Wany v Director of Public Prosecutions

The plaintiff, Wany, appealed to the Court of Appeal of New South Wales against a sentencing order made by a judge of the District Court. The appeal concerned the District Court judge's approach to sentencing following an earlier appeal by way of rehearing pursuant to sections 11 and 17 of the *Crimes (Appeal and Review) Act 2001*.

The primary legal issues before the Court of Appeal were whether the District Court judge had failed to engage in the fresh sentencing task imposed by section 17 of the *Crimes (Appeal and Review) Act 2001* by adopting the reasoning of the lower court, and whether this constituted a constructive failure to exercise jurisdiction. Additionally, the court considered whether community safety was a mandatory element for consideration under section 66(2) of the *Crimes (Sentencing Procedure) Act*, and the requirement for a court to assess whether an Intensive Correction Order or full-time detention was more likely to address an offender's risk of reoffending, particularly in light of sentencing assessment reports indicating suitability for community service and a low risk of reoffending.

The Court of Appeal reasoned that an appeal by way of rehearing under section 17 of the *Crimes (Appeal and Review) Act 2001* requires the judge to undertake a fresh sentencing exercise, independent of the previous sentencing decision. The judge's adoption of the lower court's reasoning, without a thorough and independent assessment of the relevant factors, amounted to a failure to engage in the required task and a constructive failure to exercise jurisdiction. The court emphasised that section 66(2) of the *Crimes (Sentencing Procedure) Act* mandates consideration of community safety and requires a specific assessment of which sentencing option, an Intensive Correction Order or full-time detention, is more likely to address the offender's risk of reoffending.

The Court of Appeal ordered that the District Court's sentencing order be quashed and that the proceedings be remitted to the District Court for a fresh hearing and determination according to law. The court also made orders regarding the removal of the District Court record into the Court of Appeal and costs.