Wany v DPP [2020] NSWCA 318

Wany v DPP [2020] NSWCA 318

The District Court judge was required on the sentence appeal under s 17 of the Crimes (Appeal and Review) Act 2001 (NSW) to undertake a fresh sentencing task. By determining the appeal by reference to the magistrate's reasons, purporting to find no fault in the magistrate's logic or sentence while nevertheless imposing a different sentence, and failing to make his own evaluative assessment of the objective seriousness of the offence, the judge constructively failed to exercise the jurisdiction conferred on him. Further, a cogent case for an intensive correction order having been put, the judge was required to engage with s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including...

Jurisdiction
Australia
Judgment Date
10 December 2020
Procedural Posture
Judicial Review of District Court Sentence Appeal Decision / Application for Relief in the Nature of Certiorari in the New South Wales Court of Appeal
Outcome
Application allowed; sentencing order quashed and proceedings remitted to the District Court.
Legal Topics
['sentence Appeal by Way of Rehearing' 'hearing De Novo Under S 17 of the Crimes (appeal and Review) Act 2001 (nsw)' 'intensive Correction Orders' 'community Safety Under S 66 of the Crimes (sentencing Procedure) Act 1999 (nsw)' 'jurisdictional Error' 'constructive Failure to Exercise Jurisdiction']
['criminal Law' 'sentencing' 'administrative Law' 'appeals and Judicial Review'] ['sentence Appeal by Way of Rehearing' 'hearing De Novo Under S 17 of the Crimes (appeal and Review) Act 2001 (nsw)' 'intensive Correction Orders' 'community Safety Under S 66 of the Crimes (sentencing Procedure) Act 1999 (nsw)' 'jurisdictional Error' 'constructive Failure to Exercise Jurisdiction']

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Procedural Posture

Judicial Review of District Court Sentence Appeal Decision / Application for Relief in the Nature of Certiorari in the New South Wales Court of Appeal

Legal Issues

  1. 1 ["Whether the District Court judge constructively failed to exercise jurisdiction by conducting the sentence appeal by reference to the magistrate's reasons rather than undertaking the sentencing task afresh under s 17 of the Crimes (Appeal and Review) Act 2001 (NSW)." 'Whether, when considering an intensive correction order, community safety and the assessment required by s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) are mandatory considerations.' "Whether failure to assess whether an intensive correction order or full-time detention was more likely to address the applicant's risk of reoffending amounted to jurisdictional error." 'Whether the District Court judge failed to engage with the objective seriousness of the offending and the statutory sequence for imposing imprisonment and considering an intensive correction order.']

Ratio Decidendi

The District Court judge was required on the sentence appeal under s 17 of the Crimes (Appeal and Review) Act 2001 (NSW) to undertake a fresh sentencing task. By determining the appeal by reference to the magistrate's reasons, purporting to find no fault in the magistrate's logic or sentence while nevertheless imposing a different sentence, and failing to make his own evaluative assessment of the objective seriousness of the offence, the judge constructively failed to exercise the jurisdiction conferred on him. Further, a cogent case for an intensive correction order having been put, the judge was required to engage with s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including...

Court Disposition

Application allowed; sentencing order quashed and proceedings remitted to the District Court.

Orders

  • ['An order that the record of the District Court proceedings in matter No 2018/00286636 be removed into this Court.' 'Pursuant to s 69B of the Supreme Court Act 1970, an order quashing the sentencing order imposed upon the plaintiff on 27 July 2020.' 'An order that the proceedings be remitted to the District Court...