R v X

[2017] NSWSC 3

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v X [2017] NSWSC 3
Hearing dates:	10 January 2017
Date of orders:	10 January 2017
Decision date:	10 January 2017
Before:	Campbell J
Decision:	Under s 14A Criminal Appeal Act 1912, the sentence imposed by the judgment of the Court delivered on 9 December 2016 is to commence on 9 January 2017 and expire on 20 February 2017. The offender is to be released upon the expiration of the sentence. Direct that the record of the court and the registrar's notification of the Court's determination dated 12 December 2016 be amended to give effect to order 1.
Catchwords:	CRIMINAL LAW – sentence – procedure – Criminal Appeal Act s 14A – crown appeal allowed – sentence indicated in absence of respondent – sentence to commence when respondent appears before the court – respondent now in custody - commencement date specified
Legislation Cited:	Criminal Appeal Act 1912 (NSW) s 14A
Category:	Sentence
Parties:	Regina (Applicant) X (Respondent
Representation:	Counsel: S. Thomson (Solicitor) Self Represented (Respondent)
File Number(s):	2014/12438

ex tempore judgment (rEVISED)

1. For reasons published on 9 December 2016, the Court constituted by Ward JA, Bellew J and Hidden AJ allowed the Crown appeal in this matter. The offender did not appear but he was represented by Ms David of counsel. A medical certificate was tendered purporting to explain his non-appearance.

2. The Court was constituted by Bellew J for the purpose of delivery of its judgment. His Honour indicated the orders he proposed the Court make, and that Ward JA and Hidden AJ agreed with his reasons. He indicated that the orders of the Court would be:

The Crown appeal is allowed.

The respondent is sentenced to imprisonment for a period of six weeks commencing on 9 December 2016 and expiring on 19 January 2017.

3. However, it is apparent from the discussion as recorded in the transcript that his Honour did not intend to specify a commencement date for the sentence in the absence of an appearance by the offender. This is made clear by his Honour's reference to the provisions of s 14A of the Criminal Appeal Act 1912 (NSW). His Honour said (T p2.35):

“I am satisfied that the respondent was given notice of today's listing date at which time it was proposed that this matter be disposed of and the sentence imposed upon him. In those circumstances and pursuant to section 14A(4) of the Criminal Appeal Act 1912, I order the issue of a warrant for the arrest of the respondent forthwith.”

Later, his Honour said (T p2.45):

“The Court has power... to vary the dates of the sentence in circumstances such as this if [the offender] is taken into custody at some stage after today."

His Honour also said (T p2.50):

“... in the event that occurs, the Court should be notified so that some amendment can be made to the orders in relation to the date on which the sentence is to commence."

4. I am satisfied that his Honour had in mind the Court's powers under s 14A(2) of the Criminal Appeal Act 1912, and that by indicating the form of orders that the Court had agreed upon, his Honour was not specifying a commencement date for the sentence, rather he was exercising the power in s 14A(2) to "decline to specify a commencement date for the sentence until the respondent appears before the court for sentencing".

5. As his Honour indicated, a warrant for the offender’s arrest was issued that day. However it is agreed that the offender “turned himself in” yesterday to Wagga Wagga police and has today been brought before the Court, appearing by AVL, for the purpose of sentencing.

6. Their Honours indicated that the sentence they proposed, on allowing the Crown appeal, was a fixed term of six weeks.

7. X, I sentence you to a term of imprisonment for a period of six weeks commencing 9 January 2017 and expiring on 20 February 2017. You will be eligible to be released at the expiration of that sentence.

8. The formal orders I make are as follows:

1. Under s 14A Criminal Appeal Act 1912, the sentence imposed by the judgment of the Court delivered on 9 December 2016 is to commence on 9 January 2017 and expire on 20 February 2017. The offender is to be released upon the expiration of the sentence.

2. Direct that the record of the Court and the registrar's notification of the Court's determination dated 12 December 2016 be amended to give effect to order 1.

3. Those orders may be entered forthwith.

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Amendments

11 January 2017 - Para 1. The word Offender substituted

Decision last updated: 11 January 2017