Regina v Frank Waqa (No 2) [2005] NSWCCA 33

Regina v Frank Waqa (No 2) [2005] NSWCCA 33

The Court was not satisfied that the sentences imposed on 26 November 2004 were "contrary to law". The original sentencing judge did not specify whether discounts were applied successively or aggregated, and the Court was not prepared to assume that he used the successive method. Since aggregation of discounts was not shown to be unlawful and successive calculation was not the only permissible approach, s 43 of the Crimes (Sentencing Procedure) Act 1999 was not enlivened.

Jurisdiction
Australia
Judgment Date
24 February 2005
Procedural Posture
Criminal Sentencing Application / Application in the New South Wales Court of Criminal Appeal Under S 43 of the Crimes (sentencing Procedure) Act 1999 to Re Open Proceedings After a Sentence Increase Under S 5 DA of the Criminal Appeal Act 1912
Outcome
Application dismissed; sentences imposed on 26 November 2004 confirmed.
Legal Topics
['discount for Assistance to Authorities' 'failure to Fulfil Undertaking to Give Evidence' 'discount for Guilty Plea' 'multiple Sentencing Discounts' 'application to Re Open Proceedings' 'sentence Contrary to Law']
['criminal Law' 'sentencing' 'criminal Procedure'] ['discount for Assistance to Authorities' 'failure to Fulfil Undertaking to Give Evidence' 'discount for Guilty Plea' 'multiple Sentencing Discounts' 'application to Re Open Proceedings' 'sentence Contrary to Law']

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Procedural Posture

Criminal Sentencing Application / Application in the New South Wales Court of Criminal Appeal Under S 43 of the Crimes (sentencing Procedure) Act 1999 to Re Open Proceedings After a Sentence Increase Under S 5 DA of the Criminal Appeal Act 1912

Legal Issues

  1. 1 ['Whether the sentences imposed by the Court on 26 November 2004 were "contrary to law" for the purposes of s 43 of the Crimes (Sentencing Procedure) Act 1999.' 'Whether the Court erred by assuming that the sentencing judge aggregated the 20 per cent discount for assistance with the 25 per cent discount for guilty pleas rather than applying the discounts successively.' 'Whether successive calculation is the only proper method for multiple sentencing discounts.' 'Whether the increase imposed under s 5DA of the Criminal Appeal Act 1912 exceeded the time allowed for future assistance.']

Ratio Decidendi

The Court was not satisfied that the sentences imposed on 26 November 2004 were "contrary to law". The original sentencing judge did not specify whether discounts were applied successively or aggregated, and the Court was not prepared to assume that he used the successive method. Since aggregation of discounts was not shown to be unlawful and successive calculation was not the only permissible approach, s 43 of the Crimes (Sentencing Procedure) Act 1999 was not enlivened.

Court Disposition

Application dismissed; sentences imposed on 26 November 2004 confirmed.

Orders

  • ['The application is dismissed.' 'The sentences imposed on 26 November 2004 are confirmed.']