Citation: MK v R (No 2) [2014] NSWCCA 340
Court: NSW Court of Criminal Appeal
Date: 22 December 2014
Judge(s): Hoeben CJ at CL, Fullerton J, Hamill J
Background
The applicant had been sentenced in the District Court on 23 July 2013 on three counts relating to offences committed on 6 February 2011, along with a separate armed robbery offence committed the following day. The sentencing judge commenced all sentences from 9 April 2011, two months after the applicant was taken into custody on 9 February 2011, expressly intending that two-month gap to serve as a period of custodial punishment. The robbery sentence was structured to run partially accumulated on the other three sentences, commencing on 9 July 2012.
In a separate judgment delivered on 26 November 2014 (MK v R [2014] NSWCCA 274), the Court of Criminal Appeal upheld the applicant's appeal against his convictions on the three counts, quashed those convictions, and remitted the matter to the District Court for re-trial.
With those convictions quashed, only the robbery sentence remained. Because it had been constructed to run partially accumulated on the now-quashed sentences, its commencement date needed to be reconsidered to reflect the original sentencing intention.
Legal Issues
- Whether the Court of Criminal Appeal had power to vary the commencement date of the robbery sentence following the quashing of the related convictions.
- What the correct commencement date for the robbery sentence should be, consistent with the original sentencing judge's express intention.
Decision
Section 59 of the Crimes (Sentencing Procedure) Act 1999 empowers a court that quashes or varies a sentence of imprisonment to vary the commencement date of any other sentence imposed on that person. Both the Crown and the applicant agreed that this power applied and that the robbery sentence should be adjusted accordingly.
The Court accepted that the sentencing judge's express intention was for all sentences to commence on 9 April 2011. The partial accumulation of the robbery sentence on the now-quashed counts had displaced that start date to 9 July 2012. Removing that accumulation, the Court varied the robbery sentence so it commenced on 9 April 2011, consistent with the original intention.
Both parties also agreed the matter could be resolved in chambers without a formal hearing, and the Court proceeded on that basis.
Orders Made
- The commencement date of the robbery sentence (offence of 7 February 2011) was varied to read: imprisonment with a non-parole period of 18 months commencing 9 April 2011 and expiring 8 October 2012, with a balance of term of 18 months expiring 8 April 2014.
Key Takeaways
- Under s 59 of the Crimes (Sentencing Procedure) Act 1999, a court that quashes a sentence of imprisonment may vary the commencement date of any other sentence imposed on the same person, whether by that court or any other court.
- The power under s 59 can be exercised on the court's own initiative or on the application of a party, and in this matter was exercised by consent of both parties.
- Where convictions are quashed on appeal, accumulated sentencing structures built upon those convictions may require consequential adjustment to preserve the original sentencing judge's intention.
- Resolving such consequential adjustments in chambers, without a formal hearing, is available where both parties consent.
- The Court of Criminal Appeal confirmed that restoring a commencement date consistent with the sentencing judge's express intention is the appropriate corrective step where accumulated sentences are disturbed by a successful conviction appeal.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
Cases:
- MK v R [2014] NSWCCA 274 (the primary conviction appeal judgment)