Fleury v Director of Public Prosecutions

The appeal concerned the sentencing of the appellant, Fleury, by McWilliam AJ in the District Court of New South Wales. The Director of Public Prosecutions was the respondent. The core of the dispute revolved around the sentencing judge's failure to exercise discretion regarding a drug and alcohol treatment order assessment, despite referrals to the relevant treatment list being paused at the time of sentencing.

The primary legal issue before the Court of Appeal was whether the sentencing judge erred by not undertaking the necessary assessment for a drug and alcohol treatment order, even though the practical availability of such orders was temporarily suspended. This required the court to consider the proper exercise of judicial discretion in sentencing, particularly in light of statutory provisions for treatment orders and the impact of administrative pauses on their availability.

The Court of Appeal found that the sentencing judge had failed to properly exercise their discretion. The court reasoned that the pause in referrals to the drug and alcohol treatment list did not absolve the sentencing judge of the obligation to consider and assess the appellant for such an order. The principles applied underscored the importance of a thorough sentencing process that includes exploring all available sentencing options, including those aimed at rehabilitation, regardless of temporary administrative impediments. Consequently, the appeal was allowed, the sentences were set aside, and the matter was remitted to the original sentencing judge for resentencing.