Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Where the power to make an Intensive Correction Order (ICO) is enlivened, a sentencing court does not have jurisdiction to decide that a sentence of imprisonment is to be served by full-time detention without first assessing, as required by s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), whether making an ICO or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. Failure to undertake this assessment constitutes jurisdictional error, invalidating the decision and entitling the affected person to remedial relief.

Parties
Appellant: Emma-Jane Stanley; First Respondent: Director of Public Prosecutions (NSW); Second Respondent: Anor
Jurisdiction
Australia
Judgment Date
15 February 2023
Procedural Posture
Appeal / High Court Appeal From the Supreme Court of New South Wales (court of Appeal), Concerning Review of a District Court Sentencing Decision; Procedural Questions of Jurisdictional Error and Sentencing Process Under NSW Law
Outcome
Appeal allowed.
Legal Topics
Judicial Review, Jurisdictional Error, Sentencing Powers of Inferior Courts, Sentencing Procedures, Intensive Correction Orders, Criminal Appeals
Administrative Law Criminal Law Judicial Review Jurisdictional Error Sentencing Powers of Inferior Courts Sentencing Procedures Intensive Correction Orders Criminal Appeals

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Parties

Emma-Jane Stanley

Appellant

Director of Public Prosecutions (NSW)

First Respondent

Anor

Second Respondent

Procedural Posture

Appeal / High Court Appeal From the Supreme Court of New South Wales (court of Appeal), Concerning Review of a District Court Sentencing Decision; Procedural Questions of Jurisdictional Error and Sentencing Process Under NSW Law

Legal Issues

  1. 1 Whether failure to comply with s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) amounts to jurisdictional error
  2. 2 Whether the District Court Judge failed to undertake the assessment required by s 66(2) when considering an Intensive Correction Order (ICO)
  3. 3 Whether such a failure is amenable to judicial review by the Supreme Court

Ratio Decidendi

Where the power to make an Intensive Correction Order (ICO) is enlivened, a sentencing court does not have jurisdiction to decide that a sentence of imprisonment is to be served by full-time detention without first assessing, as required by s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), whether making an ICO or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. Failure to undertake this assessment constitutes jurisdictional error, invalidating the decision and entitling the affected person to remedial relief.

Court Disposition

Appeal allowed.

Orders

  • 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.
  • Order that 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.