Stanley v DPP (NSW)

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.