Director of Public Prosecutions (NSW) v Kmetyk

The Director of Public Prosecutions (NSW) appealed to the Court of Appeal against orders made by the District Court concerning an appeal against a sentence imposed by the Local Court. The respondent, Ms Kmetyk, had been convicted in the Local Court of driving while disqualified. The District Court, on appeal against sentence, had quashed the conviction, re-convicted Ms Kmetyk, and imposed a new sentence.

The central legal issues before the Court of Appeal were whether the District Court had committed jurisdictional error in its handling of the appeal, particularly in relation to the application of statutory provisions governing driving while disqualified and the effect of legislative amendments that occurred between the Local Court conviction and the District Court appeal hearing. The court also considered the reconciliation of orders entered on JusticeLink with those pronounced in court and recorded in a signed document.

The Court of Appeal reasoned that the District Court had erred by quashing the conviction and then re-convicting the respondent, as the appeal before it was solely against sentence, not conviction. Furthermore, the District Court had incorrectly applied a new statutory regime to the sentencing, which had come into effect after the conviction but before the appeal hearing, despite the absence of an appeal against the conviction itself. The court applied principles concerning the finality of convictions and the proper scope of appeals against sentence, as well as the operation of provisions relating to automatic stays and the counting of time for disqualification periods under the *Road Transport Act 2013* and the *Crimes (Appeal and Review) Act 2001*.

The Court of Appeal set aside the orders of the District Court. It allowed the appeal against sentence, set aside the fine imposed by the Local Court, and substituted a lesser fine. The court also declared the original conviction and the consequent statutory disqualification period. Leave was granted for parties to apply for further orders concerning the operation of specific legislative provisions. No order as to costs was made.