R v TOYER (NO 2) [2021] NSWDC 92

District Court New South Wales

Medium Neutral Citation: R v TOYER (NO 2) [2021] NSWDC 92 Hearing dates: 29 March 2021 Date of orders: 29 March 2021 Decision date: 29 March 2021 Jurisdiction: Criminal Before: Lerve DCJ Decision: Resentenced – see paragraphs [20]-[24] Catchwords: SENTENCING – penalties – Intensive Correction Orders not available to offence of manslaughter SENTENCING – non parole period – principles to be applied. Legislation Cited: Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 R v Boney [2008] NSWCCA 313 Category: Sentence Parties: Director of Public Prosecutions (The Crown) Rian Ross TOYER Representation: Counsel: Ms. V Morgan, Crown Prosecutor Mr M Dennis SC for the offender

Solicitors: Mr A Thomas DPP Mr Z Tankard of Tankards Law for the offender File Number(s): 2019/296012 Publication restriction: No

Judgment 1. These reasons presume a familiarity with my previous reasons in this matter published as R v Toyer [2021] NSWDC 69. I do not resile from nor seek to modify any of those reasons or findings contained in that decision up to and including paragraph [83]. I wish to make it clear that the findings I made as to the seriousness of the matter were in the context of matters of manslaughter by dangerous and unlawful act.

Sentencing Error 1. For reasons which I gave in that decision I imposed a sentence of imprisonment of 22 months (1 year 10 months) and purported to order that the sentence be served by way of Intensive Correction Order. It was brought to my attention during the evening of 19 March 2021 that pursuant to s 67(1) of the Crimes (Sentencing Procedure) Act, 1999 that course was not available given that the offender was convicted and being sentenced for the offence of Manslaughter. 2. Clearly in purporting to impose an Intensive Correction Order I made an error. That error was fundamental and significant and one of which I must take ownership. It will be necessary to re-open the sentencing proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act to correct this fundamental and significant error. During a short further sentence hearing today (29 March 2021) both parties indicated that there was agreement that the error was one that was amenable to be corrected by using s 43 of the Sentencing Act. Mr Dennis SC provided short written submissions which were marked as an MFI. 3. However, I make a number of observations, which are not in any particular order. Firstly, in my previous reasons at paragraphs [74]-[76] I summarised the statistics kept by the Judicial Commission in respect of sentences imposed for the offence of manslaughter. I note that in the "pre-reform statistics" an Intensive Correction Order was an available sentence. The Intensive Correction Order pre-reform (i.e. prior to the sentencing reforms of 2018) was not as onerous as under the present sentencing regime. There is clear authority from the superior courts that sentencing courts are in error if they do not consider an Intensive Correction Order if a submission is made that such an order be imposed. 4. Secondly, under the present sentencing regime there is no impediment to an offender convicted of manslaughter being dealt with by way of Community Correction Order, which in lay terms is essentially a good behaviour bond, and therefore a far less severe penalty that the one I purported to impose on 19 March 2021. An Intensive Correction Order involves the imposition of a sentence of imprisonment but with that sentence to be served in the community. An Intensive Correction Order and a Community Correction Order can have attached to the order a requirement that the offender perform community service. However, the supervision of an offender subject to an Intensive Correction Order by the Department of Community Corrections is more intense. On breach of an Intensive Correction Order the sentence is administratively enlivened and the offender taken into custody. Home detention once a stand-alone means of serving a sentence of imprisonment, can now only be imposed as a condition of an Intensive Correction Order. 5. Thirdly, the "post reform" statistics which I accessed indicated that one offender had been dealt with for manslaughter by way of Community Correction Order. It seems more than a little odd that a Community Correction Order is available whereas an Intensive Correction Order which is a more severe and onerous disposition for an offender is not available. Further, on the issue of statistics, the pre-reform statistics also indicate that offenders convicted of manslaughter were dealt with by way of non full time custodial outcomes, including as I have already observed by way of Intensive Correction Order. 6. Fourthly, in the comprehensive written and oral submissions of both counsel no mention is made of an Intensive Correction Order. I presume both counsel (quite understandably) were of the opinion that I would be aware that such a disposition was not available for the offence of manslaughter. I wish to make it clear I am not saying that I should have received more assistance, nor in any way do I seek to apportion blame for my error to either counsel. I have already said that the error is mine and I take ownership of that error. 7. Further, by way of observation that in the course of hearings on sentence and on appeals from the Local Court, I receive numerous submissions to the effect that an offender be permitted to serve a term of imprisonment by way of Intensive Correction Order. Some of those submissions are wildly and inappropriately optimistic. The offender in the present matter is one of the more deserving of an Intensive Correction Order that I have encountered since the sentencing reforms of 2018. It is a matter of considerable regret that I am unable to extend that disposition to this offender. I remain firmly of the opinion that if the law permitted the offender to serve the sentence by way of Intensive Correction Order it would be the appropriate course in this matter.