In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 (15 February 2023), the High Court was required to consider whether the failure of a sentencing judge to consider community safety – before declining to make an intensive correction order (ICO) under the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) – amounted to a jurisdictional error of law.
The appellant (Stanley) is a woman with five children, a disadvantaged background and a significant employment history. In 2020, Stanley pleaded guilty to offences under the Firearms Act 1996 (NSW), those offences being knowingly taking part in the supply of a firearm, and having in her possession for supply a shortened firearm.
Stanley committed the offences after she became aware that her cousin had stored firearms under her house in regional NSW. Stanley said she wanted the firearms out of her house but didn’t want to get her cousin into trouble – she allowed the firearms to remain in her house for eight days and then accepted $50 on their sale.
Stanley was sentenced, by the Local Court of New South Wales at Dubbo, to an aggregate term of imprisonment of three years with a non-parole period of two years. She appealed to the District Court against the severity of the sentence and asked the District Court, under s7(1) of the Act, to make an ICO that would have directed her sentence to be served “by way of intensive correction in the community”.
Section 66(1) of the Act provides that community safety must be the paramount consideration when the court is deciding whether to make an ICO. Section 66(2) of the Act provides that, when considering community safety, the court is to assess whether making the ICO or serving the sentence by way of full-time detention is more likely to address the offender’s risk of offending.
The District Court dealt with Stanley’s appeal by way of a rehearing, under s17 of the Crimes (Appeal and Review) Act 2001 (NSW), and confirmed the local court’s sentence. The District Court, in reaching this conclusion, did not make any reference to, or findings in respect of, the assessment required in s66(2) of the Act.
Stanley, having exhausted her appeal rights, filed a summons in the New South Wales Court of Appeal, seeking – pursuant to s69B(1) of the Supreme Court Act 1970 (NSW) – relief in the nature of certiorari quashing the decision of the District Court.
A majority of the Court of Appeal (Bell P, Basten, Leeming and Beech Jones JJA, McCallum JA dissenting) held that the court had no jurisdiction to correct the District Court’s error because it was not a jurisdictional error, and dismissed Stanley’s summons. Note that s176 of the District Court Act 1973 (NSW) limits reviews to a review for jurisdictional error.
Stanley obtained special leave to appeal to the High Court. The High Court, by a narrow margin of four to three, allowed Stanley’s appeal. The majority (Gordon, Edelman, Steward and Gleeson JJ) found that the District Court’s error was a jurisdictional error.
The majority, in a joint judgment, provide a neat summary of their reasons, at [54]. The majority’s reasons essentially rest on two observations.
First, their Honours observe, at [59], that before a sentencing court can make a final order by which a sentence of imprisonment is imposed, under the Act (or confirmed or varied on appeal) the court must consider whether to make an ICO.
Second, their Honours observe, at [72], that ss66(1) and66(2) of the Act impose “specific mandatory considerations” on the sentencing court in the exercise of the court’s discretion to make an ICO.
The majority concluded that the District Court judge, by failing to undertake the assessment mandated by s66(2), misconstrued s66 and, as such, misconceived the nature of her function under the Act and disregarded a matter that the Act required to be taken into account as a condition or limit of the jurisdiction.
Kiefel CJ, Gageler and Jagot JJ dissented and set out their reasons in separate judgments. Jagot J considered, at [172] and [203], that the “history, structure, context and text” of the Act told against the conclusion that s66(2) functions as a jurisdictional pre-condition to a sentence of imprisonment.
Jagot J also considered, at [205], that such a pre-condition conflicted with established authority in New South Wales about the process of making a final order on sentence and, at [210], the legislative scheme itself. At [206], Jagot J noted that the “Inconvenience of result” was also a relevant factor in the characterisation of the District Judge’s error.
As Gageler J notes, at [17], “there are mistakes, and then there are mistakes”. A jurisidictional error means that the court’s order is void (as if it never existed at all) and, as Gageler J cautions, this may have extreme consequences for those who have acted in the interim on the order.
Gageler J also observes, at [19], that a mandatory consideration “is not, without more, a jurisdictional consideration. The ultimate question of construction is whether the statute makes taking the consideration into account a condition of the authority which the statute confers on the court to make an order of that kind”.
Gageler J, at [20], concludes that the assessment provided for in s66(2) is not a condition of the sentencing court’s authority under the Act. Kiefel CJ comes to the same conclusion, at [10], after adopting Jagot J’s analysis of the relevant provisions of the Act.
Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email msharpe@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.
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