Whan v McConaghy [1984] HCA 22

Whan v McConaghy [1984] HCA 22

Where a person is sentenced to imprisonment with a specified commencement date and is granted bail (without a stay of execution), the term of imprisonment runs from the specified date regardless of whether the person actually surrenders to custody, and the court has no power—absent statutory authority—to impose or reimpose the original term after it has expired due to the passage of time.

Jurisdiction
Australia
Procedural Posture
Application for Special Leave to Appeal; Appeal / High Court of Australia Decision on Special Leave and Substantive Appeal
Outcome
Special leave to appeal granted; Appeal allowed with costs.
Legal Topics
['bail' 'sentence Commencement' 'jurisdiction to Amend Sentences' 'effect of Bail on Running of Sentence']
['criminal Law' 'procedure'] ['bail' 'sentence Commencement' 'jurisdiction to Amend Sentences' 'effect of Bail on Running of Sentence']

Case Brief

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Procedural Posture

Application for Special Leave to Appeal; Appeal / High Court of Australia Decision on Special Leave and Substantive Appeal

Legal Issues

  1. 1 ['Whether the Court of Appeal had power to direct a new commencement date for a sentence after the original term expired while the applicant was on bail' "Whether the grant of bail without a stay of execution affected the running of the applicant's sentence"]

Ratio Decidendi

Where a person is sentenced to imprisonment with a specified commencement date and is granted bail (without a stay of execution), the term of imprisonment runs from the specified date regardless of whether the person actually surrenders to custody, and the court has no power—absent statutory authority—to impose or reimpose the original term after it has expired due to the passage of time.

Court Disposition

Special leave to appeal granted; Appeal allowed with costs.

Orders

  • ['Special leave granted.' 'Appeal allowed with costs, including costs of the application for bail.' 'Orders of the Supreme Court of New South Wales Court of Appeal set aside.' 'In lieu thereof, order that the summons be dismissed with costs.']