R v Pullen [2018] NSWCCA 264
R v Pullen [2018] NSWCCA 264 · Read the judgment on AustLII
Catchwords: Sentencing amendments – Intensive Correction Orders – availability of order
In this, the first appellate decision considering the new sentencing regime which commenced on 24 September 2018, the Court of Criminal Appeal (‘CCA’) has made comments showing how significant the changes to Intensive Correction Order (‘ICO’) really are.
The respondent was charged with dangerous driving occasioning grievous bodily harm, and fail to stop and assist after an impact causing grievous bodily harm: Having consumed cannabis and a significant amount of alcohol, and despite being on a P2 licence requiring him to have no alcohol at all in his system, the respondent drove. Travelling too fast through a road works zone, in the wet and in the dark, the respondent changed gears in a way which caused the wheels to lock up so that the car skidded into a semi-trailer. Following the subsequent heavy collision (which one of the road workers only narrowly avoided by jumping out of the way), the passenger was trapped in the car for over an hour and suffered an array of lacerations and broken bones resulting in surgery, skin grafts and hospitalisation for 15 days. Following the collision, the respondent made more than one attempt to run away. At first instance he was sentenced to an ICO for 15 months – a sentence which was imposed under the sentencing regime which existed before 24 September 2018. The Crown appealed the sentence on the basis that it was manifestly inadequate.
For reasons broadly to do with erroneous findings about objective seriousness, the CCA (Harrison J; Johnson and Schmidt JJ agreeing) held that both the term of 15 months and the means of serving the sentence (by way of old-regime ICO) were inadequate. Those findings necessitated a resentencing exercise – and it is largely on that aspect of the decision that this summary focuses.
In holding that the old-regime ICO was insufficient, the Court observed that previous authority held that ICOs did involve substantial punishment, but that was to a significant extent premised on the onerous mandatory conditions. The position has changed to a certain extent, and now the degree of punishment involved in an ICO (and therefore its appropriateness in a particular case) has to be assessed by the number and nature of conditions imposed in the particular case. Sometimes, an ICO will be more onerous than it was previously (at [66]).
One question related to the question of how long a sentence of imprisonment can be, and still be eligible for an ICO. The Crown contended that the length of the individual sentences matter, in addition to the length of the aggregate sentence. On the Crown’s argument, if any one sentence was more than two years, then the offender was ineligible for an ICO even if the aggregate was less than three years. However, the Court rejected that submission and found that the only relevant limitation (in terms of length) is that the aggregate (that is, total) sentence must not exceed three years imprisonment (at [82]-[83]).
In addition, in determining whether an ICO should be imposed, s66(1) of the Crimes (Sentencing Procedure) Act makes ‘community safety’ the paramount consideration. The concept of ‘community safety’ here is broad, and the legislation makes plain that it is not simply achieved by incarcerating someone; in many cases, incarceration may have the opposite effect. Community safety in this context is therefore inextricably linked with considerations of rehabilitation (at [84]). The prioritisation of community safety as the ‘paramount consideration’ means that other considerations – including the purposes of sentencing set out in s3A – are subordinate (at [86]). One consequence of the amendments is that in appropriate circumstances an ICO may now be available even if it may not have been under the old scheme (at [89]).
For those and other reasons, the 15 month (old regime) ICO was set aside and a 3 year (new regime) ICO was imposed.