Sentencing Bench Book — Update 44

Update 44 to the Sentencing Bench Book contains amendments to:

Penalties of imprisonment The text at [3-300] Imprisonment as a sanction of last resort has been updated to include Casella v R [2019] NSWCCA 201 at [63]–[65]. Failure to make clear that alternatives to full-time custody have been considered and rejected is not, of itself, erroneous, but might result in uncertainty about whether the s 5 threshold for a sentence of imprisonment was met. A similar reference has been added at [3-630] ICO is a form of imprisonment.

Intensive correction orders text has been revised at [3-600]ff to include R v Pullen [2018] NSWCCA 264, R v Fangaloka [2019] NSWCCA 173 and Casella v R [2019] NSWCCA 201. [3-630] ICO is a form of imprisonment now includes the discussion in R v Fangaloka at [60]–[61] of the implications arising from the third stage of the process engaged in when considering alternatives to full-time imprisonment (see R v Zamagias [2002] NSWCCA 17). Additional reference is made to R v Zamagias with respect to that third stage. The paragraph titled ICOs available for sentences of 6 months or less has been added. Inherently lenient or a substantial punishment? at [3-630] has been revised to include the discussion of the ICO statutory scheme in R v Pullen at [53]. In R v Pullen and subsequently in R v Fangaloka, the court observed that ICOs under the new scheme, while retaining the capacity to operate as substantial punishment, may also reflect a significant degree of leniency. The discussion in R v Fangaloka, at [57], concerning the effect of the competing purposes of punishment on whether a particular sentence should be served by way of an ICO has also been added. References in this section to cases which pre-date the current ICO scheme have been removed.

[3-632] Community safety is the paramount consideration A discussion of the approach to the construction of s 66 taken in R v PullenR v Fangaloka and Casella v R has been added. References to cases decided under the previous ICO scheme have been removed.

[3-640] ICO conditions Casella v R has been added as an example of a case where exceptional circumstances were established for the purposes of s 73A.

Table of Cases, which is available online only, has been prepared and is now available including all cases to Update 44.