High Court—Practice—Special leave—Criminal case—Sentence—Interests of administration of justice in particular case—Judiciary Act 1903 (Cth),s. 35A(b). Criminal Law (N.S.W.)—Sentencing—Abolition of system of remissions—New scheme of minimum and additional terms—Sentences imposed before abolition to be redetermined in accordance with new scheme—Sentence imposed under former scheme—Resentencing—Principles—Sentencing Act 1989 (N.S.W.), ss. 5,57, Sched. 2.
Decisions
MASON C.J. AND McHUGH J. This application for special leave to appeal raises, if only indirectly, a question of some difficulty concerning the approach to be applied by the New South Wales Court of Criminal Appeal when, having quashed sentences imposed by the sentencing judge before the commencement of the Sentencing Act 1989 (N.S.W.) ("the Act"), it is required to resentence the convicted person after the commencement of the Act. In order to explain the nature of the question, we need to refer to the important changes in sentencing procedures which the Act has introduced. The new sentencing procedures introduced by the Act
2. Section 3(a) of the Act recites that one of its objects is:
"to promote truth in sentencing by requiring convicted offenders to serve in prison (without any reduction) the minimum or fixed term of imprisonment set by the court".
3. The parenthetic reference, "without any reduction", highlights a key difference between the regime of sentencing for which the Probation and Parole Act 1983 (N.S.W.) provided and the new regime introduced by the Act which repealed the Probation and Parole Act. The key difference is the abolition of the system of remissions. Section 58(1) of the Act brought about this result by repealing that part of the Prisons Act 1952 (N.S.W.) which dealt with the system of remissions. The system of remissions contributed to what was perceived to be a fictional element which had emerged in sentencing in New South Wales. That element arose from the combination of, on the one hand, a requirement imposed by s.5(d) of the Probation and Parole Act that the sentencing judge specify a period before the expiration of which a person convicted was not to be released on probation and, on the other hand, the system whereby remissions of sentence were granted as a reward for good behaviour during imprisonment. The practical significance was that the official non-parole period was often substantially longer than the period actually served by a prisoner before release on parole. The appearance and reality of sentences imposed did not coincide: Reg. v. Maclay (1990) 19 NSWLR 112, at pp 121, 123.
4. The Act sought to redress this situation and achieve "truth in sentencing" through the abolition of the system of remissions and the institution of a regime of fixed and minimum terms which accurately stated the period before which a prisoner was not eligible to be released. Section 5(1) in Pt 2 of the Act requires a court, when sentencing a person to imprisonment,…
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.
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AGLC
Radenkovic v The Queen [1990] HCA 54
Case
[1990] HCA 54
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Mr Radenkovic, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process.
The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior convictions and whether the summing up to the jury was adequate, particularly in relation to the issue of self-defence. Further, the Court considered whether the cumulative effect of any errors amounted to a miscarriage of justice, thereby warranting the quashing of the conviction.
The Court held that the admission of evidence of prior convictions was prejudicial and should not have been admitted, as it did not fall within any of the exceptions to the general rule against admitting such evidence. Furthermore, the Court found that the summing up on self-defence was insufficient, failing to adequately direct the jury on the relevant legal principles. The cumulative effect of these errors was considered to have occasioned a miscarriage of justice.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.