AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 19 July 2004

R v Bonat (No.2)

[2004] NSWCCA 242

Other
CRIMINAL LAW VARIATION OF SENTENCE NO QUESTION OF PRINCIPLE

Citation: R v Bonat (No.2) [2004] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 19 July 2004
Judge(s): Sperling J (with Sheller JA and Adams J concurring)

Background

The appellant had been sentenced in the District Court by Norrish DCJ on 5 June 2003. The effective sentence was seven years and six months, with a non-parole period of four years commencing 7 March 2003 and expiring 6 March 2007.

On the same day as this judgment, the Court of Criminal Appeal allowed the appellant's appeal against those underlying convictions and directed the entry of verdicts of acquittal. Those sentences were therefore quashed.

A separate sentencing issue arose from a later District Court sentence. On 10 October 2003, Shadbolt DCJ had sentenced the appellant in relation to an unrelated matter, imposing a one-year non-parole period commencing 6 March 2007 (that is, set to begin upon expiry of the Norrish DCJ non-parole period) and a three-year parole period expiring 5 March 2011. With the Norrish DCJ sentences quashed, the sequencing of that later sentence no longer made sense.

  • Whether the Court of Criminal Appeal, having quashed the earlier sentences, had power under s 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement date of the Shadbolt DCJ sentence.
  • What the appropriate backdated commencement date should be, so that the Shadbolt DCJ sentence aligned with the period already served.

Decision

Section 59 of the Crimes (Sentencing Procedure) Act 1999 provides that a court which quashes a sentence of imprisonment may vary the commencement date of any other sentence previously imposed on the same person. Having quashed the Norrish DCJ sentences, the Court held it had power to act under that provision.

The appellant applied to have the Shadbolt DCJ sentence backdated to commence on 7 March 2003, the original commencement date of the quashed sentences. The practical effect was that the one-year non-parole period under the Shadbolt DCJ sentence would be treated as having expired on 6 March 2004 and therefore already served. The Crown did not oppose the application.

Sperling J confirmed the agreement of all three judges who had constituted the appeal bench (Sheller JA, Adams J, and Sperling J) and made the order as sought.

Orders Made

  • The sentence imposed by Shadbolt DCJ on 10 October 2003, consisting of a one-year non-parole period commencing 6 March 2007 and expiring 5 March 2008 and a three-year parole period expiring 5 March 2011, be varied under s 59 of the Crimes (Sentencing Procedure) Act 1999 so that:
  • The sentence commences on 7 March 2003
  • The non-parole period expires on 6 March 2004
  • The total sentence expires on 6 March 2007

Key Takeaways

  • Under s 59 of the Crimes (Sentencing Procedure) Act 1999, a court that quashes a sentence of imprisonment has power to vary the commencement date of any other sentence previously imposed on the same offender.
  • Where a consecutive sentence has been structured to begin upon expiry of a sentence later quashed on appeal, s 59 provides a mechanism to rebase that sentence so it aligns with time already served.
  • The Court of Criminal Appeal exercised this power on the same day it allowed the substantive appeal, demonstrating that the variation can be made immediately and without a separate hearing.
  • No error of principle was involved; the decision is confined to its procedural and remedial facts and raises no broader question of law.
  • The Crown's non-opposition, while not determinative, formed part of the procedural context in which the order was made without contest.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases:
- R v Bonat [2004] NSWCCA 240 (the companion appeal in which the convictions were quashed)