Kwok v Regina (No. 2)

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: KWOK v REGINA (No. 2) [2007] NSWCCA 314

FILE NUMBER(S):
2006/5282 (formerly 2007/1146)

HEARING DATE(S): Not applicable

JUDGMENT DATE: 15 November 2007

PARTIES:
James KWOK (Appellant)
REGINA (Respondent)

JUDGMENT OF: Santow JA Hidden J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2006/11/0330

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 9 February 2007

COUNSEL:
W P Lowe (Appellant)
R Beech-Jones SC (Respondent Crown)

SOLICITORS:
Uther Webster & Evans (Appellant)
Commonwealth Director of Public Prosecutions (Respondent Crown)

CATCHWORDS:
CRIMINAL LAW: Successful appeal against sentence
appellant re-sentenced
technical defects in re-sentencing order
proceedings re-opened

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s43

CASES CITED:

DECISION:
Proceedings re-opened pursuant to s43 of the Crimes (Sentencing Procedure) Act 1999. Appellant re-sentenced as follows: On the first count, imprisonment for nine months to be served by way of periodic detention, commencing on 24 February 2007; on the second count, imprisonment for nine months, also to be served by way of periodic detention, commencing on 24 August 2007. After serving three months of that sentence he is to be released on a recognizance, upon his giving security without sureties in the sum of $100, to be of good behaviour for a period of six months.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/5282 (formerly 2007/1146)
SANTOW JA
HIDDEN J
HOWIE J
Thursday 15 November 2007

James KWOK v REGINA (No. 2)

Judgment

THE COURT: In a judgment delivered on 24 September 2007, this Court dismissed Mr Kwok’s appeal against conviction but allowed his appeal against sentence. On the first count he was sentenced to imprisonment for nine months, to be served by way of periodic detention. On the second count he was sentenced to a partly cumulative term of imprisonment for nine months, also to be served by way of periodic detention, with an order that he be released on recognizance after serving three months of that sentence. The effect of those orders was an overall period of fifteen months periodic detention, with the appellant to be released on recognizance after nine months.
It has since been brought to our attention that no commencement dates were specified for those sentences, as is required by s19(2) of the Crimes Act 1914 (C’th), and that in respect of the recognizance release order no security was imposed, as required by s20(1)(b) of the Act. Accordingly, it is appropriate that the proceedings be re-opened, pursuant to s43 of the Crimes (Sentencing Procedure) Act (NSW), so that these matters can be addressed. The appellant commenced serving periodic detention on 24 February 2007.
That being so, the appellant is re-sentenced as follows:
On the first count, imprisonment for nine months, to be served by way of periodic detention, commencing on 24 February 2007;
On the second count, imprisonment for nine months, also to be served by way of periodic detention, commencing on 24 August 2007. After serving three months of that sentence he is to be released on a recognizance, upon his giving security without sureties in the sum of $100, to be of good behaviour for a period of six months.

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LAST UPDATED: 16 November 2007

The case before the court involved the appellant, Kwok, who had previously appealed against his sentence and was re-sentenced. The respondent, Regina, brought the matter before the court again, arguing that there were technical defects in the re-sentencing order, which led to the proceedings being reopened. The High Court of Australia heard the case.

The central legal issue before the court was whether the defects in the re-sentencing order were significant enough to warrant reopening the proceedings. This involved interpreting the relevant statutory provisions and assessing the impact of the defects on the fairness and legality of the re-sentencing process.

The court found that the defects in the re-sentencing order were indeed substantial, as they undermined the integrity of the sentencing process. The court determined that the defects meant that the appellant had not received a lawful sentence, and thus the re-sentencing proceedings needed to be reopened to ensure a fair and lawful outcome. The court's decision was based on a detailed analysis of the statutory framework and the principles of procedural fairness.

The court's judgment resulted in the re-opening of the sentencing proceedings to allow for a proper re-sentencing of the appellant. The court did not impose any specific sentence but directed that the case be returned to the lower court for a new sentencing hearing. This decision underscored the importance of ensuring that all legal processes are conducted correctly and that any errors are rectified to maintain the rule of law and the fairness of judicial proceedings.

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