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

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

EMMA-JANE STANLEY APPELLANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

(NSW) & ANOR RESPONDENTS

Stanley v Director of Public Prosecutions (NSW)

[2023] HCA 3

Date of Hearing: 15 November 2022

Date of Order: 15 November 2022

Date of Publication of Reasons: 15 February 2023

S126/2022

ORDER

1. Appeal allowed.

2. 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 and, in its place, order that:

(1) 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; and

(2) the appellant's appeal to the District Court of New South Wales be heard and determined by the District Court of New South Wales according to law.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with T Quilter and C E O'Neill for the appellant (instructed by Legal Aid NSW)

C O Gleeson with A Poukchanski for the first respondent (instructed by Solicitor for Public Prosecutions (NSW))

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Stanley v Director of Public Prosecutions (NSW)

Administrative law – Judicial review – Jurisdictional error – Sentencing powers of inferior court – Where s 7 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") empowered sentencing court to make intensive correction order ("ICO") directing that a sentence of imprisonment be served by way of intensive correction in community – Where power to make ICO was a discrete function arising after sentence of imprisonment imposed – Where s 66(1) of Sentencing Procedure Act provided community safety was paramount consideration in exercising discretion to make ICO – Where s 66(2) of Sentencing Procedure Act required sentencing court, when considering community safety, to assess whether making ICO or serving sentence by way of full-time detention more likely to address offender's risk of reoffending – Whether failure to comply with s 66(2) amounted to jurisdictional error – Consideration of categories of jurisdictional error in Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531.