Quinn v Commonwealth Director of Public Prosecutions

1. [1]

   LEEMING JA: Mr Glenn Patrick Quinn asks this Court to set aside orders made by the District Court of New South Wales which allowed his appeal against the sentence imposed upon him by the Local Court following his pleas of guilty to three offences. He perceives that the sentence of full-time imprisonment imposed on appeal, while more lenient than that imposed by the Local Court, is nonetheless too severe. He says that the appropriate sentence is an intensive correction order.

2. [2]

   Mr Quinn’s claim, necessarily, is that the District Court’s decision is vitiated by “jurisdictional error”. That is because no second appeal lies from the District Court to this Court (or to the Court of Criminal Appeal). It is also because s 176 of the District Court Act 1973 (NSW), which provides that “No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court”, removes this Court’s jurisdiction to review decisions affected by error of law on the face of the record. Mr Quinn is therefore forced to rely on the constitutionally entrenched jurisdiction of the Supreme Court to review for jurisdictional error.

3. [3]

   These reasons take the following form:

Jurisdictional error

1. [4]

   Jurisdictional error has assumed much greater prominence following Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1. Indeed, the term has been described, rightly, as “the central concept in Australian administrative law”: L Burton Crawford and J Boughey, “The Centrality of Jurisdictional Error: Rationale and Consequences” (2019) 30 Public Law Review 18 at 23, echoing J Spigelman, “The centrality of jurisdictional error” (2010) 21 Public Law Review 77. However, determining what amounts to “jurisdictional error” has proven somewhat elusive. In part that is because the term has a lot of work to do. Jurisdictional error identifies a class of decisions made in the exercise of executive or judicial power in respect of which, as a matter of a constitutional limitation on Commonwealth and State legislative power, neither the Commonwealth nor the State Parliaments can remove the supervisory jurisdictions of the High Court or the State Supreme Courts: Plaintiff S157/2002 at [98]; Kirk at [100]. Jurisdictional error is thus a concept which is unique in the Australian legal system, simultaneously linking all three aspects of the tripartite division of government power at both Commonwealth and State levels.

2. [5]

   The focus at all times is jurisdictional. Jurisdiction in this sense is best understood as the body’s authority to decide. Jurisdictional error turns on the limits of the authority that has been conferred on the body. In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24], Kiefel CJ, Gageler and Keane JJ gave this description:

3. [6]

   Useful guidance may also be found in the joint judgment of Basten, Ward and McCallum JJA in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]:

4. [7]

   One reason for the difficulties in identifying jurisdictional error is that it is not sufficient merely to enumerate a list of classes of error, from which by use of the familiar inductive reasoning process of the common law a general understanding of the term may be derived. The concept is quite distinct from the list of grounds of review in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Jurisdictional error is inseparable from the limits of the authority conferred on the body, and the presence of jurisdictional error in any particular case will turn on the nature of the body whose decision is said to be affected by jurisdictional error. In particular, because Parliament generally confers quite different limits upon courts, as opposed to non-courts, a different class of decisions of courts will be affected by jurisdictional error than decisions of bodies other than courts. This cuts both ways. A material failure to accord procedural fairness will constitute jurisdictional error. Because generally speaking courts are obliged to adhere to a greater level of procedural fairness (a tribunal may be authorised to make a decision without a hearing, a court may not be), it may be easier to establish jurisdictional error in such cases. But the opposite is true for jurisdictional error constituted by error of law.

5. [8]

   It is important to bear steadily in mind that a court may be, and very commonly is, authorised to decide questions of law wrongly, while bodies which are not courts are ordinarily not authorised to decide questions of law wrongly. This distinction has a sharp impact on the identification of jurisdictional error. A body which is not a court will ordinarily commit jurisdictional error if it misapprehends a statute in a way which is material to its decision. On the other hand, a court which decides a question of law wrongly will ordinarily not thereby fall into jurisdictional error.

6. [9]

   This distinction between jurisdictional error on the part of inferior courts and other tribunals exercising government powers was articulated in Kirk at [67]-[68] as follows:

7. [10]

   That passage makes it clear that ordinarily a failure to have regard to some matter to which a court was required to have regard in determining a question within jurisdiction will not amount to jurisdictional error.

8. [11]

   Often nothing turns upon whether an error made by a court amounts to jurisdictional error. If statute confers a right of appeal, it is highly likely that any error which is jurisdictional (as well as many which are not) will fall within the scope of the appeal. It is in cases such as the present, where no statute provides for a second appeal from the decision of the District Court itself determining an appeal from the Local Court, that identifying jurisdictional error assumes prominence.

9. [12]

   Ordinarily there will be no jurisdictional error on the part of an inferior court if the court fails to take into account something it was required in law to take into account because it misconstrues the law. Of course in such a case the court will have failed to have regard to a mandatory relevant consideration, which would render a mere executive decision liable to being set aside on ordinary proceedings for judicial review. But this merely confirms that courts ordinarily have authority to decide questions of law and bodies which are not courts do not ordinarily have authority to decide questions of law.

10. [13]

    All of that said, there are some things which must exist and to which an inferior court must have regard as a condition of its jurisdiction. Thus, the District Court’s jurisdiction in a criminal matter traditionally only arose upon the presentation of an indictment: Jago v District Court of New South Wales (1989) 168 CLR 23 at 36; [1989] HCA 46; JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228 at [15], something now reflected in s 130(2) of the Criminal Procedure Act 1986 (NSW). It seems likely that the obligation in s 196(3) of the Criminal Procedure Act 1986 not to proceed to hear and determine a proceeding summarily in the absence of the accused unless the court is satisfied that the accused person has reasonable notice is jurisdictional, because the court has no authority to determine guilt or innocence in a way which is not procedurally fair, and in that sense the absence of an accused person who did not have notice may be regarded as a condition upon jurisdiction.

11. [14]

    Further, quite commonly statutes imposed limitations upon the powers conferred on courts, such as the maximum penalty for an offence. If a court exceeds those limits, it will not merely commit appellable error, but it will be making orders going beyond its authority and thereby committing jurisdictional error.

12. [15]

    Still further, there are some misconstructions of a statute which cause the court to cease to be authorised to decide the matter. This was confirmed in Kirk at [72], reiterating what had been said in Craig v South Australia (1995) 184 CLR 163 at 178-178; [1995] HCA 58:

13. [16]

    In Kirk the High Court repeated what had been said in Craig of the third example, namely, that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern”. That observation did not detract from the more general point that verbal exactitude is illusory in this area. The High Court emphasised that the inquiry is not one of applying strict rules:

14. [17]

    Robertson J explained this in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [77]:

15. [18]

    In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [62], Griffiths J likewise rejected an approach based on some formulaic application of rules and confirmed that the question was more nuanced.

16. [19]

    Allsop CJ agreed with Griffiths J, and added at [2]-[3] by way of elaboration:

17. [20]

    I respectfully agree. While those decisions were directed to administrative decisions, a similarly sophisticated approach is required when assessing submissions that a decision of an inferior court is affected by jurisdictional error. However, I would add a word of warning in relation to sentences imposed by the District Court. Most judges of that court very regularly exercise the sentencing discretion. Most will have done so on many dozens if not hundreds of occasions. More than 2,000 sentences have been imposed by the District Court each year over the last five years in that Court’s criminal jurisdiction, and more than 4,700 sentence appeals from the Local Court have been finalised each year over the same timeframe: District Court of New South Wales, Annual Review 2020, pp 20, 22. Notwithstanding the complexities introduced by legislation and appellate decisions, most District Court judges are highly familiar with the applicable principles. Familiarity does not remove the possibility for error, and appellable error will from time to time be made as may be seen in the small minority of sentences giving rise to successful appeals to the Court of Criminal Appeal. But it may be expected that it will be uncommon for the District Court to misunderstand the limits of its authority to impose sentence such that jurisdictional error will be committed.

18. [21]

    Turning more broadly to the exercise of criminal jurisdiction by the District Court, guidance may be obtained from this Court’s decision in WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 at [14]:

19. [22]

    That was described as a “useful working guide” in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [39]. In Boensch v Commissioner of Fines Administration [2017] NSWCA 13 it was held that there was no jurisdictional error by the District Court misapplying the applicable statutory test giving rise to the offence. The foregoing formulations were approved in Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; 343 FLR 260 at [4] and Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 at [15].

20. [23]

    A final aspect of the difficulty in identifying jurisdictional error is that Australian and English law has diverged. In England, almost every error of law (including by an inferior court) is regarded as jurisdictional: R v Hull University Visitor; ex parte Page [1993] AC 682 at 696 and 702. As is apparent from the foregoing, and as was noted in Kirk at [65], Australian law recognises a large category of non-jurisdictional error of law on the part of inferior courts.

21. [24]

    The distinctions mentioned above, especially the distinction between jurisdictional error by a court as opposed to a body other than a court, are central to the resolution of Mr Quinn’s summons.

The grounds of jurisdictional error upon which Mr Quinn relied

1. [25]

   Mr Quinn’s summons was filed on 19 August 2021. It contained three grounds. The first was that in failing to take into account community safety as the paramount consideration, as required by s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court fell into jurisdictional error. The second was that in failing to consider whether making an intensive correction order was more likely to address the offender’s risk of reoffending, as required by s 66(2) of that statute, the Court fell into jurisdictional error. The third was in circumstances where a cogent argument for an intensive correction order was raised, the Judge failed to discharge his duty to assess whether making an intensive correction order or serving the sentence by way of full-time detention was more likely to address the offender’s risk of reoffending, and so fell into jurisdictional error. All three grounds overlap and in particular it is hard to discern any material distinction between the second and the third. All three were treated collectively in the parties’ submissions.

2. [26]

   All three grounds are based upon the submission that the District Court failed to comply with its obligations under s 66 of the Crimes (Sentencing Procedure) Act, which requires when deciding to make an intensive correction order that community safety be the “paramount consideration”, and in particular requires the Court to assess whether such an order would be more likely than a sentence served by way of full time imprisonment to address the offender’s risk of offending.

3. [27]

   In addition to his initial three grounds, Mr Quinn was permitted (without opposition) to amend his summons at the hearing, so as to raise two new grounds, which had only emerged in the days prior, following the Crown alerting the applicant to an error. The error was that the sentencing hearing in the District Court was conducted on the basis that, in relation to the federal offence, Mr Quinn had sent some 24,459 text messages over a period of 158 days. Although that number was on the statement of agreed facts signed by him, the number was wrong. The correct number was 11,204. Grounds 4 and 5 maintain that the imposition of sentence based on the wrong number of text messages caused the decision to be vitiated by jurisdictional error. These latter grounds require regard to be had to the underlying facts, as well as to the reasons of the District Court.

Sentences imposed by the courts below

1. [28]

   Mr Quinn pleaded guilty to the following three offences:

   1. (1)

      The first was that of using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth), which carried a maximum penalty of three years imprisonment.

   2. (2)

      The second was intentionally or recklessly destroying or damaging property – domestic violence related, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW), which carried a maximum penalty of five years imprisonment. However, because the Crown had elected to proceed summarily in the Local Court, the maximum penalty was two years.

   3. (3)

      The third was threatening to distribute an intimate image without consent – domestic violence related, contrary to s 91R(2) of the Crimes Act 1900 (NSW), which carried a maximum penalty of three years imprisonment, subject as above to the jurisdictional limit of the Local Court.

2. [29]

   Other offences were taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) and pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). They will be described below.

3. [30]

   The Local Court imposed sentence on 22 June 2021. It imposed a fixed term of imprisonment for the federal offence of 12 months commencing that day. It also imposed an aggregate sentence of 32 months imprisonment with a non-parole period of 18 months, commencing 6 months later on 22 December 2021. There was thus a substantial measure of concurrency between the sentences imposed for the federal and state offending. The total effective sentence was 38 months, with the earliest date on which Mr Quinn was entitled to apply for parole occurring two years after sentence was imposed.

4. [31]

   Mr Quinn filed an appeal against sentence pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) on the same day. His appeal was heard by the District Court, with commendable speed, on Friday 2 July 2021, less than a fortnight later. The principal submission on appeal was to the effect that the sentence was excessive, that the total sentence imposed should be less than three years (so as to satisfy s 68(3)(b) of the Crimes (Sentencing Procedure) Act) and that it should be served by way of an intensive correction order pursuant to Part 5 of that statute.

5. [32]

   The Crown conceded, both in the Local Court and in the District Court, that it was open for an intensive correction order to be made, although having regard to the purposes required to be taken into account under s 16A of the Crimes Act 1914 for the federal offence, and the purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 for the state offending, a sentence of full time imprisonment was required.

6. [33]

   There was limited debate before the District Court as to whether a single intensive correction order could apply to both federal and state offending. Mr Quinn did not elaborate on that issue in the course of the hearing in this Court, despite the point being raised. To be fair, on the view he propounded, the District Court’s decision was vitiated by jurisdictional error, and it followed that it should be declared void and the proceedings remitted to the District Court so that his appeal could be determined in accordance with law. In those circumstances, it suffices to note that some of the complexities in this area were mentioned in Mourtada v R [2021] NSWCCA 211 at [12]-[17].

7. [34]

   The District Court judge was evidently conducting a list with a number of matters. After hearing submissions, his Honour reserved for a short period of time and delivered a short ex tempore judgment later that day, in which he allowed the appeal, confirmed the sentence for the federal offending, but imposed an aggregate sentence of two years imprisonment with a non parole period of 12 months commencing on the same date as had been ordered by the Local Court, namely, 22 December 2021, which was halfway through the fixed 12 month term. I shall return to his Honour’s reasons below.

The agreed statement of facts

1. [35]

   It seems that Mr Quinn did not give evidence when sentenced by the Local Court (unless perhaps the materials made available in this Court are incomplete). He did not give evidence in the District Court which conducted an appeal by way of de novo hearing. Instead, the appeal and resentencing proceeded on the basis of an agreed statement of facts.

2. [36]

   The agreed statement of facts recorded that the victim was Mr Quinn’s estranged wife at the time of the offending. The couple had separated in May 2019, were awaiting a divorce and had two children who lived primarily with the victim but also spent time with Mr Quinn.

3. [37]

   The conduct the subject of the federal offending was divided into two periods. From 17 October 2019 to 5 December 2019 (sequence 1), Mr Quinn sent 1,184 text messages to the victim. Where reproduced below, they are quoted verbatim in the form they were sent, which often included spelling and grammatical errors.

4. [38]

   The nature of the text messages was agreed to have involved him repeatedly calling the victim and her family “cunts” and telling her “fuck you” or “go fuck yourself”, telling the victim to “show him some respect” and stating that her feelings of being scared of him were “BS” (the victim had repeatedly asked Mr Quinn to stop “threatening” and “being aggressive” towards her). Mr Quinn blamed the victim for the breakdown of their relationship, stated that he would never be “amicable” towards her, and made reference to sharing private or intimate parts of their marriage. The messages also related to the children. Mr Quinn told the victim that the children “will suffer” and “I warned you from the start your an idiot… I will show who you really are. I hate you now I have no respect”. He referred to a conversation where he told the victim he could take the children if he wanted (in a record of interview with the police, Mr Quinn admitted to having told the victim “U only have 1 thing left to lose, the kids” and “there’s no family law court orders in place, if I wanted to I could take the kids and go and be gone for a long time”). It is noted in the agreed statement of facts that “[t]he offender’s conduct became more aggressive and abusive over time”.

5. [39]

   The sending of 1,184 text messages in late 2019 was not the subject of a separate sentence. Rather, it was dealt with in accordance with s 16BA of the Crimes Act 1914 (Cth) and taken into account in confirming the sentence of 12 months imprisonment for the federal offence, to which I now turn.

6. [40]

   From 8 December 2019 to 17 May 2020 (sequence 8), Mr Quinn in fact sent 10,020 text messages. Through the error which gives rise to grounds 4 and 5, the agreed statement of facts incorrectly stated that he sent 23,275 messages over this period. How this came about will be explained when dealing with those grounds.

7. [41]

   Again, Mr Quinn blamed the victim for the relationship breakdown, saying “you chose this not me” and “its all your mess not mine”. He repeatedly told her “get fucked”, “fuck you all”, “cunt fuck off” and called her a “cunt of a human”, “heartless cunt”, “lying deceitful cunt”, “selfish cunt”, “selfish and egotistical asshole”, “dick”, “liar”, “idiot”.

8. [42]

   The messages also threatened the victim’s relationship with the children, financial security and belongings, and reputation. Mr Quinn continued to bring up the children, telling the victim he would turn them against the victim when they were older. He told her “[when] the girls get upset they say mummy, I say to them dont mention that filthy cunt” and “[f]uck it lets destroy it all and both watch the girls suffer” and “[the] girls watched their first fight last nite they okay now but they were heaps scared and upset lol”.

9. [43]

   He also mentioned the children in the context of destroying the victim’s belongings. On several occasions, he referred to burning her belongings, and sent videos and photographs of himself doing so. For example, he said:

10. [44]

    He made statements relating to their broader financial position, including:

11. [45]

    Mr Quinn referred on several occasions to disclosing matters private to the victim. For example:

12. [46]

    On 4 April 2020, Mr Quinn sent the victim a message which said “All secrets come out in time [victim’s name]… now”, followed by a screenshot of a post he had made on his Instagram account with a picture of the victim’s face next to Mr Quinn’s arm and two sex toys. He captioned the photograph “Wow, cleaning up and whats is all this, the local nurse”, with hashtags including the names of two hospitals the victim worked at, the victim’s own Instagram account, “#nosuprises”, “#neverenough” and “#wow”.

13. [47]

    In a number of the messages, Mr Quinn told the victim that his conduct did not amount to domestic violence or other criminality (he had been a police officer for some 15 years). He stated:

14. [48]

    Mr Quinn repeatedly complained that the victim would not respond to his texts or answer his calls and begged her to “talk” to him. She repeatedly (more than 30 times over 7 weeks) asked him not to message her, to leave her alone, and to stop “hurting” her and being “aggressive” and “nasty” towards her. She said “[I] cant take [it] anymore”. He frequently told her he would not communicate with her anymore but continued to send her dozens of text messages every day on average.

15. [49]

    There were many thousands of text messages. Most were not in evidence. The entirety of the above is taken from the agreed facts. The agreed facts were wrong insofar as they stated a total number of text messages sent as part of sequence 8 (23,275 as opposed to 10,020). But it was not suggested that any of the content of any individual message was misstated, or that any other aspect of the agreed facts was erroneous.

16. [50]

    In May 2020, the victim told police that since separating from Mr Quinn a year earlier, he had threatened to share without her consent sexual images of her, which she had sent him during their marriage. She said he told her that in respect of the images:

    1. (1)

       he was not allowed to distribute them on social media but would happily show his ex-police friends and colleagues;

    2. (2)

       he had shown them to people and would continue to do so;

    3. (3)

       he was allowed to show them to people, and

    4. (4)

       he would blow them up and put them all over the house so that when people went to look at the house (which the victim and Mr Quinn were in the process of selling), he could show what a proud husband he was.

17. [51]

    A number of specific threats, sent in October and November 2019 and March and April 2020 were reproduced, apparently verbatim, in the agreed statement of facts. These included:

18. [52]

    Mr Quinn acknowledged that the first, second and third of those messages each constituted a threat to distribute intimate images of the victim contrary to s 91R(2) of the Crimes Act 1900 (NSW), and they were taken into account on a Form 1 in imposing sentence for the offence under that section constituted by the fourth and fifth of those messages.

19. [53]

    In May 2019, when Mr Quinn and the victim separated, he remained living in the property they had shared and the victim left. The house had been under renovations which were substantially completed by that time. The house was placed on the market and sale pictures taken; there was no damage to it at that time.

20. [54]

    Throughout the offending period, Mr Quinn sent the victim messages, often accompanied by images, relating to extensive damage to the property. The most serious damage, apparent from a walkthrough conducted by police in June 2020, was “extensive holes in the walls and ceilings” and “cracks, breaks and chips to stone benchtops” in and around the kitchen.

21. [55]

    Mr Quinn made repeated references to the damage reducing the value of the house. The following messages were among those sent with pictures of internal walls and ceilings with holes in them, spray-painted internal walls, cupboards pulled apart, water on the floor in the laundry, and the children drawing on the walls:

22. [56]

    There were many more. Some of the photographs of the damage to the house were annexed to the statement of facts. There was, during the course of negotiations culminating in Mr Quinn’s pleas, some debate about the cost of repairing the damage. Ultimately, this was agreed at around $31,000. This offending constituted the offence under s 195(1)(a) of the Crimes Act 1900 (NSW).

23. [57]

    The remainder of the agreed statement of facts set out a number of admissions and comments made by Mr Quinn when he was interviewed by the police. These included that he burnt photos and photo albums, sent the victim a picture of him urinating on a picture of her brother and sister in law, sent the victim a video of the children calling her mother “a cunt”, and considered any property not subject to property orders his to do with as he liked.

24. [58]

    Mr Quinn maintained that if he wanted to put up intimate pictures of the victim in his own home he could, and that it was neither here nor there that he had shown someone the pictures. He then denied having done so. He also noted that his Instagram was not a private account but, apparently, the victim did not follow him. He denied that he ever sent her 100 messages in a day and claimed the messages were not harassing. He said that the first time the victim told him to stop he did so right away and that she should have told him not to contact her earlier if she was frightened or intimidated.

25. [59]

    The statement of agreed facts stated that Mr Quinn was 41 years old at the time of the offending, lived apart from the victim, and had no criminal history.

The hearing of the appeal to the District Court

1. [60]

   Mr Quinn acknowledged in the District Court that the offending warranted a term of imprisonment for the purposes of s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) but maintained that the term of imprisonment was most appropriately served by an intensive correction order and subject to a condition that he engage in a psychological treatment plan.

2. [61]

   Mr Quinn’s written submissions reproduced lengthy extracts from the judgments of Harrison J in R v Pullen [2018] NSWCCA 264; 275 A Crim R 509 and Simpson AJA in Mandranis v R [2021] NSWCCA 97 which squarely addressed s 66(1) making community safety the paramount consideration in determining whether an intensive correction order should be imposed. The submissions referred to the sentencing assessment report assessing the risk of reoffending at low-medium, and observed that he had not breached the court orders which had been in place over the last 13 months. They also pointed to sentencing statistics in support of the submission that the sentence imposed by the Local Court should be adjusted downwards. Mr Quinn’s principal oral submission was that a term of imprisonment was warranted, but that it should be served by way of an intensive correction order.

3. [62]

   The sentencing hearings in the Local Court and the District Court were conducted on behalf of the Commonwealth Director of Public Prosecutions. The solicitor who appeared for the Director acknowledged that Mr Quinn was entitled to a 25% discount for his plea. She also confirmed that the Director had accepted that an intensive correction order was available, but that the sentence imposed by the Local Court was not outside the Court’s discretion. After exchanges dealing with the number of text messages, a passage in the assessment report suggesting that Mr Quinn saw little need for changes in his behaviour, the nature of the appeal, and whether it would be necessary to impose one or two intensive correction orders, counsel for Mr Quinn returned to state that an intensive correction order was appropriate. There followed this exchange:

The decision of the District Court

1. [63]

   The District Court adjourned briefly and gave an oral judgment. His Honour commenced by setting out the offending and the sentence imposed by the Local Court. Because of the nature of some of the submissions advanced in this Court, it is best to reproduce much of the rest of the reasons verbatim.

2. [64]

   His Honour then stated that he had come to a different view from the magistrate as to the length of the sentence. He confirmed the term of imprisonment for 12 months for the federal offence, stating that in his view an appropriate starting point would be 16 months imprisonment, reduced to 12 months in light of the plea. His Honour reduced the indicative sentences specified for the State offences (to 18 months and 13 months imprisonment) and reduced the aggregate sentence to a sentence of 2 years with a non-parole period of 12 months, to commence on 22 December 2021 (which is to say, 6 months after the commencement of the sentence for the federal offence). The total effective sentence was one of full-time imprisonment for 18 months, followed by a period of 12 months during which Mr Quinn would be released on parole in accordance with s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).

Applicable legislation

1. [65]

   Section 166 of the District Court Act provided that the District Court had the criminal jurisdiction conferred or imposed on it by or under, relevantly, any other Act. Section 11 of the Crimes (Appeal and Review) Act 2001 (NSW) conferred a right of appeal against the sentence imposed by the Local Court. Section 17 provided that an appeal against sentence was “to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.” (The third last paragraph of the reasons of the District Court reproduced above correctly eschewed a submission advanced on the part of the Director that it was necessary for Mr Quinn to establish error.)

2. [66]

   Section 20(2) authorised the District Court to determine an appeal against sentence (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. Relevantly, s 71 prevented the District Court from varying or imposing a sentence which could not have been imposed by the Local Court.

3. [67]

   Section 5(1) of the Crimes (Sentencing Procedure) Act provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Section 7(1) provides that a court that has sentenced an offender to imprisonment in respect of one or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community. The power to do so is confined to offenders who are aged 18 or over (s 7(3)) and is subject to the provisions of Part 5 (s 7(4)).

4. [68]

   Part 5 of the Crimes (Sentencing Procedure) Act is titled “Sentencing procedures for intensive correction orders”. Section 64 provides that the Part applies when the Court is considering making an intensive correction order. Evidently that was the case when the District Court was determining Mr Quinn’s appeal.

5. [69]

   Division 2 comprises ss 66-69. Sections 66-68 are, relevantly, in the following form:

6. [70]

   There are other provisions directed to the discretion exercised in the making of an intensive correction order, and its form. They are not relevant to the summons, confined as it is to jurisdictional error. The provisions are helpfully summarised in Mandranis v R [2021] NSWCCA 97 at [28]-[34].

Grounds 1-3 – jurisdictional error based on s 66

1. [71]

   The submissions advanced on behalf of Mr Quinn were directed to the concluding two paragraphs of his Honour’s reasons reproduced above. It was put that (a) whether or not an intensive correction order should be imposed was at the forefront of the appeal, and (b) his Honour did not explicitly address community safety. I agree with both submissions.

2. [72]

   It was then said that by dint of s 66(1), community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender, and that in any event by reason of s 66(2) the Court must consider whether making an intensive correction order is more likely to address the offender’s risk of reoffending than a sentence of full-time imprisonment. I agree that that is the import of the statute. I also agree that the words “is to” in s 66(2) are words imposing an obligation upon the court. That is their natural meaning. The word “must” in s 66(3) is stronger and a clearer way of imposing an obligation, but I see no reason to depart from the ordinary meaning of “is to” in the present context, noting that “must also” in s 66(3) presupposes that “is to” connotes an obligation.

3. [73]

   Parts of Mr Quinn’s submissions were to the effect that s 66 had to be the starting point of the Court’s consideration. This seemed to be because of the word “paramount” in s 66(1) and from the fact that it was the first subsection in the Part. I disagree, and indeed I did not understand Mr Agius ultimately to maintain the submission. This point warrants elaboration, because it bears on the submissions concerning jurisdictional error.

4. [74]

   The sensible starting point is of course power. Section 66 presupposes that the power to make an intensive correction order is available. Many provisions forbid the Court from making such an order. If a court is forbidden to make an order, it need never reach the consideration required by s 66.

5. [75]

   An intensive correction order may not be available because the offending is not sufficiently serious. Section 5(1) requires the sentencing Court first to be satisfied that no penalty other than a sentence of imprisonment is appropriate.

6. [76]

   Or an intensive correction order may not be available because the offending is too serious. If any of the offending falls within the categories listed in s 67(1), then the court is forbidden from imposing an intensive correction order. If the term of any individual term of sentence exceeds 2 years, or if the term of imprisonment for all sentences exceeds 3 years, then once again an intensive correction order must not be made.

7. [77]

   In any of those cases, s 66 imposes no requirement upon the Court to consider community safety. Indeed, it would be artificial and arid to ask whether the offender’s prospects of reoffending would be better addressed by an intensive correction order as opposed to full-time imprisonment when a sentence of full-time imprisonment is not available at all, or indeed is the only sentencing option open to the Court. That reflects the practice adopted over many years, recently restated by Simpson AJA in Mandranis v R at [35]:

8. [78]

   I understood that Mr Quinn accepted the force of that reasoning, and accepted during the course of the hearing that s 66 was not the invariable starting point.

9. [79]

   But there are other preconditions to the exercise of power not hitherto mentioned. One is s 17D(1), which provides that the sentencing court must not make an intensive correction order in respect of an offender unless it has obtained a relevant assessment report in relation to the offender. Another is s 69(3), which deals with offenders who intend to reside outside the State. A third, which was raised during the hearing of the summons, is s 4B, which is best considered together with s 4A (both were introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)):

10. [80]

    Two things may be observed of those provisions. First, s 4A(2) is an example where statute requires reasons for departing from the sentencing options in s 4A(1). There are many other examples (examples may be found in ss 5(2), 22, 23, 25F, 44 and 45). But there are also many other aspects of sentencing which are not accompanied by an express obligation to provide reasons. This leads to the distinction which was central to one aspect of Mourtada v R [2021] NSWCCA 211, between considering a point required by statute to be considered, and addressing the point in such reasons as the court gave when the power was exercised. As Adamson J said at [37], “it does not follow from the requirement that those matters be considered, that each must be specifically addressed in the reasons given by the sentencing judge” (original emphasis). Further, the fact that statute requires not merely that some matter be considered, but also that the court make a record of its consideration, is a factor tending to indicate that the matter is of greater importance.

11. [81]

    Secondly, it will be seen that s 4B also prohibits the making of an intensive correction order in certain cases. Unlike the prohibitions already mentioned, the prohibition in s 4B(1) turns upon the court’s state of satisfaction as to an evaluative conclusion, namely, whether the victim of the domestic violence offence will be adequately protected. If the Court is not so satisfied, the Court is forbidden from making an intensive correction order.

12. [82]

    While I understood Mr Agius to accept that it was appropriate for a Court to consider the questions of power presented by ss 5, 67 and 68 before turning to s 66, he did not accept that s 4B likewise could be considered before s 66. But it seems to me that the position is identical. Section 66 presupposes that an intensive correction order is available. If the Court forms the view that it is not, then that aspect of the process of sentencing comes to an end. It does not matter that the preconditions to the availability of the power in ss 5 and 67 are likely to be undisputed, while those in ss 68 and 4B are evaluative and more likely to be contestable. If the District Court concludes that any of the preconditions to the power to impose sentence by way of an intensive correction order is not made out, then it will have concluded that it lacks power to do so and need never reach s 66. Indeed, if the Court made an intensive correction order when it lacked power to do so, it would be committing jurisdictional error. Making an order when statute forbids a court to make an order is a clear case of a body (whether or not it is a court) disregarding the limits of its authority. In Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163], in a passage reproduced in Kirk at [66], Hayne J had said:

13. [83]

    However, for present purposes I proceed on the basis, favourable to Mr Quinn, that this was a case where an intensive correction order was available because all of the preconditions (including s 4B) were satisfied and none of the prohibitions was engaged. The Director conceded as much.

14. [84]

    In those circumstances, Mr Quinn submitted that the District Court was required to have regard to the matters in s 66(2), and to do so as the “paramount” consideration, and that the failure to do so was jurisdictional error. He relied for the latter proposition, understandably, upon Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 which is a recent decision of two members of this Court on precisely that issue.

15. [85]

    Mr Wany sought to set aside a decision of the District Court which reduced a sentence imposed by the Local Court but nonetheless declined to order that it be served by way of an intensive correction order on two grounds. The second ground, as to which all members of the Court agreed, was that the District Court had erred in determining whether the reasons of the Local Court were logical and appropriate, rather than determining the appeal de novo as required by s 17 of the Crimes (Appeal and Review) Act 2001 (NSW).

16. [86]

    The leading judgment was given by McCallum JA, who upheld both grounds. Meagher JA did not express a view on the first ground. Simpson AJA agreed with McCallum JA.

17. [87]

    Nothing in these reasons gives rise to any doubt as to the correctness of the outcome in Wany. All members of the court in Wany considered that the District Court had fundamentally misapprehended the basis of the sentence appeal by reviewing and agreeing with the Magistrate’s reasons, rather than itself determining the objective seriousness of the offending and the other matters which contributed to the instinctive synthesis in the process of imposing sentence.

18. [88]

    However, in the course of argument in the present proceedings, members of the Court expressed doubt as to the correctness of the reasoning on ground 1 upon which Mr Quinn relied. Attention fastened upon the following passage at [67]-[69]:

19. [89]

    I respectfully disagree with the reasoning in Wany to the effect that that failure to consider s 66(2) amounted to jurisdictional error.

20. [90]

    It is useful to pause at the outset to see why the proposition that the failure to consider the matter identified in s 66(2) amounted to jurisdictional error is a large proposition.

21. [91]

    The magnitude of the proposition may readily be seen from the terms of ss 66(2) and (3). For if the failure to comply with s 66(2) amounts to jurisdictional error, then it is difficult to see why a failure to comply with the identically imperative requirements of s 69(1) or the more strongly worded obligation in s 66(3) would not also be jurisdictional error.

22. [92]

    Section 69(1) provides that in considering whether or not to make an intensive correction order, the sentencing court “is to have regard to” the contents of any assessment report and evidence from a community corrections officer. The obligation is framed in the same language as s 66(2) and the subject matter will invariably overlap with s 66(2). I find it hard to see why if a failure to comply with s 66(2) amounts to jurisdictional error, the same does not apply to a failure to comply with s 69(1). It may be expected that the submissions made at a sentencing hearing will refer to an assessment report, but it is quite possible that the Court might not in its reasons refer in terms to the report. That raises fairly starkly the difficulty in Mourtada where the obligation is to consider a matter but there is no obligation to record the court’s consideration of the matter in its reasons.

23. [93]

    Section s 66(3) introduces difficulties of a different order. It requires the Court to have regard to the range of matters in s 3A, as well as common law sentencing principles. Section 3A identifies as the purposes for which a court may impose sentence as “(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community”. The language of s 66(3) is stronger (“must”). Prima facie if the consideration required by s 66(2) goes to jurisdiction, then so too is the consideration required in stronger language by the immediately following subsection. That is doubly problematic. In part that is because s 66(3) picks up virtually the entirety of considerations relevant to the sentencing discretion, and it seems unlikely that failing to consider any one of them would, if demonstrated, lead to the sentence being vitiated by jurisdictional error. In part it is because s 66(3) also provides that the court “must also consider ... any relevant common law sentencing principles”. There can be ample scope for debate in particular cases as to the relevance of any particular common law sentencing principle, but it seems unlikely that whether or not a decision which did not consider that particular principle was affected by jurisdictional error would turn on the result of such a debate. And in part it is because community safety, the purposes in s 3A and common law sentencing principles point in different directions. Promoting rehabilitation may be opposed to ensuring adequate punishment and denouncing the offender’s conduct. As was said in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14 and reiterated in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [20], the principles are overlapping and at times conflicting. It seems most unlikely that the failure to consider a principle, even one which overlaps with or conflicts with another principle, will lead to jurisdictional error.

24. [94]

    A possible solution to the difficulties mentioned above might lie in the fact that s 66(2) is within the ambit of “community safety”, and s 66(1) makes that “paramount”. That solution is awkward, because it is difficult to see how failing to comply with s 66(3) should be understood as having a completely different character from failing to comply with s 66(2). Further, it leads to a different difficulty. It would mean that breaches of the obligations which concern “community safety” go to jurisdiction, while failure to have regard to other mandatory considerations bearing upon the sentencing discretion are not jurisdictional. That is a little odd in circumstances where it is quite clear that even where community safety favours the making of an intensive correction order, it does not mandate it. Whatever force the word “paramount” in s 66(1) carries, it does not turn community safety into a trump which defeats all the other purposes, some overlapping and some conflicting, regard to which is also mandated by s 66(3).

25. [95]

    It is to be borne in mind when evaluating the possible constructions of ss 66 and 69 that the consequence of treating the requirement as jurisdictional is that the sentence imposed which is affected by jurisdictional error is a nullity: Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156 at [43]. Thus the failure to obey it cannot be a contempt, as explained in Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [27]-[28]. More recently, the High Court confirmed in State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [56]:

26. [96]

    It is with those consequences in mind that it seems strange that a breach of the obligation in s 66(2) would lead to jurisdictional error, but a breach of the obligation in s 66(3) would not. If that were the case, then the character of the District Court’s order, and in particular whether it is required to be obeyed and whether it may be challenged collaterally, would depend upon the precise way in which the District Court failed to apply the consideration required by statute.

27. [97]

    Next, the obligation upon the Court is to “assess” the matter in s 66(2) (and to “consider” the matters in s 66(3)). That takes place as part of the process of exercising the sentencing discretion. That may occur without the assessment or consideration being disclosed in the reasons. Mourtada was a case where the reasons did not mention s 66(2), but that had been central to the argument, and the judge confirmed immediately after imposing sentence that he had had regard to it. If s 66(2) is a condition of jurisdiction, why did not the Legislature require the court to record that it had considered community safety?

28. [98]

    It is to be borne firmly in mind that the District Court will commonly give an ex tempore judgment, that the judicial officer who imposes sentence is apt to have done so many times before, and that the essential task is to bring to bear all sentencing considerations so as to reach the instinctive synthesis explained in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. It is one thing to observe that there was no explicit consideration of community safety or any of the other matters to which regard is required. It is another thing entirely to infer that the court imposing sentence did not in fact consider community safety or some other matter to which regard was required.

29. [99]

    Paragraph [67] in Wany correctly identifies that the issue is whether the statute requires the matter to be taken into account as a condition of jurisdiction. “As a condition of jurisdiction” means just that: the court’s jurisdiction – which is to say its authority to decide the controversy – is conditioned upon taking that matter into account. Obviously enough, that is a question of statutory construction (see for example Hossain v Minister for Immigration and Border Protection at [27]). Such a construction is relatively unusual. The point is perhaps best illustrated by an example. One could in theory have a statute which stated “When a court is not denied power to order an intensive correction order, then the court must consider whether such an order will more likely address the risk of reoffending than a sentence of full-time imprisonment, and if the court fails to do so, then the Court’s decision is void for jurisdictional error and is a nullity”. Of course, no such language appears in the statute. The question of statutory construction arising on grounds 1-3 of Mr Quinn’s summons is whether s 66 read in its context should be understood as bearing that meaning. For that is precisely what Mr Quinn submits.

30. [100]

    Paragraph [67] in Wany then turns to a different question, which is when the court becomes subject to a duty to consider whether an intensive correction order should be made. That is a necessary condition in the chain of reasoning that leads to a conclusion of jurisdictional error. But it is not a sufficient condition. Even if there is a duty, the failure to do so is only jurisdictional error if the consideration is required as a condition of jurisdiction.

31. [101]

    The concluding three sentences of [67] may conveniently be repeated:

32. [102]

    That passage reasons from the proposition that there is a duty to consider whether to make an intensive correction order to the possibility (“could well be characterised”) that failing to do so amounts to jurisdictional error. That is so, if the failure to do so is a condition of the court’s jurisdiction. But there is no analysis of whether or not the failure to do so is such a condition.

33. [103]

    The concluding sentence of [67] also states, once again tentatively, that failing to consider the matters required by s 66(2) might amount to a misconception of the nature of the function, and thereby jurisdictional within the third example given in Kirk.

34. [104]

    Those passages do not purport to offer more than tentative possibilities. If the failure to comply with a duty imposed by statute is to be regarded as giving rise to jurisdictional error, then it would be necessary to conclude that doing so was a condition of jurisdiction. That is as stated in Kirk (in the passage reproduced at the beginning of these reasons) and as recorded in the Director’s submissions reproduced earlier in [67]. Alternatively, if there was a misconception of the Court’s function, then a further inquiry would be required, bearing in mind that the District Court has authority to decide questions of law, including authority to decide them wrongly.

35. [105]

    Turning to [68], the paragraph correctly records the two jurisdictional errors identified in Kirk. The failure to identify the elements of the offence (ie the particular act or omission which constituted the offence) was held to mean that the Industrial Court had no power to convict Mr Kirk: at [74]-[75]. The calling of Mr Kirk in the prosecutor’s case was also something for which there was no power: an accused, he was not competent by reason of s 17(2) of the Evidence Act 1995 (NSW), a rule which could not be waived and which bound the court: at [76]. Thus the reasoning sustaining both jurisdictional errors identified in Kirk turned on an absence of power. That is some distance removed from the contravention of s 66.

36. [106]

    Paragraph [68] amounts to an implicit conclusion that the failure to assess whether making an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending amounts to jurisdictional error. The conclusion is not explicitly stated, but it is clear from [69] that ground 1 is upheld. The words “I see no reason why the method of serving the sentence to be imposed should not be regarded as jurisdictional” are to be understood as an ellipsis for the proposition that the District Court’s failure to consider, as required by s 66(2), whether the method of serving the sentence should be by way of intensive correction order or full-time imprisonment is jurisdictional. The reasons for that conclusion are said to be the clarity of the statute, that community safety “must be” the paramount consideration, and that s 66(2) also imposes an obligation by the words “is to”. Although the s 66(2) obligation does not displace the obligation to have regard to more general purposes of sentencing, s 66(2) is “mandatory”.

37. [107]

    I agree that s 66(2) imposes an obligation upon the District Court to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending. I also agree that that obligation is an important one, and its importance is undiminished by the fact that this is an aspect of community safety which is (by dint of s 66(1)) “the” “paramount” consideration. For the classes of offending for which an intensive correction order is available, it is important that attention be given to this sentencing option. Mandranis is an example of the way in which heightened attention is to be given to s 66(2) within the consideration of community safety, but not so as to exclude regard being had to the other purposes of sentencing, as is illustrated by the reasoning at [50]-[54].

38. [108]

    But the issue that arises on Mr Quinn’s summons is a different one. It is merely as to the consequences of a breach of the obligations in s 66. I do not agree that the consequence of a breach is that the District Court’s decision is vitiated by jurisdictional error.

39. [109]

    The statutory language of obligation in s 66(2), coupled with the statement that community safety “must be the paramount consideration” in s 66(1) is strong. But it does not follow that a breach of that obligation entails that the District Court’s decision is not merely contrary to law, but that it discloses jurisdictional error.

40. [110]

    The critical point is whether the failure to adhere to a requirement imposed by statute is a condition of the court’s jurisdiction. The reasoning in Wany does not address that point.

41. [111]

    Another way of making this point is to observe that the fact that a statute requires a court to consider some thing means that the thing is a mandatory relevant consideration in the sense stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40. Failure to do so means that the decision is susceptible to judicial review. It will disclose error of law on the face of the record. But s 176 of the District Court Act forbids review of a District Court’s decision on an appeal for error of law on the face of the record.

42. [112]

    Mere failure by a court to comply with a statutory obligation does not of itself entail jurisdictional error, as well as error of law on the face of the record. As the High Court observed in Kirk, if the failure by a court to comply with the statutory obligation is to lead to jurisdictional error, then the statute must require that consideration as a condition of the court’s jurisdiction.

43. [113]

    As much may be seen from the instances given during the hearing when Mr Quinn placed reliance on Wany.

44. [114]

    My references were to the obligations in s 8(2) and s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and s 53A(2) of the Crimes (Sentencing Procedure) Act 1999. The latter makes it clear that the breach is not jurisdictional, because s 53A(5) provides that “An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section”. It must follow that s 53A(2) is a statutory requirement breach of which could not amount to jurisdictional error. Section 53A(5) makes it plain that compliance is not a condition of jurisdiction.

45. [115]

    True it is, as senior counsel for Mr Quinn maintained, those two instances are different from the obligation in s 66. But the point remains that merely pointing to a mandatory obligation which is breached does not mean that the decision of the court is affected by jurisdictional error. In fact an example of the same mode of drafting appears in Part 5 of the Crimes (Sentencing Procedure) Act. Section 73A provides that when making an intensive correction order, “the sentencing court must at the time of sentence impose on an intensive correction order at least 1 of the additional conditions referred to in subsection (2)”. Subsection (2) identifies various conditions, such as electronic monitoring, non-association, community service and abstention from alcohol or drugs. Subsections (1A) and (1B) provide:

46. [116]

    A recent example of the proposition that breaching a mandatory requirement of a statute does not of itself mean a court commits jurisdictional error is Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253. One of Mr Blissett’s numerous grounds was that he had not been served in the Local Court in accordance with law, and his appeal against conviction to the District Court had been wrongly dismissed. This Court said in respect of Mr Blissett’s further claim that the District Court had committed jurisdictional error at [34]:

47. [117]

    After all, a statutory command or prohibition may be much more complex than it appears. In 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [89]-[94] I identified five possible meanings of the command in s 80D of the Strata Schemes Management Act 1996 (NSW) that an owners corporation must not initiate legal action without first obtaining approval at a general meeting: the command may amount to a denial of jurisdiction to the court or tribunal, or impose an obligation upon the court or tribunal to deal with the proceedings in a particular way, or it may amount to an incapacity upon the owners corporation, or it may be an integer of the right, or it may merely amount to a discretionary consideration relevant to the exercise of the powers of the court or tribunal. Merely to say that statute mandates that something be done, or something not be done, is often only the starting point for legal analysis.

48. [118]

    Another way of making the point is that jurisdictional error is different from error of law on the face of the record. Inferior courts are authorised to decide questions of law wrongly. That is the point of the undoubted category of decisions in this country of non-jurisdictional error of law. It follows as a matter of principle that mere error of law on the face of the record is insufficient to amount to jurisdictional error. This Court said in Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 at [42]:

49. [119]

    There is nothing novel about the contrast between prohibition and validity. HLA Hart criticised Jeremy Bentham for an important mistake: “the failure to disentangle the very different ideas of legal validity and invalidity on the one hand from legality (or what is legally permitted) and illegality (or what is legally prohibited) on the other”: HLA Hart, Essays on Bentham: Jurisprudence and Political Theory (Clarendon Press, Oxford, 1982), p 212. Much earlier, Suarez had insisted that prohibition was distinct from invalidity, saying that many prohibited things are nevertheless valid if done (“multa fieri prohibentur, quae tamen facta tenant”): Suarez, De Legibus, 5, 25, 3, and see M Kopcke, A Short History of Legal Validity and Invalidity (Intersentia, 2019), p 102. A reviewer described Suarez’ work as containing “a clear demarcation between invalidity and prohibition which anticipates HLA Hart's nuanced take on the subject in The Concept of Law (Oxford 1961) that is so familiar to us”: S Swaminathan, (2021) 80 Cambridge Law Journal 203 at 206.

50. [120]

    Further to the above, I regard this Court as bound to hold that the disregard of something required by statute to be taken into account does not of itself amount to jurisdictional error. The qualifying words “as a condition of jurisdiction” in the formulation given in Kirk are not to be put to one side. It is not sufficient in order to reach a conclusion of jurisdictional error to find that a court has disregarded a matter that the relevant statute required be taken into account. It is necessary to reach the further conclusion that the taking into account of that matter was a condition of the court’s jurisdiction. It is to be recalled that the High Court stated in Craig and Kirk that a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction does not ordinarily involve jurisdictional error.

51. [121]

    I have read the written submissions advanced by the parties in Wany and the transcript of oral argument of 15 October 2020. Both the written and oral submissions of the Director emphasised that it was not sufficient for Mr Wany to establish that the District Court had failed to consider something statute required it to consider. It was put by reference to Kirk that:

52. [122]

    In contrast, Mr Wany did not engage with that distinction at all in oral submissions (to be fair, his written submissions fully reproduced the passage from Kirk reproduced above). In oral address he said:

53. [123]

    The tenor of the submissions advanced on behalf of Mr Wany, with force and doubtless with considerable effect, was to emphasise the mandatory aspect of s 66. So much is uncontroversial, and if the decision impugned had been made by a body which was not a court, the result would have been judicially reviewable for failing to take into account a relevant consideration. But as I have endeavoured perhaps at undue length to explain at the outset of these reasons, the submission is incorrect in relation to courts. The point was made recently by this Court in Hariz v Director of Public Prosecutions (NSW) [2021] NSWCA 264 at [6]:

54. [124]

    At no stage did Mr Wany direct submissions to the critical point, which was why the mandatory consideration in s 66 was a condition of the District Court’s jurisdiction. That may explain why ground 1 of Wany was decided as it was.

55. [125]

    I conclude that the reasoning in Wany at [67]-[68] is incorrect and should not be followed.

56. [126]

    That is not an end to the legal analysis. The question which requires analysis, but which has not hitherto been addressed directly, is whether the obligations in s 66(1) and (2) to have regard to community safety is a condition of the District Court’s jurisdiction. That is a question of statutory construction which proceeds on the basis that ss 66(1) and (2) impose mandatory obligations upon the Court, and then asks whether failure to comply with those obligations means the orders imposed by the District Court are nullities in the sense explained in Pelechowski and Kable. What has already been said enables this question to be answered concisely.

57. [127]

    First, s 66(1) and (2) are different from provisions which are preconditions to the making of an intensive correction order. The premise of s 66(1) and (2) is that the Court has power to make such an order in the exercise of the sentencing discretion. It is nonetheless possible for a statute to provide that in certain circumstances the District Court’s order is a nullity for jurisdictional error (which is to say, the District Court has failed to adhere to the limits or scope of its authority to exercise the sentencing discretion). But that is a decidedly unlikely construction, and not one that finds any explicit basis in the text or purpose or context of the statute.

58. [128]

    Secondly, although the focus in these reasons has been on intensive correction orders, it is to be borne firmly in mind that they are but one of a range of sentencing options which may be imposed in the exercise of the sentencing discretion. Not uncommonly, as occurred in the present case, the debate will be between a sentence to be served in the community by way of an intensive correction order and a sentence to be served in prison. In such cases, the Court will have conferred on it the power to determine the means by which the sentence will be served either because the Court is re-exercising the discretion of the Local Court in an appeal against sentence, or because it is exercising the discretion following a plea or a guilty verdict after trial. In short, the Court will be squarely seized with the matter. It is unlikely that the failure to have regard to one particular mandatory consideration among many has the effect not merely that the result does not comply with statute, but also that it is a nullity in the sense explained in Pelechowski and Kable.

59. [129]

    Thirdly, the statute requires the Court to have regard to many purposes when considering in the exercise of its sentencing discretion whether to impose an intensive correction order. Those purposes are expressed at a high level of generality. They overlap and indeed in part they conflict. The unlikelihood of a failure to have regard to one being jurisdictional is not merely because of the number of mandatory relevant considerations, but because statute falls short of requiring those considerations to be recorded. It is unlikely that the quality of the District Court’s order could turn on something as contestable as whether it had considered the principle of totality or the need to denounce the offender’s conduct as required by s 66(3) read with s 3A(f), even if there were no explicit reference in the reasons.

60. [130]

    Fourthly, the apogee of the submissions favouring a construction whereby s 66(1) and (2) amounted to a condition upon jurisdiction lies in the fact that s 66(2) is an element of community safety, and community safety is the “paramount” consideration when the court is considering making an intensive correction order. But “paramount” gives a measure of primacy to one of a number of overlapping and partially conflicting considerations, all of which are to be involved in the instinctive synthesis which yields a sentence. It is not necessary in these reasons to express any view on precisely how that paramountcy plays out. It is sufficient to conclude that the absence of reference to s 66(2), from which may arguably be inferred an absence of consideration of s 66(2), is not a condition of the District Court’s jurisdiction. Insofar as s 66(1) obliges the Court to have regard to community safety, that is not a condition of jurisdiction.

61. [131]

    The District Court paid no explicit attention to s 66(2). Community safety was the paramount consideration by reason of s 66(1), and s 66(2) required an assessment to be made whether a sentence of full-time detention was more likely to address Mr Quinn’s risk of reoffending than an intensive correction order. The consideration required by s 66 may or may not have occurred. Perhaps his Honour formed the view that Mr Quinn’s rehabilitation would not be better served by an intensive correction order but did not express it. If so, that would mean that there was no contravention of s 66(2). Or perhaps his Honour did not form any view about s 66(2) at all, and rejected an intensive correction order in light of the need to ensure that an adequate sentence was imposed. That would mean that there was at least arguably a contravention of s 66(2). But this speculation is idle. The reasons given by the District Court make it quite plain that he rejected the submission that an intensive correction order was appropriate. His Honour’s reason for doing so was that the offending was too serious. That reflected the fact that s 66(3) required his Honour to ensure that Mr Quinn was adequately punished for the offences to which he had pleaded guilty. For the reasons given above, there was no jurisdictional error in the approach taken.

62. [132]

    Some submissions were made during the hearing in relation to the final portion of his Honour’s ex tempore reasons, which refer to s 4A. That section (which is reproduced above) is inapt. It may perhaps have been a reference to s 4B, or to s 3A. A passage in the transcript which records the Director submitting that “it remained appropriate under s 4A of the Crimes (Sentencing Procedure) Act that the requirement for full-time imprisonment remained and that an ICO ... for the State offences did not adequately take into account the community safety and other considerations” suggests that his Honour may perhaps have repeated the mistaken reference. But nothing turns on this. An incorrect reference to a provision in the course of giving oral reasons does not amount to jurisdictional error, and Mr Quinn made no submission to the contrary.

63. [133]

    These grounds are not made out.

Grounds 4 and 5

1. [134]

   Ground 4 asserted that the unintentional misrepresentation by the Director of the number of text messages, upon which the District Court acted, amounted to jurisdictional error. Ground 5 claimed that Mr Quinn was denied procedural fairness in the sentencing proceedings and as a result was denied the opportunity to make submissions upon a material fact critical to the sentencing process. I shall follow the order adopted in oral submissions, and deal first with ground 5. It is necessary before doing to so to say something more as to the facts.

2. [135]

   As noted at the outset, there was an error in the statement of agreed facts signed by Mr Quinn. The error was an obvious one, once one is aware that there is an error.

3. [136]

   The “rolled-up” sequence 8 for which Mr Quinn was ultimately sentenced comprised eight separate periods, according to the following table in the statement of agreed facts:

4. [137]

   The number “1,4727” in the third row is an error. On an earlier iteration of the proposed statement of agreed facts which were exchanged between the parties prior to Mr Quinn’s guilty pleas, the corresponding row for the messages sent between 17 January 2020 and 2 February 2020 was correctly stated at 1,472 (which is to say, around one hundred per day on average). If “1,4727” is understood to mean 14,727, then that is not only dramatically more than the number sent in the weeks preceding and the weeks following the last fortnight of January 2020, it also amounts to about one thousand a day. Anyone who paused to consider what is involved in sending text messages at a rate of more than 40 messages an hour 24 hours a day for slightly more than a fortnight would appreciate that it could not be done.

5. [138]

   Both sides devoted a deal of effort to attributing blame to the other for the error. Both waived privilege in the negotiations leading to the plea. Briefly, Mr Quinn was charged with 13 counts of using a carriage service to menace, harass or cause offence contrary to s 474.17(1), based on the text messages. By letter dated 5 February 2021 his solicitor advised that he had received instructions that he accepted his guilt, but requested that they be replaced by a single count based on the 3,389 messages sent between 8 December 2019 and 5 January 2020, with the balance being taken into account on a Form 1 (this was intended as a reference to s 16BA of the Crimes Act 1914 (Cth)). That offer was rejected by letter dated 23 March 2021 but the Director proposed a counter offer involving a guilty plea to a single rolled up charge in relation to 8 of the counts, with the remaining five counts to be rolled up into a single charge to be taken into account on a s 16BA Schedule. The Director attached an amended statement of agreed facts to accompany that counter-offer, and it was that schedule which introduced the erroneous “1,4727” instead of “1,472”. The error appears to have been unnoticed by either side in the Local Court sentencing, the District Court appeal, and the further proceedings in this Court until a few days before the hearing, after which the Director alerted Mr Quinn to it, leading to his (unopposed) application to amend to add grounds 4 and 5.

6. [139]

   Pausing there, the error was obvious on the face of the document (a) by comparison with the earlier draft statements of agreed facts, (b) by looking at the typographical error and (c) by an elementary consideration of the practicalities involved.

7. [140]

   The agreed statement of facts was signed by Mr Quinn and dated 9 June 2021. That was shortly before sentence was imposed by the Local Court on 22 June 2021, and some 2½ months after he received the draft document.

8. [141]

   It is best to be quite clear about one aspect of the error. I mention this only because a submission was made that the Director had acted in bad faith, albeit in some attenuated sense of that concept which did not import moral opprobrium. It was unfortunate that the solicitor for the Director provided a document with the wrong number of text messages. It was unfortunate that the error was not detected for some six months, and only after the hearings in the Local Court and the District Court. But there is not a skerrick of evidence suggestive of any deliberate misconduct. Rather there was a typographical mistake made within the Director’s office, which was plain on the face of the document.

9. [142]

   In the absence of any conscious wrongdoing, questions of blame or fault simply do not intrude. I turn now to the substance of grounds 5 and 4.

10. [143]

    I would reject this ground for two separate reasons.

11. [144]

    First, there was nothing procedurally unfair in the District Court deciding the sentencing appeal on the basis of the agreed statement of facts. The statement contained an error. The error was obvious on its face, and although it was introduced by the Commonwealth Director of Public Prosecutions, it is plain that Mr Quinn had months to review it before it was signed by him and tendered as the basis upon which he was to be sentenced. The fact that a court relies on evidence which is incorrect does not mean that there has been procedural unfairness.

12. [145]

    In short, there was no denial of procedural fairness when the Court proceeded to impose sentence on the basis agreed between the parties, and where that agreement was procured in a transparent process whereby Mr Quinn and his lawyers had the proposed statement of agreed facts for some months before sentence was imposed.

13. [146]

    Secondly, in accordance with binding authority, Mr Quinn accepted that he bore the burden of establishing materiality. Most recently, in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2], the joint judgment of Kiefel CJ, Gageler, Keane and Gleeson JJ said that:

14. [147]

    The Director conceded that the number of messages was “material”. This Court is not bound by the concession, as was made clear during the hearing. The difficulty is that it is unclear what the concession means.

15. [148]

    Although it is easy to say that the applicant was sentenced on the basis of many thousands of text messages more than those which in fact he sent over the period, what turns on that? On any view, this was extremely serious offending, by a man determined to inflict pain and distress upon his estranged wife over an extended period of time, by an extraordinarily large number of messages. In a real sense, whether there be 10,000 or 12,000 or 15,000 or 25,000 or 30,000 text messages is not to the point. There is no suggestion that the quality of the messages was in any way misstated, nor the duration of time throughout which Mr Quinn was sending them.

16. [149]

    It will be seen, as was pointed out at the hearing, that Mr Quinn was sending more than 100 text messages per day over the first 28 days. He was sending 91 messages per day over the ensuing three days. The period between 17 January and 2 February is the period corresponding with the error. The reference to 1,4727 should have been a reference to 1,472, and in fact the offender was sending some 80 messages per day. In the following 30 day period, once again Mr Quinn was sending somewhat more than 80 messages a day. In the two days of 13 and 14 March, Mr Quinn sent 162 messages. In the ensuing 21 days, Mr Quinn sent only some 40 messages per day, with approximately the same rate of messages thereafter.

17. [150]

    Even at the lowest rate of sending messages, in the order of 45 messages per day, that remains an average of a text message every 20 minutes if one allows six hours for sleeping. Over the earlier periods, where more than 100 messages per day were sent, that amounts to a rate of approximately one every 10 minutes over the waking hours of the day.

18. [151]

    Mr Agius submitted that the assessment of objective seriousness might be lower, including the following exchange.

19. [152]

    I do not accept the submission. This offending could not reasonably have been found to be less than the mid range of objective seriousness. My firm conclusion is explained partly by the unusual way in which that finding by the District Court came to be made. For the finding of objective seriousness made by the District Court was more favourable than that for which Mr Quinn had originally contended. When appearing in the Local Court, the applicant made a different submission in relation to the federal offence. Paragraph 6 of his solicitor’s written submissions of June 2021 stated “it is submitted, the offending behaviour is above the middle range of objective seriousness for offending of this nature”. However, the District Court accepted his counsel’s submission that “this is a matter where all of the offending is at or about mid range of objective seriousness”.

20. [153]

    I am unpersuaded that there is any possibility that an assessment that was less than mid range was available. The fact of the matter is that Mr Quinn obsessively sent many thousands of intimidating, humiliating and vile text messages to the victim over a six month period. A finding that the offending was less than mid range was not open.

21. [154]

    Because there was nothing procedurally unfair about the finding made by the District Court, and because if sentence had been imposed based on 11,204 text messages rather than 24,459 messages, this ground must be dismissed.

22. [155]

    Ground 4 is difficult to encapsulate, and so I shall closely follow the submissions made on behalf of Mr Quinn.

23. [156]

    It was put that by the Director mispresenting, albeit unintentionally, the number of text messages sent, which was “critical to the sentencing process”, the judge fell into jurisdictional error by acting upon that material fact. It was said that it was reasonable for Mr Quinn’s legal representatives to expect to be advised if the Commonwealth Director of Public Prosecutions was altering the factual basis upon which sentence would be imposed, and this did not occur. Mr Quinn relied upon SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35, save that Mr Quinn disavowed actual fraud. However, he claimed there was a want of good faith. He relied upon a passage from the then current edition of Wade and Forsyth’s Administrative Law which was reproduced in the judgment, including:

24. [157]

    It was then put that while there was no intentional wrongdoing, the Director acted unreasonably and on improper grounds by including the inflated figure in the facts sheet tendered and in making oral submissions referring to the inflated number. The submission continued:

25. [158]

    It was said that the decision making process was “corrupted” and concluded thus:

26. [159]

    Oral submissions closely followed what was put in writing. They concluded:

27. [160]

    There is nothing in this ground, which ranges over the concepts of fraud, absence of good faith and constructive failure to exercise jurisdiction.

28. [161]

    First, there was no constructive failure to exercise jurisdiction: the appeal was heard and determined, and indeed allowed and a lesser sentence imposed.

29. [162]

    Secondly, the District Court acted upon the evidence before it. There was no error, let alone jurisdictional error, in its doing so. There can be no jurisdictional error in making a finding of fact which was the subject of the parties’ agreement. It is not to the point to say that those agreed facts were incorrect. That happens as a matter of commonplace. Parties will often assume that foreign law is identical with Australian law, even though it is not, because nothing turns on it (or, more precisely, because there are insufficient differences to warrant the expense and delay of proving foreign law), as Leggatt JSC explained in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45; 3 WLR 1011 at [115]. Parties will often proceed to a final determination on out of date information. In both civil and criminal proceedings, the expert reports will often be somewhat out of date by the time of hearing. There are many other examples. In none of these cases does the Court commit any error, let alone jurisdictional error, when it acts upon the evidence before it.

30. [163]

    Thirdly, there was no want of good faith, let alone fraud, attributable to the Director of Public Prosecutions or the Court. Plainly enough, in a process which was quite transparent, a solicitor acting on behalf of the Director introduced a patent typographical error into a document, which error was not detected by either side for some months, notwithstanding which Mr Quinn signed it and it provided the basis upon which he was sentenced.

31. [164]

    Fourthly, contrary to Mr Quinn’s submission that the error was caused by the Director, for the reasons already given both sides contributed to the erroneous basis upon which Mr Quinn was sentenced.

32. [165]

    I do accept that the sentencing judge explicitly relied upon the number of text messages when imposing sentence. If the error had been detected before appeals were exhausted this could have been corrected on appeal. The fact that Mr Quinn has exhausted his right of appeal does not mean that he lacks a remedy. This was the subject of an exchange of submissions after the hearing. It was common ground that the right under s 43 of the Crimes (Sentencing Procedure) Act was unavailable, because in accordance with Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 at [36] there had been no error let alone an error of law for the District Court to have made findings in accordance with the statement of facts. However, it was also common ground that an application under Part 7 of the Crimes (Appeal and Review) Act was in principle available. Mr Quinn doubted the utility and practicality of an application, principally on the basis of the delay that such an application would involve. It may also be doubted, in light of what has been said above concerning materiality in the context of ground 5 whether a judge hearing and determining such an application would be prompted to refer the matter to the Court of Criminal Appeal. On the other hand, there may be force in Mr Agius’ submission that a man serving a sentence of full time imprisonment for a fixed term of 12 months is entitled to a hearing based upon a correct assessment of the number of text messages he had sent. It is no part of these reasons to pre-judge the outcome of any application which may be made by Mr Quinn under Part 7.

33. [166]

    These grounds are not made out.

Orders

1. [167]

   It follows that the amended summons must be dismissed. Although Mr Quinn sought costs in the event that he succeeded, the Director did not do so. I propose that the amended summons filed 1 October 2021 be dismissed.

2. [168]

   SIMPSON AJA: I have had the advantage of reading in draft the judgment of Leeming JA. His Honour’s comprehensive statement of the relevant facts, circumstances and issues enables me to confine my references to a minimum. I am particularly grateful for his Honour’s exposition of legal principle with respect to jurisdictional error. I agree with the disposition of grounds 4 and 5, leave to rely on which was given at the hearing, proposed by Leeming JA.

3. [169]

   The following are my reasons for agreeing with the orders proposed by Leeming JA. My reasons assume familiarity with the facts, circumstances and issues as stated by Leeming JA.

4. [170]

   I reproduce below grounds 1 to 3 of the summons in full:

“Grounds

1. [171]

   Provision is made for a sentence of imprisonment to be served in the community pursuant to an intensive correction order by s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”). Subsection (1) of s 7 provides as follows:

2. [172]

   Section 7(1) does not have the broad and general application that may appear on its face. Its application is significantly circumscribed by other provisions of the Sentencing Procedure Act, to which it will be necessary later to refer.

3. [173]

   Section 66 of the Sentencing Procedure Act provides:

4. [174]

   Just what the drafter of ground 3 had in mind is a matter of some speculation, as to which no enlightenment emerges from the written submissions, which simply adopted, in relation to ground 3, those made in support of ground 2. That would lend weight to the view of Leeming JA that there is little to distinguish between the two grounds.

5. [175]

   In oral submissions senior counsel put the argument differently, perhaps with more precision. He submitted that, a cogent argument in favour of an intensive correction order having been made, the primary judge was under an obligation to consider whether such an order should be made, and that failure to do so constituted jurisdictional error. That is a wider proposition than the proposition, contained in ground 3, that nominated the duty as being to address one specific consideration relevant to the making of an intensive correction order, that specific consideration being the one stated in s 66(2), the sentence most likely to address the risk of reoffending.

6. [176]

   That, where a cogent argument is made in favour of an intensive correction order, it is the obligation of the sentencing judge to respond to it, and that failure to do so will constitute jurisdictional error, may be accepted: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ. Their Honours said:

7. [177]

   The decision under review in Dranichnikov was made by a statutory tribunal to which different considerations apply in the identification of jurisdictional error: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [67] ff. However, according procedural fairness (or natural justice) is an essential characteristic of the judicial process (see Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]) and its denial will constitute jurisdictional error whether by an administrative tribunal or a court.

8. [178]

   The respondent acknowledged that the principal focus of the submissions made to the primary judge was directed to the proposition that an intensive correction order ought to be made.

9. [179]

   The argument was rejected by the primary judge succinctly. He said:

10. [180]

    Inherent in the applicant’s argument is the proposition that, where a cogent argument in favour of an intensive correction order has been put, consideration goes directly to the subss 66(1) and (2) criteria. That is not correct. It overlooks, for a start, s 66(3), which imports into the decision a number of other factors, to be mentioned below. A number of impediments to the making of an intensive correction order exist, which, logically, need to be disposed of before consideration is given to either of the subss 66(1) and (2) criteria. The most obvious of these is that the sentence that the sentencing judge has decided to impose exceeds the maximum sentence in respect of which the legislation permits an intensive correction order to be made. Subsections 68(1) and 68(2) prohibit the making of intensive correction orders in relation to sentences exceeding two years (in respect of a single offence – subs (1)) or three years (in respect of an aggregate sentence for multiple offences – subs (2)).

11. [181]

    A further impediment is placed on the making of intensive correction orders in respect of sentences where the offences are offences of domestic violence (as defined in the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). Section 4B of the Sentencing Procedure Act prohibits the making of an intensive correction order in respect of an offence of domestic violence unless the court is satisfied that the victim of the offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by the conditions of the intensive correction order or otherwise). If a sentencing judge fails to reach the necessary state of satisfaction, an intensive correction order must not be made, and s 66 does not arise.

12. [182]

    Subsection (3) of s 66 directs the sentencing court, when deciding whether to make an intensive correction order, to consider:

13. [183]

    The provisions of s 3A are important. That section states the purposes for which a court may impose a sentence on an offender. The purposes are:

14. [184]

    These purposes have already been taken into account and applied in two previous stages of the sentencing decision – first, when the court is deciding, as it is required by s 5 of the Sentencing Procedure Act to do, whether, having considered all possible alternatives, no penalty other than imprisonment is appropriate; and, second, having reached that satisfaction, in fixing the term of the sentence. The s 3A purposes remain relevant, by reason of s 66(3), when the court is deciding whether to make an intensive correction order.

15. [185]

    In oral argument senior counsel for the applicant accepted that, by reason of the incorporation of the s 3A purposes into the decision whether to make an intensive correction order, a relevant circumstance is the seriousness of the offending.

16. [186]

    The flaw in the applicant’s argument is that it assumes, wrongly, that the criteria stated in subss 66(1) and (2) override, or at least precede, all other considerations. The truth is that, logically, the subss 66(1) and (2) criteria come into play at the end, not the beginning, of the process. If, in the opinion of the sentencing judge, any of the considerations in s 68, s 4B, or s 3A foreclose making an intensive correction order, subss 66(1) and (2) become otiose, and it is unnecessary for the sentencing judge to direct attention to them.

17. [187]

    In this case, it was the seriousness of the offending that brought the consideration of making an intensive correction order to an end. Once the primary judge concluded that the offending was too serious to be dealt with by way of a sentence served otherwise than by way of full time imprisonment, considerations of community safety (in the context of s 66) did not arise. It may be observed that s 66(1) requires community safety to be taken into account as the paramount consideration when a court is “deciding whether to make an intensive correction order”. Where a court has concluded, having regard to the relevant material, that the seriousness of the conduct precludes such an order, there is no further decision to be made.

18. [188]

    There was no error, far less jurisdictional error, in the approach taken by the primary judge.

19. [189]

    In the light of these conclusions it is necessary that I reconsider my concurrence in Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318. The circumstances in Wany were, in material respects, similar to (and perhaps indistinguishable from) the circumstances of the present case. Mr Wany pleaded guilty to and was sentenced in the Local Court for an offence of operating a vessel in a manner dangerous to the public and thereby occasioning grievous bodily harm to a passenger on the vessel. He was sentenced to imprisonment for 18 months with a non-parole period of 9 months. He appealed to the District Court. On his behalf a submission was put that any sentence to be imposed could be served by way of an intensive correction order. While arguing against an intensive correction order, the prosecution accepted that such order was an available sentencing option.

20. [190]

    The analogy with Wany is slightly complicated by the fact that the District Court judge, rather than making his own assessment, relied upon and adopted the reasoning and conclusions of the Local Court magistrate. The magistrate had rejected an argument in favour of an intensive correction order on the basis that the objective seriousness of the offending conduct, the need for a strong measure of both general and specific deterrence, the need to ensure adequate punishment, and to make the offender accountable for his actions, and the need to recognise the harm done to the victim, overwhelmed other considerations (including, presumably, the subss 66(1) and (2) criteria). The considerations that led the magistrate to refuse to make an intensive correction order are those drawn from s 3A. The magistrate (and therefore the District Court judge) did not address subss 66(1) or (2) because, having decided that the s 3A considerations precluded a non-custodial means of serving the sentence, those further considerations did not arise.

21. [191]

    I acknowledge that the approach I have taken and the conclusions I have reached in these reasons are incompatible with the reasons of McCallum JA in Wany with which I agreed. On further reflection, that concurrence was misplaced. I have considered whether the views I have here expressed are inconsistent with those I expressed In Mandranis v R [2021] NSWCCA 97 at [50]-[51]. At present, I think that the two can be reconciled, although I might have expressed my conclusions in Mandranis differently. However, should others perceive any inconsistency, precedence should be given to what is contained in these reasons.

22. [192]

    JOHNSON J: I have had the considerable advantage of considering, in draft, the judgment of Leeming JA. I agree with the order proposed by his Honour and with his Honour’s reasons.

23. [193]

    I express my explicit agreement with his Honour’s analysis and conclusion that the reasoning in Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318 at [67]-[68] is incorrect and should not be followed.

24. [194]

    I agree with his Honour’s analysis which leads to the clear conclusion that jurisdictional error is not demonstrated in the present case.

25. [195]

    What follows constitutes my additional reasons for concluding that the Amended Summons should be dismissed.

26. [196]

    At different points in his judgment (at [20], [98]), Leeming JA has referred to the volume of cases dealt with by the Local Court and the District Court and the regular use of ex tempore decisions when passing sentence. As his Honour has emphasised, the question whether an intensive correction order (“ICO”) may be appropriate in a particular case (considered by reference to s.66 Crimes (Sentencing Procedure) Act 1999) arises in the context of a process of instinctive synthesis, where the Court is considering sentence in a case of sufficient gravity to prima facie warrant a sentence of imprisonment.

27. [197]

    In considering whether there was compliance with s.66 in the present case, it is necessary to read fairly, and as a whole, his Honour’s sentencing remarks. Regard may be had to what is implied, as well as express statements made in the course of passing sentence.

28. [198]

    In Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75, the Court rejected a claim of jurisdictional error on the part of a District Court Judge determining a sentence appeal from the Local Court. Macfarlan JA (Basten JA agreeing with additional reasons; White JA agreeing), said at [29]-[31]:

29. [199]

    It is appropriate to consider what may be implied, on a fair reading of the whole of the sentencing remarks in this case, concerning his Honour’s approach to s.66 and the possible use of an ICO in sentencing the Applicant.

30. [200]

    Leeming JA (at [131]) referred to possible constructions arising from the approach of the District Court Judge in the present case. There was no express reference to s.66(2) in the sentencing remarks. For my part, there is considerable force in the submission made for the Director in this Court that his Honour had heard submissions by reference to s.66 and a number of authorities concerning that provision, and had considered those submissions in the context of the facts and circumstances of the present case, before expressing the conclusion that nothing other than a sentence of fulltime imprisonment was appropriate.

31. [201]

    His Honour had identified, in the passage set out by Leeming JA (at [63]), factors which would operate against a finding in favour of the Applicant that community safety would be best served by the use of an ICO in this case. In particular, the sentencing Judge expressed the conclusion that the Applicant lacked insight and was of the belief that his conduct was justified and that he was really the victim, with support for that finding being found in the Sentencing Assessment Report. Further, the sentencing Judge found that the Applicant’s motivation for treatment was described as “somewhat below average, or alternatively, substantially lower than those who are currently being treated” and that, according to the Sentencing Assessment Report, the Applicant “sees little need to change his behaviour, which is again consistent with the lack of insight that he has demonstrated and which is also reflected in the Sentencing Assessment Report”.

32. [202]

    I am not persuaded that the District Court Judge failed to consider the components of s.66, including s.66(2). Rather, the better view is that, in the course of an ex tempore decision in a busy List, his Honour did not explicitly refer to each component in s.66 although each had been considered by the Court in determining sentence. Although it may be said that there is some imprecision in his Honour’s reasons, it has not been demonstrated that there is error in this case, let alone jurisdictional error.

33. [203]

    Although the resolution of the Applicant’s claim for relief turns on legal questions and the assertion of jurisdictional error, the Court should not lose sight of the nature and gravity of the offences for which sentence had been imposed.

34. [204]

    The Applicant had obtained, through negotiations with the Crown, the use of rolled-up charges for the offences of using a carriage service to menace, harass or cause offence contrary to s.474.17(1) Criminal Code Act 1995 (Cth) (see Leeming JA’s judgment at [37]-[49], [136], [138]). As a result, he obtained the significant advantage whereby the maximum penalty for a single offence was to apply instead of the total theoretically available maximum penalties for multiple charges: Johnston v R [2017] NSWCCA 53 at [68]-[69]; Hughes v R [2021] NSWCCA 238 at [12].

35. [205]

    Concerning the offences for which the Applicant was being sentenced in the District Court, the characterisation by the sentencing Judge of the gravity of these offences (as described in the extract from the sentencing remarks by Leeming JA at [63]) cannot be doubted (apart from the reference to the number of text messages, which has since been identified as erroneous). As Leeming JA has observed (at [148]), this was extremely serious offending over an extended period of time by a man determined to inflict pain and distress upon his estranged wife.

36. [206]

    Although the Applicant’s offences did not include acts of physical violence directed to the victim, they involved domestic violence offences of a threatening, controlling and strongly abusive type over a long period of time (including destruction of property), all of which were clearly intended to cause psychological harm and severe distress to the victim.

37. [207]

    The sentencing Judge was very much alive to sentencing principles which have emphasised the gravity of criminal conduct of this type and the need for denunciation and deterrence (both specific and general) to be reflected on sentence for domestic violence offences: R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at [77], [86]; Cherry v R [2017] NSWCCA 150 at [78]; Yaman v R [2020] NSWCCA 239 at [131]-[136]. Application of these principles was reflected in his Honour’s remarks extracted by Leeming JA (at [63]). The victim impact statement of the Applicant’s former wife illustrated vividly the consequences of the protracted and multi-faceted pattern of criminal conduct which had been directed at her, including the sinister threats which constituted the offences under s.91R Crimes Act 1900 (NSW) noted by Leeming JA (at [50]-[52]).

38. [208]

    It is entirely understandable that the sentencing Judge concluded that a sentence of fulltime imprisonment was the only appropriate sentencing outcome in this case, albeit one reduced from the sentence passed in the Local Court.

39. [209]

    Since the commencement of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 on 24 September 2018, there have been many decisions of the Court of Criminal Appeal and an increasing number of decisions of this Court which have grappled with the construction and operation of s.66. Assistance for sentencing courts may be found in what was said by Adamson J (Basten JA and Walton J agreeing) in Elphick v R [2021] NSWCCA 167. In dismissing a ground of appeal which asserted that the sentencing Judge had failed to properly assess an application for an ICO, Adamson J observed that the sentencing Judge (Lerve DCJ) had appropriately considered the issue, with his Honour’s “summary of the applicable law and his application of it to the facts of the case” being “model”. In expressing this view, her Honour was referring to the sentencing remarks in R v Elphick [2021] NSWDC 1 at [100]-[103], which contain the model summary commended by the Court of Criminal Appeal. To the extent that it may assist sentencing courts, I endorse the comment made in Elphick v R that the sentencing Judge’s approach in that case was a “model”.

40. [210]

    Since writing this judgment, I have had an opportunity to read the judgment of Simpson AJA. I express my agreement with her Honour’s analysis (at [180]-[187]) concerning the construction and operation of s.66 Crimes (Sentencing Procedure) Act 1999. Her Honour’s analysis fortifies my conclusion that there was no error, let alone jurisdictional error, in the approach taken by the District Court Judge in this case.