The High Court allowed, by a 4:3 majority, an appeal from a decision of the NSW Court of Appeal regarding whether a sentencing judge had failed to consider community safety in the manner required by the provisions of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act), before declining to make an intensive correction order (ICO), and whether that failure constituted jurisdictional error.

Background

The appellant pleaded guilty in the Local Court to offences contrary to the Firearms Act 1996 (NSW) and was sentenced to a term of imprisonment. The appellant appealed to the District Court against the sentence and asked the Court to make an intensive correction order. The District Court dismissed the appeal and confirmed the orders of the Local Court. The appellant sought relief in the nature of certiorari from the Court of Appeal quashing the decision of the District Court. The Court of Appeal concluded that, when determining whether a sentence of imprisonment should be served by way of intensive correction order, non-compliance with s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) was not a jurisdictional error.

The appeal to the High Court raised two issues: (1) whether failure by a District Court judge to make the assessment required by s 66(2) is a jurisdictional error; and, if so, (2) whether the District Court judge failed to make that assessment. A majority (Gordon, Edelman, Steward and Gleeson JJ) concluded that the answer to both those questions was yes.

Kiefel CJ, Gageler and Jagot JJ dissented in separate judgments, holding that the NSW Court of Appeal had been correct to find that there was no jurisdictional error.

Jurisdictional error

There are three steps to be undertaken by a sentencing court prior to imposing a sentence of imprisonment under the Sentencing Act:

1. a determination that no penalty other than imprisonment is appropriate (s 5(1));

2. determination of the appropriate term of the sentence of imprisonment; and

3. where the issue arises, consideration of whether to make an ICO (at [59]). The power to order or decline to order an ICO under s 7(1) is a discrete function that arises after the sentencing court has imposed a sentence of imprisonment (at [62]).

There are three steps to be undertaken by a sentencing court prior to imposing a sentence of imprisonment under the Sentencing Act.

Sections 66–69 set out restrictions on the power to make ICOs. Section 66 imposes specific mandatory considerations upon the court to make, or refuse, an ICO. Section 66(1) provides that community safety must be the paramount consideration when the court is deciding whether to order an ICO. Section 66(2) provides that, when considering community safety, the court is to assess whether an ICO or full-time detention is more likely to address the offender’s risk of re-offending (at [72]-[74]). The assessment required by s 66(2) is not determinative of whether an ICO should be made. As is made clear by s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO (at [75]).

The majority noted that a failure by a sentencing court to take into account a relevant consideration in the course of arriving at a sentencing decision will not ordinarily be jurisdictional error without more. However, in this case, there were a number of matters that combined to illustrate the jurisdictional nature of the paramount consideration in s 66(1) as directed by the assessment in s 66(2) (at [78]). A failure to undertake the assessment required by s 66(2) is a failure to undertake a task that is mandated for the purpose of deciding whether to make an ICO by reference to community safety as the paramount consideration. The jurisdiction conferred by s 7 is thus to decide whether community safety as a paramount consideration together with the subordinate considerations in s 66(3) warrant fulltime detention or an ICO. The s 66(2) assessment is integral to the function of choosing between full-time detention and an ICO in compliance with the requirement in s 66(1) to treat community safety as the paramount consideration (at [80]-[81]).

The majority then considered whether this error constituted jurisdictional error holding that s 7 is itself a sentencing function that is to be exercised by reference to the paramount consideration in s 66(1). It is a discretionary power that fundamentally changes the nature of the sentence of imprisonment imposed. The sentencing court may bring itself outside of jurisdiction if it misconceives the nature of that function or fails to comply with a condition on the jurisdiction when exercising the power (at [82]).

A failure to consider the paramount consideration in s 66(1) by reference to the assessment in s 66(2) demonstrates a misconception of the function being performed under s 7 by failing to ask the right question within jurisdiction (at [88]). The District Court judge revealed no assessment of community safety based on whether the risk of re-offending by the appellant would be better reduced by full-time imprisonment or an ICO. It cannot be inferred from the reasons that she undertook any such assessment. Given the invalidity, there was no decision on the issue of an ICO at all. As there is a duty to consider whether to grant an ICO in cases where the power is engaged, the District Court did not determine the appeal according to law (at [114]-[117]).

The High Court set aside the orders made by the Court of Appeal and ordered instead that the District Court’s orders dismissing the appellant’s appeal were set aside and that the matter be remitted to the District Court to be determined according to law. BN