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Court of Criminal Appeal 12 December 2016

Walker v R (No. 2)

[2016] NSWCCA 294

DrugsPublic order & justice offences

Citation: [2016] NSWCCA 294
Court: Court of Criminal Appeal, New South Wales
Date: 12 December 2016
Judge(s): Hoeben CJ at CL; Hall & Davies JJ

Background

This decision is a sequel to the Court of Criminal Appeal's principal judgment in Walker v R [2016] NSWCCA 224. Following that earlier judgment, the Court ordered an Intensive Correction Order (ICO) Assessment Report to be prepared before determining the final sentence for the appellant.

The assessment process examined the appellant's personal circumstances, risk of reoffending, and suitability for an ICO, which is a form of imprisonment served in the community under strict supervision rather than in a custodial facility.

  • Whether the appellant was suitable to serve his sentence by way of an Intensive Correction Order rather than full-time custody
  • What sentence should be imposed in light of the ICO Assessment Report

Decision

The Court received and considered the ICO Assessment Report. The report found that the appellant's personal and family circumstances were reasonably stable, and assessed him as presenting a medium risk of reoffending. His identified criminogenic needs (the factors linked to his offending behaviour) were substance abuse, relapse prevention, and mental health.

Although the principal judgment had noted two lapses into drug use, the report indicated the appellant had since stabilised significantly and had ceased drug use. He had also demonstrated willingness to address his offending behaviour by accepting a referral to a mental health service provider.

The report's author assessed the appellant as suitable for an ICO, and the appellant had signed an undertaking to comply with all ICO obligations. On that basis, the Court imposed a sentence of imprisonment to be served by way of an Intensive Correction Order.

Orders Made

  • The appellant is sentenced to 16 months' imprisonment, commencing 12 December 2016 and expiring 11 April 2018
  • The sentence is to be served by way of an Intensive Correction Order
  • The Intensive Correction Order is subject to the mandatory conditions imposed by clause 186 of the Crimes (Administration of Sentences) Regulation 2014 (NSW)

Key Takeaways

  • The Court of Criminal Appeal imposed a community-based sentence after a favourable ICO Assessment Report, reflecting the relevance of post-sentencing developments such as reduced drug use and engagement with mental health services
  • An ICO Assessment Report can be a decisive factor in determining whether a term of imprisonment is served in the community or in custody
  • Under clause 186 of the Crimes (Administration of Sentences) Regulation 2014 (NSW), mandatory conditions automatically attach to any Intensive Correction Order
  • A medium risk of reoffending, combined with identified criminogenic needs, does not of itself preclude a finding of suitability for an ICO where the offender demonstrates stabilisation and willingness to engage with support services
  • This decision illustrates that sentencing in the Court of Criminal Appeal can proceed in stages, with a final sentence deferred pending receipt of a formal assessment report

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 186

Cases:
- Walker v R [2016] NSWCCA 224 (the principal judgment in this matter)