Citation: WSP v Regina [2006] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 3 August 2006
Judge(s): Spigelman CJ, Hoeben J, Rothman J
Background
The applicant had originally been sentenced in the District Court on multiple sexual offences against two complainants. Those sentences were structured so that the later group of offences (relating to the complainant MK) commenced immediately after the earlier group of offences (relating to the complainant CJ) expired, producing a continuous total sentence.
On appeal to the Court of Criminal Appeal, the convictions and sentences relating to CJ were set aside, while the sentences relating to MK were affirmed. The matter was remitted to the District Court for resentencing on the CJ offences.
On resentencing, the applicant pleaded guilty to some of the CJ offences, and Hosking DCJ imposed shorter sentences commencing in August 2003. Because those new sentences were shorter than the originals, a four-month gap emerged between their expiry and the commencement date of the MK sentences, which had been left undisturbed by the earlier appeal.
Legal Issues
- Whether the sentences imposed by Latham DCJ in relation to the MK offences should be backdated to eliminate the unintended four-month gap that arose as a result of the resentencing on the CJ offences.
Decision
Both parties agreed that the gap was an unintended consequence of the resentencing process and that adjustment was appropriate. The Crown and the applicant jointly submitted that the MK sentences should be backdated so that they commenced immediately upon the expiry of the newly imposed CJ sentences.
The Court accepted those joint submissions and set aside the original MK sentencing orders, substituting new orders that backdated the commencement of both the MK sentences to 12 April 2005, immediately following the expiry of the resentenced CJ matters. The total effective sentence was preserved, with only the commencement date adjusted.
Orders Made
- The orders of Latham DCJ dated 24 October 2005 imposing sentences for offences against the complainant MK were set aside.
- Count 1 (aggravated indecent assault): fixed term of two years imprisonment commencing 12 April 2005 and expiring 11 April 2007.
- Count 2 (sexual intercourse under s 66C(2)): six years imprisonment commencing 12 April 2005 and expiring 11 April 2011, with a non-parole period of three years commencing 12 April 2005 and expiring 11 April 2008.
Key Takeaways
- Where resentencing on remittal produces shorter terms than originally imposed, a gap can emerge between the new sentence and any undisturbed sentences that were originally structured to follow on consecutively.
- The Court of Criminal Appeal has the power to adjust the commencement dates of undisturbed sentences to eliminate an unintended gap arising from resentencing on remittal.
- In this matter, both the Crown and the applicant agreed on the appropriate adjustment, and the Court acted on those joint submissions.
- Backdating the MK sentences preserved the original sentencing structure and ensured the total period of imprisonment remained consistent with the undisturbed sentencing orders.
- No error in the original MK sentences was identified; the adjustment was purely a consequence of the changed CJ sentences, not a substantive re-evaluation of the MK penalties.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C(2)
Cases:
- R v WSP [2005] NSWCCA 427