Wany v DPP [2020] NSWCA 318

Wany v DPP [2020] NSWCA 318 · Read the judgment on AustLII

Catchwords: Sentencing – District Court appeals – Intensive Correction Orders

This decision adds another chapter to each of two ongoing areas of controversy: the exact nature of District Court appeals, and the content of the test when considering an Intensive Correction Order (‘ICO’). Here the Court of Appeal has determined that it is an error, when considering a sentence appeal, for a District Court judge simply to adopt the reasons of the Local Court Magistrate. Separately, when considering an ICO, a majority of the Court has held, obiter, that the legislation in relation to ICOs is not restrictive, and that when a cogent argument for an ICO is raised it might be a jurisdictional error to explicitly fail to consider whether an ICO or full-time detention is more likely to address the offender’s likelihood of reoffending.

The applicant was sentenced in the Local Court for operating a boat in a manner dangerous, causing grievous bodily harm: he was driving a boat with two of his cousins when it ran into a port marker, causing all three men injuries, with one of them suffering a severe traumatic brain injury. In the Local Court he submitted that the appropriate sentence was an ICO but the Magistrate demurred, instead sentencing him to full-time imprisonment. He appealed to the District Court. In the District Court, he again asked to be dealt with by way of an ICO. The District Court judge, unusually, had available to him the reasons of the Magistrate. The District Court judge did (somewhat reluctantly, it appears) accede to an adjournment of the matter for a Sentencing Assessment Report on the topic of a Home Detention condition. That report assessed the offender as suitable, but the District Court judge nevertheless declined to impose an ICO – although he did reduce slightly the sentence of imprisonment which the Magistrate had imposed. The applicant appealed that decision on grounds asserting, first, that the District Court judge had erred by simply adopting the reasons of the Magistrate, and secondly that his Honour had failed to consider community safety in determining whether to impose an ICO.

The Court of Appeal (McCallum JA, Simpson AJA agreeing; Meagher JA also agreeing but declining to join on a secondary ground of appeal) allowed the appeal. The Crimes (Appeal and Review Act) 2001 (‘CARA’) describes a sentence appeal from the Local Court to the District Court as a ‘rehearing’. There is some tension about what the word ‘rehearing’ means in any given statutory context. In the context of sentence appeals under CARA, the task is a hearing de novo in which the judge is to undertake a value judgment in retrospect, but also taking regard to into account any fresh evidence (at [24]-[27]). The applicant asserted that the District Court judge had simply adopted the reasons of the Magistrate. The Court here observed that the preferable approach to the task is to put aside the sentence imposed at first instance, since (amongst other things) it would be extraordinary if, in undertaking the task of instinctive synthesis of all the relevant sentencing factors, two judicial officers gave exactly the same weight to exactly the same factors and reached exactly the same appropriate sentence (at [43]). The difficulty in the present case is that it was plain on the face of the sentencing judgment that District Court judge’s reasons differed from those of the Magistrate, given that his Honour imposed a lesser sentence. Inconsistently, he both adopted and departed from the decision of the Magistrate (at [45]). His Honour undertook no separate evaluative assessment of objective seriousness, which was essential (at [48]). For those and other reasons, it followed that the judge’s purported adoption of the Magistrate’s reasons revealed a constructive error to engage with the task under s 17 of CARA.

The other question related to whether, in the context of considering an ICO, community protection is a mandatory (as distinct from merely discretionary) consideration. To the extent that there is ambiguity in the authorities, a majority of the Court here held that community protection is a mandatory consideration (at [56] per McCallum JA and Simpson AJA; Meagher JA considered this issue unnecessary to decide, see [1]). In this case, both the Magistrate – and therefore, the District Court judge, who had merely adopted the Magistrate’s reasons – failed to engage in any meaningful way with the requirements of s 66 of the Crimes (Sentencing Procedure Act) 1999 (at [60]). There is (and remains, after this decision) a controversy about the precise nature of the test to be applied in deciding whether to impose an ICO. Although it was thought unnecessary to resolve that tension here, the majority observed ‘for what it is worth’ that it was their view that s 66 is not restrictive and should not be understood to preclude the imposition of an ICO except where the sentencing court reaches a positive determination than an ICO (as opposed to full-time detention) is more likely to address an offender’s risk of reoffending (at [61]-[62]). The authorities are at least consistent that the task is to make the determination: which method of serving the sentence of imprisonment is more likely to address the offender’s risk of reoffending? However, even if a court reaches a conclusion favouring an ICO, that does not mean a sentencing court cannot still refuse to make such an order; there are other questions which still need to be weighed before making the discretionary determination as to the appropriate outcome (at [63]-[64]). Whilst there is not a duty in every case where the sentence is less than two years to consider whether an ICO is appropriate, such a duty does arise whenever a cogent argument in favour of an ICO is raised. Where such an argument is raised, a failure to consider the question of which form of imprisonment more appropriately addresses the offender’s risk of reoffending may be able to be characterised as a jurisdictional error, or at least a misconception as to the nature of the function being performed (at [67]).

There are two practical takeaways from this decision. First, it is clear (if it wasn’t already) that a full set of submissions about topics including objective seriousness will be required in all District Court sentence appeals; even if the reasons of the Magistrate are available, the District Court judge needs to make a fresh determination on all the issues. Secondly, the balance of authority seems to favour the approach that ‘community protection’ is a mandatory consideration – it should be explicitly addressed in submissions whenever an ICO is proposed on behalf of an offender.