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Supreme Court 10 January 2017

R v X

[2017] NSWSC 3

Public order & justice offences
CRIMINAL LAW SENTENCE PROCEDURE CRIMINAL APPEAL ACT S 14A CROWN APPEAL ALLOWED RESPONDENT NOW IN CUSTODY

Citation: R v X [2017] NSWSC 3
Court: Supreme Court of New South Wales
Date: 10 January 2017
Judge(s): Campbell J

Background

A Crown appeal against sentence was heard by the Court of Criminal Appeal (Ward JA, Bellew J and Hidden AJ) on 9 December 2016. The offender did not appear at that hearing, though he was represented by counsel and a medical certificate was tendered to explain his absence.

The Court allowed the Crown appeal and indicated a sentence of six weeks imprisonment. Because the offender was absent, the Court declined to specify a commencement date and instead issued a warrant for his arrest under s 14A of the Criminal Appeal Act 1912 (NSW).

The offender subsequently surrendered to Wagga Wagga police on 9 January 2017 and was brought before the Supreme Court by audio-visual link for formal sentencing. Campbell J then delivered this short judgment to formally fix the commencement date of the sentence.

  • Whether the Court of Criminal Appeal, when allowing a Crown appeal and indicating a sentence in the absence of the offender, had specified a commencement date or had instead deferred that date under s 14A(2) of the Criminal Appeal Act 1912.
  • What commencement date should be specified now that the offender had appeared before the Court.

Decision

Campbell J examined the transcript of the 9 December 2016 proceedings. Although Bellew J had stated proposed orders that nominally included dates (9 December 2016 to 19 January 2017), his Honour's accompanying remarks made clear that he had not intended to fix a commencement date in the offender's absence.

Bellew J had explicitly invoked s 14A(4) to order the offender's arrest, and had indicated that the dates would need to be amended once the offender came into custody. Campbell J was satisfied that Bellew J had been exercising the power in s 14A(2) to decline to specify a commencement date until the offender appeared for sentencing.

With the offender now before the Court, Campbell J formally fixed the sentence as a term of six weeks commencing 9 January 2017 (the date the offender surrendered) and expiring 20 February 2017.

Orders Made

  • Under s 14A of the Criminal Appeal Act 1912, the sentence imposed by the judgment of 9 December 2016 is to commence on 9 January 2017 and expire on 20 February 2017.
  • The offender is to be released upon expiration of the sentence.
  • The Court's record and the Registrar's notification of determination dated 12 December 2016 are to be amended to give effect to the above order.
  • Those orders were to be entered forthwith.

Key Takeaways

  • Under s 14A(2) of the Criminal Appeal Act 1912 (NSW), a court allowing a Crown appeal may decline to specify a commencement date for a sentence where the offender is absent, with the date to be fixed when the offender subsequently appears.
  • A warrant for the offender's arrest may be issued under s 14A(4) in the same circumstances.
  • Where proposed orders were stated in terms that included dates, the surrounding remarks and the explicit invocation of s 14A can establish that no commencement date was in fact fixed at that point.
  • Once the offender surrendered and appeared before the Court, the sentencing date was fixed by reference to the date of surrender rather than the original hearing date.
  • Court records and the Registrar's notification can be amended to reflect the corrected commencement date flowing from the s 14A process.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 14A(2), 14A(4)

Cases:
No cases were cited in this decision.