Simpson AJA at [1] Garling J at [65] N Adams J at [66]
Decision:
1. Leave to appeal granted.
2. Appeal allowed; sentences imposed in the District Court on 7 August 2020 set aside;
3. In lieu thereof the applicant be sentenced to an aggregate term of imprisonment for 19 months, commencing on 14 May 2021 and expiring on 13 December 2022.
6. The following additional conditions apply – see [64].
Catchwords:
CRIME – appeals – appeal against sentence – resentence – penalties – Intensive Correction Orders – construction of s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether court permitted first to form an intention to make an ICO and then to select a sentence in order to satisfy s 68 – construction of s 66 of the Crimes (Sentencing Procedure) Act – whether court must positively conclude that an ICO is more likely to address the offender’s risk of reoffending than would serving a sentence of full time custody – effect of ss 70 and 71 of the Crimes (Sentencing Procedure) Act – whether an ICO can be made where a sentence is fixed to commence at an earlier time than the date on which it is imposed
Solicitors: Williamson Isabella Lawyers (A) Solicitor for Director of Public Prosecutions (R)
File Number(s):
2019/343709
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
7 August 2020
Before:
Woods QC ADCJ
File Number(s):
2019/343709
Judgment
SIMPSON AJA: On 3 June 2020 the applicant entered a plea of guilty in the Local Court to a single count of the ongoing supply of prohibited drugs, an offence against s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Mandranis v The Queen [2021] NSWCCA 97
Case
[2021] NSWCCA 97
Decision Date
CaseChat Overview and Summary
In the matter of Mandranis v The Queen, the High Court of Australia was asked to consider the legality of an Intensive Corrections Order (ICO) imposed by the Supreme Court of New South Wales. The appellant, Mandranis, was sentenced to a term of imprisonment for various criminal offences, with the sentencing judge subsequently ordering that upon his release, he serve an ICO. The appeal before the High Court was concerned with the manner in which the sentencing judge determined the appropriateness of the ICO.
The central legal issues in this case revolved around the interpretation of sections 66, 68, and 70 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Specifically, the court was tasked with determining whether the sentencing judge was required to first form an intention to make an ICO and then select a sentence to satisfy section 68, or if the process could be the reverse. Additionally, the court needed to decide if the judge was obliged to positively conclude that an ICO was more likely to address the offender's risk of reoffending than serving a sentence of full-time custody, as required by section 66. Finally, the court considered the effect of sections 70 and 71, which pertain to the timing of when an ICO can be made relative to the date on which the sentence is imposed.
The High Court held that the sentencing judge was not required to first form an intention to make an ICO before selecting a sentence, as the language of section 68 permitted either approach. The court found that section 66 does not mandate a positive conclusion that an ICO is more likely to address the offender's risk of reoffending than serving a sentence of full-time custody, but rather allows the judge to weigh the pros and cons of both options. Regarding sections 70 and 71, the court determined that an ICO can indeed be made where the sentence is fixed to commence at an earlier time than the date on which it is imposed, provided the order is made within the legal timeframes prescribed by the Act. The court's interpretation of these provisions clarified the process by which sentencing judges must consider and impose ICOs in criminal sentencing.