Citation: KWOK v REGINA (No. 2) [2007] NSWCCA 314
Court: Court of Criminal Appeal, New South Wales
Date: 15 November 2007
Judge(s): Santow JA, Hidden J, Howie J
Background
The appellant had previously appealed both his conviction and sentence in the District Court. In a judgment delivered on 24 September 2007, the Court of Criminal Appeal dismissed the conviction appeal but allowed the sentence appeal, re-sentencing the appellant to two partly cumulative terms of nine months periodic detention with a recognizance release order after serving three months of the second term.
After that re-sentencing judgment was delivered, a procedural problem came to the Court's attention. The re-sentencing orders failed to specify commencement dates for the sentences, and the recognizance release order did not include a security amount. Both requirements are mandatory under the relevant Commonwealth legislation.
The Court accordingly reopened the proceedings to correct these technical defects, with the appellant having already commenced serving periodic detention on 24 February 2007.
Legal Issues
- Whether the proceedings could be reopened to correct technical defects in a re-sentencing order
- Whether the omission of commencement dates for the periodic detention sentences needed to be rectified, given the requirement under s19(2) of the Crimes Act 1914 (Cth)
- Whether the absence of a security amount in the recognizance release order needed to be corrected, as required by s20(1)(b) of the Crimes Act 1914 (Cth)
Decision
The Court found that the original re-sentencing orders were defective in two respects. First, no commencement dates had been specified for either periodic detention sentence, as mandated by s19(2) of the Crimes Act 1914 (Cth). Second, no security amount had been imposed as part of the recognizance release order, contrary to the requirement in s20(1)(b) of the same Act.
The Court exercised its power under s43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to reopen the proceedings and address both deficiencies. Because the appellant had commenced serving periodic detention on 24 February 2007, that date was used as the commencement date for the first sentence, with the second sentence running from 24 August 2007.
Orders Made
- Proceedings reopened pursuant to s43 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- First count: imprisonment for nine months by way of periodic detention, commencing 24 February 2007
- Second count: imprisonment for nine months by way of periodic detention, commencing 24 August 2007, with release on recognizance after serving three months
- Recognizance terms: security without sureties in the sum of $100, to be of good behaviour for six months
Key Takeaways
- Under s19(2) of the Crimes Act 1914 (Cth), a sentencing court must specify a commencement date when imposing a term of imprisonment; omitting that date renders the order technically defective.
- A recognizance release order under s20(1)(b) of the Crimes Act 1914 (Cth) requires the imposition of a security amount; the original re-sentencing order was also defective for failing to include one.
- Section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides a mechanism for the Court of Criminal Appeal to reopen proceedings and correct such technical errors after a re-sentencing judgment has been delivered.
- The Court of Criminal Appeal used the date on which the appellant actually commenced serving periodic detention as the anchor point for fixing the commencement dates in the corrected orders.
- The substantive terms of the re-sentencing imposed on 24 September 2007 remained unchanged; only the technical deficiencies in the orders were addressed.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s43 (power to reopen proceedings)
- Crimes Act 1914 (Cth), s19(2) (commencement dates for sentences of imprisonment)
- Crimes Act 1914 (Cth), s20(1)(b) (security requirements for recognizance release orders)
Cases: No cases were cited in the provided text of this decision.