Citation: R v Styman; R v Taber [No 2] [2004] NSWCCA 447 revised - 8/12/2004
Court: NSW Court of Criminal Appeal
Date: 29 November 2004
Judge(s): Sheller JA, Sperling J, Adams J
Background
Two appellants, Styman and Taber, had previously appeared before the Court of Criminal Appeal following sentencing by Barr J in the Supreme Court on charges including aggravated breaking and entering and committing a serious indictable offence. The proceedings had a complex procedural history, with an earlier order (Order 6) made by the Court on 10 September 2004 becoming the subject of further directions.
When the matter returned before the Court, the Crown had initially signalled it would apply for the Court itself to enter a verdict of manslaughter against each appellant. The Crown subsequently withdrew that application, leaving the question of re-sentencing as the only live issue before the Court.
The parties agreed that the re-sentencing question should be remitted to a judge of the Supreme Court rather than dealt with by the Court of Criminal Appeal itself.
Legal Issues
- Whether the Court of Criminal Appeal should itself proceed with re-sentencing or remit the matter to a judge of the Supreme Court
- Whether the Court had power under the Criminal Appeal Act 1912 to remit the matter for re-sentencing
- The procedural relationship between the outstanding re-sentencing and any potential future manslaughter prosecution against the appellants
Decision
The Court found it appropriate to remit the re-sentencing to a judge of the Supreme Court, with all parties in agreement on that course. The power to do so was identified in section 12(2) of the Criminal Appeal Act 1912.
Sheller JA noted that the question of whether an indictment for manslaughter would be filed remained unresolved. It was indicated from the bar table that at least one appellant intended to apply to prevent such a prosecution proceeding. Whether or not a manslaughter trial eventuated, the Court observed that any subsequent conviction could potentially allow a single judge to deal with both the manslaughter sentence and the outstanding re-sentencing on the aggravated breaking and entering charge.
The Court considered it appropriate that any manslaughter indictment, if filed, should be laid in the Supreme Court. This would allow consolidation of the sentencing exercise if a conviction followed.
Orders Made
- Order 6, made by the Court of Criminal Appeal on 10 September 2004, was set aside.
- In lieu of Order 6, both matters were remitted to a judge of the Supreme Court for re-sentencing.
Key Takeaways
- The Court of Criminal Appeal exercised its power under s 12(2) of the Criminal Appeal Act 1912 to remit a re-sentencing matter to a judge of the Supreme Court rather than dealing with it at appellate level.
- Where all parties agree that remission for re-sentencing is the appropriate course, the Court of Criminal Appeal may treat that agreement as a relevant consideration in confirming the appropriateness of the order.
- A prior order of the Court of Criminal Appeal (Order 6) was set aside and replaced with the remitter, illustrating the Court's capacity to revisit and vary its own earlier orders in appropriate circumstances.
- The decision left open the question of whether a manslaughter indictment would be filed, acknowledging that a future trial and conviction could potentially enable a single sentencing exercise covering both the manslaughter charge and the outstanding aggravated breaking and entering matter.
- In dismissing the Crown's proposed application to enter a manslaughter verdict itself, the Court proceeded on the basis that only the re-sentencing question remained alive before it.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 12(2)
Cases:
- No cases were cited in this decision.