Bresnahan [2022] NSWCCA 288

• Court allowed appeal against sentence – majority (Beech-Jones CJ at CL and Walton J) imposed lesser sentence of imprisonment
• Yehia J, in dissent, proposed Intensive Correction Order – referred to the punitive nature of imprisonment:

[150] It must be remembered that imprisonment is uniquely punitive because it involves the complete loss of liberty, loss of personal autonomy, loss of privacy, forced association, restriction of movement, and exposure to violence and intimidation. In Mainwaring [2009] NSWCCA 207, Harrison J (at [71]) made an observation with which I respectfully agree:

“Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences. In contrast, I have no doubt that the learned trial judge was acutely aware of such matters, as his careful disposition of the case reveals.”