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Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294

The offender was sentenced following pleas of guilty to one count of using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Commonwealth Criminal Code. Offender was sentenced to additional state offences. Other offences were taken into account on sentencing. Offender was originally sentenced to 12 months imprisonment in respect of the federal offence and 32 months in respect of the State offences, to be served partially concurrently. On appeal, the District Court declined to order that the sentence be served by way of ICO but reduced the total effective sentence. The offender sought judicial review on the basis that the District Court fell into jurisdictional error by failing to take into account considerations in imposing an ICO as required by s 66 and that the imposition of the sentence based on the wrong number of text messages caused the decision to be vitiated by jurisdictional error.  

Intensive Correction Order: An intensive correction order may not be available because the offending is not sufficiently serious. The sentencing court must first be satisfied that no penalty other than a sentence of imprisonment is appropriate. Section 66 imposes no requirement upon the Court to consider community safety. It does not follow from the requirement that matters required to be considered by a statute must each be specifically addressed in the reasons given by the sentencing judge. Whatever force the word paramount in s66(1) carries, it does not turn community safety into a trump card which defeats all other purposes. The District Court paid no explicit attention to s 66(2). Grounds are not made out.  

Nature and Circumstances: 1472 messages were taken into account under s 16BA schedule and were incorrectly recorded as 14,727 messages. The error was obvious on the face of the document by comparison with the earlier draft statements of agreed facts and by looking at the typographical error and by an elementary consideration of the practicalities involved. Whether there be 10,000 or 12,000 or 30,000 text messages is not to the point. There is no suggesting that the quality of the messages was in any way misstated, nor the duration of time throughout which the offender was sending them. The offender was sending more than 100 text messages per day over the first 28 days and 91 messages per day over the ensuing three days. Offending could not reasonably have been found to be less than the mid-range of objective seriousness. There was no constructive failure to exercise jurisdiction. The District Court acted upon the evidence it had. If the error had been detected before appeals were exhausted this could have been corrected on appeal. The fact that the offender has exhausted their right of appeal does not mean they lack a remedy.  

Amended summons be dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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