Citation: [2007] NSWDC 220
Court: District Court of New South Wales
Date: 21 September 2007
Judge(s): Cogswell SC DCJ
Background
The offender had been sentenced on 24 August 2007 for four offences arising from events on 29 January 2005: riot under s 93B of the Crimes Act 1900, two counts of assault occasioning actual bodily harm in company, and one count of maliciously inflicting grievous bodily harm in company.
At the original sentencing hearing, the court was incorrectly informed that the maximum penalty for riot was 15 years. In fact, the maximum penalty at the time the riot was committed was 10 years. The increase to 15 years did not take effect until 15 December 2005, nearly a year after the offence.
The Crown Prosecutor acknowledged responsibility for providing the incorrect information and apologised to the court and the parties. The Crown then applied under s 43 of the Crimes (Sentencing Procedure) Act 1999 to have the sentence corrected.
Legal Issues
- Whether the sentence imposed for riot was contrary to law because it was calculated by reference to an incorrect maximum penalty
- Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 empowered the court to reopen proceedings and impose a corrected sentence
- How the corrected sentence for riot should be calculated to properly reflect the lower maximum that applied at the time of the offence
Decision
The District Court accepted that the penalty imposed for riot was contrary to law within the meaning of s 43 of the Crimes (Sentencing Procedure) Act 1999, because the sentencing exercise had been guided by a maximum penalty that did not apply to the offence as committed. This engaged the court's power to reopen proceedings, hear the parties, and impose a lawfully correct penalty.
Both the Crown and defence made a joint submission that the riot sentence should be reduced by one-third, reflecting the fact that the actual maximum (10 years) was two-thirds of the maximum the court had originally applied (15 years). The court accepted that submission, finding the offender was entitled to a real and proportionate benefit flowing from the error in both the head sentence and the non-parole period.
The sentences for the remaining three offences were not altered in substance. Their commencement and expiry dates were amended only to reflect the adjusted structure flowing from the corrected riot sentence, preserving the original pattern of partial accumulation.
Orders Made
- Count 1 (riot): sentence reduced to 5 years and 4 months imprisonment, with a non-parole period of 2 years and 8 months commencing 29 July 2005 and expiring 28 March 2008; balance of term commencing 29 March 2008 and expiring 28 November 2010
- Count 2 (assault occasioning actual bodily harm in company): non-parole period of 2 years amended to commence 29 June 2006, expiring 28 June 2008; balance of term of 3 years commencing 29 June 2008, expiring 28 June 2011
- Count 3 (second assault occasioning actual bodily harm in company): non-parole period of 2 years amended to commence 29 September 2006, expiring 28 September 2008; balance of term of 3 years commencing 29 September 2008, expiring 28 September 2011
- Count 4 (maliciously inflicting grievous bodily harm in company): non-parole period of 2 years amended to commence 29 March 2007, expiring 28 March 2009; balance of term of 2 years commencing 29 March 2009, expiring 28 March 2011
- All other aspects of the original remarks on sentence and orders confirmed
Key Takeaways
- Under s 43 of the Crimes (Sentencing Procedure) Act 1999, a court may reopen criminal proceedings and impose a corrected penalty where a sentence was imposed contrary to law, including where the court was misled about the applicable maximum penalty.
- The maximum penalty for a sentencing exercise is the maximum that applied at the time the offence was committed, not the maximum in force at the time of sentencing, where an increase occurred after the offence date.
- Where an offender has been sentenced by reference to an inflated maximum, the District Court held that the benefit of correction must flow proportionately to both the head sentence and the non-parole period.
- A joint submission from the Crown and defence as to the method of correction carries weight, and the court in this instance adopted the agreed approach of scaling the riot sentence to reflect the correct maximum as a fraction of the incorrectly applied maximum.
- Correcting the principal sentence under s 43 may require consequential amendments to commencement and expiry dates for other sentences within a partially accumulated structure, even where those sentences are not themselves altered in length.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Crimes Act 1900 (NSW), s 93B (riot)
Cases cited: None cited in the judgment.