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[2017] NSWSC 3

R v X

Under s 14A Criminal Appeal Act 1912, the sentence imposed by the judgment of the Court delivered on 9 December 2016 is to commence on 9 January 2017 and expire on 20 February 2017. The offender is to be released upon the expiration of the sentence. Direct that the record of the court and the registrar's notification of the Court's determination dated 12 December 2016 be amended to give effect to order 1.

Catchwords

CRIMINAL LAW – sentence – procedure – Criminal Appeal Act s 14A – crown appeal allowed – sentence indicated in absence of respondent – sentence to commence when respondent appears before the court – respondent now in custody - commencement date specified

Legislation cited

  • Criminal Appeal Act 1912 (NSW) § 14A

Judgment

  1. [1]

    For reasons published on 9 December 2016, the Court constituted by Ward JA, Bellew J and Hidden AJ allowed the Crown appeal in this matter. The offender did not appear but he was represented by Ms David of counsel. A medical certificate was tendered purporting to explain his non-appearance.

  2. [2]

    The Court was constituted by Bellew J for the purpose of delivery of its judgment. His Honour indicated the orders he proposed the Court make, and that Ward JA and Hidden AJ agreed with his reasons. He indicated that the orders of the Court would be:

  3. [3]

    However, it is apparent from the discussion as recorded in the transcript that his Honour did not intend to specify a commencement date for the sentence in the absence of an appearance by the offender. This is made clear by his Honour's reference to the provisions of s 14A of the Criminal Appeal Act 1912 (NSW). His Honour said (T p2.35):

  4. [4]

    I am satisfied that his Honour had in mind the Court's powers under s 14A(2) of the Criminal Appeal Act 1912, and that by indicating the form of orders that the Court had agreed upon, his Honour was not specifying a commencement date for the sentence, rather he was exercising the power in s 14A(2) to "decline to specify a commencement date for the sentence until the respondent appears before the court for sentencing".

  5. [5]

    As his Honour indicated, a warrant for the offender’s arrest was issued that day. However it is agreed that the offender “turned himself in” yesterday to Wagga Wagga police and has today been brought before the Court, appearing by AVL, for the purpose of sentencing.

  6. [6]

    Their Honours indicated that the sentence they proposed, on allowing the Crown appeal, was a fixed term of six weeks.

  7. [7]

    X, I sentence you to a term of imprisonment for a period of six weeks commencing 9 January 2017 and expiring on 20 February 2017. You will be eligible to be released at the expiration of that sentence.

  8. [8]

    The formal orders I make are as follows:

    1. (1)

      Under s 14A Criminal Appeal Act 1912, the sentence imposed by the judgment of the Court delivered on 9 December 2016 is to commence on 9 January 2017 and expire on 20 February 2017. The offender is to be released upon the expiration of the sentence.

    2. (2)

      Direct that the record of the Court and the registrar's notification of the Court's determination dated 12 December 2016 be amended to give effect to order 1.

    3. (3)

      Those orders may be entered forthwith.

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