AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 20 February 2014

R v Milne (No 2)

[2014] NSWSC 113

Fraud & dishonesty
CRIMINAL LAW

Citation: R v Milne (No 2) [2014] NSWSC 113
Court: Supreme Court of New South Wales
Date: 20 February 2014
Judge(s): Fullerton J

Background

The offender had been convicted on two counts following a trial in 2010: a money laundering offence under s 400(3)(1) of the Criminal Code (Cth) and a count of dishonestly obtaining a gain from the Commonwealth under s 135(1) of the Criminal Code (Cth). Johnson J imposed an effective sentence of 8 years and 6 months with a non-parole period of 4 years and 9 months.

In December 2012, Fullerton J separately sentenced the offender on a further s 135(1) offence on a separate indictment, imposing 2 years' imprisonment to commence after the expiry of the earlier sentence. That produced a new effective sentence of 9 years and 6 months, expiring on 16 June 2020.

In February 2014, the High Court quashed the money laundering conviction and amended the commencement and expiry dates of the remaining sentence imposed by Johnson J. That amendment had a knock-on effect: the sentence Fullerton J had imposed in 2012 now commenced after the expiry of the adjusted sentence, creating a gap that was contrary to law.

  • Whether the sentencing proceedings should be reopened following the High Court's orders altering the structure of the earlier sentence.
  • Whether the length of the sentence imposed by Fullerton J in December 2012 should be disturbed.
  • How to re-structure the sentences so that they ran concurrently to the appropriate degree and complied with the relevant legislation.
  • Whether a recognisance release order was warranted given the recalculated unserved portions of the sentences.

Decision

The High Court's amendment to the original sentence meant the sentence imposed by Fullerton J in 2012 would commence only after a gap following the earlier sentence's expiry. That outcome conflicted with s 16E(1) of the Crimes Act 1914 (Cth) and ss 47(2)(b) and 47(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which prohibit a sentence commencing after another sentence has expired in those circumstances. Both parties agreed that the proceedings should be reopened under s 43(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and Fullerton J accepted that course as appropriate.

The parties were also agreed that the length of the term imposed in December 2012 should not change, and that some degree of concurrency between the sentences was required. Fullerton J accepted both propositions, applying the same reasoning she had expressed in paragraph 53 of her December 2012 sentencing judgment to determine the appropriate degree of overlap.

On re-sentence, Fullerton J imposed 2 years' imprisonment on the s 135(1) offence, commencing 17 June 2013 and expiring 16 June 2015. Together with the sentence imposed by Johnson J, this produced an aggregate sentence of 4 years and 6 months. Because the recalculated unserved portions of the sentences did not exceed three years, a recognisance release order for the offender's immediate release was appropriate under s 19AC(2) of the Crimes Act 1914 (Cth).

Orders Made

  • On re-sentence, a term of 2 years' imprisonment imposed for the s 135(1) Criminal Code offence, commencing 17 June 2013 and expiring 16 June 2015, producing an aggregate sentence of 4 years and 6 months.
  • A recognisance release order issued for the offender's immediate release, representing a pre-release period of 3 years, 2 months and 4 days.
  • The term of the recognisance set equal to the aggregate sentence imposed.
  • Recognisance entered without security in the sum of $500.

Key Takeaways

  • Where a High Court order alters the structure of earlier sentences, downstream sentences may be left commencing after a gap in a manner that is contrary to law, triggering the need to reopen sentencing proceedings.
  • Under s 43(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), sentencing proceedings may be reopened to correct a sentencing structure that has become unlawful as a result of appellate orders.
  • The Supreme Court confirmed that the length of a validly imposed term need not be disturbed simply because the commencement date requires adjustment to restore a lawful structure.
  • A recognisance release order under s 19AC(2) of the Crimes Act 1914 (Cth) is available where the recalculated unserved portions of the sentences do not exceed three years.
  • Adjustments to restore concurrency following appellate interference should be consistent with the reasoning expressed in the original sentencing judgment, preserving the original sentencing court's approach to accumulation and concurrency.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16E(1), 19AC(2)
- Criminal Code (Cth), ss 135(1), 151(1), 400(3)(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43(1)(a), 47(2)(b), 47(4)

Cases
- R v Milne (No 6) [2010] NSWSC 1467
- R v Milne [2012] NSWSC 1538