R v Gerhardt

In the case of R v Gerhardt, the applicant was convicted of aggravated possession of methylamphetamine and sentenced to three years imprisonment. After his sentencing, he was compelled to testify against his co-accused, despite invoking his right against self-incrimination. The applicant's evidence differed from the agreed statement of facts presented during sentencing, leading to an application to reopen the sentence proceeding, which was granted. The applicant was subsequently resentenced to a term of nine months longer than the original sentence. The applicant appealed against the decision to reopen the sentence proceeding and the resentence imposed.

The legal issues in this case centred on whether there was any admissible evidence in support of the application to resentence, whether the inconsistency with the agreed schedule of facts amounted to a clear factual error justifying the reopening of the sentence proceeding, whether the alleged error was an error of substance, and whether the reopening of the sentence proceeding miscarried. The applicant argued that the evidence relied upon by the sentencing judge to reopen the sentence proceeding was inadmissible and that the inconsistency with the agreed schedule of facts did not amount to a clear factual error. The applicant also contended that the reopening of the sentence proceeding miscarried due to the inadmissible evidence.

The court found that the evidence relied upon by the sentencing judge was inadmissible, as it was based on the applicant's compelled testimony that varied from the agreed statement of facts. The court held that the inconsistency with the agreed schedule of facts did not amount to a clear factual error, as the applicant's evidence was not relevant to the sentence imposed. Furthermore, the court held that the reopening of the sentence proceeding miscarried due to the inadmissible evidence. As a result, the appeal was allowed, and the decision to reopen the original sentence proceeding and the resentence imposed was quashed.

On 1 November 2019, the court granted the application for leave to appeal, allowed the appeal, and quashed the decision to reopen the original sentence proceeding and the resentence imposed on 3 June 2019. The court ordered that the original sentence proceeding not be reopened and confirmed the orders made in the Supreme Court upon the sentencing of the applicant on 13 May 2019.