SR v R

1. [1]

   HARRISON CJ at CL: I have had the considerable benefit of reading in draft the judgments of their Honours Wilson J and Ierace J. I have come to the view that the appeal should be allowed and that SR should be re-sentenced.

2. [2]

   I am particularly mindful of the immense workload under which the judges of the District Court are required to work. I endorse the remarks of her Honour Wilson J that in assessing whether remarks on sentence reveal an error of the kind asserted by SR in this case, it is important that proper allowance is made for modes of expression that are used and the time constraints that operate upon judges. This is especially so when delivering ex tempore decisions. I agree that it is not necessary for a sentencing judge meticulously to cite all statutory or common law principles that should be considered if it is otherwise apparent that relevant principles have not been overlooked. In particular, I agree with her Honour that it was not necessary for the sentencing judge in this case to refer to s 66 specifically and that a failure to do so is not by itself a reliable basis upon which to conclude that his Honour completely overlooked the operation of the provision.

3. [3]

   However, making due allowance for these considerations, I am left with the impression, having closely read the sentencing judge’s remarks, that he has not engaged with the statutory imperative that, when deciding whether to make an intensive correction order, community safety must be the paramount consideration. It is clear that the sentencing judge considered whether to make such an order, but did not at any stage appear to reckon with the paramount consideration. It is all the more difficult to conclude that he did so, having regard to the fact when indicating “that the protection of the community does not loom at all large”, he did not explain how that fact informed, or aligned with, his decision to impose a sentence of full-time custody. In other words, if community safety was the paramount consideration, and the protection of the community was not a significant factor, how was his Honour able to conclude that “only a sentence of full-time imprisonment would be adequate” and that an intensive correction order (“ICO”) “would hardly … be appropriate”.

4. [4]

   The sense of his Honour’s reasoning was that the assault which SR committed was so serious that any non-custodial result would not be an appropriate or adequate punishment. His Honour was perfectly entitled to form that view, provided that his reasoning demonstrates that his preference for full-time custody was formed with a full appreciation and application of the importance of community safety. It does not seem to me that his Honour did so.

5. [5]

   I agree with the orders proposed by Ierace J.

6. [6]

   WILSON J: The applicant, whose name must be anonymised in compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) to protect the identity of his child victim (who will be referred to here as “Thomas”) pleaded guilty to one count of causing grievous bodily harm being reckless as to actual bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). Such an offence carries a maximum sentence of 10 years imprisonment, and a standard non-parole period of 4 years. On 29 September 2022, the applicant was sentenced by his Honour Judge Neilson in the Sydney District Court to a term of imprisonment of 1 year and 10 months, with a non-parole period of 1 year. The sentence commenced on 28 September 2022 and was set to expire on 27 July 2024. The non-parole period was set to expire on 27 September 2023.

7. [7]

   On 30 September 2022, the applicant lodged a Notice of Intention to Appeal against sentence. On 28 November 2022, the applicant was released on bail pending the hearing of his application for leave to appeal his sentence. On 28 September 2023, the Applicant lodged his Notice of Appeal against sentence. With one day of pre-sentence custody, the applicant has served two months and one day with respect to this matter.

8. [8]

   His application to this Court focuses on the imposition by the sentencing judge of a full-time custodial term, as opposed to an ICO pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the C(SP) Act”). The applicant contends that his Honour erred in not directing that the sentence to be served by way of an ICO. The ground – expressed with two sub-grounds or parts – that is advanced is:

The Proceedings in the District Court

1. [9]

   The offence, which was committed on 15 January 2022, occurred in a domestic context. The agreed facts tendered to the sentencing court establish that the victim of the then 51 year old applicant’s offending was his then 14-year old stepson, the son of his wife. The applicant lived with his wife, SJ, and her son in the home in which the offence occurred. In this context the offence is a domestic violence offence as defined by s 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and s 3(1) of the C(SP) Act.

2. [10]

   The offending occurred on 15 January 2022. On that day at 1:30pm, the applicant and his wife attended a celebratory lunch with members of the couple’s extended family. The group remained at the restaurant for approximately two and a half hours, during which time the applicant consumed about five beers. The applicant, his wife, and others moved on to a second venue, arriving at approximately 4:30pm and remaining for about three hours. The applicant continued to drink alcohol steadily during the course of the afternoon and evening, overall, a total a period of about 6 hours. The applicant’s wife later described herself as slightly intoxicated and the applicant as moderately intoxicated.

3. [11]

   The applicant and his wife returned home at around 8pm that evening. In his remarks on sentence the sentencing judge recorded what took place after that.

4. [12]

   The applicant’s mother entered the bedroom at some point during the attack and attempted to pull the applicant away from her son. The applicant stopped punching Thomas and left the room. Thomas complained to his mother about an injury to his eye and blurred vision. She took him to Sydney Children’s Hospital, where he was found to have bruising to the left eye and temple and a right orbital floor socket fracture which required surgical repair with the insertion of a titanium plate.

5. [13]

   At the time of sentencing, Thomas continued to experience problems including blurred vision, a reduced range of movement to his right eye, and intermittent numbness to one side of his face. There were other consequences of the assault. Thomas had to leave his mother’s home and re-locate to his father’s residence. He was obliged to change schools, being separated from school friends, and missing about 7 weeks of schooling, a lost period that he felt had disadvantaged his education. Thinking about the assault continued to cause Thomas great distress and he became depressed. His relationship with his mother was adversely affected.

6. [14]

   Other than the agreed statement of facts and victim impact statement, the Crown tendered the applicant’s criminal and custodial histories, and a sentencing assessment report (“SAR”). The applicant’s criminal history was minimal, containing very dated entries for offensive language, resisting arrest, and driving with a low range concentration of alcohol (1990), and a slightly more recent conviction for driving with the middle range concentration of alcohol, from 2005. Fines, with disqualifications from driving for the traffic matters, were imposed for all offences. The principal relevance of the criminal record was as a possible indicator of long-term problems with alcohol. The custodial history evidenced a single day spent in pre-sentence custody, following charging and before the applicant was admitted to bail.

7. [15]

   The SAR was prepared in July 2022. At that time the applicant was living separately from his wife in rented accommodation, as an apprehended domestic violence order made for the protection of Thomas extended to preventing him from attending the matrimonial home. As at 2022, the applicant and SJ had been married for 4 years and, although the offence has placed stress upon the relationship, the applicant “was hopeful to restore his family unit”.

8. [16]

   The applicant was reported to have four adult children of his own, with whom he enjoyed positive relationships, and he had a solid history of employment. He acknowledged some minor drug and binge alcohol use in his youth, but claimed that his recent alcohol use had not been significant. He claimed to have stopped drinking alcohol following the assault on Thomas, and reported having engaged with a psychologist for the “treatment of problematic alcohol use patterns and anger management”. He had also recently been prescribed “mood stabilisers” to assist him to cope with the stress surrounding these events.

9. [17]

   Of his offending conduct the applicant reported frustration with what he perceived to be the disrespect that Thomas showed to him and his wife, although he said he was ashamed of what he had done.

10. [18]

    The author of the SAR reported that the applicant was assessed as at low risk of re-offending on an actuarial assessment. He had expressed willingness to undertake any community service required of him, but said he could only do so on weekends due to his hours of employment, and was able to perform only a limited range of work due to a hip injury. In practice, those restrictions meant that no suitable work was available to the applicant and he was assessed as unsuitable for a work placement. Because of the limited risk he posed of reoffending, the author of the SAR observed that, in the event of a community based sentencing order being imposed, “face-to-face reporting” would not be required; although the applicant would have to provide the Community Corrections Office with the details of any change to his address.

11. [19]

    The applicant did not give evidence. Instead, he tendered a letter directed to the sentencing judge, in which he gave his own account of the circumstances leading to the commission of the offence. The applicant’s version differed from those before the sentencing court as agreed facts that had been signed by the applicant. In his letter, the applicant appeared to both maximise bad conduct attributed to Thomas, and somewhat minimise his own. He suggested that Thomas had taken a pugilist stance to fight him, and that what thereafter occurred occupied no more than 20 seconds. Rather than the 10 to 20 blows to the face and head that the applicant acknowledged by the agreed facts, over 30 to 40 seconds, his account in his letter suggested that only one punch had been thrown. He said:

12. [20]

    The applicant said he was embarrassed, ashamed, and remorseful, and his conduct was out of character. He said what he had done had hurt Thomas and his wife, and had – in contrast to his account to the author of the SAR – led to the end of his marriage. The applicant referred to his long history as an accredited coach in community sport, and his good working record in a position of responsibility and trust. He said that, since the incident, he had abstained from alcohol use and had sought out counselling, both of which he intended to continue.

13. [21]

    A number of testimonials were also tendered to the sentencing court. Those who wrote references on his behalf, many of whom had known him for decades through shared sporting activities, spoke highly of the applicant, commenting on his reliability, his excellence as a sports coach and mentor, his caring nature, and his strong work ethic. All expressed confidence that the offence was out of character.

14. [22]

    The psychologist whom the applicant had consulted, Dr Luke Vu, provided a report to the sentencing court dated 23 May 2022 concerning the six counselling sessions the applicant had to that point attended. Counselling was directed to “problematic alcohol use patterns and anger management” and had been completed on 3 May 2022. Dr Vu said:

15. [23]

    Dr Vu outlined the cognitive behavioural intervention treatment that had been administered to address the applicant’s adjustment and anger management problems, and problematic alcohol use. The applicant had presented as highly motivated and had engaged well with treatment.

16. [24]

    A medical letter referred to the applicant as requiring surgery to his hip, with the procedure scheduled for October 2022.

17. [25]

    The parties provided written submissions to the sentencing court. Whilst conceding that a fractured orbital socket was a less serious instance of grievous bodily harm than many injuries, the Crown pointed to features that aggravated the offending, being that it occurred in the victim’s home, that substantial damage had been occasioned (by reference to the emotional and social consequences to Thomas); that it constituted a breach of a position of trust and authority; and that the victim was vulnerable. Mitigating features were submitted to be the plea of guilty, demonstrated remorse, unlikelihood of reoffending, good prospects of rehabilitation, no significant criminal record, and the spontaneous or unplanned nature of the offence. The Crown submitted that, whilst the offence fell towards the lower end of a notional range of gravity, “the s 5 threshold” had been crossed (that is, s 5(1) of the C(SP) Act, which prohibits a court from imposing a sentence of imprisonment unless satisfied that no alternative is appropriate), with principles of general and specific deterrence, denunciation, and accountability of particular importance to the exercise of the sentencing discretion.

18. [26]

    The applicant accepted that the s 5 threshold had been passed because of the extent of the injury caused and the relationship of trust, but the offence was, nevertheless, one of low objective gravity having regard to its spontaneous nature and brief duration. Pointing to the applicant’s solid work history, his good standing in the community, his plea of guilty, and his good prospects, the applicant submitted that a sentence served in the community was appropriate. The sentencing court was referred to the decision of this Court of Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97, at [54], wherein Simpson AJA observed:

19. [27]

    During oral submissions counsel for the applicant argued that:

20. [28]

    Responding to that submission the sentencing judge observed:

21. [29]

    In his remarks, given immediately after submissions from the parties were received, his Honour set out the circumstances of the offending as they had been agreed between the parties. Referring to the injury he noted that:

22. [30]

    The sentencing judge accepted that the features of aggravation referred to by the Crown had been made out, including that substantial harm had been occasioned to Thomas, referring in that regard to the consequences beyond the immediate physical injury to him. His Honour assessed the offence as below mid-range in terms of its objective gravity, and more specifically, because of the “frenzied onset of punching to the head done by a man who was affected by alcohol”, “in the mid-range of the range between the bottom of the low-range and mid-range”. His Honour observed:

23. [31]

    Referring to R v Sewell and Walsh (1981) 29 SASR 12 at 15 and Stewart v R [2012] NSWCCA 183 at [50] – [52] and [79], his Honour concluded that the applicant’s intoxication at the time of offending could not be treated as a mitigating feature, although neither did it aggravate the offending. Having dealt with that aspect of the matter the sentencing judge observed:

24. [32]

    The sentencing judge set out the detail of the applicant’s case. Whilst accepting that the applicant was highly regarded by those who had provided references, his Honour observed that it was not clear that the authors were aware of the precise nature of the offence, since none referred to it. Further, his Honour was not inclined to give great weight to the applicant’s claimed abstention from alcohol use during the period that had passed since the assault on Thomas, as a condition of bail had required the applicant to do so.

25. [33]

    The applicant was, in his Honour’s assessment, a man of essentially good character who had made a significant contribution to his local community, and who presented little if any prospect of committing further crimes of violence. His Honour accepted that there was no requirement for “great emphasis” to be placed on specific deterrence, and protection of the community was not a prominent feature of the sentencing exercise. Referring to the purposes of sentencing specified by s 3A of the C(SP) Act, the sentencing judge observed that the “substantive issue” was whether a full-time sentence of imprisonment should be imposed, or whether the sentence should be served by way of an ICO. Noting that the SAR stated that the applicant was not suited to an order for community work, and that no supervision would be imposed over him, the sentencing judge noted:

The Appeal

1. [34]

   The applicant argues that the sentencing judge did not in his remarks on sentence refer to, consider, or make any evaluative assessments pursuant to ss 66(1), 66(2) or 66(3) of the C(SP) Act, in circumstances where he was obliged to do so, and announced the manner by which the sentence was to be served prior to determining its length. The applicant relies on the decisions of Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3 and Chan v The King [2023] NSWCCA 206 in support of his application.

2. [35]

   The issue before the sentencing court was, as the sentencing judge stated at [27] of his reasons, “whether the offender is sentenced to full-time custody, or whether, as has been submitted on his behalf, he should be placed on an Intensive Corrections Order”.

3. [36]

   By ground 1(a) and 1(b) the applicant complains of failure by the sentencing judge to comply with s 7 and s 66 of the C(SP) Act.

4. [37]

   Section 7 is as follows:

5. [38]

   Section 66 is in these terms:

6. [39]

   The applicant points to the High Court’s decision in Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3 – in which both orders and reasons were handed down after sentence was imposed upon the applicant – where the majority (Gordon, Edelman, Steward, and Gleeson JJ) set out a “three step” sentencing process, at [59]. The majority said:

7. [40]

   The applicant’s submission is that the sentencing judge did not refer in terms to s 66 of the C(SP) Act and can therefore be assumed not to have had regard to the statutory provision. He contends that his Honour did not consider the paramount consideration of community safety and failed to engage in the mandatory assessment process of that aspect of the matter. The applicant submits that the sentencing judge misapprehended his task in regarding “the question” for the determination of the court in imposing sentence as whether an ICO represented an adequate punishment for the offence, particularly given that his Honour was concerned that an ICO would constitute little more than a requirement to be of good behaviour. The applicant relies upon the majority judgment in Stanley to argue that, in elevating the question of the adequacy of punishment over considerations of community safety, his Honour did not treat s 3A as a consideration “subordinate” to the latter feature, as s 66(1) requires.

8. [41]

   Finally, the applicant points to the sentencing remarks and their structure to assert that the sentencing judge dismissed the availability of an ICO prior to having announced the term of the sentence, thus breaching the second step of the sentencing process as outlined by the majority at [59] in Stanley.

9. [42]

   The Crown does not accept the applicant’s characterisation of the remarks of the sentencing judge as demonstrating any failure to comply with s 66 of the C(SP) Act. The Crown points to the conclusions of the sentencing judge as to the unlikelihood of the applicant re-offending, and the low risk he posed to the community, as fulfilling the statutory requirements set out at s 66(1) and s 66(2) of the C(SP) Act. The Crown contends that the conclusion of the sentencing judge was “inconclusive”, as the majority used that term in Stanley, at [76], in that inherent in it was the finding that it could not be said that community safety would be better enhanced whether a full-time sentence or an ICO was imposed. In the Crown’s submission the conclusions reached by the sentencing judge placed this matter into the category of:

10. [43]

    Thus, albeit without referring specifically to s 66 of the C(SP) Act, the assessment it required was carried out. His Honour having in substance then turned to s 66(3), and considered the requirements of s 3A and common law sentencing principles, the conclusion of the sentencing court was that a sentence of full-time imprisonment must be imposed, one not, in the Crown’s submission, attended by error.

11. [44]

    The Crown also disputes the characterisation as error of the discounting of an ICO as the proper sentence, prior to the announcement of the term of that sentence. Highlighting the ex tempore nature of the sentencing judgment, the Crown submits that the sequence of the remarks cannot be assumed to correspond with the sequence of the formulation of sentence. It is argued that the sentencing judge had clearly determined the length of sentence to be imposed prior to delivering his reasons. It was the announcement of that conclusion that varied in sequence, not its formulation.

Determination

1. [45]

   It must be recalled that the judgment in Stanley was handed down on 15 February 2023, 5 months after sentence was imposed in this matter. Thus, his Honour did not have the benefit of the reasons of the majority in structuring and delivering his ex tempore remarks. He had been directed in submission to the terms of s 66 of the C(SP) Act and, although his Honour did not refer to the section in terms, that is not of itself an error: Mourtada v R [2021] NSWCCA 211, at [37]. It is not necessary for a sentencing judge to meticulously cite each statutory provision or common law principle under which a sentence is determined and imposed for that sentence to be unattended by error. What is required is that the relevant provisions have been considered and applied, and that their application can be discerned, including by appellate court that is asked to review it. I do not accept the applicant’s submission that his Honour’s failure to refer to s 66 specifically is a reliable basis upon which to conclude that the sentencing judge overlooked the application of the provision completely. That is particularly so when proper regard is had to the ex tempore nature of the remarks.

2. [46]

   His Honour imposed sentence immediately after the submissions to the court were received; he had no time in which to map out his remarks and perfect their structure and expression. The reality of the vast workload of the District Court makes proceeding in that expeditious way frequently unavoidable, and often necessary. It is a reality that may lead to some economy of reference, and even infelicity of expression, but such features do not automatically equate to error.

3. [47]

   If careful regard is had to what his Honour did say it is tolerably clear that, in considering whether an ICO was the proper penalty to be imposed, he had firmly in his mind the questions of the protection of the community and the prospects of the applicant re-offending. With respect to those features, his Honour concluded:

4. [48]

   The sentencing judge went on to refer to and quote extensively from the SAR as to the risk of re-offending, and the conditions that might attach to any supervised order as proposed by its author. Although not using the statutory language of s 66(1) and s 66(2), the sentencing judge gave adequate attention to the impact of the sentence upon the protection of the community (community safety), and to the risk of re-offending. His Honour’s remarks, read as a whole, demonstrate his conclusions that, as the applicant was unlikely to commit an offence of violence again, the sentence to be imposed, whether served by full-time custody or an ICO, was unlikely to have any real impact upon community safety or re-offending. In terms of which mode of sentence would be most advantageous to those features, the conclusion was essentially neutral, or “inconclusive”.

5. [49]

   The conclusions of the sentencing judge are analogous to the position in Tonga, Samuel v R [2023] NSWCCA 120. In that case the applicant, in company with his brother, assaulted a road user whose driving had angered him, and was prosecuted for recklessly causing grievous bodily harm contrary to s 35(1) of the Crimes Act, an offence carrying a 14 year maximum sentence and a 5 year standard non-parole period. A crow bar was used in the assault and the victim was left with an open deep skull fracture that required surgical repair together with two wounds to his head. The sentencing judge concluded that the applicant has good prospects of rehabilitation, but was not able to conclude that he was unlikely to re-offend. The sentencing judge concluded that imposing a sentence to be served by way of full-time imprisonment was “not more likely” to address his risk of re-offending.

6. [50]

   This Court (constituted by Basten AJA, Walton and Hamill JJ) found that the conclusion of the sentencing judge was in substance an inconclusive finding and there was no error in declining to order the sentence to be served by way of an ICO.

7. [51]

   In this matter, his Honour was not persuaded that there was advantage in either mode of service of the sentence ahead of the other, a similarly inconclusive finding. Having come to that view, his Honour’s attention turned to wider sentencing considerations, including those set out in s 3A of the C(SP) Act, an approach consistent with that required by s 66(3) of the Act. Having done so, his Honour concluded that an ICO was not appropriate. Despite the absence of direct reference to s 66, the requirements of the section were met in the analysis undertaken by the sentencing judge. It is consistent with what was said in Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97, at [50] – [51]:

8. [52]

   That his Honour announced his conclusion as to the mode of sentence before announcing its term does not, in the particular circumstances of this matter, amount to error in my conclusion. The requirement that the term of sentence is determined before consideration is given to the manner in which it is to be served is a mechanism intended to prevent the length of sentences being tailored to ensure that an ICO can or cannot be imposed: see Mandranis at [35]. It is not a requirement to be fulfilled by the mere sequence in which term and mode of sentence are announced; that would be to elevate form over substance.

9. [53]

   There can be no real doubt that the sentencing judge had determined the sentence to be imposed upon the applicant, including by applying the 25% discount for the plea of guilty, and fixing on the dates upon which the sentence would commence and expire, prior to commencing to deliver his reasons. The fact that his Honour dismissed the option of an ICO on the basis that it would fail to address many of the s 3A purposes, including adequate punishment, of itself establishes that the length of sentence, insofar as it fell below the 2 year statutory bar, must have been known to the sentencing court at that point. Had his Honour gone on to impose a term exceeding 2 years imprisonment, he would not have needed to consider those matters in s 66, because the prospect of an ICO being imposed would not arise. The inevitable and common sense view is that, when he began to give his remarks, his Honour had already determined the length of the sentence. The position is similar to that considered in Hawat v R [2020] NSWCCA 121 at [33]. It was the announcement of the term of sentence that did not conform to the required three step process, not its determination. It is the latter process which is erroneous and not the former.

Conclusion

1. [54]

   In my conclusion, whilst a sentence to be served by way of an ICO was available to the sentencing court, his Honour did not err in the process adopted in determining that a full-time sentence of imprisonment was called for. For these reasons, although I would grant leave to appeal, the appeal should be dismissed. Because the applicant was admitted to bail on 28 November 2022, there must, however, be some adjustment to the commencement and consequential dates relating to the sentence imposed at first instance. The orders I propose are:

   1. (1)

      Grant leave to appeal;

   2. (2)

      Dismiss the appeal;

   3. (3)

      The date upon which the sentence imposed upon the applicant on 29 September 2022 is to commence is varied.

2. [55]

   IERACE J: I have had the considerable benefit of reading the judgments of the Chief Judge at Common Law and Wilson J. I agree with their Honours’ observations concerning the applicant’s complaint that the sentencing judge failed to expressly acknowledge that he adhered to the three-stage sequence of steps that was mandated for a sentencing exercise concerning an intensive correction order (ICO) by s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). The real issue is whether the sentencing judge complied with the substance of those statutory obligations, in particular, s 66(1).

3. [56]

   Section 7 of the Sentencing Procedure Act provides for the sentencing option of an ICO. Part 5 of the Act (“Sentencing Procedures for Intensive Correction Orders”) sets out the procedure for considering and making an ICO. The current version of s 66 was introduced into the Act by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) (the Amending Act) which significantly amended Pt 5. It commenced on 24 September 2018 and provides as follows.

4. [57]

   Section 3A of the Sentencing Procedure Act is in these terms.

5. [58]

   There was no counterpart to s 66 in Pt 5 of the Sentencing Procedure Act prior to September 2018. The only previous legislative guidance in Part 5 as to how a sentencing court was to determine whether to make an ICO was found within s 67 (since amended by the Amending Act):

6. [59]

   The policy objective of the amendments was noted in R v Fangaloka [2019] NSWCCA 173 by Basten JA (as his Honour then was), Johnson and Price JJ agreeing, at [57]:

7. [60]

   Although an ICO is the more lenient of the two alternatives by which a custodial sentence is to be served, it is important not to lose sight of the fact that it is not a light sentencing option. As observed in Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 by Simpson AJA, an ICO, despite being served in the community, is a custodial sentence:

8. [61]

   In Tonga, Samuel v R [2023] NSWCCA 120, Basten AJA (Walton and Hamill JJ agreeing) referred to the conditions of an ICO that are provided in the Sentencing Procedure Act, which is salutary to recall:

9. [62]

   In Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3, the plurality said:

10. [63]

    The sentencing judge did not have the benefit of the guidance provided by Stanley v Director of Public Prosecutions (NSW), which was handed down subsequently. However, as noted by Wilson J, the applicant’s written submissions referred his Honour to Mandranis v R, which considered and sought to reconcile earlier judgments of this Court concerning the interpretation of Pt 5, as amended. The sentencing judge was taken to Simpson AJA’s judgment at [54] of Mandranis, which was to the effect that the intention behind s 66(1) was that, unless allowing an offender to serve his sentence in the community would endanger community safety, it was the “paramount consideration”. Simpson AJA continued:

11. [64]

    In his judgment (R v SR [2022] NSWDC 542), the sentencing judge said that, as it was conceded by both parties that the threshold of s 5 of the Sentencing Procedure Act was crossed, he would move directly to “the issue”, which was whether an ICO should be made. His Honour then reviewed the tendered subjective material and made findings as to some of the s 3A considerations. His Honour found that: as to personal deterrence (s 3A(b)), “there is not great emphasis to be laid on personal deterrence”; as to the protection of the community (s 3A(c)), there was “little if any prospect of the offender committing another crime of violence; the risk of recidivism is low … the need for “the protection of the community does not loom at all large”; and as to the need to promote his rehabilitation (s 3A(d)), “the offender himself has taken steps to promote his own rehabilitation”.

12. [65]

    The sentencing judge referred to the sentencing assessment report (SAR) that had been prepared by a Senior Community Corrections officer, in particular, where it stated that if the applicant served his prison sentence in the community pursuant to an ICO, there would be little monitoring of him, because of his “low” risk of reoffending. The SAR recommended that if an ICO was made, it be accompanied by two additional conditions to the standard conditions, that he not drink alcohol for the term of the ICO and that he comply with mental health treatment as recommended by his psychologist, Dr Vu. His Honour said, at [47]:

13. [66]

    I note that in his report, Dr Vu stated the applicant had successfully completed the course of cognitive behaviour therapy on 3 May 2022, which was four months before the sentence hearing.

14. [67]

    The sentencing judge found that the applicant would be unsuitable for a community service condition to an ICO because of a physical health issue (a pending hip operation) and concluded that an ICO would have virtually no impact on his life, at [48]:

15. [68]

    His Honour said that “the real question”, was “whether an ICO would be adequate punishment for the offence committed by [the applicant]”, identifying at [48] considerations of the adequacy of punishment (s 3A(a)), general deterrence (s 3A(b)) and denunciation (s 3A(f)):

16. [69]

    The sentencing judge concluded, at [51]:

17. [70]

    There can be no doubt that his Honour was well aware of the applicant’s low level of risk, his progress in rehabilitation and his reduced need for personal deterrence, all leading to the inevitable conclusion that, as his Honour put it, “the protection of the community does not loom at all large”. Nevertheless, it was open to his Honour ultimately to decide that the applicant’s custodial sentence should be served in a prison rather than in the community. However, the issue on appeal is, whether in the process of arriving at that conclusion, his Honour complied with the obligations in s 66, in particular, whether he engaged with his statutory obligation to treat community safety as the paramount consideration. In my view, it is not reasonably possible to infer, and thus conclude, from the sentence judgment that community safety was “the paramount consideration”, as s 66(1) of the Sentencing Procedure Act mandates.

18. [71]

    Had the issue of community safety been accorded the status of the paramount consideration in weighing the two alternatives, the sentencing judge may have considered, for example, whether the applicant’s continuing rehabilitation (and thus community safety) was better served by him remaining in the community, where he had successfully completed Dr Vu’s sessions of cognitive behaviour therapy to treat his criminogenic factors, or by serving it within the prison system. If he remained in the community, Dr Vu would have been available for further rehabilitative treatment, if required, over the term of the ICO, consistently with the recommendation in the SAR that the applicant be subject to additional conditions to abstain from alcohol and receive mental health treatment.

19. [72]

    Accordingly, I would grant leave and uphold the appeal.

Resentence

1. [73]

   As noted by Wilson J, the applicant was released on bail, pending the determination of this application, on 28 November 2022, having served two months of his sentence. The conditions of bail include weekly reporting to police and not consuming alcohol or drugs. In an affidavit filed on 17 November 2023, the applicant states he has not consumed alcohol since the date of the offence.

2. [74]

   In that affidavit, the applicant has provided an uncontested account of some other matters that are relevant to his resentence. He had two significant pre-sentence health issues. He was diagnosed with bowel cancer in August 2020, for which he underwent surgery and chemotherapy. That condition is currently in remission. In November 2021, he fractured his left femur and injured his left hip. He was placed on a waiting list for a hip replacement, receiving drug therapy for pain in the meantime. Following his release to parole, the hip replacement operation was rescheduled and was performed on 6 March 2023.

3. [75]

   Annexed to the applicant’s affidavit is a further report from Dr Vu, dated 6 November 2023, in which he states that the applicant continued to attend therapy sessions after the initial six sessions that ended on 3 May 2022. The applicant attended an additional 16 sessions, the most recent being in October 2023. Dr Vu stated:

4. [76]

   The applicant states that he intends to continue to see Dr Vu monthly, for as long as Dr Vu considers beneficial. The applicant has also benefited from engaging in the Self-Management and Recovery Training (SMART) program and on-going relationship counselling, although he and his wife have been separated since the offence. He resides alone and is in full-time employment. His employment would be terminated if he returned to custody. He expresses continuing remorse.

5. [77]

   On resentence, I would make the same findings as did the sentencing judge, although the positive findings in respect of personal deterrence, rehabilitation and the need to protect the community would be even more positive, in view of the applicant’s progress on appeal bail. Nevertheless, no sentence, other than one of imprisonment, is warranted by the offence: s 5(1) of the Sentencing Procedure Act. The length of the sentence is also to be determined in light of the applicant having already served two months imprisonment. Having regard to those matters, I would impose a sentence of 12 months. As to whether an ICO should be imposed, I note the content of the SAR, dated 13 July 2022, which is supportive of that particular sentencing option. To the extent that the report may be regarded outdated, I note s 17D(1A) of the Sentencing Procedure Act and the uncontested evidence on resentence.

6. [78]

   In view of s 66(2) of the Sentencing Procedure Act, from the perspective of community safety, an ICO would enable the applicant to continue his therapy with Dr Vu and the relationship counselling, which address factors that contributed to his offending behaviour; and to continue his full-time employment, which is a pro-social factor. A return to prison would enhance the personal deterrence aspect of the sentence but would remove the protective factors of his continuing therapy and his employment. In my view, an ICO clearly outweighs prison as the sentencing alternative that enhances community safety. Although community safety is not determinative of the exercise (see Stanley v Director of Public Prosecutions (NSW) at [75]), when the evidence is evaluated in the context of all relevant provisions of s 3A of the Sentencing Procedure Act, with community safety being the paramount consideration, I find that the sentence of imprisonment should be served by way of an ICO. I would include additional conditions pursuant to s 73A(2)(e) and (f) of the Sentencing Procedure Act, that is, that the applicant attend therapy provided by Dr Vu and that he abstain from consuming alcohol.

Orders

1. [79]

   Accordingly, I would make the following orders:

   1. (1)

      The sentence imposed in the District Court on 29 September 2022 is quashed.

   2. (2)

      The applicant is sentenced to an intensive correction order for a period of 12 months to date from 26 March 2024 and expire on 25 March 2025.

   3. (3)

      The following additional conditions are made: