R v DW (No 2)

[2020] NSWDC 462

District Court

New South Wales

Medium Neutral Citation:

R v DW (No 2) [2020] NSWDC 462

Hearing dates:

29 May 2020

Date of orders:

29 May 2020

Decision date:

29 May 2020

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Pursuant to s 3C(1) of the Child Protection (Offenders Registration) Act2000, the offender is not to be treated as a registrable person for the purposes of that Act in respect of the offences for which he was convicted and sentenced on 11 May 2020

Catchwords:

CRIME — Historical child sex offences — Sexual intercourse with child >10 <16 – child offender – extensive delay – rehabilitation – sentencing children who commit child sex offences – non-custodial sentence – offender declared a non-registerable person

Legislation Cited:

Child Protection (Offenders Registration) Act2000

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

KhannavTheCommissioner of Police [2007] NSWSC 17

The Queen v RI [2019] NSWDC 129

Category:

Procedural rulings

Parties:

Regina (Crown)
DW (Offender)

Representation:

Counsel:
Ms C Davenport SC with Ms M Humphreys for the offender

Solicitors:
Mr D Coulton for the Crown

File Number(s):

2019/00108682

Publication restriction:

Non-publication order in relation to names of offender and complainants or any features which may tend to identify them

Judgment

1. This matter comes back today pursuant to what at common law was described as the “slip rule” and now covered by statute in s 43 of the Crimes (Sentencing Procedure) Act 1999:

43   Court may reopen proceedings to correct sentencing errors

(1)  This section applies to criminal proceedings (including proceedings on appeal) in which a court has—

(a)  imposed a penalty that is contrary to law, or

(b)  failed to impose a penalty that is required to be imposed by law,

and so applies whether or not a person has been convicted of an offence in those proceedings.

(2)  The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard—

(a)  may impose a penalty that is in accordance with the law, and

(b)  if necessary, may amend any relevant conviction or order.

(3)  For the purposes of this section, the court—

(a)  may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person’s arrest, or

(b)  if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person’s arrest.

(4)  Subject to subsection (5), nothing in this section affects any right of appeal.

(5)  For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed.

(6)  In this section—

impose…