R v Fangaloka [2019] NSWCCA 173
R v Fangaloka [2019] NSWCCA 173 · Read the judgment on AustLII
Catchwords: Intensive Correction Orders – Rehabilitation – Competing authorities
In this decision the Court of Criminal Appeal (‘CCA’) has revisited the Intensive Correction Order (‘ICO’) regime. The decision revisits the priority that community safety and rehabilitation should take in the sentencing process, and determines that those aspects of the case are not to be given primacy over the other purposes of sentencing.
The respondent (this was a Crown appeal) pleaded guilty to offences of robbery in company, assault occasioning actual bodily harm (in company), and a common assault on a Form 1. He and a co-offender visited the victims’ home to demand money; the facts imply this was a reprisal for reporting an earlier incident to the police. The offenders demanded money from the first victim, and the respondent threatened him with a Stanley knife. That victim started screaming for help and was punched twice to the face. Another victim also started screaming for help and was punched 5 to 6 times by the co-offender. The co-offender took cash from the second victim’s wallet, then went over and also punched the first victim. The offenders ran out the door with some more of the victims’ property – but not before the co-offender threw a couple more punches at a third victim for good measure. In the District Court, the respondent was sentenced to a 2 year ICO with conditions including 250 hours community service and a requirement that he abstain from drugs. The Crown appealed the leniency of the sentence.
On appeal, the Court (Basten JA; Johnson and Price JJ agreeing) found four errors established, including a failure to accumulate the sentences, even though the judgment had expressed an intention to do so (at [26]-[28]). In addition, the Court found that the sentence was manifestly inadequate when measured against the guideline judgment for armed robbery, given that none of the sentence was to be served in custody, notwithstanding the facts were relatively close to the guideline (at [41]).
But the interesting point was the Court’s discussion of the ICO legislation. Starting at [42], the judgment sets out the history and some of the provisions underlying ICOs, then attempts to reconcile some of the provisions. ICOs had also received some attention in the recent decision of R v Pullen [2018] NSWCCA 264 (which was also a Crown appeal). Section 66 of the Crimes (Sentencing Procedure) Act 1999 pronounces community safety as the ‘paramount consideration’, yet makes clear that when considering that question, a sentencing court is to consider whether an ICO or full-time custody is more likely to address the offender’s risk of reoffending. But some of the purposes of sentencing in s3A of the same Act are hard to reconcile with s66. This led the Court in Pullen to declare at [86] that ‘The prioritisation of the consideration of community safety as the “paramount consideration” necessarily means … that other considerations, including those enunciated in s 3A of the Act, become subordinate.’ Strangely (given the absence of a five-judge bench in this case), on that point this decision seems squarely at odds with Pullen: ‘It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration.’ (at [66] of Fangaloka).
Leaving aside that curiosity, at [63]ff, under the hearing of ‘Preferred construction of s 66’, here the CCA declares that the words of s66 merely require that a sentencing court must have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender’s risk of reoffending. That obligation is not said to derogate from other relevant matters; it merely identifies that as a mandatory element for consideration (at [65]). On this approach the purpose of s66 is merely to ensure that the court does not assume that detention is more likely to address the risk of reoffending than a community-based order. In short, there is nothing in s66 which favours an ICO over fulltime custody (at [66]).
Unfortunately (for writers of judgment summaries) there is no pithy answer to the question ‘what is the effect of Fangaloka, in light of Pullen?’. There is no denying that the decisions are in some respects at odds. And whereas Pullen had arguably elevated rehabilitation to a first-order priority (see eg at [84] of Pullen), here in Fangaloka the Court has shuffled it back in with the other factors to be considered as part of the s3A mix. But the priority to be given to particular factors was always – and remains – a question for the particular judicial officer, in the particular case at hand. A full bench decision (or High Court intervention) seems an inevitability.