Sentences of full-time custody and an ICO are both forms of “imprisonment”. However, an ICO allows you to serve your term of imprisonment in the community. The Court may sentence you pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), which states:

“A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.”

Section 66(1) of the CSPA states that when a sentencing court is deciding whether to make an ICO community safety must be the “paramount consideration.” When considering community safety s 66(2) of the CSPA states that the sentencing court is to assess whether making the ICO or full time custody is more likely to address the offender’s risk of reoffending.

Ms Stanley pleaded guilty in the Local Court of NSW to various firearms offences, and was sentenced to a term of full time imprisonment of three years with a non-parole period of two years. She appealed to the District Court NSW against the severity of the sentence. Ms Stanley argued that she should be sentenced to a term of imprisonment directed to be served by way of an ICO in the community. The District Court dismissed the appeal.

She appealed this decision to the NSW Criminal Court of Appeal (NSWCCA) by arguing that the District Court fell into jurisdictional error by failing to make any express reference to, or findings in relation to, the assessment in section 66 of the CSPA outlined above. The NSWCCA dismissed the appeal and found that while the District Court had not properly considered section 66, the failure to do so did not constitute a jurisdictional error.

Ms Stanley appealed to the High Court of Australia who by majority allowed her appeal.

The majority found that by failing to undertake the assessment in s66(2) the District Court Judge fell into jurisdictional error. Importantly the majority found that a sentencing court is “under a duty to consider whether to make an ICO where that matter is properly raised in the circumstances of the case.” [1]

The effect of the decision of the HCA means that when an alternative sentence of an ICO is properly raised in a case the sentencing court must consider both options of full-time custody or an ICO before sentencing an offender.