Achurch v R (No 2) [2013] NSWCCA 117

Achurch v R (No 2) [2013] NSWCCA 117

Section 43 of the Crimes (Sentencing Procedure) Act 1999 does not provide a mechanism for reviewing or rehearing sentences on the merits, notwithstanding broad interpretations in case law. Its discretionary remedy is reserved for patent or technical errors evident in the sentence itself. The penalty imposed by the Court of Criminal Appeal, though affected by the now-overruled reasoning of R v Way, was not contrary to law as it could have lawfully been imposed under the correct principles from Muldrock v The Queen. Therefore, the s 43 application should be dismissed.

Jurisdiction
Australia
Judgment Date
22 May 2013
Procedural Posture
Application to Reopen Crown Appeal Against Sentence / Final Judgment on S 43 Application
Outcome
Application dismissed
Legal Topics
['sentencing Error' 'reopening Proceedings' 'standard Non Parole Period' 'application of Muldrock V the Queen' 'interpretation of S 43 Crimes (sentencing Procedure) Act 1999']
['criminal Law' 'sentencing'] ['sentencing Error' 'reopening Proceedings' 'standard Non Parole Period' 'application of Muldrock V the Queen' 'interpretation of S 43 Crimes (sentencing Procedure) Act 1999']

Case Brief

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Procedural Posture

Application to Reopen Crown Appeal Against Sentence / Final Judgment on S 43 Application

Legal Issues

  1. 1 ["Scope of 'imposed a penalty that is contrary to law' under s 43 Crimes (Sentencing Procedure) Act 1999" 'Whether the penalty imposed was contrary to law due to Muldrock error' 'Appropriate remedy for sentencing errors arising from incorrect application of standard non-parole periods']

Ratio Decidendi

Section 43 of the Crimes (Sentencing Procedure) Act 1999 does not provide a mechanism for reviewing or rehearing sentences on the merits, notwithstanding broad interpretations in case law. Its discretionary remedy is reserved for patent or technical errors evident in the sentence itself. The penalty imposed by the Court of Criminal Appeal, though affected by the now-overruled reasoning of R v Way, was not contrary to law as it could have lawfully been imposed under the correct principles from Muldrock v The Queen. Therefore, the s 43 application should be dismissed.

Court Disposition

Application dismissed

Orders

  • ['The application made by the applicant under s 43 of the Crimes (Sentencing Procedure) Act 1999 on 22 March 2012 be dismissed.' 'The Notice of Motion filed by the applicant on 28 March 2012 be dismissed.']