ERCEG v THE DISTRICT COURT OF NEW SOUTH WALES & ANOR & VIRGIN v THE DISTRICT COURT OF NEW SOUTH WALES & ANOR [2003] NSWCA 379

ERCEG v THE DISTRICT COURT OF NEW SOUTH WALES & ANOR & VIRGIN v THE DISTRICT COURT OF NEW SOUTH WALES & ANOR [2003] NSWCA 379

Although the s 51A form constitutes the record of the sentence, where the sentencing remarks and the record are internally inconsistent, and due to the existence of s 43 Crimes (Sentencing Procedure) Act 1999 as a specific corrective remedy for such errors or ambiguities, declaratory relief is not appropriate. The Court thus declines to grant a declaration as sought, and the proper course is for the matter to be returned to the sentencing judge to resolve the sentence under s 43. The summonses are dismissed.

Parties
Claimant: Leon Maurice Erceg; Claimant: Jason Lee Virgin (aka Ashley Frazer); First Opponent: The District Court of New South Wales; Second Opponent: Director of Public Prosecutions
Jurisdiction
Australia
Judgment Date
19 December 2003
Procedural Posture
Application for Declaratory Relief (criminal/sentencing) / Court of Appeal Judgment on Summons for Declaration
Outcome
Summons dismissed; costs ordered against the Second Opponent (DPP).
Legal Topics
Sentencing, Declaratory Relief, Non Parole Period, Procedure—amendment of Records, Reopening Sentencing Under Statute
Criminal Law Sentencing Declaratory Relief Non Parole Period Procedure—amendment of Records Reopening Sentencing Under Statute

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Parties

Leon Maurice Erceg

Claimant

Jason Lee Virgin (aka Ashley Frazer)

Claimant

The District Court of New South Wales

First Opponent

Director of Public Prosecutions

Second Opponent

Procedural Posture

Application for Declaratory Relief (criminal/sentencing) / Court of Appeal Judgment on Summons for Declaration

Legal Issues

  1. 1 What constitutes the record of sentence in a s 51A committal for sentence?
  2. 2 Whether the sentence imposed was contrary to law or whether a penalty was failed to be imposed so as to attract jurisdiction to reopen under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  3. 3 Whether declaratory relief is appropriate in these circumstances where alternate statutory relief is available?

Ratio Decidendi

Although the s 51A form constitutes the record of the sentence, where the sentencing remarks and the record are internally inconsistent, and due to the existence of s 43 Crimes (Sentencing Procedure) Act 1999 as a specific corrective remedy for such errors or ambiguities, declaratory relief is not appropriate. The Court thus declines to grant a declaration as sought, and the proper course is for the matter to be returned to the sentencing judge to resolve the sentence under s 43. The summonses are dismissed.

Court Disposition

Summons dismissed; costs ordered against the Second Opponent (DPP).

Orders

  • Summons dismissed.
  • Second Opponent to pay the claimants' costs.