Radenkovic v The Queen [1990] HCA 54

Radenkovic v The Queen [1990] HCA 54

The Court held that where a convicted person is resentenced by the Court of Criminal Appeal after the commencement of the Sentencing Act 1989 (NSW) for an offence initially sentenced under the old regime, the court must determine the appropriate sentence as if the old law (including remissions) applied at the time of the original sentencing, and only then translate that sentence into the new Act's terms in accordance with the transitional provisions, ensuring the offender is not disadvantaged by the legislative changes. The failure to do so in this case, resulting in a significant increase in the applicant's sentence, was an error warranting the grant of special leave and remittal.

Jurisdiction
Australia
Procedural Posture
Criminal Appeal / Application for Special Leave to Appeal and Substantive Appeal
Outcome
Special leave to appeal granted. Appeal allowed.
Legal Topics
['sentencing' 'transitional Provisions' 'appeals Against Sentence' 'interpretation of Statutes']
['criminal Law'] ['sentencing' 'transitional Provisions' 'appeals Against Sentence' 'interpretation of Statutes']

Case Brief

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Procedural Posture

Criminal Appeal / Application for Special Leave to Appeal and Substantive Appeal

Legal Issues

  1. 1 ['What is the proper approach for resentencing convicted persons when the original sentence was imposed prior to the commencement of the Sentencing Act 1989 (NSW), but the resentencing occurs after the Act commenced?' 'Whether the Court of Criminal Appeal should apply the Sentencing Act 1989 (NSW) as if it was in force at the original sentencing, or use the new provisions without reference to the prior regime' 'Whether failure to apply the correct resentencing approach constitutes an error warranting special leave']

Ratio Decidendi

The Court held that where a convicted person is resentenced by the Court of Criminal Appeal after the commencement of the Sentencing Act 1989 (NSW) for an offence initially sentenced under the old regime, the court must determine the appropriate sentence as if the old law (including remissions) applied at the time of the original sentencing, and only then translate that sentence into the new Act's terms in accordance with the transitional provisions, ensuring the offender is not disadvantaged by the legislative changes. The failure to do so in this case, resulting in a significant increase in the applicant's sentence, was an error warranting the grant of special leave and remittal.

Court Disposition

Special leave to appeal granted. Appeal allowed.

Orders

  • ['Sentences imposed by the Court of Criminal Appeal of New South Wales quashed.' 'Matter remitted to the Court of Criminal Appeal for redetermination of sentences in accordance with the judgment of the High Court.']