Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 (21 December 2021) (Bell P, Basten, Leeming, McCallum and Beech-Jones JJA)


Catchwords:


CRIME – appeal and review – appeal against sentence from Local Court to District Court – District Court dismissed appeal – where District Court judge decided not to order that full-time custodial sentence be served by way of intensive correction order – judicial review – limited to review for jurisdictional error by privative clause in s 176 of District Court Act 1973 (NSW) – where assessment contemplated by s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) not undertaken – whether failure to conduct assessment amounted to jurisdictional error

JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to various offences under Firearms Act 1996 (NSW) – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence of three years – appeal to District Court pursuant to s 11(1) of Crimes (Appeal and Review) Act 2001 (NSW) – applicant raised submission that sentence of imprisonment should be served by way of intensive correction order – District Court dismissed appeal – whether District Court fell into jurisdictional error when rejecting submission seeking intensive correction order – where s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) required District Court judge to assess whether making an intensive correction order or ordering full-time detention was more likely to address applicant’s risk of reoffending – whether District Court judge conducted assessment as required by s 66(2) – where s 66(1) expresses that community safety is paramount consideration in deciding whether to make an intensive correction order – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error

SENTENCING – penalties – intensive correction orders – proper approach to exercise of discretion – mandatory considerations – Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(2) – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error – where community safety is paramount consideration in exercising the discretion to make intensive correction order