Citation: [2015] NSWDC 287
Court: District Court of New South Wales
Date: 21 August 2015
Judge(s): Berman SC DCJ
Background
In October 2010, the sentencing judge imposed 105 separate sentences on the offender following convictions for a large number of offences, primarily involving the sexual assault of children. The effective overall sentence was 32 years' imprisonment with a non-parole period of 26 years.
Several years later, staff at the Judicial Commission identified a potential error while compiling sentencing statistics. The sentence imposed on count 19 appeared to exceed the maximum penalty available for that offence.
The Judicial Commission notified the sentencing judge, who reviewed the matter, confirmed the error, and arranged for the offender to be contacted by the DPP. The offender appeared unrepresented at the correction hearing and declined to make submissions.
Legal Issues
- Whether the sentence imposed on count 19 exceeded the maximum penalty prescribed for that offence
- Whether the sentencing proceedings could be re-opened under s 43 of the Crimes (Sentencing Procedure) Act to correct the error
Decision
The judge accepted that the sentence imposed on count 19 in October 2010 was longer than the maximum penalty available for that offence, constituting a legal error. The matter was re-opened under s 43 of the Crimes (Sentencing Procedure) Act, which provides a mechanism for correcting sentencing errors.
On count 19, the judge substituted a fresh sentence of 12 years' imprisonment with a non-parole period of nine years. No other sentence was altered.
The judge confirmed that the correction produced no change to the overall effective sentence. Both the non-parole period expiry date and the head sentence expiry date remained the same as originally imposed.
Orders Made
- Count 19 sentence re-opened under s 43 of the Crimes (Sentencing Procedure) Act
- Sentence on count 19 varied to imprisonment with a head sentence of 12 years and a non-parole period of nine years
- All other sentences remained unchanged
- Overall effective sentence (non-parole period and head sentence expiry dates) confirmed as unaltered
Key Takeaways
- Section 43 of the Crimes (Sentencing Procedure) Act provides a mechanism for a sentencing court to re-open proceedings and correct a sentence that exceeded the maximum penalty available for an offence.
- A sentence that exceeds the statutory maximum for an offence constitutes an error capable of correction, even years after the original sentencing proceedings concluded.
- The District Court confirmed that correcting an individual component of a multi-count sentence does not necessarily affect the overall effective sentence or the expiry dates of the non-parole period and head sentence.
- Notification of the error originated not from the parties but from Judicial Commission staff, illustrating the role that administrative bodies can play in identifying sentencing irregularities.
- Where an offender is unrepresented at a correction hearing, the judge ensured the offender was informed of the proposed correction and given the opportunity to make submissions before any order was made.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act (NSW), s 43
Cases
No cases were cited in this decision.