Police v Kirk [2024] NSWLC 1

Police v Kirk [2024] NSWLC 1

The application was refused because the new sentence imposed on 23 May 2024 was entirely concurrent with Mr Kirk's existing sentence and no part of it was consecutive with that existing sentence. The first condition for s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be engaged was therefore not fulfilled, so the sentence was not contrary to s 58 and there was no sentencing error amenable to correction under s 43.

Jurisdiction
Australia
Judgment Date
30 May 2024
Procedural Posture
Criminal / Application to Reopen Criminal Sentencing Proceedings to Correct an Asserted Sentencing Error Under S 43 of the Crimes (sentencing Procedure) Act 1999 (nsw)
Outcome
Application to reopen proceedings refused; sentence imposed on 23 May 2024 confirmed.
Legal Topics
['application to Reopen Sentencing Proceedings' 'alleged Sentencing Error' 'existing Sentence of Imprisonment' 'consecutive and Concurrent Sentences' 'section 58 of the Crimes (sentencing Procedure) Act 1999 (nsw)' 'drug Supply Offences']
['criminal Law' 'criminal Procedure' 'sentencing'] ['application to Reopen Sentencing Proceedings' 'alleged Sentencing Error' 'existing Sentence of Imprisonment' 'consecutive and Concurrent Sentences' 'section 58 of the Crimes (sentencing Procedure) Act 1999 (nsw)' 'drug Supply Offences']

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Procedural Posture

Criminal / Application to Reopen Criminal Sentencing Proceedings to Correct an Asserted Sentencing Error Under S 43 of the Crimes (sentencing Procedure) Act 1999 (nsw)

Legal Issues

  1. 1 ['Whether the sentence imposed on 23 May 2024 was contrary to s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the new sentence was to be served consecutively, or partly concurrently and partly consecutively, with an existing sentence of imprisonment.' 'Whether a new sentence commencing after expiry of the non-parole period of an existing sentence should be treated as extending that sentence for the purposes of s 58.' 'Whether there was a sentencing error amenable to correction under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW).']

Ratio Decidendi

The application was refused because the new sentence imposed on 23 May 2024 was entirely concurrent with Mr Kirk's existing sentence and no part of it was consecutive with that existing sentence. The first condition for s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be engaged was therefore not fulfilled, so the sentence was not contrary to s 58 and there was no sentencing error amenable to correction under s 43.

Court Disposition

Application to reopen proceedings refused; sentence imposed on 23 May 2024 confirmed.

Orders

  • ['Application to reopen proceedings refused.' 'Sentence imposed on 23 May 2024 confirmed.']