Rickard v R [2007] NSWCCA 332

Rickard v R [2007] NSWCCA 332

Although the original sentence had not been perfected and the Judge therefore had power to consider reopening it, no error, oversight or miscarriage existed in the original sentence, which was lenient and included a non-parole period that was not excessive. The 2006 amendments and cl 56 of Sch 2 did not confer power on a court revoking an existing s 12 good behaviour bond to reset a non-parole period already set when the sentence was suspended; they only removed the duty to set a new non-parole period where one had already been set. The sentencing Judge therefore did not err in refusing to reset the non-parole period on 2 April 2007.

Jurisdiction
Australia
Judgment Date
04 December 2007
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal From the Original Sentence and From the Later Order After Revocation of a Suspended Sentence Bond
Outcome
Leave to appeal granted from the decisions of 23 February 2006 and 2 April 2007; appeal dismissed.
Legal Topics
['suspended Sentence' 'good Behaviour Bond Revocation' 'non Parole Period' 'res Judicata' 'transitional Provisions' 'power to Reopen Sentencing Proceedings']
['criminal Law' 'sentencing'] ['suspended Sentence' 'good Behaviour Bond Revocation' 'non Parole Period' 'res Judicata' 'transitional Provisions' 'power to Reopen Sentencing Proceedings']

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal From the Original Sentence and From the Later Order After Revocation of a Suspended Sentence Bond

Legal Issues

  1. 1 ['Whether the sentencing Judge had power to reopen the original sentencing proceedings because the sentence had not been formally entered.' 'Whether a case was established for reconsideration of the original sentence or non-parole period.' 'Whether the 2006 amendments to the Crimes (Sentencing Procedure) Act 1999 and transitional provisions conferred power on the Court revoking an existing s 12 bond to reset a non-parole period already set.' 'Whether amending legislation affected a sentence that had become res judicata.']

Ratio Decidendi

Although the original sentence had not been perfected and the Judge therefore had power to consider reopening it, no error, oversight or miscarriage existed in the original sentence, which was lenient and included a non-parole period that was not excessive. The 2006 amendments and cl 56 of Sch 2 did not confer power on a court revoking an existing s 12 good behaviour bond to reset a non-parole period already set when the sentence was suspended; they only removed the duty to set a new non-parole period where one had already been set. The sentencing Judge therefore did not err in refusing to reset the non-parole period on 2 April 2007.

Court Disposition

Leave to appeal granted from the decisions of 23 February 2006 and 2 April 2007; appeal dismissed.

Orders

  • ['Leave to appeal granted from the decisions of 23 February 2006 and 2 April 2007.' 'Appeal dismissed.']