Sentencing Bench Book Update 49 published

Intensive correction orders (ICOs) (alternative to full-time imprisonment) has been revised at [3-630] ICO is a form of imprisonment to add Mandranis v R [2021] NSWCCA 97, which reiterates that making an ICO requires the sentencing judge to follow a three-stage process before directing the sentence can be served in that way. The chapter has also been updated to add references to Wany v DPP [2020] NSWCA 318 and Blanch v R [2019] NSWCCA 304, confirming that an obligation to consider making an ICO may be enlivened where a cogent argument is advanced for taking that course. The commentary at [3-632] Mandatory considerations when determining whether to impose ICO has been substantially revised following Mandranis v R which considered the correctness of what has been described as the restrictive interpretation of s 66(2) Crimes (Sentencing Procedure) Act 1999 and whether a sentencing court must positively conclude an ICO is more likely than full-time custody to address an offender’s risk of reoffending. Mourtada v R [2021] NSWCCA 211, where Basten JA made some observations concerning the controversy surrounding aspects of R v Fangaloka as it concerns s 66(2), has also been added. [3-660] Pronouncement of ICO by court, terms and commencement has been updated to add Mandranis v R and R v Edelbi [2021] NSWCCA 122. These state that the term of an ICO may be reduced to take account of pre-sentence custody as s 71 Crimes (Sentencing Procedure) Act requires an ICO to commence on the date it is made.

Guilty plea to be taken into account has been updated at [11-515] Guilty plea discounts for offences dealt with on indictment to add Ke v R [2021] NSWCCA 177 which considered the proper construction of s 25E(2)(a) Crimes (Sentencing Procedure) Act.

[12-500] Counting pre-sentence custody Reference to Mandranis v R and R v Edelbi, which endorse the approach of reducing an ICO to give effect to pre-sentence custody, has been added.

[17-410] Sentencing for historical child sexual offences replaces the previous [17-410] Sentencing for offences committed many years earlier in Sexual offences against children. The new commentary discusses the requirements of s 25AA Crimes (Sentencing Procedure) Act and the cases which have considered it.

Appeals at [70-130] Crown appeals on sentence to the District Court has been updated to include reference to DK v DPP [2021] NSWCA 134 which found that the prosecution, when it appeals a sentence, must establish error before the appeal can be upheld. [70-080] Matters influencing decision of DPP to appeal has been revised to refer to the recently revised and reissued NSW DPP Prosecution Guidelines and the references to the Cth DPP Prosecution Policy of the Commonwealth: guidelines for the making of decisions in the prosecution process) have also been updated.