Director of Public Prosecutions v McGee

The Director of Public Prosecutions (DPP) appealed to the Court of Criminal Appeal of New South Wales against a decision concerning the activation of a suspended sentence. The respondent, Mr. McGee, had previously been sentenced by the Court of Criminal Appeal to a term of imprisonment which was suspended on certain conditions. The dispute centred on which court had the authority to order the activation of this suspended sentence upon its breach.

The primary legal issue before the Court of Criminal Appeal was to determine the correct forum for an application to activate a suspended sentence of imprisonment that was originally imposed by that very court. Specifically, the court had to consider whether an application to activate such a sentence should be made to the sentencing court itself or to a different judicial body.

The Court of Criminal Appeal held that it was the appropriate court to hear and determine an application for the activation of a suspended sentence that it had originally imposed. The court reasoned that the power to activate a suspended sentence is intrinsically linked to the original sentencing power. Therefore, when a suspended sentence is imposed by the Court of Criminal Appeal, any subsequent application to activate that sentence must be made to the same court. The court ordered that the part of the sentence of imprisonment imposed on the respondent and held in suspense be activated, and that the respondent serve the nine-month term of imprisonment held in suspense from 3 April 2014.