aspects of R v Pullen [2018] NSWCCA 264 (which also appeared in these pages).
In Casella, the appellant was convicted of concealing a serious indictable offence (cultivation of a large commercial quantity of cannabis). He was sentenced in the District Court to 8 months with a NPP of 6 months. He appealed on a number of bases, broadly alleging that the sentence was manifestly excessive. The CCA (Bathurst CJ; Beech-Jones J agreeing with further reasons; and N Adams J agreeing with yet more reasons) dismissed most of the grounds, but upheld the appeal, more or less determining that there was some undetermined latent error. The important point for present purposes is what the Court said on the resentence.
Beech-Jones J in his additional reasons (with which Bathurst CJ and N Adams J agreed) drew attention to a couple of the problematic points raised by the decision in Fangaloka. The first was the statement there (at [56] of Fangaloka) that ‘… in practice, Pt 5 is unlikely to be applied to very short sentences (for 6 months or a lesser period)’. The Court here found that it could not discern any basis for that conclusion; the legislation does not provide any indication that the imposition of an ICO for sentences of 6 months or less should be an unusual occurrence. The Court here considered that part of Fangaloka to have been inessential to the outcome, helpfully relieving defence practitioners of the burden of arguing that it was merely obiter (at [105] of Casella). That a 6 month ICO is available in appropriate cases is reinforced by the fact that the CCA here imposed exactly that order.
The second point grappled with in the additional reasons of Beech-Jones J was the part of Fangaloka (at [63) which may be read to suggest that s 66 imposes a prohibition on the imposition of an ICO unless the Court positively concludes that an ICO (as opposed to serving a sentence of full time custody) is more likely to address the offender’s risk of reoffending. The Court here disagreed with that interpretation of s 66, saying ‘It does not appear to necessarily preclude the imposition of an ICO if, say, the outcome of the assessment is neutral because the offender has good prospects of rehabilitation and does not represent a danger to the community, irrespective of whether he or she is incarcerated or subject to an ICO. The imposition of an ICO in such a case would still be consistent with community safety.’ (emphasis added – at [108] of Casella). This decision explicitly indicates that the Court doubts the correctness of Fangaloka on this point – but the parties here did not have the opportunity to comment on it because the decision in Fangaloka came after this matter had been argued.
In previously summarising the decision in Fangaloka, this author predicted that High Court or full-bench intervention on this topic seemed inevitable. There is no such thing as being ‘more inevitable’, so the question following this decision is presumably only how quickly one of those things happens.