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Court of Criminal Appeal 18 December 2007

Assafiri, Wassim Saad v R (No 2)

[2007] NSWCCA 356

Other
APPEAL OPENING PROCEEDINGS TO CORRECT ERRORS SENTENCING.

Citation: Assafiri, Wassim Saad v R (No 2) [2007] NSWCCA 356
Court: NSW Court of Criminal Appeal
Date: 18 December 2007
Judge(s): Basten JA, Grove J, Howie J

Background

The applicant had previously succeeded in a sentence appeal before the Court of Criminal Appeal. In the primary appeal, decided on 19 June 2007 ([2007] NSWCCA 159), the Court granted leave, allowed the appeal against sentences imposed in the District Court, and re-sentenced the applicant across multiple counts.

Following that re-sentencing, the Court identified two technical errors in the orders it had made. Those errors required the Court to re-open the proceedings and correct the sentences.

  • Whether the Court had failed to comply with s 20(1) of the Crimes Act 1914 (Cth) by omitting to specify the amount of security required in the recognizance release order
  • Whether an erroneous commencement date applied to the related-matter sentences was causing one of those sentences to expire after the intended release date of 19 February 2008

Decision

The Court identified two distinct errors in its earlier re-sentencing. First, the recognizance release order did not specify the amount of security to be provided by the applicant, as required by s 20(1) of the Crimes Act 1914 (Cth). Second, the sentences for the related matters, dealt with under s 166 of the Criminal Procedure Act 1987 (NSW), had been confirmed but given a commencement date of 19 September 2007, which was plainly erroneous.

The correct commencement date for those related-matter sentences was 19 September 2006, the date on which the sentence for the first committal charge began. Because the wrong year had been used, one of the related-matter sentences extended beyond the intended release date, undermining the concurrency that both the District Court and the Court of Criminal Appeal had intended.

To cure both defects, the Court vacated the sentences imposed on 19 June 2007 and imposed fresh sentences. The corrected orders ensured the related matters ran concurrently from the correct start date, and the recognizance release order was completed with a security amount of $100 without further security.

Orders Made

  • Count 1: Imprisonment for 14 months from 19 September 2006, expiring 18 November 2007
  • Count 2: Imprisonment for 2 years from 19 February 2007, expiring 18 February 2009 (taking into account matters under s 16BA)
  • Count 3: Imprisonment for 19 months from 19 February 2007, expiring 18 September 2008
  • Count 4: Imprisonment for 6 months from 19 February 2007, expiring 18 August 2007
  • Sentences for related matters confirmed, dated from 19 September 2006
  • Applicant to serve a total non-parole period of 1 year and 5 months from 19 September 2006, expiring 18 February 2008
  • Applicant to be released on recognizance on 19 February 2008, on surety of $100 without security

Key Takeaways

  • A failure to specify the security amount in a recognizance release order constitutes a legal error requiring correction, as s 20(1) of the Crimes Act 1914 (Cth) mandates that specification
  • Where a court intends sentences for related matters to run concurrently, an incorrect commencement year in the order can defeat that intention by extending one sentence beyond the intended release date
  • Re-opening proceedings to correct errors of this kind is an available mechanism for the Court of Criminal Appeal, and the correction operates by vacating the earlier sentences and imposing fresh ones
  • Under s 166 of the Criminal Procedure Act 1987 (NSW), sentences for related matters confirmed on appeal must be anchored to the same commencement date as the primary sentence to give effect to concurrent operation
  • The correction in this case produced no change to the overall sentencing structure intended by both the District Court and the Court of Criminal Appeal; it restored what both courts had always intended

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 20(1) (recognizance release orders)
- Criminal Procedure Act 1987 (NSW), s 166 (related matters)

Cases:
- Assafiri, Wassim Saad v R [2007] NSWCCA 159 (the primary appeal decision)