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Court of Criminal Appeal 26 March 2024

SR v R

[2024] NSWCCA 43

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: SR v R [2024] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 26 March 2024
Judges: Harrison CJ at CL, Wilson J (dissenting), Ierace J

Background

The appellant pleaded guilty in the Sydney District Court to one count of causing grievous bodily harm while reckless as to actual bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence involved an assault on his then 14-year-old stepson in the family home, and was therefore a domestic violence offence. The maximum penalty for the offence is 10 years imprisonment, with a standard non-parole period of four years.

On 29 September 2022, the sentencing judge imposed a term of imprisonment of one year and ten months, with a non-parole period of one year. The appellant was granted bail pending appeal the following November and had served approximately two months in custody by the time of the appeal hearing. The sentencing judge declined to impose an Intensive Correction Order (ICO), finding the assault was too serious for any non-custodial result.

The appellant challenged the sentence on the ground that the sentencing judge failed to follow the three-stage process required by ss 7 and 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when considering whether to impose an ICO, including by failing to treat community safety as the paramount consideration.

  • Whether the sentencing judge was required to explicitly reference s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when considering an ICO.
  • Whether the sentencing judge failed to treat community safety as the paramount consideration in deciding between full-time custody and an ICO.
  • Whether the sentencing judge erred by determining the ICO question before fixing the length of the term of imprisonment.
  • Whether, on resentence, the sentence should be served by way of an ICO.

Decision

The Court allowed the appeal by majority (Harrison CJ at CL and Ierace J, with Wilson J dissenting). The majority agreed that sentencing judges are not required to cite every relevant statutory provision by name, and that a failure to mention s 66 expressly does not, by itself, establish that the provision was overlooked.

Harrison CJ at CL held that the sentencing judge nevertheless failed to engage with the statutory imperative that community safety must be the paramount consideration when deciding whether to make an ICO. The sentencing judge found that "the protection of the community does not loom at all large," but then imposed full-time imprisonment without explaining how that finding was consistent with the paramount consideration of community safety. The Chief Judge could not reconcile the judge's reasoning: if community protection was not a significant factor, the basis for concluding that only full-time imprisonment was adequate was not apparent from the remarks.

Ierace J reached the same conclusion, finding it was not reasonably possible to infer from the sentencing remarks that community safety had been treated as paramount. His Honour identified that the analysis called for under s 66(2) required the court to weigh whether the appellant's rehabilitation and the protection of the community were better served in the community or in prison. Relevant evidence, including the appellant's access to a treating psychologist and his full-time employment while on appeals bail, pointed toward an ICO as the option that better enhanced community safety.

Wilson J dissented, taking the view that proper allowance should be made for the pressures of an ex tempore sentencing decision, and that the remarks as a whole did not reveal an error of the kind alleged.

On resentence, Ierace J (with Harrison CJ at CL agreeing) imposed a sentence of 12 months to be served by way of an ICO, with conditions requiring the appellant to continue therapy with his treating psychologist and to abstain from alcohol.

Orders Made

  • The sentence imposed in the District Court on 29 September 2022 is quashed.
  • The appellant is sentenced to an Intensive Correction Order for a period of 12 months, commencing 26 March 2024 and expiring 25 March 2025.
  • Additional conditions imposed:
  • The appellant is to continue to receive therapy from Dr Vu as frequently as Dr Vu advises.
  • The appellant is not to consume alcohol.

Key Takeaways

  • Under ss 7 and 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), community safety is the paramount consideration when a sentencing court is deciding whether to impose an ICO rather than full-time imprisonment, following the High Court's decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3.
  • A sentencing judge need not expressly cite s 66 or enumerate every relevant statutory principle, but the reasoning must make it reasonably apparent that the paramount consideration was in fact applied.
  • Where a sentencing judge finds that community protection is not a significant concern, the reasoning must coherently explain how that finding connects to the ultimate choice of full-time custody over an ICO.
  • Factors relevant to community safety under s 66(2) include whether ongoing rehabilitation activities (such as access to therapy and employment) are better preserved through community-based sentencing rather than a custodial term served in prison.
  • In allowing the appeal and resentencing, the Court of Criminal Appeal treated the appellant's continuing engagement with a psychologist and full-time employment as protective factors that weighed in favour of the ICO as the option that better enhanced community safety.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3(1), 3A, 5, 7, 17D(2), 66, 73, 73A(2)(e) and (f)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), Pt 10, Div 2, cll 187, 189, 189A, 189B, 189C, 189D
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 11
- Children (Criminal Proceedings) Act 1987 (NSW) s 15A

Cases:
- Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; [2023] HCA 3
- Chan v The King [2023] NSWCCA 206
- Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
- Hawat v R [2020] NSWCCA 21
- Mourtada v R [2021] NSWCCA 211
- R v Fangaloka [2019] NSWCCA 173
- Tonga, Samuel v R [2023] NSWCCA 120
- Stewart v R [2012] NSWCCA 183
- R v Sewell and Walsh (1981) 29 SASR 12