Citation: R v Strbac (No 2) [2015] NSWDC 270
Court: District Court of New South Wales
Date: 23 October 2015
Judge(s): Cogswell SC DCJ
Background
The offender was sentenced for cultivating a commercial quantity of a prohibited plant. A related offence of using electricity without authority was taken into account on a Form 1 (a procedural mechanism that allows additional offences to be considered when imposing a sentence, without recording a separate conviction for each).
The sentencing judge had originally delivered remarks on the offences and the offender's personal circumstances on 7 August 2014, at which point he determined that a 22-month sentence of imprisonment was appropriate. Rather than finalising the sentence at that hearing, the court referred the offender for an assessment of his suitability to serve the term by way of an Intensive Correction Order (ICO), a community-based alternative to full-time custody.
The matter returned to court on 23 October 2015 after the Fairfield Community Corrections Office provided its assessment report.
Legal Issues
- Whether the offender was suitable to serve his sentence of imprisonment by way of an Intensive Correction Order rather than full-time custody
- Whether the requirements of the Crimes (Sentencing Procedure) Act 1999 (NSW) regarding the offender's understanding of ICO obligations were satisfied
Decision
The Community Corrections assessment, dated 14 October 2015, found the offender suitable for an ICO. On the basis of that report, the court proceeded to impose the previously determined sentence of 22 months imprisonment and directed that it be served by way of intensive correction in the community under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The court noted that the offender's legal representative had confirmed her client received advice about the obligations of an ICO and the consequences of non-compliance. The court treated this as satisfying its obligations under s 72 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires that offenders be informed of ICO conditions before an order is made.
The mandatory conditions prescribed by reg 175 of the Crimes (Administration of Sentences) Regulation 2008 (NSW) attached to the order automatically, and the court noted these would be further explained to the offender by his legal representatives.
Orders Made
- The offender sentenced to 22 months imprisonment, commencing 23 October 2015
- Intensive Correction Order made under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) directing that the sentence be served by way of intensive correction in the community
- The offence of using electricity without authority noted as taken into account under Form 1
Key Takeaways
- A Community Corrections suitability assessment is a necessary step before the District Court can finalise an ICO, and the process may involve adjourning sentencing for a substantial period to obtain that report.
- Under s 72 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court must be satisfied that an offender has been informed of ICO obligations and the consequences of non-compliance before an order is made; confirmation from defence counsel can satisfy this requirement.
- Mandatory conditions under reg 175 of the Crimes (Administration of Sentences) Regulation 2008 (NSW) apply automatically to an ICO without needing to be individually specified by the court at the time of sentencing.
- The Form 1 mechanism allows an additional offence (here, using electricity without authority) to be factored into the overall sentence without a separate conviction being recorded for that offence.
- An ICO does not reduce the nominal term of imprisonment; the 22-month term remained unchanged, with the order altering only the manner in which that sentence was to be served.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 72
- Crimes (Administration of Sentences) Regulation 2008 (NSW), reg 175
Cases cited: None cited in the judgment.