R v Van Ryn (No 2) [2016] NSWCCA 160

R v Van Ryn (No 2) [2016] NSWCCA 160

The error in referring to the wrong statutory provision (s 61M(2) instead of s 61M(1)) and the associated maximum penalty and standard non-parole period does not render the aggregate sentence 'contrary to law' within the meaning of s 43, as the penalty imposed was within the court's power and a reconsideration could only occur by way of appeal, not under s 43.

Jurisdiction
Australia
Judgment Date
10 August 2016
Procedural Posture
Criminal Appeal / Application to Reopen Sentencing
Outcome
Application by the Crown to reopen sentencing under s 43 of the Crimes (Sentencing Procedure) Act 1999 is refused.
Legal Topics
['sentencing' 'error Correction' 'aggregate Sentences' 'statutory Construction']
['criminal Law'] ['sentencing' 'error Correction' 'aggregate Sentences' 'statutory Construction']

Case Brief

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Procedural Posture

Criminal Appeal / Application to Reopen Sentencing

Legal Issues

  1. 1 ['Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 empowers the court to reopen proceedings when there is an error referring to the offence provision, maximum penalty, and standard non-parole period;' "Whether the aggregate sentence imposed was 'contrary to law' within the meaning of s 43"]

Ratio Decidendi

The error in referring to the wrong statutory provision (s 61M(2) instead of s 61M(1)) and the associated maximum penalty and standard non-parole period does not render the aggregate sentence 'contrary to law' within the meaning of s 43, as the penalty imposed was within the court's power and a reconsideration could only occur by way of appeal, not under s 43.

Court Disposition

Application by the Crown to reopen sentencing under s 43 of the Crimes (Sentencing Procedure) Act 1999 is refused.

Orders

  • ['The application by the Crown to reopen the sentencing of the respondent pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 is refused.']