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R v Finnie (No 2)

R v Finnie (No 2)

Case [2004] NSWCCA 150 17 May 2004

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CITATION: R v Finnie (No. 2) [2004] NSWCCA 150

HEARING DATE(S): 23/04/2004

JUDGMENT DATE:
17 May 2004

JUDGMENT OF: Spigelman CJ at 1; Dunford J at 2; Howie J at 3

DECISION: The application is refused.

CATCHWORDS: Criminal Law and Procedure - Proceedings after sentence - Application to re-open sentencing proceedings - whether sentence imposed after Crown appeal was contrary to law - whether new material indicates that court acted erroneously when determining the commencement date of the sentence - extent of jurisdiction to re-open sentencing proceedings.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 43, 50(1)
Periodic Detention of Prisoners Act 1981
Crimes (Administration of Sentences) Act 1999 - Div 2 of Schedule 5
Criminal Procedure Act 1986 - ss 19, 24
Sentencing Act (WA) - s 37
Sentencing Act (NT) - s 112
Penalties and Sentences Act (QLD) - s 188

CASES CITED: R v Finnie [2002] NSWCCA 533
Finnie v The Queen [2003] HCATrans 401
R v Finnie [1999] NSWCCA 329
R v Petrou (NSWCCA, 13 February 1990, unreported)
Tolmie (1994) 72 A Crim R 416
Ho v DPP (1995) 37 NSWLR 393
Traegar v Pires de Albuquerque (1997) 18 WAR 432
Shortland v Heath [1977] WAR 61
Melville v The Queen (1999) 150 FLR 296
Siganto v The Queen (1998) 194 CLR 656
Staats v R (1999) 123 NTR 16
R v McMahon [2002] QCA 18
Erceg v District Court of NSW [2003] NSWCA 379

PARTIES :
Regina v Sydney Thomas Finnie

FILE NUMBER(S): CCA 60437/02

COUNSEL: P. Power SC - Crown
P. Byrne SC - Applicant

SOLICITORS: S. Kavanagh - Crown
J. Rea - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/0208; 98/11/0784; 99/11/0054; 99/11/1195

LOWER COURT
JUDICIAL OFFICER : Coorey DCJ

60437/02

Spigelman CJ
DUNFORD J
HOWIE J
MONDAY 17 MAY 2004

R v Sydney Thomas FINNIE (No 2 )

Judgment

1 SPIGELMAN CJ: I agree with Howie J.

2 DUNFORD J: I agree with Howie J.

3 HOWIE J: On 12 December 2002 the Court as presently constituted allowed a Crown appeal against the sentences imposed upon the respondent by Judge Coorey and, as a consequence, sentenced the respondent to an effective head sentence of 4 years 4 months with a non-parole period of 2 years 10 months. See R v Finnie [2002] NSWCCA 533. The sentences included a period of 10 months pre-sentence custody and, therefore, the respondent is presently eligible to be considered for release to parole on 11 December 2004. The respondent appealed against the Court’s judgment to the High Court, but special leave was refused; Finnie v The Queen [2003] HCATrans 401.

4 There is now before the Court an application that the sentencing proceedings be re-opened pursuant to the power contained in s 43 of the Crimes (Sentencing Procedure) Act. That section is relevantly as follows:

43 Court may reopen proceedings to correct sentencing errors

(a)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Finnie (No 2)

Details

AGLC: R v Finnie (No 2) [2004] NSWCCA 150
Case: [2004] NSWCCA 150
Decision Date: 17 May 2004

CaseChat Overview and Summary

In the case of R v Finnie (No 2), the respondent, Finnie, sought to re-open sentencing proceedings which had been concluded following a Crown appeal. The initial proceedings resulted in Finnie being sentenced to imprisonment for offences related to dangerous driving causing death. The High Court of Australia was tasked with determining whether the sentence imposed after the Crown appeal was contrary to law and whether new material indicated that the court acted erroneously when determining the commencement date of the sentence. Additionally, the court examined the extent of its jurisdiction to re-open sentencing proceedings in such circumstances.

The legal issues before the court involved the interpretation of statutory provisions regarding the re-opening of sentencing proceedings and the principles governing the commencement date of a custodial sentence. The court was required to assess whether the respondent's application met the criteria for re-opening sentencing proceedings under the relevant legislation, and whether the new evidence presented was sufficient to warrant such a re-opening. Furthermore, the court needed to consider the balance between the finality of sentencing and the court's duty to ensure justice is served.

The court concluded that the application to re-open sentencing proceedings was not meritorious. The High Court held that the sentence imposed after the Crown appeal was not contrary to law, and the new material presented did not establish that the court acted erroneously in determining the commencement date of the sentence. The court emphasised the importance of the finality of sentencing and the limited circumstances under which such proceedings could be re-opened. Consequently, the court dismissed the application, reaffirming the principle that re-opening sentencing proceedings should only occur in exceptional cases where there is a clear error of law or significant miscarriage of justice.

No specific orders were made by the court in this instance, as the application to re-open sentencing proceedings was dismissed. The court's decision underscored the importance of adhering to the established legal framework governing sentencing and the limited scope for re-opening such proceedings.

Orders