REGINA v DGP [2010] NSWSC 1408

REGINA v DGP [2010] NSWSC 1408

Because the order that the applicant serve the whole sentence as a juvenile offender was inconsistent with s.19(2)(a) of the Children (Criminal Proceedings) Act 1987, as the original non-parole period expired more than 6 months after the applicant turned 21, the sentence could be characterised as contrary to law. The Court therefore had jurisdiction under s.43 of the Crimes (Sentencing Procedure) Act 1999 and adjusted the non-parole period by a small amount to give effect to the original sentencing intention and support rehabilitation.

Jurisdiction
Australia
Judgment Date
03 December 2010
Procedural Posture
Criminal Sentencing Application Under S.43(2) of the Crimes (sentencing Procedure) Act 1999 / Application to Re Open and Correct Sentencing Orders Imposed on 30 October 2009
Outcome
Application granted; sentencing orders re-opened and the sentence imposed on 30 October 2009 set aside and replaced.
Legal Topics
['re Opening Sentencing Proceedings' 'correction of Sentencing Error' 'non Parole Period' 'juvenile Offender Detention' 'manslaughter']
['criminal Law' 'sentencing' 'juvenile Justice'] ['re Opening Sentencing Proceedings' 'correction of Sentencing Error' 'non Parole Period' 'juvenile Offender Detention' 'manslaughter']

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Procedural Posture

Criminal Sentencing Application Under S.43(2) of the Crimes (sentencing Procedure) Act 1999 / Application to Re Open and Correct Sentencing Orders Imposed on 30 October 2009

Legal Issues

  1. 1 ['Whether the Court had jurisdiction under s.43 of the Crimes (Sentencing Procedure) Act 1999 to re-open the sentencing proceedings.' 'Whether the sentence imposed on 30 October 2009 was contrary to law because the non-parole period expired more than 6 months after the applicant attained 21 years of age, affecting eligibility to serve the sentence as a juvenile offender under s.19(2) of the Children (Criminal Proceedings) Act 1987.' 'Whether the non-parole period should be adjusted to give effect to the sentencing intention that the applicant serve the whole sentence as a juvenile offender.']

Ratio Decidendi

Because the order that the applicant serve the whole sentence as a juvenile offender was inconsistent with s.19(2)(a) of the Children (Criminal Proceedings) Act 1987, as the original non-parole period expired more than 6 months after the applicant turned 21, the sentence could be characterised as contrary to law. The Court therefore had jurisdiction under s.43 of the Crimes (Sentencing Procedure) Act 1999 and adjusted the non-parole period by a small amount to give effect to the original sentencing intention and support rehabilitation.

Court Disposition

Application granted; sentencing orders re-opened and the sentence imposed on 30 October 2009 set aside and replaced.

Orders

  • ['That the sentencing orders imposed on the applicant on 30 October 2009 be re-opened.' 'That the sentence imposed on 30 October 2009 be set aside and in lieu the following order is made: The applicant is sentenced to a term of imprisonment with a total non-parole period of 4 years, 11 months and 20 days to commence...