Citation: R v Donald (No 2) [2013] NSWCCA 290
Court: Court of Criminal Appeal, New South Wales
Date: 22 November 2013
Judge(s): Hidden J, Latham J, Adamson J
Background
This was a short consequential proceeding arising from an earlier Crown appeal decision, R v Donald [2013] NSWCCA 238, heard on 25 October 2013. In that earlier decision, the Court of Criminal Appeal allowed the Crown appeal, quashed the original sentence, and re-sentenced the respondent to two years imprisonment commencing 25 October 2013, with release to a recognisance release order to take effect on 25 October 2014.
Following that re-sentencing, the Crown drew the Court's attention to an omission in the orders. Sections 16 and 20(1)(a) and (b) of the Crimes Act 1914 (Cth), which govern the sentencing of federal offenders, require the court to set a specified sum as security when making a recognisance release order. The original re-sentencing orders had not included such a sum.
The Crown accordingly sought amendment of the orders to remedy this oversight, bringing the sentence into conformity with the mandatory requirements of the Commonwealth legislation.
Legal Issues
- Whether the Court's failure to specify a security sum in the recognisance release order constituted a legal error requiring correction
- Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 authorised the Court to re-open the proceedings and amend the sentencing order to fix the error
Decision
Latham J, with whom Hidden J and Adamson J agreed, accepted the Crown's submission that the original re-sentencing orders had failed to comply with s 20 of the Crimes Act 1914 (Cth). That provision requires, when releasing a federal offender on a recognisance release order, that the offender provide security of a specified kind, which in practice means nominating a sum of money to be guaranteed.
The Court applied s 43 of the Crimes (Sentencing Procedure) Act 1999, which permits re-opening of proceedings where a court has failed to impose a penalty required by law, for the purpose of correcting that error by amending the order. Latham J found this provision directly applicable to the circumstances.
The Court amended the orders accordingly, inserting the requirement that the respondent enter into a recognisance in the sum of $2,000 to be of good behaviour for 12 months upon release.
Orders Made
- The Crown appeal is allowed
- The sentence imposed on 26 April 2013 is quashed
- In lieu, the respondent is sentenced to 2 years imprisonment commencing 25 October 2013, to be released on 25 October 2014 upon entering into a recognisance, self in the sum of $2,000, to be of good behaviour for a period of 12 months
Key Takeaways
- Under ss 16 and 20(1)(a) and (b) of the Crimes Act 1914 (Cth), a court sentencing a federal offender and directing release on a recognisance release order must specify a security sum; omitting that sum renders the order legally deficient
- Section 43 of the Crimes (Sentencing Procedure) Act 1999 provides a mechanism to re-open proceedings where a court has failed to impose a penalty required by law, enabling correction by amendment of the order
- The Court of Criminal Appeal confirmed that s 43 applies even where the error arises in a re-sentencing by an appellate court, not merely in original sentencing proceedings
- A failure to comply with a mandatory statutory requirement in a sentencing order can be remedied at the instigation of the Crown after sentence has been pronounced, provided the applicable procedural provision is engaged
- The amendment here was confined to adding the missing security sum; the term of imprisonment and the release date remained unchanged from the earlier re-sentencing
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 16, 20(1)(a) and (b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
Cases:
- R v Donald [2013] NSWCCA 238