Stanley v DPP (NSW)

Case [2023] HCA 3

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

EMMA-JANE STANLEY  APPELLANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS
(NSW) & ANOR  RESPONDENTS

Stanley v Director of Public Prosecutions (NSW)

[2023] HCA 3

Date of Hearing: 15 November 2022
Date of Order: 15 November 2022
Date of Publication of Reasons: 15 February 2023

S126/2022

ORDER

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.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with T Quilter and C E O'Neill for the appellant (instructed by Legal Aid NSW)

C O Gleeson with A Poukchanski for the first respondent (instructed by Solicitor for Public Prosecutions (NSW))

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Stanley v Director of Public Prosecutions (NSW)

Administrative law – Judicial review – Jurisdictional error – Sentencing powers of inferior court – Where s 7 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") empowered sentencing court to make intensive correction order ("ICO") directing that a sentence of imprisonment be served by way of intensive correction in community – Where power to make ICO was a discrete function arising after sentence of imprisonment imposed – Where s 66(1) of Sentencing Procedure Act provided community safety was paramount consideration in exercising discretion to make ICO – Where s 66(2) of Sentencing Procedure Act required sentencing court, when considering community safety, to assess whether making ICO or serving sentence by way of full-time detention more likely to address offender's risk of reoffending – Whether failure to comply with s 66(2) amounted to jurisdictional error – Consideration of categories of jurisdictional error in Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Sentence – Sentence imposed by State court – Discretion to make ICO – Where community safety was paramount consideration in exercising discretion to order ICO – Where sentencing judge declined to make ICO and ordered sentence of imprisonment be served by way of full-time detention – Whether sentencing judge undertook assessment of community safety in accordance with s 66 of Sentencing Procedure Act.

Words and phrases – "community safety", "error of law", "error of law by an inferior court", "full-time detention", "intensive correction order", "jurisdictional error", "misconception of function", "paramount consideration", "risk of reoffending", "sentencing process".

Continue reading Stanley v DPP (NSW)

Sign in free to access the full text

Details
AGLC
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Case
[2023] HCA 3
Decision Date

CaseChat Overview and Summary

The case of *Stanley v DPP (NSW)* concerned an appeal to the High Court of Australia following a decision by the Court of Appeal of New South Wales. The appellant, Ms Stanley, had been sentenced to a term of imprisonment in the District Court and sought an intensive correction order (ICO) to serve that sentence in the community. The sentencing judge declined to make an ICO and ordered the sentence to be served by way of full-time detention. Ms Stanley then sought judicial review in the Supreme Court, arguing that the sentencing judge's failure to comply with specific provisions of the *Crimes (Sentencing Procedure) Act 1999* (NSW) constituted jurisdictional error. The Supreme Court dismissed her application, and she appealed to the Court of Appeal, which also dismissed her appeal.

The central legal issue before the High Court was whether the sentencing judge's alleged failure to undertake the assessment required by section 66(2) of the *Crimes (Sentencing Procedure) Act 1999* (NSW) amounted to jurisdictional error, thereby vitiating the sentencing decision. Section 66(1) mandates that community safety be the paramount consideration when deciding whether to make an ICO, and section 66(2) requires the court to assess whether an ICO or full-time detention is more likely to address the offender's risk of reoffending. The appellant contended that a failure to conduct this assessment was a jurisdictional error, notwithstanding the presence of a privative clause limiting the Supreme Court's supervisory jurisdiction to such errors.

A majority of the High Court allowed the appeal, setting aside the orders of the Court of Appeal. The majority held that the failure to conduct the assessment required by section 66(2) did not constitute jurisdictional error. Their reasoning, drawing on established principles of statutory construction and the categories of jurisdictional error, was that section 66 of the Act did not condition the sentencing court's authority to make or refuse an ICO. Rather, it was considered a direction to the court regarding the considerations to be given weight in the sentencing process, particularly concerning community safety and the risk of reoffending. The language and structure of section 66, and the evaluative nature of the decision it required, did not support an inference that any element of the section was intended to be a jurisdictional fact.

Consequently, the High Court ordered that the appeal be allowed, the orders of the Court of Appeal be set aside, and the matter be remitted to the District Court to be heard and determined according to law. This outcome meant that the appellant's appeal to the District Court, which had been dismissed by the Court of Appeal, would now be reheard.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ (dissent) GAGELER J (dissent) GORDON, EDELMAN, STEWARD AND GLEESON JJ (dissent)
The absence from s 66 of a provision along the lines of s 5(4), explicitly preserving validity in the event of non-compliance, cannot be taken to indicate that such an odd result was contemplated in the legislative design. The presence of s 5(4) is explained by an evident legislative concern to avoid the potential for a court to infer that the satisfaction required of a sentencing court by s 5(1)[45] was legislatively intended to be a "jurisdictional fact" absence of which would deprive the court of authority to impose the sentence[46]. Applying orthodox principles of construction, the language and structure of s 66, and the essentially evaluative nature of the decision for which it calls[47], do not carry the same potential for an inference to be drawn that any element of the section was intended to be treated as a jurisdictional fact.[45]cf Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654 [130]-[137]; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at 188-189 [34].[46]Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 574 [72], citing Craig v South Australia (1995) 184 CLR 163 at 177-178.[47]See Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 179 [57], citing Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304.Conclusion The appeal should not have been allowed. It should have been dismissed. The appellant is a woman from a background of disadvantage with five children and a significant employment history. In 2019, in contravention of the Firearms Act 1996 (NSW), she committed offences of knowingly taking part in the supply of a firearm and having in possession for supply a shortened firearm. The offences were committed after she became aware that her cousin had stored firearms under her house in regional New South Wales and in the back of a vehicle parked in her back yard. She said that she wanted the guns out of her house but did not want to get her cousin "into trouble". The appellant allowed the firearms to remain in her house for eight days and she accepted $50 of the sale price of the firearms. In October 2020, the appellant pleaded guilty in the Local Court of New South Wales at Dubbo to the contraventions of the Firearms Act, and was granted bail pending sentence. In December 2020, she was sentenced to an aggregate term of imprisonment of three years with a non-parole period of two years. She was again granted bail, pending an appeal to the District Court of New South Wales. The appellant appealed to the District Court against the severity of the sentence and asked the District Court, under s 7(1) in Div 2 of Pt 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") (read with Pt 5 of that Act), to make an intensive correction order ("ICO") that would have directed that the appellant's sentence of imprisonment be served "by way of intensive correction in the community"[48]. [48]Sentencing Procedure Act, s 7.

Ratio Decidendi

Legal Principle Established

Established by:

Section 66 of the Sentencing Procedure Act provides:"Community safety and other considerations(1)Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.(2)When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.(3)When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant." Section 3A, which is referred to in s 66(3), provides that there are a number of purposes for which a court may impose a sentence on an offender. They include to ensure that an offender is adequately punished, to prevent crime by deterring the offender and others from committing similar offences, to promote the rehabilitation of the offender, and to protect the community from the offender. The appellant sought relief from the Supreme Court in the nature of certiorari to quash the sentence, and to remit the matter to the District Court to be dealt with according to law. A privative clause[1] had the effect of limiting the supervisory jurisdiction of the Supreme Court to review for jurisdictional error.[1]District Court Act 1973 (NSW), s 176. It was either found or assumed by members of the Court of Appeal that the District Court Judge had not undertaken the assessment required by s 66(2) of the Sentencing Procedure Act. The question for the Court was whether that failure amounted to jurisdictional error. The majority (Bell P, Basten, Leeming and Beech-Jones JJA, McCallum JA dissenting) held that it did not and dismissed the application for review[2].[2]Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1. At the conclusion of oral argument, this Court by a majority ordered that the appeal from the decision of the Court of Appeal be allowed and made consequential orders. I did not agree in the making of those orders. I considered that the majority of the Court of Appeal were correct to hold that there was no jurisdictional error. That was essentially because s 66(2), read with s 66(1), of the Sentencing Procedure Act does not condition the authority of the sentencing court to make or refuse to make an ICO under s 7(1)[3].[3]See also Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154. As the Court of Appeal recognised, whether a failure to conduct the assessment referred to in s 66(2) amounts to an error going to jurisdiction is to be determined by reference to the Sentencing Procedure Act. I gratefully adopt the analysis of Jagot J of that statute's provisions. Section 66 is not expressed in terms to condition the discretion under s 7(1). It does not by its terms effect a constraint upon the powers of a sentencing court. As Basten JA observed[4], it is better described as a direction to the sentencing court that considerations which may promote the safety of the community are to be given special weight and that one factor to be included in the process of assessment is whether the risk of re-offending would be more likely under an ICO or by requiring full-time detention. It serves as a reminder to the court that giving paramount effect to community safety does not require incarceration.[4]Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1 at 34 [138].