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[2014] NSWCCA 340

MK v R (No 2)

In respect of the robbery offence which occurred on 7 February 2011 the commencement date for the sentence is varied so as 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.

Catchwords

CRIMINAL LAW – Successful conviction appeal – need to alter commencement date of sentence for unrelated offence.

Cases cited

  • MK v R[2014] NSWCCA 274

Legislation cited

  • Crimes (Sentencing Procedure) Act 1999 – § 59

Judgment

  1. [1]

    HOEBEN CJ at CL:

  2. [2]

    The applicant had pleaded guilty to an offence of armed robbery committed on the day after the offences just referred to (i.e., 7 February 2011) and was sentenced at the same time by her Honour Judge Quirk to imprisonment with a non-parole period of 18 months to date from 9 July 2012, expiring 8 January 2014 with a balance of term of 18 months expiring 8 July 2015.

  3. [3]

    Her Honour’s express intention was to commence the sentences on 9 April 2011. Her Honour said:

  4. [4]

    The applicant had been arrested and taken into custody on 9 February 2011 and in accordance with her Honour’s express intention to commence the sentences two months after he was taken into custody, her Honour commenced those sentences from 9 April 2011.

  5. [5]

    On 12 September 2014 this Court heard an appeal by the applicant against his convictions for Counts 1, 2 and 3 above. On 26 November 2014 this Court delivered judgment in relation to that appeal (MK v R [2014] NSWCCA 274) upholding the appeal, quashing the convictions in Counts 1, 2 and 3 and remitting the matter to the District Court for re-trial.

  6. [6]

    As such the only remaining sentence was that in the robbery matter, against which there was no appeal. The sentence in the robbery matter was made partially accumulated upon Counts 1, 2 and 3 by 3 months.

  7. [7]

    Given that the convictions in Counts 1, 2 and 3 have been quashed, the sentence in the robbery offence should now be adjusted to commence on 9 April 2011 as was her Honour’s express intention for the start date of the sentences. The Crown agrees that this Court should adjust the sentence in this way.

  8. [8]

    Section 59 of the Crimes (Sentencing Procedure) Act 1999 empowers the Court to make such an adjustment. Relevantly that section provides:

  9. [9]

    It follows that the sentence for the robbery offence should be one of 3 years, being imprisonment with a non-parole period of 18 months to commence 9 April 2011 and expire 8 October 2012, with a balance of term of 18 months to expire 8 April 2014.

  10. [10]

    Since the Crown and the applicant have agreed that the sentence for the robbery offence should be adjusted in this way, and since both the Crown and the applicant agree that the Court can deal with this matter in chambers without a formal hearing, the order of the Court should be:

    1. (1)

      The commencement date for the robbery offence which occurred on 7 February 2011 is varied so that the sentence imposed on the applicant should now read:

  11. [11]

    FULLERTON J: I agree with Hoeben CJ at CL.

  12. [12]

    HAMILL J: I agree with Hoeben CJ at CL

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.