R v Kaewklom (No. 4) [2013] NSWSC 504

R v Kaewklom (No. 4) [2013] NSWSC 504

The 8 February 2013 sentence for the s.35(2) Crimes Act 1900 offence was contrary to law because the Offender had in fact pleaded guilty in the Local Court to the more serious s.33(1)(b) offence and had not pleaded guilty to, or been committed for sentence on, the s.35(2) offence. The Court therefore reopened sentence under s.43, set aside the flawed sentence, accepted the lawful procedural course of a fresh indictment with an accepted guilty plea to the alternative s.35(2) count, and reimposed the same sentence as appropriate in all the circumstances.

Jurisdiction
Australia
Judgment Date
03 May 2013
Procedural Posture
Criminal Sentence; Application Under S.43 Crimes (sentencing Procedure) Act 1999 to Reopen Sentence / Sentence Reopened After Earlier Sentence for S.35(2) Crimes Act 1900 Offence Was Imposed Contrary to Law; Fresh Indictment Presented and Offender Sentenced on Guilty Plea to Alternative Count
Outcome
Application granted; earlier sentence for recklessly causing grievous bodily harm set aside; Offender convicted and resentenced for recklessly causing grievous bodily harm.
Legal Topics
['reopening Sentence' 'sentence Contrary to Law' 'recklessly Causing Grievous Bodily Harm' 'committal for Sentence' 'guilty Plea']
['criminal Law' 'sentencing'] ['reopening Sentence' 'sentence Contrary to Law' 'recklessly Causing Grievous Bodily Harm' 'committal for Sentence' 'guilty Plea']

Case Brief

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Procedural Posture

Criminal Sentence; Application Under S.43 Crimes (sentencing Procedure) Act 1999 to Reopen Sentence / Sentence Reopened After Earlier Sentence for S.35(2) Crimes Act 1900 Offence Was Imposed Contrary to Law; Fresh Indictment Presented and Offender Sentenced on Guilty Plea to Alternative Count

Legal Issues

  1. 1 ['Whether the sentence imposed on 8 February 2013 for an offence under s.35(2) Crimes Act 1900 was contrary to law because the Offender had not pleaded guilty to, and been committed for sentence for, that offence.' 'Whether the Court should reopen the question of sentence under s.43 Crimes (Sentencing Procedure) Act 1999 and impose a lawful sentence after the Crown accepted a guilty plea to the alternative s.35(2) count.']

Ratio Decidendi

The 8 February 2013 sentence for the s.35(2) Crimes Act 1900 offence was contrary to law because the Offender had in fact pleaded guilty in the Local Court to the more serious s.33(1)(b) offence and had not pleaded guilty to, or been committed for sentence on, the s.35(2) offence. The Court therefore reopened sentence under s.43, set aside the flawed sentence, accepted the lawful procedural course of a fresh indictment with an accepted guilty plea to the alternative s.35(2) count, and reimposed the same sentence as appropriate in all the circumstances.

Court Disposition

Application granted; earlier sentence for recklessly causing grievous bodily harm set aside; Offender convicted and resentenced for recklessly causing grievous bodily harm.

Orders

  • ['The sentence passed on 8 February 2013 with respect to the offence of recklessly causing grievous bodily harm is set aside.' 'The Offender is convicted of the offence of recklessly causing grievous bodily harm on 10 February 2011.' 'For that offence, the Offender is sentenced to imprisonment comprising a...