Stanley v Director of Public Prosecutions (NSW) & Anor
[2022] HCATrans 202
[2022] HCATrans 202
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S126 of 2022
B e t w e e n -
EMMA‑JANE STANLEY
Appellant
and
DIRECTOR OF PUBLIC PROSECUTIONS (NSW)
First Respondent
DISTRICT COURT OF NEW SOUTH WALES
Second Respondent
KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 15 NOVEMBER 2022, AT 10.00 AM
Copyright in the High Court of Australia
MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with my learned friends, MR T. QUILTER and MS C.E. O’NEILL. (instructed by Legal Aid NSW)
MS C.O. GLEESON: If the Court pleases, I appear for the first respondent with my learned friend, MS A. POUKCHANSKI. The second respondent, the District Court of New South Wales, has filed a submitting appearance and your Honours will find that behind tab 15 of the core appeal book. (instructed by Solicitor for Public Prosecutions (NSW))
KIEFEL CJ: The record will show that I am sitting remotely. Yes, Mr Game.
MR GAME: If the Court pleases. The Court should have our outline and I propose to speak by reference to that document. The first part of the outline, we are just setting the scene. So, the appellant received an aggregate sentence of three years with a non‑parole period of two in the Local Court. She appealed. That appeal is what is treated as a full rehearing under section 17 of the Crimes (Appeal and Review) Act. The judge effectively sentences again. So, for instance, those of your Honours who are not familiar with the peculiarities of New South Wales practice, there is something known as a Parker warning, when, for example, a judge is threatening the possibility of a higher sentence. So, there is even theoretical possibility – and does occur on occasions – that a higher sentence might be imposed.
There is no appeal from that decision – and that is a position of long standing. Judicial review remains available under section 69 of the Supreme Court Act. Again, just by way of background, section 69(3) expands the record – but that is not relevant for present purposes. It expands the record to pick up reasons so that if you do not have a privative clause you can get it “error of law” on the face of the record but you cannot get it “error of law” on the face of the record in this type of judicial review because of the existence of the privative clause, which is in section 176 of the District Court Act. The words of that:
No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.
I will not take you to this, but page 5 of our submissions, footnote 3, we give a brief history of this privative clause which has been in the legislation since, at least, 1836. That is kind of the context within which this appeal was brought and which the application was ‑ ‑ ‑
EDELMAN J: Mr Game, why does that exclude an error of law on the face of the record that is non‑jurisdictional?
MR GAME: That is how it has been treated. That is not a set thing; that is how it has been treated.
EDELMAN J: The literal terms of section 176 purport to exclude certiorari to remove, which, plainly, they cannot do.
MR GAME: Yes.
EDELMAN J: But there is a history of interpretation to read that provision as just excluding error of law on the face of the record as well as all appeals.
MR GAME: Yes. Well, that is the way it has been treated but there is – really, that is an assumption that is made in Kirk, because Kirk came from the New South Wales Industrial Court, and section 69(3) was assumed to work in that way in Kirk. But there is a difference. The difference is this. The privative clause in Kirk was the result of, shall I say, a series of amendments to that legislation which sought to make it tougher and tougher. There was a series of cases in this Court, like Solution 6 – Fish v Solution 6, Batterham – there were a series of cases and the privative clause got more and more extreme.
That is a different type of privative clause than this. But we had assumed – and it has been assumed in this case – that section 176 works in the same way, but that is not a settled issue. And if it was ‑ ‑ ‑
GAGELER J: When you say it is not settled, it is well settled ‑ ‑ ‑
MR GAME: It is not settled by Kirk.
GAGELER J: It is well settled within New South Wales jurisprudence.
MR GAME: It is accepted in New South Wales, yes. The whole of our argument is being premised on the assumption that error of law on the face the record will not get us there; that we have to show jurisdictional error. If we are wrong about that, then we would think we would have to recast our argument, but I decided not to argue with that, just because for this reason, that is quite hard in the cases to work out whether or not whether privative clauses have been construed in different ways; that is to say, when a privative clause is said to exclude everything except for jurisdictional error.
There does not seem to be case law that says that this privative clause is to be interpreted as in a different way than that privative clause, and that is the reason why I have not pursued that in this appeal. But that is the only reason. It is not something that I have not thought about, but that is the reason – and I apologise for this – for an explanation. So, that is setting the scene. It is a large scene, in a way.
EDELMAN J: Mr Game, can I just ask you one more background question about the scene. That is, as I understand it, the appellant was granted bail prior to the District Court hearing, and that bail then was no longer extended after the District Court decision. Has she remained in prison since then?
MR GAME: Yes. Say this application succeeded, and say – this is important, because of an argument about consequences. Say this application succeeded, then the orders in force that would remain would be the Local Court’s sentence, and the order releasing her to bail. If you ‑ ‑ ‑
GORDON J: Is that right? Would it just be the Local Court orders?
MR GAME: She would still be – the Local Court orders would remain in force ‑ ‑ ‑
GORDON J: Correct.
MR GAME: But she was released to bail, and we have assumed that she would be returned to bail on the same conditions.
GORDON J: You would need a bail order, so you would have to apply for bail, would you not?
MR GAME: I had thought otherwise, but it is probably correct, your Honour, because if the District Court order quashes it, then we will need to apply again. Yes. But the Local Court order would definitely remain in force. She would have an extant appeal in the District Court that would remain to be determined.
GORDON J: We are jumping at the end, but just so I am clear about consequences, it would be in lieu of the orders made by the Court of Appeal. You would set aside the orders of the District Court, because there are numerous of them – though they are in one document – and then the appeal to the District Court would be extant; would be determined according to the law court.
MR GAME: That is correct.
GORDON J: With the result that the lower court orders would remain in place.
MR GAME: That is correct, your Honour, yes. It is an additional complication, but there is no privative clause in the Local Court so, if you had a sentence like this – but there are ample rights of appeal such as we see here. Now, the second thing, by way of setting the scene is that it really was the only issue in this case, was whether or not that three-year aggregate sentence was to be served by way of an intensive correction order. The reference there is in our additional material, to the written submissions, but if I just add to that something that is coming up shortly, set up by Justice McCallum, it is in her judgement at paragraphs 180 to 181 and there is no need to go to it.
It is quite clear that section 66 was being addressed because there were submissions about community safety and rehabilitation by the advocate who was doing the case. So, that may be significant in one respect because Justice Leeming said that the issue was not even raised. But it was the only issue that was raised, and there were distinct submissions about community safety.
Now, I am going to take your Honours to the second part of the submissions, which concerns intensive correction orders and what happens when a judge imposes an intensive corrections order. So, if I could take your Honours to part A, volume 1, page 22. Now, part of what I am going to say is going to have to be commentary. So, if one looks, first, at section 5. Section 5 says that:
A court must not sentence an offender to imprisonment unless it is satisfied . . . that no penalty other than imprisonment is appropriate.
We see subsection (4) has a non-invalidity provision, and that was the first one that came into this Act, although there was one about parole and that came in 2000.
GLEESON J: There were about 13 of them in the Act as enacted.
MR GAME: Is it – today, your Honour?
GLEESON J: No, as enacted, there were about 13 ‑ ‑ ‑
MR GAME: Okay, sorry. Yes.
GLEESON J: ‑ ‑ ‑ and then they have waxed and waned and, I think, there are now about 19.
MR GAME: If your Honours just note that Part 4 applies, that is necessary for aggregate sentences, but it cannot apply, we would submit, in respect of non-parole periods because there is not a non-parole period in intensive ‑ ‑ ‑
GAGELER J: Mr – I am sorry, Mr Game.
MR GAME: So, if you look at subsection (5), it says:
Part 4 applies –
Part 4 is a large part of the legislation. What I am saying is it picks up various things, including non-parole periods, but that cannot be picked up because there are not non-parole periods in intensive correction orders. But it is necessary for things like aggregate sentences which are in section 53A. Now, if your Honours look at section ‑ ‑ ‑
GAGELER J: Mr Game, could I just ask you a question about subsection (4)?
MR GAME: Yes, your Honour.
GAGELER J: When it refers to “this section”, is it referring to the whole of the section or part of the section?
MR GAME: There is a disagreement in the Court of Appeal about that, but we accept that it applies to the whole section. However, the way in which it works would be much more important in respect of the giving of reasons, but we are not excluding the possibility that subsection (1), put in a particular case – and this is an example given by Justice McCallum. Say a judge said, I think a fine is appropriate, so – I have concluded a fine is appropriate, but (because I do not like you) I am going to send you to jail, we would say that would be jurisdictional error under section 5(1). Can I just say that I need to add to this, there is a limit to non‑invalidity clauses and Futuris gives that limit, a constitutional limit – Chapter III of the Constitution, section 75(v), Plaintiff 157 and Kirk in this particular instance – those are the limits that I am talking about, and Futuris recognises those limits.
GLEESON J: The example that you just gave would probably be an example of the judge acting in bad faith.
MR GAME: Yes, your Honour, that is an example. But in Futuris it was an example about a tax assessment effectively in bad faith. The fact that we would embrace further section 5(1), although the argument was not put in the same way, that was seen as a strong indicator against our argument that section 66(2) was jurisdictional in the relevant sense.
Now, if I come to section 7, I am going to have to say some of this by way of commentary because there are too many things to take you to all of them. But in 2010 intensive corrections orders were brought into the legislation. In 2010 periodic detention went, so they introduced intensive corrections orders, but they got rid of periodic detention. If I add to that, this legislation was amended quite substantially in 2017 and there was a good deal of emphasis in the second reading speech and the legislation to questions of rehabilitation and community safety, but the backdrop to it was that these intensive corrections orders were not being used, so the idea was to make them more effective.
But something else happened in 2017, which is this, that home detention, which was an alternative to imprisonment, and suspended sentences, both went. They were taken out. So, jurisdiction was limited, but jurisdiction was expanded in respect of intensive corrections orders. So, jurisdiction to impose an intensive corrections orders introduced in 2010, but intended to be given more teeth, if I could put it that way, in 2017.
I am not going to take you through it, but you have the 2017 amending Act. It is in volume 2, page 180. You also have – because we have added it to the materials – what the legislation looked like prior to the 2017 amendments. Now, if I just look at section 7 for the moment.
We say, in our submissions, that there is a three‑stage exercise, and it is a discrete exercise in the imposition of an intensive corrections order. We say it is a discrete exercise, and Justice McCallum observed that she thought that this was really where she had parted company with the four other members of the court.
But section 7 – so, you have got through section 5. You have concluded that no penalty other than imprisonment is appropriate. Section 7, you have to have sentenced the offender to imprisonment before you can get to an ICO. I will come to the limitations on it shortly. There is a curiosity about this, because you cannot work out what an intensive corrections order is unless you go to Part 5. In the definitions section, you will be told that an intensive corrections order is the thing that sits in section 7, but what you do know about an intensive corrections order is that it is a sentence of imprisonment, but it is to be served by way of intensive correction in the community.
GAGELER J: Mr Game, are there two orders? Is there the sentence of imprisonment – order one – and then an intensive corrections order – order two? Does it work like that?
MR GAME: No. There is ultimately just one order, which is that the sentence is to be served by way of intensive corrections. That is the way it has been treated, your Honour.
GLEESON J: But if you look at the, I think the 2010 legislation, there are provisions which say that certain breaches will not invalidate an intensive corrections order.
MR GAME: Yes. That is correct, your Honour. I was going to take you to those in a moment. There is a ‑ ‑ ‑
GORDON J: Dealing with intensive correction orders as this discrete exercise – as I read the respondents’ submissions, they agree that it comes after the term of imprisonment. There appears to be common ground about that aspect.
MR GAME: It is now common ground.
GORDON J: I accept now common ground. That is reinforced, is it, by the fact that the options for sentencing are the ones which deal with fines and non‑custodial sentences?
MR GAME: That is gone.
GORDON J: That exercise is gone, which is what is dealt with in Division 3 and Division 4 ‑ ‑ ‑
MR GAME: They include something called “community corrections orders” now, which is a different option.
GORDON J: It is a different option. It is common ground that we have now got this exercise that is to come after the term of imprisonment has been identified and imposed.
MR GAME: Yes. That is correct. That is referred to as the second step ‑ ‑ ‑
EDELMAN J: Whatever as a matter of form might be; the form in which the sentence is expressed, in substance there are two orders that are being made, in the same way as in substance if one were to order imprisonment and then a suspension of the imprisonment, there are two separate orders.
MR GAME: Yes, your Honour. Can I say one thing. Our oral outline is directed, we thought, to an argument that full‑time imprisonment – that our opponents were saying that full‑time imprisonment had been imposed and that this was just a default, what happened afterwards. But their oral submissions do not express it – I am not being critical. I am just saying our written document is written on the premise that we are addressing an argument that what has happened is a person has been sentenced to full‑time imprisonment and then what happens in respect of an ICO if you do not get it is that if you fail in that, the default is full‑time imprisonment.
We say that is not the exercise. We say the exercise becomes an exercise after the jurisdiction is limited in a particular way, whether you impose and ICO or whether you order that its terms of imprisonment be served by way of full‑time imprisonment. We say section 66 is pivotal in that, but I will come to that shortly.
EDELMAN J: It is common ground as well, is it not, that although the ICO decision, after the decision to impose a term of imprisonment, is binary in the sense, either you impose an ICO or you do not, it is still not a decision that is subject to correctness review. It is a decision that is evaluative.
MR GAME: Yes, we accept, your Honour. That does not gainsay us and, we say, our submission. You have to go through particular steps before you get to it. I will come to Part 5 shortly. But we see in subsection (4):
This section is subject to the provisions of Part 5.
which I will come to. If you just note – it does not matter, but the only thing that changed in section 7 in 2017 was that subsection (3) was brought into it about offenders under the age of 18. If we turn then to section 17B – this was all new in the 2017 legislation – and we see – the one I am going to take you to first is 17D, “Requirement for assessment report”:
The sentencing court must not make an intensive correction . . . unless –
And we see some particular things, but the ones I wanted to draw your attention to first were subsection (2), which says:
The sentencing court must not impose a home detention condition . . . unless it has obtained an assessment report relating to the imposition of such a condition –
What that means is, there needs to be an additional report, so there needs to be two reports but one that specifically addresses subsection (2). Subsection (3) is also significant from the perspective of our submission, which is you cannot request such a report:
unless it has imposed a sentence of imprisonment . . . for a specified term.
One of the reasons for all of this is to avoid what might be described as judicial juggling, which is changing the length of the sentence after you have found out what type of orders you are going to make. That is to say, I was going to impose eight months but now it is going to be an ICO, so I will make it two years. One of the reasons is to avoid that kind of problem. That is discussed in cases such as Zamagias – I will not take you to it, it is an unreported decision, but it is discussed in Wany and it is kind of the working case that the Court of Criminal Appeal is – so that is that.
GAGELER J: Wany must have been before the 2017 amendments.
MR GAME: No, Wany was recent. So, Wany was overturned in – anyway, very, very quickly, the Court was convened in this case to consider the correctness of Wany, and then in another case called Quinn, it was overturned before this decision got handed down. They all map in a very short period of time. Now, section 17 – so just a couple of other provisions here. Section 17I is a new one, obviously. We see that:
A relevant order is not invalidated by a failure to comply with this section.
They were about explanations and they were about reasons – and we see section 17J. But I am going to give your Honours – this is not about ICOs, but if we are just moving through it, I will not come back to it. If you look at section 22(4):
The failure of a court to comply with this section does not invalidate any sentence –
So that came in in 2000, and it is not just about reasons; that is about the discount for your plea. Then, if you look over on a provision that came in 2017 in other amending legislation, 25F says that:
The failure . . . to comply with this Division –
and that is a whole division about discount for early pleas:
failure . . . to comply . . . does not invalidate any sentence –
GLEESON J: And that legislation is really contemporaneous with the changes.
MR GAME: Yes, it is contemporaneous. It is just not precisely the same legislation. You could say this is legislation that gets visited over and over again. So, then can I just draw your Honours’ attention to one provision that you may not have observed. Section 101A is worth noting.
GORDON J: What was that section, Mr Game?
MR GAME: Section 101A. So, even though it does not invalidate the sentence, it does not mean you cannot about these things if you have an appeal, is all it was saying.
If we then go forwards to section 66 – actually, to Part 5. Now, Part 5 is described as “Sentencing procedures for intensive correction orders”. I am going to come back to section 66, but section 67, I would describe it as a limit on jurisdiction; that is to say, you cannot get an ICO for those kinds of crimes. Then, section 68 is a limit on jurisdiction. Two years for a single offence and three years if there is an aggregate sentence. Subsection (2) of 68 – so that is an example of whether you need to go back into Division 4, because section 53A deals with aggregate sentences.
GORDON J: Is it fair to identify that there are three limits on jurisdictions?
MR GAME: Three what?
GORDON J: Three limits on 67, 68, and 7(3); cannot apply to someone under the age of 18 years.
MR GAME: Yes. There is another one in section 69, which is you cannot impose one if somebody lives – is going to live outside the jurisdiction, unless it is an approved jurisdiction by regulation. If you look at section 72, this is where you find out what an intensive corrections – sorry, there is one other place, but it is not necessary for your Honours. The Crimes (Administration of Sentences) Act tells you when you breach these orders, so that kind of the tail end of them is defined in the context of how breach them – but that it is not necessary for current purposes.
For current purposes, we see the conditions. The conditions, we say, are actually part of the defining of jurisdiction, because, if you see the standard conditions, they must have those two things in them. This is actually telling you what sits inside an intensive corrections order. You will not find it anywhere else.
GORDON J: Can I ask you about that?
MR GAME: Yes, your Honour.
GORDON J: I had understood section 70 was, in effect, the critical provision. Have I misread that? Because what it tells you is that the terms of the ICO ‑ ‑ ‑
MR GAME: Yes, sorry. Yes, your Honour. Yes, I overlooked it, sorry.
GORDON J: It is a starting point, is it not?
MR GAME: It is a starting point, yes.
GORDON J: So, 70 tells us that you cannot do anything which is other than deal with the term of imprisonment.
MR GAME: That is correct. But the other thing is that it has to commence on the date on which it is made, as in section 70. You cannot backdate it, for example. You can backdate sentences, you cannot backdate an intensive corrections order.
GLEESON J: How does that work in practice?
MR GAME: Somebody on my left is going to answer that question. So, if you have been in custody, they would deduct it from the intensive corrections order, but otherwise it has to be imposed on the day. It is set in a case called Mandranis, which is our book of cases.
Now, if I come back to section 70 – so, section 73 is “Standard conditions” but section 73A, they are “Additional conditions”. You cannot have an intensive corrections order unless you have one of the things in section 73A. Section 73A is further – in the language I would like to use – defining jurisdiction, because it is saying you do not have just standard conditions, you have to have one of these things.
We see also that these non‑invalidity provisions in 73A(1B) – and this all 2017. Everything I am taking you to at the moment is in the 2017 amendments. I will come back to what it looked like before shortly, but if you look at these conditions, the first is “home detention”. So, take home detention, for example. We saw earlier that you needed an additional report and you needed the term of the sentence. Now you can impose a home condition. You must impose one of these things – and, in one way or another – although some of them are much more gentle, shall I say, in their effects – one way or another, they involve restraints on liberty. The most extreme one there, obviously, is home detention.
That is defining jurisdiction because that is saying, here is your intensive corrections order, you have got to serve – and you can make part of sentence under subsection (4) – the first six months of it must be served by home detention. So, not in the community for the first six months; at home. That is further defining jurisdiction. And if you do not have that, in our submission, you do not have an intensive corrections order.
So, there is also a provision for further conditions under section 73B. Section 73B says it must be consistent with a 73A order, so 73A is quite important there as well. But if I just – one other thing I neglected to mention, subsection (3) of 73A:
The sentencing court must not impose a home detention condition or community service work . . . unless an assessment report –
So, you have to have that before you impose. If we go back then, to section 66, which is the subject of this application ‑ ‑ ‑
GORDON J: Sorry, where did you get the six months from, Mr Game?
MR GAME: So, if you look at section 73A, it says:
(4)The sentencing court may limit the period during which an additional condition imposed . . . is in force.
So, you could say you will be subject – this intensive corrections order is for two years and you will be subject to a home detention condition for six months, and subsection (4) permits that.
GORDON J: So, the six months was an example?
MR GAME: It is just an example, yes, your Honour. So, if I go back to section 66 ‑ ‑ ‑
EDELMAN J: Just before you do – as I understand your submission, you have dealt with 67, 68, 69, 70, 72, 73, 73A as all being either jurisdictional or finding jurisdiction, but not 71. Would not 71 also be part of defining the jurisdiction?
MR GAME: Yes, it is, your Honour. Section 71 is also defining jurisdiction. We say that the how of the sentence is also as much jurisdictional as the length or other description of it.
EDELMAN J: Thank you.
GAGELER J: Mr Game, what is the consequence of a breach of the condition? Is that dealt with in the Crimes (Administration of Sentences) Act?
MR GAME: It is dealt with in the Crimes (Administration of Sentences) Act. I have not come prepared to tell you how that works, but we could give you a note on that, if that would assist.
GAGELER J: All I am interested in is the relationship between the sentence of imprisonment and the ICO. At some point, there must be a default back to the sentence of imprisonment in the event of a breach of a condition, I would assume.
MR GAME: Yes. We have not come prepared to deal with this, but we should have. So, the consequences can vary, but they can vary all the way to imprisonment. If it is a minor breach, it could be a warning. But the ultimate default is to a sentence of imprisonment. I think maybe if the parties gave you a joint note about those consequences – we could do that.
GAGELER J: The particular thing I am interested in: is it imprisonment under the original sentence of imprisonment, or is it a statutory consequence that flows from the breach of the condition?
MR GAME: Yes, just one moment. I cannot answer that question at the moment. I am sorry, your Honour.
KIEFEL CJ: Mr Game, perhaps if the parties could give a joint note within five working days?
MR GAME: Yes. I am sorry. I should have thought of it before and I apologise.
If we go back to section 66, the heading to this part is “Restrictions on power to make intensive correction orders”, but in nearly all of those provisions, we have seen things that actually define and limit jurisdiction. Then, section 66 – in New South Wales under the Interpretation Act that division heading is part of the material available for construction of a provision. But we say that Division 2 plainly does much more than involve restrictions on power. Section 66 is such a provision, we say.
Just going back, these are about relatively short sentences – two years, or three years, if it is an aggregate sentence – in circumstances where it is known that the people will be returned to the community in the not‑too‑distant future. Locking them up for a long time is not an option. That is not what is being talked about here. What is being thought about is community safety in the ‑ ‑ ‑
GLEESON J: Is this about whether a short period of imprisonment would do more harm than good?
MR GAME: That is right. Then, we go to:
Community safety must be the paramount consideration –
We say one cannot get away from the idea that this is fundamental. In fact, our submission is saying that it is the most important thing; it uses the words “the paramount consideration” and it is:
when the sentencing court is deciding –
So, we have somebody that has been sentenced to imprisonment. Is it going to be an intensive corrections order, or is it going to be full‑time imprisonment? They have a sentence – we have seen they have been sentenced to imprisonment. They have a sentence of a duration, if home detention is a possibility, but they have to have a sentence because of the limiting provisions we saw about three years or two years. Then, subsection (2) is deciding whether.
We say that section 66 is a mandatory provision. Section 66(1) is, and I am not sure that there is any argument about that. We say that section 66(1) cannot be – this is all new in 2017. It replaced section 67, which was in different terms, which did have a non‑invalidity provision in respect of one aspect about reasons, and we have given you that legislation. So, this is all new, in substance. The 2017 legislation is full of – as we have seen – things about what is thought to invalidate sentences and what is not. Section 66(2) says:
When considering community safety –
Section 66(2) feeds into section 66(1) when addressing the paramount consideration and it requires, in our submission, a discrete exercise, “is to assess”. It is not a default. It is a decision about one way or the other, whether making the order – which is the ICO – or serving the sentence by way of full‑time detention is more likely to address the offender’s risk of reoffending.
So that is a very explicit exercise. But, in our submission, it is a mistake to think that the provision is just about whether you get the ICO. It is about whether you get the ICO or whether you get the full‑time imprisonment. It is the two things, and that is quite important in our argument. It is saying which way do you go, and our argument is you cannot actually proceed to either the ICO or to the full‑time detention until you have made that assessment; you have to make that.
Also, the use of the words “is to assess”, you will find that language in other provisions such as back in provision 4B which is about ICOs – no, it is not in that one. That is another relevant provision to this. But section 66, when it says, “is to assess”, that is just a use of language, because it is still mandatory. It is just because it is referring back to section 66(1); “is to” are words of mandate just as much as “must”, in our submission.
GAGELER J: Mr Game, I am not sure why you need to go so far as to impugn or seek to impugn the sentence of imprisonment on your jurisdictional error argument. Would it not be enough for you to say that there is a jurisdictional error which impugns the decision not to grant an ICO?
MR GAME: It would be sufficient, but I am trying to make sure that this falls within the language of Kirk and Craig, is the reason why I am doing it this way, because that is my primary submission, is I do not need to go further than your Honour has just put to me.
GORDON J: Consistent with the argument you have just put, is the argument, to put it shortly and simply, to say that because of the language in the way in which you construe 66(1) and (2) in the context of the other provisions you have taken us to about jurisdiction, that there has been a misapprehension of the function to be undertaken in relation to, picking up on Justice Gageler’s question, in relation to this aspect?
MR GAME: Yes, your Honour.
GORDON J: Which you both accept, as I understand it, to be a discrete exercise?
MR GAME: Yes. So, yes, that is our primary case, your Honour. I am boxing at shadows. They are shadows that may or may not materialise, but anyway – you could say I am always boxing at shadows, but anyway. Subsection 66(3) is put against us and I would like to say something about that because – and it is put against us that how could it be that section 66(3) is mandatory and jurisdictional? It is not essential for our argument, but it is put against us that if that was right, then failing to observe some particular of, say, section 21A would be a breach. We do not say that. We say this. If a judge said, I am going to have regard to community safety and nothing else, then they would have ignored subsection (3), and they need to be mindful of it because what it is saying is general sentencing principles are still alive. So, in that sense ‑ ‑ ‑
STEWARD J: So, if there is a complete failure to address (3), there is also jurisdictional error.
MR GAME: That is a complete failure, yes.
STEWARD J: And this is a case, you say, of complete failure of (2)?
MR GAME: Address subsection (2). That is correct, your Honour.
STEWARD J: I understand.
GLEESON J: Are you saying that the relevant common law sentencing principles are reflected in ‑ ‑ ‑
MR GAME: Section 3A.
GLEESON J: Section 3A.
MR GAME: Yes, your Honour. But if I just gave you an example ‑ ‑ ‑
GLEESON J: Then, I am sorry, but you are required to consider 3A ‑ ‑ ‑
MR GAME: Yes, your Honour.
GLEESON J: ‑ ‑ ‑ but you referred to 21.
MR GAME: That is just an example, your Honour.
GLEESON J: Okay.
MR GAME: So, section 21A is an enormously long shopping list, it seems, that judges are supposed to have regard to. But it is unlikely that if you overlooked one of those that would be jurisdictional error. And that is what was put against this argument about subsection (3) of section 66 – but that is not what we are saying.
GLEESON J: So, you are not saying that the common law principles that are referred to in 66 points you to 21A?
MR GAME: That is right. We are not saying that. What we are saying is, you be mindful of the fact that the principles of sentencing, of common law – yes, your Honour. All I am saying is, you do not get into the minutiae, you do not get to jurisdictional error by showing that some common law principle has been failed to be observed. You get into jurisdictional error on subsection (3) if you have declined to have regard to that ‑ ‑ ‑
STEWARD J: At all.
MR GAME: At all, yes.
EDELMAN J: I mean, there may be other ways in which section 3 could give rise to jurisdictional error, but your submission, as I understand it, is essentially just to say, it depends on the circumstances, whether a jurisdictional error occurs.
MR GAME: That is correct, your Honour.
KIEFEL CJ: Mr Game, in answer to Justice Steward’s question, you said you agreed that a complete failure to undertake the exercise required amounts to jurisdictional error. I had understood your argument to be that the nature of the jurisdictional error here involved was that section 66 is conditioned on the exercise of the assessment. Are we talking about two different things?
MR GAME: No, your Honour. I was talking about section 66(2), and I was answering a question about section 66(3). But the way that you have just put the thing to me is how we do put our argument. We have endeavoured to bring our argument within what could be described as items (b) and (c) in the list in Craig. And (b) is the way you just put it to me, your Honour, and a short while ago Justice Gordon put it to me in a way that would fit within (c). But, if one looks at the way the analysis is done in Kirk, a very similar kind of landing point is reached. But our critical point in this is, if you do not do section 66(2), you cannot get to an ICO, but nor – we also say the add on is, nor can you get to the full‑time detention, because you have got to have done it – it is not a default. So, that is what I wanted to say about the statute. Now I wanted to take you to the passage in our submissions, paragraph 9 on page ‑ ‑ ‑
KIEFEL CJ: Just before you do, Mr Game, could I just understand, if you have got the assessment as the condition for the exercise of the power under section 66(2), is the overall question that is being addressed the risk of reoffending?
MR GAME: Yes, that is correct. So, community safety is a term of art that is only understood through subsection (2).
EDELMAN J: The risk of reoffending section 66(2) must be reoffending in relation to particular offences. It would not just be reoffending at large. So, for example, there may have been an assessment had one been undertaken at that level of granularity by the District Court judge that there was a very high risk of traffic reoffending by the appellant. But that is not the entirety of the question under section 66(2), is it?
MR GAME: No, I accept that, your Honour.
EDELMAN J: It is the risk of reoffending and the nature of the reoffending in relation to the risk to the community, or the safety of the community, that it would give rise to.
MR GAME: Yes, that risk of reoffending has to be understood in the context of community safety and it is all about whether it be in ICO or a full‑time detention is more likely to address it. So, if you look at our submissions at paragraph 3, the very last thing there says, Second Reading Speech at JBA 920. I am not going to take you to it, but that is very much the Minister said when he was speaking about these amendments. So, what I was going to do now is take ‑ ‑ ‑
GORDON J: Justice McCallum sets out the relevant aspects of those.
MR GAME: She does.
GORDON J: Do you rely upon those passages?
MR GAME: Yes. So, those aspects are in her judgment, between paragraphs 175 and 179. I will not take your Honours to them, but that is where this is set out.
So, where I am turning to now is to Judge Williams and what her Honour did. The reason I am doing this is particularly because it is put against us in the notice of contention that her Honour did, in fact, undertake the exercise. If you look at our submissions at paragraph 10, our submission is that there is a decisive answer to this in Justice Beech‑Jones’ judgment at paragraphs 190 to 192, set out at appeal book 157 to 159. But there is also analysis to similar effect in Justice McCallum’s judgment as set out there and in the President’s judgment, but I will not take you to those. But, we say, that, particularly, Justice Beech‑Jones’ analysis is compelling.
Bearing in mind that the section 66(2) is a forward‑looking assessment about (a) or (b); more likely to address. In their hand‑up today, the Crown says, the end of the judgment says that general deterrence outweighed subjective circumstances, and that is what the judge found. She did not find that. But that is not the exercise that is mandated by subsection (2).
Subsection (2) requires a forward‑looking assessment. As Justice Beech‑Jones said, really the judge had failed to begin on that, which would involve – as he put it – “whether the applicant” – or the appellant here – “was a dedicated gun runner, or” someone who by mishap, had been landed with some other peoples’ guns in a very unfortunate circumstance. If I just come back to ‑ ‑ ‑
EDELMAN J: In that respect, the report contains something of a gap, does it not? I mean, the report assesses a “medium risk”, but that seems to be a medium risk of any type of offending, not the gun‑running type of offending.
MR GAME: No, that is right. If you look, for example, at page 72 – and this is not a specific addressing of the question – but ‑ ‑ ‑
GORDON J: This is in the reasons of Judge ‑ ‑ ‑
MR GAME: In the reasons of Justice Beech‑Jones. So, if you look at page 72, starting at line 12:
matters which . . . point to positive prospects of rehabilitation –
there are “some entries”:
criminal history which is modest and in my view another positive indication towards good prospects of rehabilitation.
The reason I mention that is that even though there was a report that had some qualifications; if you were asking yourself the section 66(2) question, you would think that that would put you in fairly good stead. I am not saying that, I am definitely not saying that that is the determination. But all one gets at the end of this – there is another passage that, in Justice Bell’s judgment; I will not take you to Justice Bell’s judgement but in his judgment at paragraph 9 he referred to this passage at the bottom of 74 as being the thing that the respondent identified below as being one that indicated that the assessment had been made, and he rejected that.
GORDON J: You have deal with the last line of 74 and 75 and the top of 76, do you not?
MR GAME: Yes, your Honour, but that is about the firearms; it is about the firearms in the past tense. It still does not involve any assessment about the future. So, then ‑ ‑ ‑
KIEFEL CJ: Mr Game, I think one of the matters put against you in relation to the notice of contention is that the whole purpose of the appeal to the District Court; the review undertaken by the District Court was the making of an ICO.
MR GAME: That is put against us, your Honour, but the whole question comes down to whether or not any assessment was made under section 66(2). We say you will not find that anywhere here. The other passage that particular reliance is placed on is at the bottom of page 75. Her Honour says:
In my view community safety is of paramount consideration.
It is not her Honour’s view, it is a matter of statutory obligation. Then she says:
There are a substantial number of firearms. The firearms in my view pose a significant risk to the people of Dubbo.
It was argued by the respondent in the court below that that meant that the offence was too serious for there to be an ICO, and we say it does not say that. But nor in any sense is that an assessment about whether or not an ICO or full‑time detention is more likely to address her risk of reoffending. Your Honours will have seen also that she had a quite strong subjective case that would have had to be brought to account on that.
If I just might – I was not going to take it to you specifically – but if I just might show you what Justice Beech‑Jones had to say about this, at appeal book 157. We see paragraph 190, he addresses it. He says:
the analysis never got to that point –
that is to say, of making the assessment:
never travelled beyond a brief reference to the contents of the Sentencing Assessment Report . . . “positive indicat[ors] towards –
In the context of evidence given:
I didn’t even know they were there when I’d realised they were there . . . I said ‘Get them out of my house . . .
. . .
This explanation for the offences was not addressed in the sentencing judge’s reasons. In the context of a consideration of “community safety” –
of the kind of assessment required, you would expect – here, I am paraphrasing – you would expect it to be done. Section 62 would involve a:
resolution of that issue –
Other than what he describes as:
“positive indications towards good prospects of rehabilitation.”
Then, he continues on in the following paragraph, and he comes to the conclusion:
as I have explained, in the context of this case, the conclusion that the assessment was not undertaken is unavoidable.
And that is our case; that that is correct.
GORDON J: Where is that passage, Mr Game?
MR GAME: That at the bottom of paragraph 192, getting to the top of page 159.
GORDON J: Do you adopt that – there are sort of two limbs, are there not, to that sort of argument? One is absence of reference and the second is that the consequence is so odd on the facts that one compels the inference that it was not taken into account.
MR GAME: Yes, your Honour.
GORDON J: Do you adopt both?
MR GAME: I do adopt that, yes.
EDELMAN J: One sees that in, I think it is in President Bell’s reasons, when he speaks of the very strong subjective factors. The stronger the case is – and the stronger the case appears to be here, the more likely one can draw the inference that the community safety in a forward‑looking manner just has not been addressed.
MR GAME: Yes. Each of the reasons of Justice McCallum and Justice Bell and Justice Beech‑Jones are kind of helpful in thinking about why it was not done. I will put Justice Beech‑Jones’ reasons at the centre of what I put, but we do adopt what the other two judges had to say. We have identified or sought to identify passages that support our opponents but, as I say, in the document – the three‑page document – this is page 3 of the three‑page document – they talk they talk about:
In ultimately determining the question concluded that specific and general deterrence outweighed the appellant’s subjective case –
But that is not the exercise made out at section 66(2). So, we say that we have answered the notice of contention. Now I wanted to just make some general comments about jurisdictional error, and I am really going to make them fairly briefly and at a fairly general level. The first thing is the use of the negative definition in Craig and one can see that at page 108 – I will come to Craig in a minute. It is in Justice Bell’s judgment at paragraph 49 on page 108. We see the reference to:
“‘entrusted with authority to identify, formulate and determine’ relevant issues –
Now, that is not a definition of jurisdictional error. But the point of departure is when it says:
“not ordinarily . . . constitute jurisdictional error”.
His Honour, at paragraph 50, says, well, that is maybe because that consideration was “tainted by denial of procedural fairness”. But I think the point is actually somewhat different, which is it all depends. They probably will not be jurisdictional error if that is what you are engaged in because you are inside the sentencing exercise. But we say that is not this kind of case. It was not intended as a definition, but nor was the reservation a reservation concerned with things like procedural fairness because they are not identifying, formulating or determining relevant issues. So, we say that you will not get to what jurisdictional error is by adopting what is described in Craig.
If I could just take your Honours to Craig, which is in volume 3. You will see the critical part in respect of jurisdictional error at page 177, at the bottom of that page, what has been called the (a), (b) and (c), which is the “if for example”, and then the “similarly” is (b), and then the (c) is “misconstrues”. We have been endeavouring to bring our case taxonomically, although it is said that one does not need – it is not a taxonomy – but taxonomically within (b) and (c). So, then the passage that is being referred to as answering the case against us is actually at page 180:
Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute –
The reason it would not ordinarily is because, as I say – it is because ordinarily you will be within jurisdiction; you will be inside the sentencing exercise, and we accept that there is a distinction and a clear distinction between – it is not always clear. It does involve evaluative judgments, but we say that we clearly fall on the other side. But you will not get the answer to whether something is jurisdictional by simply applying yourself to those words, is our point.
GORDON J: Does that not just compel you back to where you started on proper construction of the statute?
MR GAME: That is right, your Honour. The second thing is this, that to do it in that way is kind of contrary to the statutory intention when you are actually looking at how the statute is constructed, in the way in which I have gone through it.
GAGELER J: Well, Mr Game, if you looked at section 66(3), you will see there that the sentencing court must consider, amongst other things, “relevant common law sentencing principles”. If the court misunderstood a common law sentencing principle, would that fall within the sort of scenario that is being referred to at page 179 to 180?
MR GAME: It might be a difficult question, but the way I have tried to frame sub-section 3 is that the jurisdictional area is at a level of, I would say, abstraction, which is an appreciation that you are obliged to apply those principles. An error, inter section, might not be jurisdictional error but it might depend on the gravity of the error. So, the answer to your question is often enough it will not be jurisdictional error. But I would not preclude from all possibility that it could amount, particularly, say, if it was done in say, bad faith or something like that, so I am not ‑ ‑ ‑
GAGELER J: Well, bad faith you could really put to one side.
MR GAME: Or you could do it another way, in a different way.
GAGELER J: Yes.
MR GAME: So then, I am really at this moment, on top of page 3 trying to just deal with some of the ideas about which this case was dealt. Now, in ‑ ‑ ‑
EDELMAN J: Can I just understand, your submission is really in the alternative, is it not, that your primary submission is that section 66(1) and (2) are a condition upon jurisdiction that condition was not fulfilled.
MR GAME: That is correct.
EDELMAN J: And your alternative submission is that if, in some way, that condition was met, it is the way it was met involved a misunderstanding or misapplication of the function that 66(1) and (2) required?
MR GAME: Yes, and that the summary that the Crown is putting up of the exercise is in fact a demonstration of the error and we call that the third of those three errors in the taxonomy. So, yes, we distinctly put our case in those two different ways.
Still on paragraph 12 of our submissions, if one describes jurisdiction as jurisdiction to determine a sentence appeal, then you have got nothing in your hand, you have only got, shall I say, jurisdiction of the Federal Court to deal with cartel conduct, but no subject matter other than the subject of an appeal. And you have to have regard to the jurisdictional given in . . . . . and its subject matter. And I kind of characterise this as a declining of jurisdiction. If you say that is what the jurisdiction is, then you are washing your hands of the details.
Similarly, both Justice Leeming and Justice Basten referred to this as all part of an “instinctive synthesis”. But these steps are not just part of an instinctive synthesis, and we have seen how that works. The analogy with section 44B, I think it is, which is about standard non‑parole periods, is of quite a different order. So that is what we say about those, and I am not going to dwell on those further.
In paragraph 13 we are looking more closely at the errors identified in (b) and (c), and I just wanted in this regard to take your Honours to Kirk and just to take your Honours to Kirk for this reason – that it is an instructive exercise in looking at how errors are described as jurisdictional. Now, what Kirk is concerned with is jurisdiction in respect of the making of an offence and the proving of an offence. What jurisdiction we are concerned with here is the imposition of a sentence, but it is still jurisdictional in the same way – I say in the same way. So, paragraph 74 is where I wanted to take you to, on page 574. So, what is being said there is this:
The first of the errors –
So, the first of the errors is the failure to particularise and the failure to appreciate that section 53, which is about reasonable precautions, had work to do. And then it is said:
Misconstruction of s 15 . . . led –
At the bottom:
to make orders . . . where it had no power to do so.
And then it says:
It had no power to that because no particular act . . . at any point –
Now, that is bringing it, I think, within the (c) category of them. But the thing is this, that when one is describing an offence, the elements of the offence are kind of jurisdictional. If you describe the offence as something less than the sub‑content of the offence, you have not got to the jurisdiction, and that is what they are really saying here. You have not got to it because you do not have it particularised and you have not brought to bear the fact that section 53 takes away its character as an absolute offence. And then it goes on. It says ‑ ‑ ‑
GORDON J: So, paragraph 75 puts it in the alternative.
MR GAME: In the alternative. Paragraph 75 is another way of putting it. So, 75 is saying it was not just that but an error about the limits of its functions or powers. So, again, I am really just taking you to those to show how the exercise works. There it is working in respect of defining a crime and here it is working, in our submissions, in respect of how you get to a particular sentence.
Then, paragraph 76 is worth noting. So, in paragraph 76 – but one thing about Kirk is that although it became it large constitutional case, it started out all about whether not jurisdictional error was correctly identified or not in the Court of Appeal – and section 76 was a newcomer during the course of the appeal because what happened was, the prosecution called the defendant as a witness – the individual defendant against the company of which he, I think, was the sole director, anyway. So, that is what 76 is about – it is saying, in addition – so, if you want to try someone, you have to try them according to the laws of evidence.
If you put those laws of evidence to one side, you have not exercised your jurisdiction because you have found them guilty without applying that process. It is not just any old error of laws of evidence, but it is one as fundamental as that and that is the point that is being made in 76. So, what we say is that Kirk is a good way of seeing how it works in a different context and it can be seen how it has got an analogy, in our submission, with this case.
So then, just some further points. At paragraph 14, in Justice Beech‑Jones’ judgment, it was said that the decision was not determinative. We say that is not the question, but in any event, materiality – at least since Hossain and, probably, well before that – I think, Ex parte Aala or Lam – I cannot remember which – but materiality is an element. Materiality is an element of jurisdictional error. It is not an add‑on. It is not as thought you have got jurisdictional error and materiality. You need materiality before you get to jurisdictional error. We say that that does not work – that argument of Justice Beech‑Jones.
Then, finally, on the consequences – and this featured quite – it is not finally, almost finally – on consequences, it is put against us in the court below by three of the judges, but, shall I say, fervently resisted by Justice Beech‑Jones, that consequences would mean that people who were running around subject to invalid – or not running around – subject to invalid sentences. We say that that simply would not happen. As in this case, you would still have the Local Court order in place. But we also say it is a large – sure, an inferior court’s decision may be invalid when set aside but it is not invalid until it is set aside.
EDELMAN J: It may be that in no case would there be complete invalidity of a sentence if the ICO order is seen as a separate decision from the decision in relation to the underlying sentence of imprisonment.
MR GAME: Yes, I had not thought of that. But all of this is turning the whole subject on its head, because it would be the consequence of there being no appeal provision – it is not because of the privative clause. If I can explain – so, in the local – this legislation speaks to Local Court, to the underlying – at a Local Court there is no privative clause, but there are abundant appeal rights. One could see if there was a problem – we have got an inferior court, a Local Court. The problem would exist, but the problem has got nothing to do with the existence of a privative clause, they are not connected. So, the idea that the quality of judgment about how you read the privative clause and jurisdictional error is not really connected to this consequences argument for the reason I have given.
But in any event, in the Local Court, the problem is never going to arise, because you have got full rights of appeal to have the thing reheard, and you have got rights of appeal if you want to take them to the Supreme Court on a much more limited review. So, there also used to be things called statutory prohibition in the Local Court, which have gone with modern legislation – but they were provisions that were – they were provisions that dealt with appeals from magistrates, and they go back a long way – it is not a problem.
GLEESON J: Mr Game, there is an argument put at the end of paragraph 6 of the respondents’ outline of oral submissions, which seems to put a slightly different floodgates problem.
MR GAME: Yes, but the idea that there is no – that is true. But the counterfactual is that with section 66(2), a failure to address is not jurisdictional. Then, you have kind of got nothing. That is to say, if you talk about the Local Court – sorry, something I mentioned on special leave application that I should mention is that this jurisdiction we are talking about is not restricted to ICOs being appealed. But it is a very large jurisdiction – there are about 5000 of these appeals every year to the District Court. One is talking about an island of immunity of major proportions if really important decisions of the kind in section 66 are seen as errors of law, but not seen as being jurisdictional.
GORDON J: Is it right to say that, in response to that last line in paragraph 6, it is right that there are sentence appeals from the Local Court, and that these provisions apply. But if you are right and your construction of the ICO legislation in the context of section 66 as being a separate exercise in the sentencing, and the imposition of the imprisonment, then the issues do not arise, do they, in relation to the other appeal rights?
MR GAME: That is correct. This is really all about the discrete exercise involved with ICOs.
EDELMAN J: The other sentencing questions may be governed by the no invalidity clause anyway.
MR GAME: Yes. Sorry, there is one other ‑ ‑ ‑
KIEFEL CJ: I see the time, Mr Game. The Court might take its morning adjournment.
MR GAME: Certainly, your Honour.
KIEFEL CJ: The Court will adjourn for 15 minutes.
AT 11.17 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.33 AM:
MR GAME: If the Court pleases. I had almost finished. I am really at number 16 on page 3. What we say is that the question raised in this case about jurisdictional error can be resolved in a fairly orderly way by application of principles of statutory construction and application of Craig and Kirk to them, but the broader world cannot be ignored.
There are qualities of assessment involved in particular cases. One has to bear in mind that these things are not subject to appeal. You have only got judicial review. You only get into section 73 of the Constitution through the constitutionally preserved ability to seek judicial review according to Kirk. Hickman kind of principles have been qualified by Plaintiff S157 and there are limits to things that courts can do. This case does not really necessarily need to resort to any of that, but that is the background to it.
If our opponents are correct, then we have got important errors of law, even on their construction – except for their last bit about exercising – but, really, on their construction, even mandatory provisions not subject to any form of judicial scrutiny in a very large jurisdiction – that is what sits behind it.
GAGELER J: Mr Game, we all know that just because something is mandatory does not necessarily make it jurisdictional.
MR GAME: Of course.
GAGELER J: One of the themes in the judgments in the majority of the Court of Appeal seems to be the incongruity of looking first to the relationship between section 5(1) and section 5(4) concerning the ordering of a sentence of imprisonment, and then treating these provisions about ICOs as jurisdictional. Do you have a reason why we should be reading these mandatory provisions as jurisdictional?
MR GAME: Do I have a reason why they should be? My reason why they should be read as jurisdictional is because the provisions I have taken you to, in large part, are about defining the jurisdiction to impose intensive correction orders. That was why I took you through those. They are defining the jurisdiction because it is telling you what the thing is, how it is done – say, a home detention order; that is jurisdiction – and then section 66 is telling you, you have to do this before you get there. That is about powers with respect to the exercise of jurisdiction. That falls, in our submission, squarely inside Kirk. That is how we put it.
KIEFEL CJ: Mr Game, on another view, though, the premise for section 66 is notwithstanding the sentence of imprisonment, you can consider making an ICO, and then (1), (2) and (3) then say what you have to take into account in determining whether to make an ICO. On one view, it is part of a process of that aspect of sentencing, whether an ICO or not.
MR GAME: But, your Honour, we say that section 66 – and that is why we put the argument this way – is about whether it is the one thing or the other. It is not predetermined and it is not a default. Sure, a sentence of imprisonment had been imposed, but whether it is full‑time depends on this assessment.
GAGELER J: But that is the point of Justice Beech‑Jones saying that the assessment is not determinative. He says it is something that goes into the mix. You are reading subsection (2) perhaps in a more prescriptive way than has been the interpretation in the Court of Appeal.
MR GAME: But, your Honour, we say section 66(2) is not just something that goes into the mix. Sure, you have to have regard to other things, but you cannot get to either an ICO or to full‑time imprisonment unless you have done this exercise. And that is what the section says, in terms, in our submission.
KIEFEL CJ: But it is directing the sentencing judge to take into account the risk of reoffending in relation to the paramount consideration of community safety. That is what it is doing.
MR GAME: Yes, your Honour, but what we say is that you need to undertake this assessment before you get to what Justice Gageler has just referred to as “the mix”. You have to do this before.
STEWARD J: Your point, I think, is that errors in the making of the assessment may very well be part of the process and thus immune. But your point is, I think, that an error there where no assessment at all has been made is an error of a different quality.
MR GAME: That is correct. That is our argument, your Honour.
STEWARD J: I understand.
MR GAME: Unless there are any other things, those are our submissions, if the Court pleases.
GLEESON J: I am sorry, I did have a question. I was wondering if the reason, or one of the justifications, for a provision like section 5(4) was to avoid the risk of false imprisonment and whether that is right, and if that is right, whether that differentiates provisions like, say, sections 5 or 22 from 66.
MR GAME: I am not sure I am answering your Honour’s question, because I do not think it is out of the question that an issue of that kind could be relevant. What one sees is that these non‑invalidity provisions are used in different senses and in different contexts in this legislation, and the legislature has clearly thought about it. Not only have they thought about it, they continue to think about it in amending legislation.
GLEESON J: Yes.
MR GAME: At an absolute bare minimum, that can be seen as them defining jurisdiction – or limiting and defining jurisdiction in the context of the mindfulness of the issue of invalidity. But invalidity, in practice, by far the largest work that it will do will be in these District Court appeals where there is no judicial review. We would add to what we have said, which is that the legislature must have been mindful of the fact that there is this large jurisdiction where there is no appeal, there is only probative relief.
Those are our submissions, if the Court pleases.
KIEFEL CJ: Yes. Thank you, Mr Game. Ms Gleeson.
MS GLEESON: Your Honours have my outline of oral submissions I filed this morning. I will address your Honours by reference to that document, and in paragraph (1), I do not propose to take your Honours to a number of the judgments of this Court, which are cited in paragraph 6 of our written submissions, only to make the point that when adjudging this exercise – and, in my respectful submission, it is critical in construing section 66 to look at the ultimate question that is to be determined when deciding whether or not an error is jurisdictional in nature, is whether or not Parliament had the intention in enacting that section to invalidate any sentence that was passed when there was non‑compliance with the statutory direction.
We say that matters which are important in approaching that task of statutory construction directed at that ultimate question involves addressing the text, but also context and purpose. The judgment of your Honour Chief Justice Kiefel and Justice Keane in A2 addresses the point that that is a matter which should be taken into account first, so I am going to address that matter first.
There are a number of matters that I would like to address on that topic. The first – and it touches on a number of the matters that Mr Game has gone to – is the nature of the task that is undertaken by a court when making a decision whether to make an ICO by reference to section 66. The next is the place of the ICO regime in the overall sentencing exercise to be undertaken by the Court in compliance with the Crimes (Sentencing Procedure) Act. The third is the broader context of how the legislature has determined that appeals will lie from the District Court – that is the appeal privative clause point – and then there is, finally, the purpose of section 66. I will make some reference to the text of the provisions, but then I will come in detail to the text of the provisions and how the Director says that they operate.
Going to the first question – the nature of the task to be undertaken by the court – what is important, in my respectful submission, is that the distinction that is drawn by the majority in Craig between a statutory conferral of decision‑making authority on a court, on the one hand, and statutory conferral of decision‑making authority on a personal body other than the court remains significant, and it is why it attained significance, in particular, in the judgment of President Bell, as his Honour then was.
Your Honours recently in Katoa v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs – Justices Gordon, Edelman and Steward made reference to that distinction still being an operative distinction in respect of decisions of the Federal Court in relation to extensions of time. We say that in relation to a similar evaluative process, that distinction is also of significance here. In particular, because of some of the matters that my learned friend Mr Game touched on as to the nature of the reasoning process that is classically undertaken by a sentencing court when determining any order for sentence that is available on the legislation when sentencing an offender for a criminal offence.
In this case, we are looking at a very narrow concession of an order that is made at the very end of the sentencing process when the court has come to the decision that no sentence:
other than imprisonment is appropriate.
But the various principles that are to be applied in getting to that process are all the same processes that would be undertaken, firstly, in coming to the section 5 question – namely, whether or not a sentence of imprisonment is the only available sentence – but also in weighing up, in coming to the term of that sentence, all of the subjective and objective features of the offending and the offender and applying the relevant sentencing principles that are encapsulated in section 3A to come to the ultimate decision about the appropriate sentence.
EDELMAN J: Do you accept that there are – in law, if not in practice – two distinct decisions that are involved? A decision to impose a sentence of imprisonment and a separate decision as to whether an intensive correction order should be made.
MS GLEESON: We do, your Honour, but we do not accept that the ultimate outcome of that separate bifurcated process results in anything but a single sentence. I will come to that. Coming back to the relationship between the task that I have just described and the description in Craig of the reasoning process that is undertaken by the Court, and, in particular, the majority in Craig, 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 or reliance . . . upon some irrelevant matter –
which does not arise here; that that:
will not ordinarily involve jurisdictional error.”
That was a matter of some interest in the decisions of his Honour Justice Bell as to what “not ordinarily” means when determining whether or not there will ever be a jurisdictional error from a failure to take into account a mandatory consideration.
There is, obviously, the consequence that was referred to by President Bell, and that is matters such as denial of procedural fairness. There would also be such matters as bias, irrationality or unreasonableness in the Li sense, but, significantly, we say, that the ultimate outcome of what might “not ordinarily” be is whether or not that mandatory consideration is properly then characterised as a condition of jurisdiction.
There is some circulatory in that approach but, in my respectful submission, it is the correct approach because it takes the Court back to construing the provision that imposes the mandatory consideration and directs the Court’s attention to whether or not, properly construed, that provision, in its context and in its text, is necessarily a condition on jurisdiction. It means, in my respectful submission, that the question in relation to misapprehension of function falls away to an extent because of the fact that there would not be a misapprehension of the task undertaken by section 66(2) in the manner that the error is expressed in this case, because the way that the error is expressed in this case is that it was not done at all.
There is no misconstruction of the section; it is simply not taking the matter into account so that the relevant jurisdictional error that should occupy the attention of this Court is the second category there identified in Kirk – namely, a failure to take into account a consideration that is a condition of jurisdiction.
GLEESON J: Do you accept that the relevant function is the function of determining whether or not to make an intensive corrections order?
MS GLEESON: I do, your Honour. It is a function that is, to a certain extent, parasitic on the decisions that have already been made by the Court in determining that a sentence of imprisonment is the only appropriate sentence, in that all of the considerations that are to be weighed in the balance in making that decision and in sentencing the offender so that the subjective case of the offender is taken into account, as against the objective seriousness and the relevant sentencing principles that attract have already been undertaken. I then recontextualise through the prism of section 66 so that a determination can be made as to what is the most appropriate way for that sentence of imprisonment to be served.
GORDON J: Just so I am clear on your answer to that, you accept that it is this two‑stage process and you have just accepted, as I understand it, the relevant functions to determine whether or not to make the ICO.
MS GLEESON: Yes.
GORDON J: And in characterising it, as I understood the way Mr Game put it, if the function is a function prescribed in the way – and I know you may be coming to this at end – conditioned in the way it is conditioned, and it has not been done at all, is that not a mischaracterisation of the function itself? It may be at the level of generality you look at it.
MS GLEESON: No, your Honour, for this reason – and I will come to this at some length – it is because the consideration that is mandated in section 66(2) is not a consideration that is ultimately determinative either way of whether not an intensive corrections order should be made. It is simply an analytical process that focuses the mind of the sentencing judge on the considerations that are relevant to whether or not an ICO is a benefit.
What section 66(3) does, in our respectful submission, is then enable all of the other considerations that have already gone into the determination of the appropriateness of a sentence of imprisonment to be weighed in a balancing exercise against the decision that was made as to whether or not prospects of reoffending are better addressed by imprisonment or service in the community, but does then another sentence either reinforce that conclusion or detract from it. So that there would not be a misconception of the function by a failure to undertake that process if those other considerations ultimately outweighed the ultimate decision that was made.
EDELMAN J: Ms Gleeson, just so I can understand the submission, I take it you accept, from what you said earlier, that section 66 could be the subject of – or a decision under section 66 could be the subject of judicial review for bias, procedural unfairness or Li‑type unreasonableness.
MS GLEESON: Yes.
EDELMAN J: Or even if there were a condition upon jurisdiction, if that condition had not been met; but your submission is that subsection (1) or subsection (2) do not include the relevant condition?
MS GLEESON: Or subsection (3).
EDELMAN J: Would it not be relevant to ask that if one could review a decision under section 66 as having been made manifestly unreasonably for failing to take into account the paramount consideration, why, as a matter of statutory interpretation, would one then not say that the paramount consideration was intended to be a condition on jurisdiction? In other words, if I put it negatively, would there ever be a circumstance when a complete failure to take into account the paramount or supreme consideration could ever be reasonable?
MS GLEESON: In my respectful submission, there is any number of reasons why that would be reasonable, and they would largely go into the fact that it is a broad discretion of sentencing to take into account each of the relevant principles that are attracted by the factual situation of the offending and the offender.
That is a matter that is classically – as a matter of sentencing law – within the province of the judge’s own evaluative process, and that is picking up the Markarian considerations of instinctive synthesis. Because of the instinctive synthesis, there are any number of matters that a judge might reasonably see as significant to the ultimate order that should be made as to whether or not to grant an ICO.
It would only be – to take a good example – the example that my learned friend Mr Game made of (a), I am satisfied of this matter, or, I have not taken into account this matter because I do not like the offender, or because I do not like the type of offending that the offender has engaged in. That would be a matter which was unreasonable. Because of the nature of the sentencing task generally being one that is largely one that enables the sentencing judge to identify and formulate his or her own priorities as to what are the relevant principles of the sentencing that are attracted by the facts of the offending and the offender, any number of occasions on which the particular exercise in section 66(2) is not done might well produce a sentence that is just as reasonable as if that process had been undertaken, because the ultimate outcome would be the same, because largely, we say, the section 66(3) considerations would always drive the result towards a decision that is ordinarily no ICO granted.
If I can then move to the next consideration, which is the place of section 66 in the sentencing exercise, we say that it is of significance – and in section 7(1), there are the words:
A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order –
It demonstrates two things. The first thing it demonstrates is that my learned friend and I are not in dispute about the fact that the process that is undertaken after there is some satisfaction that the various entitling conditions apply to that sentence, there being a sentence of imprisonment having taken place, the exercise that then follows is to whether or not there should be service of the sentence by an ICO or not is a discrete process. Secondly, that the place of ‑ ‑ ‑
STEWARD J: Just before you go on, could I just ask, then, for the purposes of 5(1), when being satisfied that the penalty of imprisonment is appropriate, that is an inquiry that is limited at that stage to incarceration, being appropriate?
MS GLEESON: In my respectful submission, yes. And that is because firstly, that is the words of the section that are used. When the ordinary reader would read a sentence of imprisonment, that would commonly be understood as a reference to full‑time detention.
STEWARD J: And when it refers to all possible alternatives, that would not include an ICO?
MS GLEESON: No, because of the way in which the Crimes (Sentencing Procedure) Act is structured, so that there is a bright‑line division between sentences of imprisonment with some non‑custodial alternatives and then all of the other non‑custodial elements of the sentencing process.
STEWARD J: All right. Thank you.
GORDON J: So, just to follow, I put to Mr Game that would not pick up “non‑custodial” in Division 3 or “fines” in Division 4 are part of the section 5 alternatives, and not section 7.
MS GLEESON: That is so, your Honour. Yes. They are all discounted as part of coming to the ultimate decision in section 5(1).
GORDON J: Thank you.
MS GLEESON: Coming then to the way in which the Court then undertakes the sentencing exercise – and it is one that has arisen for alternatives to full‑time detention for some years – is that there is a three‑step process which is mandated by decisions such as Zamagias – which I will take your Honours to, notwithstanding that it is an unreported decision. It has been collected as, and is recognised as, the manner in which, once one has come to a sentence of imprisonment, how a sentencing judge then goes about addressing any alternatives to the service of that sentence by custodial detention.
If your Honours can go to the joint bundle of authorities, and it is behind tab 24. This is a case of some vintage and from a time when suspended sentences were still an option when a sentence of imprisonment had been imposed. If your Honours can go to page 859 of the joint bundle numbering, starting with paragraph 23, the first matter of significance is in the second sentence of paragraph 23:
Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt.
And then refers to the principles that seriousness and punishment is the object in coming to the determination of whether or not imprisonment is appropriate. Then, moving down to paragraph 25, there is then your Honour Justice Gordon’s question of whether or not any alternatives to imprisonment are appropriate. Then, from about the fourth line of that paragraph, it states that:
It should be noted that at this stage in the process the only consideration is whether a sentence of imprisonment should be imposed and not whether that sentence should be suspended.
And the explanation was given in the final sentence:
That is because a sentence cannot be suspended until it has been imposed: it is the execution of the sentence that is suspended, not its imposition.
That is a matter of form that reinforces my point that there is a sentence that has already been imposed at the time that the Court embarks on the consideration whether that sentence be served by way of an intensive corrections order. There has to have been a sentence for there to then be some direction as to how it is to be served.
KIEFEL CJ: Ms Gleeson, as a matter of practice, does the sentencing court or a judge usually state that a sentence of imprisonment is imposed, but that that consideration will then turn to an ICO?
MS GLEESON: That is my understanding of how it works. I am happy to be corrected by my learned friend who has far more experience in these matters than me. My understanding is that, ordinarily, the sentence of imprisonment is pronounced, but, ultimately, the ultimate order that is made is only made at the end of the remarks on sentence.
The significance of that for the Director’s case is that when one is looking at what Parliament may have intended as to whether or not an invalidity was the consequence of non‑compliance with section 66(2), what must be comprehended then is that the invalidity attaches to the whole of the sentence. It undoes a decision which is unaffected by error, as much it undoes the decision to make an intensive corrections order.
EDELMAN J: Is that right? Putting aside what the practice might be, if one were to give effect in orders to the separate underlying decisions that were being made, as is commonly done in other jurisdictions which have suspended sentences – where there will be an order for imprisonment for five years, and that separate order that imprisonment be suspended for the entire term or part of the term – if one were to reflect the decisions that are being made in separate orders, there would be two orders in the overall sentence, would there not? There would be an order for imprisonment and an order for an intensive correction order.
MS GLEESON: In my respectful submission, there is a distinction between suspension because – and it is encapsulated in paragraph 25 of Zamagias that it is the usual procedure to say, I sentence to a term of imprisonment, and I suspend it, whereas the order in relation to when it says a corrections order is that there is a sentence of imprisonment that is to be served in this form. It is a slight distinction. It is because suspension obviously has particular legal consequences because there is an extant sentence hanging over whatever conditions are attached to the suspension.
The proposition that can be tested in this way, in my respectful submission, if, for example, taking either a suspension sentence or an intensive corrections order, and there is a breach of whatever conditions attach to those sentences, it stands to reason that those breaches do not invalidate the order. They simply are breaches of conditions attached to the order so that the original sentence survives, and that is what the offender defaults back to; the offender goes to prison, because there is still that instant section.
What we are talking about here in respect of jurisdiction error is something quite different, which is an invalidation of the entire sentence. And, in my respectful submission, a mistake made in the determination of whether or not it is appropriate for there to be an intensive corrections order, if that is to invalidate the sentence, invalidates the whole of the sentence.
GAGELER J: Why would that be?
GORDON J: Why would that be?
MS GLEESON: Because of the manner in which section 7(1) sets up when an intensive corrections order is appropriate.
GAGELER J: You have already got the sentence of imprisonment and then you get another order – at least, that is the way I read it. I just cannot read it any other way.
MS GLEESON: There is another way to test it and it is by reference to the savings provisions that are throughout the Act and probably . . . . . the most relevant one is in relation to section 73A – that is at page 83 of part A of the joint bundle of authorities. Mr Game took your Honours to this. In respect of additional conditions, it then has a record of reasons and then a saving provision. It says:
The failure of the sentencing court to do so does not invalidate the sentence.
It does not say, does not invalidate the intensive correction order; it does not refer to a separate order that is made after the sentence. The reference is to the whole of the sentence, and every one of the savings provisions ‑ ‑ ‑
GORDON J: I think that works against you, does it not? What it is saying is that the sentence is the primary document – the primary thing that remains; it is not invalidated. One then looks to see whether or not, in dealing with the ICO, that is in a separate, in effect, sphere of its operation.
GLEESON J: And I think that in the 2010 legislation there were provisions which said that a breach did not invalidate an intensive corrections order.
GORDON J: To put it neutrally, it is, in effect, re‑enforcing the significance of the first order – that is the imposition of the sentence – as not going away; it is staying there.
MS GLEESON: Yes, but in my respectful submission that makes the point that what needs to be saved is the whole of the sentence. It is not just the order.
STEWARD J: But what is saved is a failure to comply with section 5, not a failure to comply with section 7 or section 66. So, even if you are right, that there is one thing – a sentence – what 5 does is it immunises the sentence from non‑compliance with section 5 – but that is it.
MS GLEESON: I am not sure, with respect, that that could be the function of the saving provision in section 73A. It might ‑ ‑ ‑
STEWARD J: I am more thinking of your use of 5(4).
MS GLEESON: Section 5(4) is in a different category but it is also in an anterior point in the assessment. The savings provision that operates in section 5 operates when an error is made in coming to that determination of whether or not ‑ ‑ ‑
STEWARD J: I may have misunderstood you. I thought you were arguing that the ambit of protection afforded by 5(4) extends to the whole sentencing process, which includes the making or non‑making of an ICO.
MS GLEESON: No. I apologise, your Honour.
STEWARD J: I am sorry.
MS GLEESON: We may have been at cross‑purposes. I was directing, at this stage of my submission, only to the savings provision that is in section 73A.
STEWARD J: Okay. Thank you for that.
MS GLEESON: If I can come back to Zamagias, just to break down the process and what significant at each stage of that process ‑ ‑ ‑
GAGELER J: This is the Act in a much earlier form that is being discussed.
MS GLEESON: It is, and it is in relation to an entirely different provision, but the analytical process has carried over by judgments such as Fangaloka and Wany to be adopted in the consideration of whether an intensive correction order should be made in the same way as in relation to this provision. The structure of the analysis is very similar and there are some elements about the reasoning for that analysis that are of significance to the way in which I say the Court would approach distinguishing some of the preconditions to exercise of the intensive corrections order jurisdiction and the assessment of whether or not it is appropriate, and I will come to that, your Honours.
Just on paragraph 26, there is then reference at 26 to, having determined a penalty being a sentence of imprisonment, that the next step is to determine the term of the sentence. From about four lines down, the explanation is given and it is that any alternatives to:
a sentence of imprisonment can only be considered once the sentence has been imposed.
So that the sentence is not:
influenced by what order might be made after the sentence has been imposed.
My learned friend Mr Game addressed you on that. But it is of significance that a sentencing judge goes through that process to make sure that there is no predetermination of what any alternative might be by means of fixing the sentence for a particular term to either qualify or disqualify for some of the alternative orders.
Then, turning to paragraph 28, this is the significant part of this judgment, in my respectful submission, and it is then the consideration of alternatives to full‑time imprisonment. His Honour says, from about three lines down:
The availability of an alternative to full‑time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre‑conditions imposed by the legislature on a particular sentencing alternative –
So, in the case of an intensive correction order, that is sections 67, 68, 69, and 69(3), being what are, effectively, gateways that qualify a particular offender for consideration of whether an intensive corrections order is appropriate.
Some of those guidelines are practical – for example, section 70(3), which is just in relation to whether or not the offender is within the jurisdiction and therefore capable of being the subject of supervisory conditions – and some of them are matters of policy. So, for example, section 67 disqualifies various offences which are deemed to be too serious for the imposition of an order to be served in the community, and then section 68, which is a term limit which is directed – the ultimate policy of the legislation being that shorter sentences are those sentences where prospects of reoffending are probably not addressed by imprisonment as much as they would be if they were served in the community. The distinction that is important is in the next part of this paragraph where his Honour says:
But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment.
The distinction that is being drawn in this case is between various gateway provisions which are, plainly – and there is no dispute between my learned friend and I – jurisdictional in nature. You cannot get to a consideration of whether or not an intensive correction order could be made unless those qualifying conditions are met.
GORDON J: Just so I am clear, does that mean 7(3), 67, 68 and 69?
MS GLEESON: Section 69(3) and then there is also section 4B, which I do not think your Honours have been taken to, but it is, effectively, a disentitling condition imposed on intensive correction orders in domestic violence offences unless the sentencing court is satisfied that the victim of domestic violence will be adequately protected. So, it is of a slightly different nature because it involves an evaluative consideration and a state of satisfaction, but it is still a gateway through which the sentencing court must be satisfied the offender has passed before consideration of whether or not the intensive correction order is appropriate.
The appropriateness consideration is then met by section 66. The significance of that, in my respectful submission, is that, having considered whether or not there is an entitlement and an eligibility to an intensive corrections order, it is then the task of the sentencing court to go back through all of the elements of the sentencing discretion to determine whether, having regard to the three steps that are contained in section 66, there is an appropriateness of an intensive corrections order being made.
In my respectful submission, the significance of that is that, firstly, the power has already been enlivened by the fact that all the entitling conditions have been met so that the exercise of that appropriateness discretion is one that is made within jurisdiction because that jurisdiction is there. Secondly, that the manner in which that assessment is to be undertaken is evaluative in the sense that I have described so that it would be difficult to characterise an error in that as being an error that then took the sentencing judge’s exercise of powers again out of jurisdiction.
EDELMAN J: That all may be quite correct but one still then needs to say that within – for, arguably, as a condition to that evaluative process – you have to deal with the question of paramount consideration, which sounds a lot like condition. I mean, something that is paramount is supreme – sits above all other conditions or considerations.
MS GLEESON: The answer to that proposition, your Honour, in my respectful submission, is best addressed by, firstly, looking closely at the language of section 66. So, that what is said in ‑ ‑ ‑
EDELMAN J: I may have taken you out of turn. If your construction of 66 is later on in your submissions, feel free to defer that.
MS GLEESON: Certainly. Well, I will address that, but, in my respectful submission, a close analysis of the way in which the obligation is expressed in section 66, when compared with a number of other provisions of the Sentencing Act, which are in far more direct terms and conditional terms, would point this Court to characterising this process as being one that is simply an assessment of appropriateness that is conducted within jurisdiction, errors of which are errors which may well be appellable, but are not subject to jurisdictional error. That is the short point.
That then takes me to the significance of rights of appeal and review. My learned friend has described the landscape of appeals, namely that there is a decision that is made in the Local Court and then an almost entirely unfettered appeal which is done by way of a rehearing. There are then a number of more confined options for appeal to the Supreme Court, and the operation of the privative clause is then to stop there being any further right of appeal. Now, there is some significance in what has been given and what been taken away by the legislature when viewing what has been provided in the Crimes (Appeal and Review) Act versus the operation of the privative clause.
We say that what is given in relation to this first here appeal – that is, a plenary appeal that effectively offers an offender a second opportunity to address a court and persuade that court that, in this case, an intensive corrections order is appropriate – is that the privative clause is directed squarely by its language only to the appellate jurisdiction of the court. It is effectively stating that the function of the District Court is to hear and determine appeals from the Local Court, and that is where it stops, so that there is no need to construe the privative clause any more strictly than its terms allow, because it is not a matter in which parties are being deprived of an opportunity to access the courts. They have been given one by way of section 11 of the Crimes (Appeal and Review) Act. There is also a second relevance ‑ ‑ ‑
EDELMAN J: If that is right, then there would be no judicial review at all. I mean, there would be no judicial review for unreasonableness, bias – they would all be points that would just be taken on appeal.
MS GLEESON: No. In my respectful submission, the outcome of what is the traditional construction of a privative clause – namely that rights for jurisdictional error are preserved – is that all of those matters, matters which are squarely within the province of jurisdictional error in the sense of being a denial of procedural fairness, bias, bad faith, unreasonableness are preserved, it is not that the door is entirely shut. But what it does mean that when construing the provision that is before the Court in this case, the Court would be more ready not to take an expansive view of what might be a jurisdictional error because of the fact that there is a balance already struck by the legislature in providing for a grant of review, but then saying that it stops at the District Court.
So that, when one is thinking of the more substantive species of jurisdictional error, the court would be hesitant to effectively defeat the principle of finality that is inherent in privative clauses by transmogrifying what are classically errors of law that would be raised on appeal if this matter was an indictable offence into jurisdictional error grounds, and that picks up my learned friend Mr Game’s point about the 5000 appeals. There are a couple of things to be said about that.
I apprehend that it comes from an observation made by his Honour Justice Leeming in Quinn, at paragraph 20. That is in the joint bundle of authorities at page 816, and the judgment is behind tab 23. There his Honour, at about 25, adds a word of warning in relation to sentences imposed by the District Court, and the statistics that are disclosed by his Honour there, which comes from the District Court of New South Wales’ annual review as at 2020, are that the judges of that court exercise the sentencing discretion on a regular basis. He observes, at about halfway down the paragraph that:
most District Court judges are highly familiar with the applicable principles. Familiarity does not remove the possibility for error . . . But it may be expected that it will be uncommon –
And this is in the last sentence:
for the District Court to misunderstand the limits of its authority to impose sentence such that jurisdictional error will be committed.
That is a reality that arises from the consideration of whether or not a decision whether or not to impose an ICO is a provision of a particular character that should be elevated to what is effectively a right of appeal once it gets through the gateway of being a jurisdictional error, is that – I have addressed your Honours on the fact that it is a discrete element of the sentencing process, and there is no dispute about that.
There must be a particular reason arising from the text or context of the provision that would privilege intensive corrections orders because of the way in which that particular provision is drafted in this place in the Act above any number of other provisions of the Act that would not give rise to a jurisdictional error. For example – and very importantly – section 5(1), which is a provision of paramount importance, but has a saving provision. There would be – and Justice Bell made this observation in his judgment in his judgment in the judgment below – it would be extremely peculiar if there was an effective right of appeal for an error in relation to the exercise undertaken under section 66, but no right of review imposed in relation to the decision whether or not a sentence should be served by way of imprisonment.
GORDON J: It depends on what you are talking about in relation to the first aspect. This is the reason why, I think, Mr Game put in two ways. If, as you accept, it is a separate and discrete exercise after the sentence has been imposed, it depends upon what the nature of the error is in relation to the provision. If it is a failure to do it at all – in other words, you look at in the way in which Mr Game put it, and you realise what the exercise of jurisdiction is, and you read – I know you are going to come to section 66 in a moment – in that way, then it is a very different kind of error to that which you have just put to us about.
MS GLEESON: It may be, your Honour. It would be equivalent, in my respectful submission – an error of this nature would be equivalent to the first limb of error in House v The King, which is a classic sentencing appeal error – you have failed to have regard to one matter which is of great importance in the sentencing process and therefore the court will set aside the sentence on appeal. But that does not, in my respectful submission, mean that that particular error is one that becomes jurisdictional simply because it is a recognised ground of appeal.
There is another way of answering your Honour’s question also, and that is – it goes back to the submissions that my learned friend was making about gravity – there may be some failures to take account of section 66(2), or a misconstruction about how section 66(2) is to be addressed, that are so grave because they take into account some consideration that is either plainly apparent and is disregarded or one that is so irrelevant that it should never have been reasonably regarded, but that would only be when the errors are of such gravity that it attracts the irrationality or unreasonableness ground, in my respectful submission.
EDELMAN J: Well, on one view, “so grave” is just an expression that defines “paramount”.
MS GLEESON: Again, that is a question that is probably best answered when I go to a close examination of the language of the provision, which I will do very soon, but I can do it now if it would assist your Honour.
GLEESON J: I suppose another way of looking at this is not really just a matter of comparing sentencing appeals to ICOs. It is only ICOs where it seems that there has been a complete failure to conduct, in this case, the assessment.
MS GLEESON: That is so, but there could, in my respectful submission, your Honour, be a number of other elements of the sentencing process where there could also be a complete failure to take into account a particular provision. For example, there could be a complete failure to undertake the assessment in section 5(1), and it is an appeal ground that is often raised – that the judge simply has not determined, in sentencing an offender to imprisonment, whether or not that was the only sentence available.
EDELMAN J: Except the difference is, just picking up on Justice Gleeson’s point, that section 5(1) can be contravened in quite a number of ways. There are quite a number of ways in which a court could sentence an offender to imprisonment without having considered all possible alternatives. Whereas the condition that the appellant argues for in section 66 can only be contravened in one way, and that way is a failure to have consideration to the paramount consideration.
MS GLEESON: In my respectful submission, there are other ways in which it could be incorrectly addresses as opposed to simply being bypassed – which is the issue that is complained of in this case. To take one example, a court could purport to undertake the process but, to do so in such a way that it took into account matters that were entirely irrelevant to whether or not there was a real risk of reoffending based on one sentence or another, the sentencing judge could take into account – could do something so bizarre as, when sentencing co‑offenders, could take into account the subjective considerations of one offender but not the offender who is the subject of the sentence.
EDELMAN J: But is that not really to say that the paramount consideration has been taken into account, but some error has been made in that process?
MS GLEESON: Yes.
EDELMAN J: But that is not this case. This is not a case where, on the argument of the appellant, the paramount consideration has been taken into account but the weighing process has gone wrong, or some factor has not been put into the mix. This is the case where the appellant says, there has been no consideration of the paramount consideration at all.
MS GLEESON: Yes, but just going back to your Honour’s original point that in both cases when comparing section 5(1) with section 66(2), in either case, the errors that could fall within a failure to have regard to that section are not merely bypassing the section – it could be a misconstruction of the section or a misapplication of the facts that are relevant to applying the relevant assessment process.
Before moving to the provision proper, I might just make brief comments in relation to the purposes of section 66 and how they play into the relevant context in which one would adjudge whether or not the consequences of non‑compliance with section 66(2) would result in invalidity.
The object of intensive corrections order regime – and this is when it was first introduced, not the most recent amendments – the risk was to reduce an offender’s risk of reoffending through the provision of intensive rehabilitation and supervision in the community – that is in the Second Reading Speech for the original 2010 amendments – I will not take your Honours to it, but it is in the joint bundle of authorities, at part E, tab 27.
That purpose, though, is also to be divined from an analysis of the text of the provision and that is where there is a marrying‑up of the provision that was elucidated in the second reading speech, being risk of offending, with the paramount consideration of community safety, and it is important to appreciate when considering the meaning of community safety that section 66 has the purpose not only to reduce the risk of reoffending as a possible means towards protecting community safety, but to consider community safety in a more general sense, and that is the function of section 66(3).
So, the way that the Act is effectively structured is to direct the Court’s attention to section – to community safety, to then address the purpose of analysing whether or not risks of reoffending are better addressed through supervision in the community or a sentence of imprisonment, and then finally to determine whether or not there are any other relevant principles of sentencing that also bear upon community safety and, in my respectful submission, there are a number that are relevant to community safety beyond the risk of reoffending. That is why section 66(3) makes reference to section 3A of the Act and then other relevant sentencing principles at common law.
GLEESON J: I thought that you had said that the point of the reference to 3A was the Zamagias point, that you need to come back to this question of whether or not the offender is adequately punished.
MS GLEESON: That is part of the analysis, but it is not the only part of the analysis. The function of section 3A is – and punishment is, if one was going to take a division as between all of the purposes of sentencing that are addressed in section 3A, some of them are backward‑looking and some of them are forward‑looking.
Justice Basten, in the judgment below at paragraph 93, page 123 of the core appeal book – and I will not go to it – has a description of the overlap between the various purposes of sentencing that are set out in section 3A, those that are forward‑looking and those that are backward‑looking, and how some of the forward‑looking provisions interact, so that there are purposes such as “adequate punishment” for the offence and denunciation and harm recognition, which are more directed at the backward‑looking process, looking at the seriousness of the offending and ensuring that there is a proper accounting for that offending. Then there are the forward‑looking provisions and they are matters such (b), prevention of:
crime by deterring the offender and other persons from committing similar offences –
and:
(c) protecting the community from the offender and (d) promoting rehabilitation of the offender.
All of those provisions can be directed to preserving community safety in one way or another. It is certainly not the case section 3A(c) to protect the community from the offender should be equated with community safety as it is referred to in section 66.
GORDON J: It cannot be, because one is paramount, and one is not. Under the ICO, it is paramount.
MS GLEESON: Yes. The point I am seeing to make, your Honour, is that community safety being paramount does not mean that section 3A – that subsection (c) of section 3A is paramount because the notion of community safety and the notion of protection of the community from the offender are slightly different. It occupies a large part of the terrain of community safety but other matters that are relevant to community safety are, for example, deterrence because that operates on a larger field of community safety by ensuring, firstly, that the offender does not reoffend by specific deterrence and then ensuring that others do not reoffend by knowledge of the severity of the sentence that is placed on this offender being general deterrence. They both perform functions of community safety. Rehabilitation performs a function of community safety because an element of rehabilitation is reducing the risk of reoffending.
So that when community safety is referred to in the words that are used in section 66, your Honours would approach that on the basis that it is not simply referring to protecting the community from the offender, it is referring to a number of forward‑looking and overlapping principles – an element of which is picked up in section 66(2) but the balance of which is picked up in section 66(3), and all of them are important. All that section 66 is doing is requiring there to be a focus on each of those matters – a focus on a particular matter that was deemed to be important by the legislation – namely, addressing the risk of reoffending – and then by way of section 66(3), ensuring that that analysis is then balanced against all of the other matters which might go to community safety and any other matters which are relevant to sentencing which might then bear on the appropriateness of the order – even if it does address community safety.
That is where “paramount” takes its significance, in my respectful submission. The Court’s attention is directed at a number of sentencing principles directed at that object, but it is not confined to those principles and it is not confined to that mode of analysis. It is required because section 66(3) is expressed in mandatory language. In fact, in stronger mandatory language than in section 66(2) because section 66(2) says the Court is to assess, whereas section 66(3) says the Court must have regard to the other principles in section 3A.
It is designed to strike a balance between a number of concepts, but simply to give a directed mode of analysis to a single principle that goes to the purpose of the provision, while preserving the overall purpose that is captured in the notion of community safety. And, for that reason, the point that I made in the outset of my submissions is significant and that is that this is an inherently evaluative process which would not cause this Court, in the proper application of the analysis in Craig and Kirk to readily conclude that a failure to undertake the analysis in section 66(2) would give rise to a jurisdictional error.
The court, when undertaking a section 66(2) exercise has a number of choices and a number of judgments to make about what is relevant, about whether or not a section 66 order is appropriate. That is a matter which is very much within the province of judicial reasoning and section 66(2) is not for that reason a mandatory consideration of such moment that it would cause this Court to conclude that, if it was bypassed or if an error was made in its exercise, that the consequence would be that the entirety of the assessment is rendered invalid.
GORDON J: When you say the entirety, you mean whether or not to impose the ICO?
MS GLEESON: And the sentence. In having addressed the language and the process that is undertaken in section 66, and I hope, your Honour Justice Edelman, I have addressed your Honour’s questions in approaching the textual analysis in that way.
GORDON J: Can I just test the proposition you have just put in two ways, just so I am clear?
MS GLEESON: Yes.
GORDON J: If you are right about that and it would render largely this analysis which is to be undertaken under this division of no moment. Because if you are right that someone can, in effect, ignore the process and ignore those considerations, then it is a process which would never be undertaken.
It seems to be inconsistent with the whole idea that you took us to at the time of the introduction of these provisions in 2010, amended again in 2017 to give them quite specific purpose and reason for existing. Is that not the better way to read section 66(2), and then (3) is really identifying that, whatever you do, it is not something which is, in effect, it is a separate task, but it is not something which is done in a vacuum.
MS GLEESON: No, it is certainly not done in a vacuum, your Honour, for the reasons that I have identified. Namely, that it is a duplication of the sentencing exercise that has already taken place ‑ ‑ ‑
GORDON J: This is where I take issue with you. I do not know that it is duplication. I think that is the difficulty that I have with the submission at the moment ‑ ‑ ‑
MS GLEESON: A duplication might be putting it slightly too high. When I say duplication, I am referring to the fact that all of the considerations that would go into applying the analysis in the way mandated by section 66 are considerations that have already been taken into account by the sentencing court. The process is obviously different because the court is asked to give priority to a couple of considerations, but all of the facts that go to that analysis, all of the principles that are attracted by that analysis are, in my respectful submission, no different than the principles that the sentencing judge has already taken into account in determining that a sentence of imprisonment is appropriate and setting the term of that sentence.
That is, the seriousness of the offending, the subjective characterisations of the offender, whether or not those characteristics give rise to any other considerations of leniency, whether or not any of the objective factors go so far as to be aggravating factors which would increase the seriousness of the offending, what principles are then attracted by the way in which the sentencing considerations play out, such as: is there a need for deterrence? Is there a need for denunciation? What is the significance of the need to punish the offender, having regard to the seriousness of the conduct? All of those matters remain alive when the court is considering whether or not to impose an ICO.
All that the provision is asking the court to do is to view those considerations through a particular prism. But, ultimately, and my point can be made good in this way, there will be some circumstances – in fact, there will be many circumstances in which the subjective case, in particular, of the offender will result in the outcome of the section 66(2) analysis resulting in there being an ICO because it is determined that the outcome of the assessment is that prospects of reoffending are better addressed by service of the sentence in the community. But there will be just as many where either the offender does not get to that because of the fact that reoffending will not be better addressed by service of the sentence in the community, or that the answer to the assessment is positive, but there are other considerations which then cause the court to say that an intensive corrections order is, notwithstanding the outcome of that assessment, still inappropriate.
KIEFEL CJ: I see the time, Ms Gleeson. The Court will now adjourn until 2.15 pm.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
KIEFEL CJ: Yes, Ms Gleeson.
MS GLEESON: Thank you, your Honour. I finished my submissions before the luncheon adjournment. Answering a question of Justice Gordon, there were two elements to that question, and I think the second one I did not quite address. It was a question along the lines of: if there is no consequences for an error in failing to undertake section 66(2) exercise, will not the consequence be that sentencing judges will readily bypass it?
The answer to that is that the jurisdiction to make intensive corrections orders is one that is exercisable, both in the summary jurisdiction of the court, but also on its indictable jurisdiction. When made an indictable jurisdiction, it is subject to ordinary appeal rules; in particular, under section 5 of the Criminal Appeal Act. I will not go to it, but that is, in the entire system of sentencing for both indictable and summary offences, a check that is available on the exercise of the power for judges in the District Court exercising both their appeal jurisdiction, and their jurisdiction at first instance on indictable offences.
If I can just make a couple of final points on construction of the intensive corrections order power. The first is just in relation to the source of the power, and it is just turning back to section 7(1). The sentencing court is empowered to make an order under subsection 7(1), but it is a discretionary power. It is something that the sentencing court may make in the exercise of its discretion. It is not something – as I apprehended my learned friend Mr Game to say – to be something that the sentencing court ever has to do. It decides whether or not to do it in application of a couple of elements. Firstly, whether or not a particular offender seeks an order of that nature, and that will not always be the case. One would apprehend it is often the case, but it will not always be the case.
The state of the authorities in New South Wales is that a court is not required to make an intensive corrections order where eligible. At most, it has a duty to consider doing so where properly raised and where the entitling conditions are made out. The authority for that is Blanch v The Queen [2019] NSWCCA 304 at 68 to 69, and it is picked up in Wany at paragraph 52, which is at page 898 of the joint bundle of authorities.
GAGELER J: Was Blanch a case that came up under the criminal appeal route – to the Court of Criminal Appeal?
MS GLEESON: Yes, that what I am saying. That being so, it is not the case that wherever the eligibility criteria of the power to make an ICO arises that the court has to go through the gateway of section 66 in order to get to the ultimate sentence – whether or not that sentence is a term of imprisonment or the service of an intensive correction order. That will not invariably be the case, and it is certainly not something that the court is required to do. All that section 66 does is to place rules around the way in which the valuation exercise should be untaken where the court is deciding – because it has been asked to – to consider making an intensive corrections order.
The second matter of significance – I have touched on this and my learned friend has also – is that the outcome of the assessment, which is mandated by section 66(2), is not necessarily determinative of the outcome. Now, that was a matter of significance, in particular, for Justice Beech‑Jones at paragraph 193 of the judgment. What it illustrates is that the court is not being required to make an assessment that will generate a fact that conditions the exercise of its jurisdiction. Rather, it illustrates that the court is being pointed towards an aspect of the sentencing task, of assessing appropriateness of the order.
There is nothing in the outcome that conditions the jurisdiction. It merely requires the court to undertake an assessment exercise that is largely based on applying value judgments in relation to the experience of the offender and how it is – this is in respect of section 66(2) – that the offender’s subjective circumstances might play into reoffending being better addressed by a community services sentence versus a sentence of imprisonment. That is picked up by Justice Bell at paragraph 58 of his reasons for judgment. His Honour makes reference there to Plaintiff M70/2011 – and the citation is in that paragraph – and, in particular, that:
“When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision‑maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non‑existence of which may be reviewed by a court.”
And then his Honour goes on to observe that:
The assessment process embedded in s 66(2) . . . is a quintessential example of a –
“value judgment” of that nature. That significance ‑ ‑ ‑
GLEESON J: Is there not a distinction there between the conduct of the assessment and the result of the assessment; in that, if you conduct the assessment in a particular way, it is hard to say how that might give rise to a jurisdictional error, but here the question is, did you conduct the assessment at all?
MS GLEESON: Yes. Yes, that is so, but, in my respectful submission, it does not make a particular difference in relation to whether it is done at all or whether it is not done, because the characterisation of the power engages all of section 66. Provided that – and it may be a different question if community safety was not addressed at all, but that is not what this Court is here to decide – but in circumstances in which an evaluative process is undertaken in the manner comprehended by the Act, but there is an overlooking of section 66(2), that does not mean that the exercise is necessarily not undertaken with regard to community safety. It is a defective assessment of community safety, but it is not one that gives rise ‑ ‑ ‑
EDELMAN J: Why do you say that that is not for this Court to assess? One view of the appellant’s argument is that community safety, properly understood, was not considered.
MS GLEESON: That is largely for the reasons that I addressed before the luncheon adjournment, your Honour; namely, that community safety is a concept that attracts not just the considerations in section 66(2) but also all of the other considerations that are ‑ ‑ ‑
EDELMAN J: General deterrence and so on.
MS GLEESON: Yes, and they are enumerated in section 3A.
EDELMAN J: If you are wrong about that, do you accept that there could be a jurisdictional error in failing to consider community safety at all on an understanding that community safety means assessing the future prospects of the offender reoffending by a commission of an offence of this nature?
MS GLEESON: I do not and largely for the reasons that I just articulated; namely, that that assessment is not determinative of any outcome. And I will now move to some examples of comparative provisions which show that there is a rubric of analysis that might lead to that conclusion, but it is not reflected in the language of section 66.
The example I would like to come to is section 5 of the Crimes (Sentencing Procedure) Act – as a reminder, that is at page 22 of part A of the joint bundle of authorities. The language I want to pick up on is, in subsection 5:
(1)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.
That provision is premised on a notion of satisfaction of a particular matter and, in my submission, it creates a binary – a true binary, not the binary that might be produced by the assessment in section 66(2) which does not determine the outcome. This is a binary that establishes one of two facts: either I am satisfied that the only appropriate sentence is imprisonment, or I am not so satisfied and therefore I will not make that order.
It is an order that is similar, for example, to section 65 of the Migration Act that was considered in Hossain, and in which Justices Kiefel, Gageler and Keane at paragraph 33 – I will not go to it, but I will just read it onto the record – is that:
“The decision to be made by the Minister in performance of the duty . . . is binary: the Minister is to do one or other of two mutually exclusive legally operative acts – to grant the visa . . . or to refuse to grant the visa . . . depending on the existence of one or other of two mutually exclusive states of affairs –
of which – and I am interpolating now – the decision‑maker must be satisfied. And they were characterising that decision as “jurisdictional facts”. Now, accepting that the establishment of a jurisdictional fact is not necessary for the characterisation of a provision as giving rise to jurisdictional error, in my respectful submission, it is significant that there is language in this Act which adopts that mode of analysis that there has to be satisfaction of a particular state of affairs in order for the power to be enlivened, but that is not the language that was selected by the legislature in enacting section 66.
Instead, it speaks of a priority – a paramountcy – of a particular consideration. It then requires that a matter is to be taken into account, but not determinatively. Finally, it pronounces there needs to be a wash‑up of the analysis in accordance with the usual mode of sentencing principles, taking into account all of the relevant factors in order to reach the decision about the appropriateness of the ICO.
GAGELER J: So, you would say that that jurisdictional fact reading of section 5(1) explains the need for section 5(4), to say that although it looks jurisdictional, it is not.
MS GLEESON: That is so, your Honour. And that is reinforced both by the seriousness of the power of determining that imprisonment is the only possible outcome and also the fact that the language is expressed in that way that is plainly conditional on what it is the court then has power to do.
GLEESON J: Although that would not explain 5(4) in relation to subsection 5(2).
MS GLEESON: It might not, your Honour. The answer to that, I apprehend – and this was a point of some debate between President Bell and Justice McCallum – is that in many places in the Sentencing Procedure Act, the savings provision is introduced in respect of either a requirement to give reasons or a requirement to give notice of the effect of an order, and there was a debate about whether or not the savings provision was directed only at subsection (2), whereas I say – and Justice Bell held – that that is not the scope of the savings provision and that it was directed to the whole of the provision, which is what it says on its terms.
Without wanting to belabour the point, the analysis I have just taken your Honours to is another reason why the mandatory language that is used in section 66(2) is not such as to create a condition on jurisdiction that would then lead to the characterisation of an error as being one that is a jurisdictional error.
I will then move very quickly on to the notice of contention ground. It is in our written submissions, but I just wanted to make plain the function of the notice of contention ground. It is, essentially, that orders are sought in the notice of appeal that require there to be some determination of whether or not there was, in fact, an error in this case. It is an exercise that, because of the reasons the Court of Appeal came to, a majority of the judges of the Court of Appeal declined to make.
It is necessary, in my respectful submission, if your Honours are against me – or a majority of your Honours are against me – in order to enable the orders sought in the notice of appeal to be made, there needs to be some determination that there was an error that could then attract the grant of certiorari and send the matter back to the District Court for redetermination in accordance with law. So, that is the purpose of taking up your Honours’ time with what is otherwise a very fact‑based analysis of a sentencing judgment which I will now move through fairly quickly.
EDELMAN J: Just to frame that submission, just so I understand, Ms Gleeson, your notice of contention is based, as I understand it, upon your construction of community safety as including matters of general deterrence and so on. On the narrower construction that the appellant puts forward, which is that community safety is the forward‑looking assessment of whether the offender will commit an offence of that general nature in the future, do you accept that the District Court judge did not conduct an assessment of community safety?
MS GLEESON: No, your Honour. And that arises from the terms of the judgment, because she says that she did on two occasions, so there then needs to be an analysis of the process that her Honour actually undertook in order to determine whether or not that community safety analysis also accommodated an assessment of the section 66(2) question.
GORDON J: Just so I am clear in your answer to Justice Edelman, is that on both limbs; that is, both the narrow construction and the broad construction?
MS GLEESON: Yes, your Honour.
GORDON J: Thank you.
MS GLEESON: Certainly at the time that the appeal to the Court of Appeal was being prepared, but for the argument that was made at Wany was plainly wrong, the Director was bound by Wany and would have had to – to succeed in that implication for review, it was necessary to establish that, on the narrow view, her Honour undertook the section 66(2) assessment, but, as matters transpired ‑ ‑ ‑
EDELMAN J: Even if she did it – you will probably take us to this – on the narrow view, was there any evidence at all to suggest that the appellant would in the future have any likelihood of committing an offence of this general nature again?
MS GLEESON: Yes, then – firstly, there was the fact that she had done it before. That is obviously a relevant matter to take into account. There is the fact that she did have a previous history. There is the fact – which was of some significance to his Honour Justice Leeming in the Court of Appeal – that she had been subject of a previous intensive corrections order – it was in respect of driving offences, and following which, she committed another driving offence. Then there was a sentencing assessment report that took some of these matters into account, and also her expressions of remorse and insight, and her subjective history in order to do a complete assessment of prospects of reoffending, the conclusion of which was that she presented a medium risk of offending.
So, there was evidence before the sentencing judge that enabled the sentencing judge to make the judgment in relation to which way the section 66(2) analysis would go, but also, in doing so, to make an assessment of her prospects of reoffending.
EDELMAN J: But the only one of all of those factors you have mentioned that concerns reoffending of an offence of this nature, rather than driving offences and traffic offences and so on, is the fact that this offence, in the particular circumstances it was committed, had been committed before.
MS GLEESON: Yes. On this occasion, it is certainly not the case that – and her Honour made reference to this – there was any history prior to this offence of offending of this nature. In fact, there was note – she makes quite plain that the appellant’s history was very much this was the first really serious offence with which the offender was confronted.
I just want to make a brief reference. It is in our written submissions at paragraph 49, the authority of Mourtada v The Queen (2021) 361 FLR 96. I will not go to it, but it is accepted – and it was accepted by his Honour Justice Beech‑Jones – that when considering the reasons for sentence of a sentencing judge and whether or not the section 66 question has been addressed, the requirement that particular matters be considered or assessed does not mean that that matter must be specifically addressed in the reasons given by the sentencing judge.
What her Honour Justice Adamson said is, effectively, a sentencing judge in a busy court dealing with a number of different matters – regardless of whether or not the judgment gives reasons on sentence, ex tempore or after a brief period of preparation of those reasons – the judge is not required to go through in a tick‑a‑box fashion and say, I have considered section 66(1), I have considered section 66(2), I have considered the following elements of section 66(3). It is inconsistent with the general mode of synthesis to require that and it is unrealistic, having regard to the workload of the judges of the District Court.
That is the approach that is taken regularly by the Court of Criminal Appeal and the Court of Appeal exercising the section 69 jurisdiction to reasons for judgment of sentencing judges is that an overly critical analysis of the reasons would not be fair to the sentencing judge and if in one section of the reasons there is reference to a particular aspect of the sentencing assessment, it can more readily be inferred that that reference has carried over into the analysis of the ultimate outcome, which is what I would invite your Honours to do in addressing these reasons, largely because it is accepted that she makes no express reference to section 66(2).
My learned friend Mr Game made reference to the reasons of Justice Beech‑Jones, and in particular the fact that he said that the sentencing judge’s reasons overlooked the appellant’s evidence, and it was a particular aspect of the appellant’s evidence to the effect that she had children; she just wanted the guns out of her house, and his Honour then reduced that to a requirement to assess:
whether the applicant was a dedicated gun runner or someone caring for five children who just wanted the guns out of her house –
There are some issues with that analysis, and they are picked up by Justice Leeming at paragraph 146 of his judgment, at page 141 of the core appeal book. It is this: the applicant gave evidence that that was the position she was in – and I will not take your Honours to it but it is at pages 18 to 19 of the appellant’s book of further materials – that she had said that she wanted the guns out of the house; she made reference to her children on a number of occasions in her evidence, but when then asked – and this is at pages 19 to 20 of the appellant’s book of further materials – why it is that she simply did not call the police to get the guns out of her house, she gave a different reason, which is that she did not want to get her co‑offender – who was a cousin of hers – in trouble and that she did not want any drama.
There was then evidence that not only had she allowed the guns to be kept in her house, she had also assisted in the sale of the guns and had taken some financial renumeration from the sale of the guns so that the binary that Justice Beech‑Jones had addressed does not accommodate the fact that on the evidence that was before the sentencing judge – she was not a gun runner, and she was not just a passive recipient wanting to get the guns out of her house; she was something in between those two aspects, and that is significant for her prospects of reoffending because the seriousness of the offending is taken to the mid‑point of the range – or just below the mid‑point, is what the sentencing judge found – but certainly not right at the bottom of the range so that there would be complete confidence about what it is that the appellant would do if faced with the same situation again, which goes directly to prospects of reoffending.
That was addressed in the submissions, and it is worth going to the oral submissions that were made because they provide context to what was put before her Honour and then what her Honour then took into the reasons, even if they were not expressed fully in the reasons because aspects of them are picked up in the reasons ‑ ‑ ‑
JAGOT J: Could I just ask this. On two occasions, at least, in the District Court judge’s reasons – for example, page 74 at the bottom:
close consideration to the matters that were put before the Court, particularly in respect to the appropriateness of an ICO.
And page 76, up the top:
Taking into account all of the factors have been submitted to me by both –
Et cetera. Does that mean that we can – to what extent are they, in a sense, incorporated by reference into the reasons given that it is an oral ex tempore judgment made? Is it not immediately ‑ ‑ ‑
MS GLEESON: Three weeks after.
JAGOT J: Three weeks after the submissions.
MS GLEESON: In my respectful submission, I say that those matters are critical because of the exercise that I took your Honours to earlier; namely, that you have got a busy judge. Even if, delivering reasons later, the time available to a judge of the District Court hearing cases every day to prepare those reasons is limited. And so, that a reference to things like:
I have given very close consideration to the matters that were put before the Court –
and an express reference to “community safety”, however worded, and most significantly stating that an ICO is an appropriate sentence taking into account all of the factors including community safety and rehabilitation, picks up other elements of the sentencing reasons and incorporates them into this analysis without necessarily stepping out the way in which the section 66(2) process was undertaken.
JAGOT J: Well, certainly in the context of the submissions, if they are being picked up to that extent in the reasons, the debate, I guess, if you like, between the judge and the counsel was fairly obviously rejecting the notion that this person, this appellant, was a passive recipient of the guns as opposed to someone who had discussions about them and was more involved than someone who – I am thinking of page 26, for example, about line 27:
Her involvement is not just about allowing them to be there, she took the known male out and showed him where they were.
You can see that kind of debate happening through the middle of the page on 27 about her involvement, and 42:
she actively engaged in finding someone who would buy them.
. . .
She has a series of conversations . . . came to an agreement that she would hold the firearms –
until they were supplied. That kind of thing. You can see that kind of thing that you would think, rationally, would be relevant to reoffending risk.
MS GLEESON: That is precisely so, your Honour. Just to complete the references there is, at page 6 of the appellant’s book of further materials, at about lines 15 to 20 ‑ ‑ ‑
JAGOT J: Sorry, what page is that?
MS GLEESON: This is page 28 of the appellant’s book of further materials.
JAGOT J: Yes, I am looking there, too.
MS GLEESON: Yes.
JAGOT J: The “criminal milieu”, “the primary motivation”.
MS GLEESON: Yes. Then, most significantly, if your Honours go over the page to page 30 of the appellant’s book of further materials, there is then an exchange between the appellant’s solicitor and the judge in which he addresses not quite the question of whether community safety is more appropriately met because service of the centres in the community will better address prospects of reoffending but, rather, it is put – and this is at about line 26 on the page – when you look at her subjective case ‑ ‑ ‑
GORDON J: Sorry, what line was that?
MS GLEESON: About line 26, your Honour – when you look at her subjective case and the way in which community corrections has a plan in place, and it is a detailed, comprehensive plan, and where the prospects of reoffending, in my submission, are fairly low and then there is an exchange about whether or not the reference is to rehabilitation or reoffending. The conclusion is then, this is a case where community safety is more appropriately met by allowing her to engage in an intensive corrections order. So that she is not expressly invited to undertake the process, rather she is invited to accept that the prospects of reoffending are low and, therefore, an ICO is appropriate.
Whatever is the case in the way the submissions are put, her Honour then immediately interjects and raises the issue of general deterrence. That is of significance because it shows that at the very point at which she is asked to address the appropriateness of the ICO by picking up some of the language of section 66, she then immediately expresses what is on her mind and what is, ultimately, picked up in her reasons – inelegantly, but it is there – that general deterrence is a factor which is likely because of the seriousness of the offending in the sense that they are all firearm offences, there is an element of sale, and there is a large quantity of firearms that general deterrence might trump the analysis.
JAGOT J: Well, that is the point at 31, about line 5. Mr Fren is putting the point that general deterrence is able to be met by an intensive corrections order, and her Honour again interjects about the seriousness of the offence. I guess what you have to take with, back there, was that she was – back at 28, line 19 – “she was working with” them and allowing that she is not a passive person – she was knowingly taking part, in order to protect her criminal friends. There is certainly a lot of interaction by the District Court judge about the ICO.
MS GLEESON: Yes.
JAGOT J: And what you say, given the express cross‑references in the District Court judge’s reasons, we can take that into account?
MS GLEESON: Yes, your Honour. You can do it by way of inferring, because what the authorities that are set out in the first respondent’s written submissions demonstrate is that the sentencing reasons need to be read in their particular context – including the submissions that are put to the sentencing judge – and then also how they are expressed in the reasons, taking account of the fact that a counsel of perfection is an impossibility in relation to a busy inferior court, so that an inference can more readily be drawn that if there is a reference to the fact that, firstly, attention is being paid to the principle that is the entire subject of the appeal; secondly, that reference is made to the various principles – even in short form, that the analysis attracts – and then, lastly, a conclusion that reflects her Honour’s attitude when engaged in oral argument that all of the matters have been stepped through and the ultimate conclusion is one that generally aligns with the judge having determined that, regardless of the outcome of the section 66(2) analysis, general deterrence which comes into play via section 66(3) and the application of the relevant sentencing principles in section 3A, means that a sentence by way of an intensive corrections order is not appropriate in the circumstances.
It makes sense, in my respectful submission, that the judge would have perhaps given lesser significance to the section 66(2) exercising her reasons if she had determined that the outcome of that assessment was not going to be determinative of her orders in respect of an intensive corrections order.
GLEESON J: In this passage, towards the bottom of 30 and 31, it is clear that her Honour is not separating out in her mind the sentencing exercise for the sentence of imprisonment from the question of the intensive corrections order. When she talks about deterrence as a very important central platform of the sentencing exercise, that certainly could be identified as a factor that she is thinking about in the primary sentencing exercise.
MS GLEESON: Absolutely, your Honour. And, for the reasons I articulated before the lunch adjournment, that is typically what is going to happen. That the considerations that go to the setting of the sentence of imprisonment and its term will be considerations that are then replicated
when considering section 66. It stands to reason that they will not be repeated wholesale.
EDELMAN J: With one exception, that if you are wrong about your construction of community safety, such that community safety is to be construed in the narrow way of focusing on the particular offender and forward‑looking and so on, then one would expect notions such as general deterrence and other sentencing considerations to have very much a peripheral role with, in the language of 66, the “paramount” or the focal point being the future prospects of the offender, particularly for offences which are going to be less than two or three years, where general deterrence has less significance. That sort of fades into a consideration of whether everything else in the mix overcomes the paramountcy of the community safety on the narrow construction.
MS GLEESON: It is a possibility but, with respect, I will not let go of the prospect that section 66(3) still has work to do, even on the narrow construction, so that the sentencing judge could still come into that consideration. It just might make it easier to establish an error if section 66(2) is not expressly addressed in the reasons.
STEWARD J: Can I ask, in the course of the oral argument, which is reproduced in the book of further materials, is there engagement between counsel and the judge as to a comparison between the risk of offending if the person was imprisoned, as against the risk of offending if they were to be the subject of an ICO and, indeed, a discussion of what terms the ICO would need to have in order to be effective? Was that something that was engaged in?
MS GLEESON: It was not, your Honour. The highest it goes is the passage I took your Honours to at page 30 of the appellant’s book of further materials.
STEWARD J: Thank you.
MS GLEESON: Your Honours, unless there are any other matters on which I can give assistance, those are my submissions.
KIEFEL CJ: Yes, thank you, Ms Gleeson. Do you have anything in reply, Mr Game?
MR GAME: I do, your Honour. First, in part of her submissions, Ms Gleeson said that, with respect to a submission concerning what I would call (a), (b) and (c) in Craig – because we said that it was not done at all, only (b) is engaged – our opponents say that it was done, and, we say, in a flawed way, so (c) is engaged as well.
The next thing I wanted to address, your Honour, is this question about what the status of the sentence of imprisonment is once you have reached section 7. It is an odd thing to say – in fact, it is said by Justice McCallum in the first sentence of her judgment in Wany – but in New South Wales, saying that a sentence of imprisonment is imposed for historical reasons does not necessarily mean that it is full‑time imprisonment, and that is because of the history about periodic detention, suspended sentences, and ICOs were latecomers.
The discussion in Zamagias explains that other history. What you have at a point of section 7(1) – yes, there has been a sentence of imprisonment, and there will have to be a term that is three years or less for an aggregate sentence, for you to get an ICO. But, at this point, it is not a full‑time sentence and it is not effective as a sentence of imprisonment. It is only going to be effective as a sentence of imprisonment – if you are in section 7 – once you have gone through the exercise in Part 5 and, we say, come to a conclusion about the matters in section 66 – so, satisfied oneself of the jurisdictional issues that I outlined in the other provisions.
Then, if one has determined against an ICO but in favour of full‑time detention, you would then go back into Part 4. So, in this particular respect, in Part 4, you will go back to section 53A. You will have an aggregate sentence and you will have to impose a non‑parole period. You will also have to set a commencement date under section 47. There is no possibility, say, of a warrant of commitment to commit you to prison. There is not an effective sentence. It is sitting there provisionally at that moment.
STEWARD J: So, do you say that “may” in section 7(1) should be read as a conferral of power?
MR GAME: Yes, your Honour, exactly. So, yes, the sentence of imprisonment has been imposed, but it is not an effective sentence at that moment. Now, we are going to give you a note about what happens with breach and so forth, I thought that very much supports that idea, because there are many different things that can happen. The sentence of imprisonment does not – sorry, I will just wait for a moment.
GAGELER J: I am sorry, Mr Game. We are discussing whether the note that you are going to prepare might usefully cover these aspects of the statutory scheme.
MR GAME: Yes, certainly. It is not altogether straightforward, but we do say that you have to go back into Part 4 to get an effective sentence with the kinds of things I have outlined. We also say this about section 66. Our opponents say it is all part of an evaluation. Zamagias is about very different circumstances. But our point is, yes, there is an evaluation, but we say you have to come armed with the assessment made in section 66(2). So, yes, there is an assessment, but if you are not armed with ‑ ‑ ‑
GORDON J: Is that not the division between you? You, in effect, divide it into two steps. You say you have, in effect, a power in section 7(1) read with section 66; it has some jurisdictional aspects to it which you have to get through in order to be able to consider; and then you say you must undertake this assessment under 66(2) before you get to the evaluative process, which is common ground between both of you.
MR GAME: Yes.
GORDON J: Your complaint is that that middle step in between the identification of the jurisdictional facts and the evaluative exercise has not been undertaken here.
MR GAME: Yes, your Honour, that is what we say.
GORDON J: Is that the short point?
MR GAME: That is the short point of this case, yes – our point. That is our case. So, Ms Gleeson picked section 5(1). Now, 5(1) is illustrative for reasons that we say support our case. First is, that is a different kind of provision. It is not just a reasons provision – it includes reasons. It is a different kind of provision. But her argument turns invalidity on its head, because she says because there is an invalidity provision, that shows it is jurisdictional, which reverses out the whole process.
We also say this – that a breach of section 5(1) will be not be wholly immune from review, for the kinds of reasons given in Futuris. But that 5(1) – to get review of 5(1), it is going to be a very particular kind of error and quite different from the kind of error you see in section 66 – and I gave an example before. So, we say, that that does not undercut – something I forgot to mention ‑ ‑ ‑
EDELMAN J: The real focus of section 5(4) must be the words, “having considered all possible alternatives” – because that is the likely mistake that could be made in 5(1).
MR GAME: Yes.
EDELMAN J: It is almost unfathomable that a mistake would be made that a court would proceed from the basis that a term of imprisonment would be ordered even if it is not appropriate.
MR GAME: Yes. But if you said, I have considered all other alternatives, I think one of them is appropriate, but I am going to send you to jail anyway, then you would have a kind of error that would not be protected by section 5(4).
Something I forgot to mention is section 43 of the Crimes (Sentencing Procedure) Act corrects – and there is a decision of this Court about this provision called Achurch, and our point about that is that if our opponents are right, the only kinds of errors that are going to be left are errors to which section 43 applies. If you sought judicial review of those, you would be refused on discretion because you would be told, well, you can just go back to the court to get it, but – there is a but to this – and it is in your Honour Justice Gordon’s question – because the Crown says, well, the District Court has an indictable jurisdiction as well, but say a judge declined to impose one of the additional conditions. If you went back to the judge and the judge refused, you could not get review unless you could show jurisdictional error and section 43 would not avail you because you are before the same judge.
The next point I wanted to make is that the jurisdictional fact analysis is not part of our argument, and that is the part that was dealt with in the reference to Justice Bell’s judgment at paragraph 58. I would also say that if community safety is not properly understood in section 66(1) because section 66(2) – and that is our submission – then we say that the Court is seized with that, and that has been part of our argument.
Lastly, I wanted to deal with this idea that somehow or another one can extract from this a consideration of what we say is the specific question raised by section 66(2). Now, first, it is worth going back to paragraph 192 of Justice Beech-Jones’s judgment because this proposition is quite a limited one. You will not find support in the transcript that has just been gone to that the judge had in her mind’s eye section 66(2) in the terms that we have put it. But the point is that, in some cases, the absence of expressed reference to some factor will not lead to the conclusion that it was not considered. So, it is quite a limited proposition. But what you are being asked to accept is this: the assessment was carried out, her Honour arrived at a particular outcome, and she factored that outcome into her decision – and none of those things are apparent.
I have taken you to passages such as about prospects of rehabilitation, such as the very last passage which we say is not logical at all – the one about the guns being a danger. We say those are very strong indicators that the exercise was not conducted. But in an exercise as explicit as section 66(2) required, we say that the kind of exercise that Justice Beech-Jones outlined is required. We also say that propositions – and I mean no disrespect to Justice Leeming – considered in paragraph 146 are strangely speculative and do not reflect anything about the way the case was conducted. So, just lastly on that, what I meant to say about that last passage in her Honour’s reasons at page 75, the words that follow:
In my view community safety is of paramount consideration.
The next bit about the:
number of firearms. The firearms in my view pose a significant risk –
At the very least, that indicates a clear misunderstanding of what the exercise was. Now, your Honours ‑ ‑ ‑
EDELMAN J: That is ultimately the difference – or the core difference – at least on the notice of contention and possibly on the main appeal ground itself, between your submissions and those of the Crown, which is that if one were to read community safety very broadly, including considerations of general deterrence, then any error would seem to be an error in insufficient weight or insufficient factoring in some aspects of community safety, whereas if one reads it more narrowly – as you have put it – then the error may be a complete failure to consider community safety or certainly to consider it as a paramount factor.
MR GAME: Yes, your Honour. But we say that section 66(2) is not something that you can just do in your head and absorb as part of an instinctive synthesis. Could I just – I have finished, but I just wanted to ask your Honours a question. If we cannot agree about our note, can we provide you with separate notes?
KIEFEL CJ: Yes, of course, Mr Game.
MR GAME: Sorry, your Honour. Thank you, your Honour. So, if we provide something – each of us – your Honour, within, say, seven days, is that acceptable?
KIEFEL CJ: Within five working days.
MR GAME: Five days. Sorry. Thank you, your Honour. That is our reply.
KIEFEL CJ: The Court will now adjourn to consider the course that it might take.
AT 3.04 PM SHORT ADJORNMENT
UPON RESUMING AT 3.14 PM:
KIEFEL CJ: At least a majority of the Court are of the view that this appeal should be allowed. Orders will be made accordingly, with reasons to be published at a later date. The orders of the Court are:
1.Appeal allowed.
2.Set aside Order 1 of the Orders made by the Court of Appeal of the Supreme Court of New South Wales on 21 December 2021 and, in its place, order that:
(1)the orders of the District Court of New South Wales of 17 June 2021 dismissing the appellant's appeal under s 20(2)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) are set aside; and
(2)the appellant’s appeal to the District Court of New South Wales be heard and determined by the District Court of New South Wales according to law.
The Court will now adjourn until 10.00 am tomorrow.
AT 3.16 PM THE MATTER WAS ADJOURNED
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