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. Re-Opening Proceedings 1. As I have observed it will be necessary to re-open the sentence proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act to correct the error that I have made. Relevantly s 43 of the Sentencing Act provides: 43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has— (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard— (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. (3) For the purposes of this section, the court— (a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person's arrest, or (b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person's arrest. (4) Subject to subsection (5), nothing in this section affects any right of appeal. (5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed. (6) In this section— "impose a penalty" includes— (a) impose a sentence of imprisonment or a fine, or (b) make an intensive correction order, community correction order or conditional release order, or (c) (Repealed) (c1) make a non-association order or place restriction order, or (d) make an order under section 10 or 11, or (e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss, suspension or variation of a licence or privilege. 1. There is considerable guidance as to the scope of s 43 of Act in the decision of Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10. The plurality (French CJ, Crennan, Kiefel (as her Honour then was) and Bell JJ) said at [32]: "Section 43 confers upon courts exercising jurisdiction in criminal proceedings a power to re-open those proceedings and to impose a penalty that is in accordance with law. The section only applies to criminal proceedings in which one of two conditions is fulfilled. The condition directly relevant to this appeal is that "a court has ... imposed a penalty that is contrary to law". On the ordinary meaning of that collocation, what must be contrary to law is the 'penalty'. That condition is not satisfied merely by demonstrating that the court has erred in law or fact. Notwithstanding such error, the penalty imposed may not be contrary to law. It may fall within the range of penalties permitted or required by the relevant statutory provisions and may also be consistent with the reasonable exercise of a discretion applicable to the particular offence and offender. Examples of circumstances in which a penalty may be said to be contrary to law include: A penalty which exceeds the maximum penalty prescribed for the offence. A penalty which it is beyond the power of the court to impose because some precondition for its imposition is not satisfied — eg the existence of an aggravating factor or the existence of prior convictions for the same kind of offence. A penalty which lies outside the range of penalties that could have been imposed in a reasonable exercise of discretion is not, thereby, contrary to law in the sense required by s 43, not least because reconsideration of such would involve an evaluative exercise which must be dealt with by way of appeal." 1. Their Honours went on to say at [36]: "The text of s 43 is clear enough. The relevant power is conditioned upon the penalty being 'contrary to law'. A construction encompassing error in the imposition of a lawful penalty would allow the power to be applied to any penalty, however appropriate, that is imposed under the influence of an error of law or fact. That construction does not fit with the text. Nor does it accord with the limited purpose of the section. The principle of finality should not be taken to have been qualified except by clear statutory language and only to the extent that the language clearly permits. The construction for which the appellant contended, and which is reflected in some earlier decisions of the Court of Criminal Appeal, can only be supported by attributing to the provision a purpose which, whatever its practical benefits, leaves the boundaries between correction and appeal porous and protected only by the exercise of the sentencing court's discretion. The importance of the distinction between original and appellate jurisdiction in the application of s 43 to courts of first instance militates against such a result. The appellant's construction should not be accepted. A penalty is not 'contrary to law' only because it is reached by a process of erroneous reasoning or factual error." 1. Gagler J agreed with plurality as to the outcome of the appeal but his Honour gave separate reasons. 2. Mr Dennis SC in his submissions referred the court to [20] of the judgment of plurality in Achurch v The Queen. The plurality said at [20] (footnotes omitted): "The earliest precursor of s 43 in New South Wales was s 100HA of the Justices Act 1902 (NSW), enacted with effect from 1 January 1987. It conferred on magistrates the power to re-open the hearing of a criminal matter following the imposition of a penalty contrary to law. It was described in the Attorney-General's Second Reading Speech in the Legislative Assembly as similar to provisions then existing in Tasmania, Western Australia and Queensland. The provision could not be used to revise a sentence" 1. I therefore invoke section 43 of the Crimes (Sentencing Procedure) Act to correct the error made on 19 March 2021. As indicated at [83] of the remarks on sentence delivered on 19 March 2021 I determined that the appropriate sentence is one of 22 months or 1 year 10 months. The only issue now is to direct that that be served by full-time custody and further to consider the appropriate non-parole period and balance of term. Special Circumstances 1. Mr Dennis SC submits both in written and oral submissions that there should be a substantial finding of special circumstances. Indeed he put in oral submissions that I would not be in error in setting the non-parole period at 40% to 50% of the total sentence. 2. On behalf of the offender it is submitted that the factors that justify a finding of special circumstances include the age of the offender (now 33), the fact that this will be his first time in custody and moreover the need for an extended period of supervision to ensure that the offender receives the appropriate level of counselling and assistance suggested by Mr Borrenstein, psychologist in his report, which is exhibit 1 in the original sentence proceedings. 3. I agree that those factors in combination, particularly the need for an extended period of supervision, justify a finding of special circumstances. Given the offender's age and lack of record, given that he will spend some time in custody and the issues of the post-traumatic stress as diagnosed by Mr Borrenstein, he will in all likelihood require assistance in reintegration into the community. 4. The Crown does not take issue with a finding of special circumstances although the Crown submitted that the finding of special circumstances would not be substantial. The Crown again reminded the court of the level of dangerousness of the conduct by the offender and the need for general deterrence. 5. The controversy is therefore the extent of a finding of special circumstances. I note the obiter remarks of RS Hulme J in R v Boney [2008] NSWCCA 313 at [48] namely: "Altering the ratio between the non-parole and balance of term periods of a sentence from that of 3:1 embodied in s44 of the Crimes (Sentencing Procedure) Act as much as to result in a ratio of 50:50 is sufficiently unusual as to inspire examination. The only reason advanced by her Honour for finding special circumstances, and by inference for apportioning the full term of the sentence as she did, was the opinion of a psychologist that the Respondent required extensive post release supervision and assistance". 1. The situation with the offender and the overall circumstances in this case are very different to those that were present in Boney. I am of the opinion that for the reasons given there should be a substantial finding of special circumstances. Neither party made any submission about pre-sentence custody so I proceed on the basis that there is no pre-sentence custody to be taken into account. Orders 1. On 19 March 2021 I recorded a conviction and imposed a sentence of 22 months or 1 year 10 months. That sentence must remain. 2. I impose a non-parole period of 12 months to commence today 29 March 2021 and which will expire on 28 March 2022. There will be a balance of term of 10 months to commence on 29 March 2022 and which will expire on 28 January 2023. 3. The offender is to be released at the expiration of the non-parole period to statutory parole. I recommend that parole be subject to a condition that the offender accept the supervision of the Department of Community Corrections and obey all reasonable directions of that service relating to mental health issues. In that regard I direct a copy of Mr Borrenstein's report, exhibit 1 on sentence be forwarded to the Department of Community Corrections. 4. The sentence indicates a finding of special circumstances for reasons which have been enunciated earlier in these reasons. The non-parole period is approximately 55% of the total sentence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2021