R v Finnie (No. 2) [2004] NSWCCA 150

R v Finnie (No. 2) [2004] NSWCCA 150

The Court had no jurisdiction to re-open the sentencing proceedings because the applicant did not show that the sentence imposed by the Court of Criminal Appeal was a penalty contrary to law or that the Court failed to impose a penalty required by law. The applicant was in fact serving the sentence resulting from revocation of his periodic detention order between April and November 2000, and the proposed assumptions that he would have applied for and been granted parole were unsupported. Even considering the new material, the commencement date decision was a discretionary sentencing decision and did not fall within s 43.

Jurisdiction
Australia
Judgment Date
17 May 2004
Procedural Posture
Criminal Application to Re Open Sentencing Proceedings After Sentence / Application Under S 43 of the Crimes (sentencing Procedure) Act 1999 Following a Crown Sentence Appeal and Refusal of Special Leave by the High Court
Outcome
The application is refused.
Legal Topics
['re Opening Sentencing Proceedings' 'sentencing Errors' 'commencement Date of Sentence' 'pre Sentence Custody' 'periodic Detention' 'parole Eligibility' 'jurisdiction Under S 43 of the Crimes (sentencing Procedure) Act 1999']
['criminal Law and Procedure' 'sentencing'] ['re Opening Sentencing Proceedings' 'sentencing Errors' 'commencement Date of Sentence' 'pre Sentence Custody' 'periodic Detention' 'parole Eligibility' 'jurisdiction Under S 43 of the Crimes (sentencing Procedure) Act 1999']

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Procedural Posture

Criminal Application to Re Open Sentencing Proceedings After Sentence / Application Under S 43 of the Crimes (sentencing Procedure) Act 1999 Following a Crown Sentence Appeal and Refusal of Special Leave by the High Court

Legal Issues

  1. 1 ['Whether the Court of Criminal Appeal had jurisdiction under s 43 of the Crimes (Sentencing Procedure) Act 1999 to re-open sentencing proceedings.' 'Whether the sentence imposed after the Crown appeal was a penalty contrary to law or involved a failure to impose a penalty required by law.' 'Whether material concerning parole eligibility after revocation of a periodic detention order showed that the Court erred in fixing the commencement date of the sentence and allowing only 10 months pre-sentence custody.']

Ratio Decidendi

The Court had no jurisdiction to re-open the sentencing proceedings because the applicant did not show that the sentence imposed by the Court of Criminal Appeal was a penalty contrary to law or that the Court failed to impose a penalty required by law. The applicant was in fact serving the sentence resulting from revocation of his periodic detention order between April and November 2000, and the proposed assumptions that he would have applied for and been granted parole were unsupported. Even considering the new material, the commencement date decision was a discretionary sentencing decision and did not fall within s 43.

Court Disposition

The application is refused.

Orders

  • ['Application refused.']