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Rickard v R

Rickard v R

Case [2007] NSWCCA 332 4 December 2007

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New South Wales
Court of Criminal Appeal

CITATION: Rickard v R [2007] NSWCCA 332

HEARING DATE(S): 1/11/07

JUDGMENT DATE:
4 December 2007

JUDGMENT OF: Handley AJA at 1; Hoeben J at 28; Smart AJ at 29

DECISION: (1) Leave to appeal granted from the decisions of 23 February 2006 and 2 April 2007.; (2) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Sentencing - Suspended sentence - Bond revoked - Non-parole period previously set - No power to re-set period - RES JUDICATA - Suspended sentence - Amending legislation - Bond revoked - Existing sentence not affected by amendment

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes and Courts Legislation Amendment Act 2006 (No 107)
Criminal Procedure Act 1986
District Court Act 1973
District Court Rules 1973

CASES CITED: Day v Kelland [1900] 2 Ch 745 CA
Elliott v The Queen [2007] HCA 51
FEDFA v Broken Hill Pty Co Ltd (1913) 16 CLR 245
Lemm v Mitchell [1912] AC 400
Maxwell v The Queen (1996) 184 CLR 501
R v Ehrenburg NSW CCA (14 December 1990)
R v Elliott [2006] NSWCCA 305
R v Lapa (No 2) (1995) 80 ACR 398
R v Munday [1981] 2 NSWLR 177
Re A Debtor (1936) Ch 237 CA
Re Harrisons's Share (1955) Ch 260 CA
Smith v NSW Bar Association (1992) 176 CLR 256
Wise v R [2006] NSWCCA 264

PARTIES: Angela Doreen Rickard v Regina

FILE NUMBER(S): CCA 2007/2968002

COUNSEL: R Burgess (Applicant)
D Woodburn (Crown)

SOLICITORS: S O'Connor (LAC) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/21/3167

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 23/2/2006

- 10 -

CCA 2007/2968002
DC 05/21/3167

HANDLEY AJA
HOEBEN J
SMART AJ

Angela Doreen RICKARD v Regina

CRIMINAL LAW - Sentencing - Suspended sentence - Bond revoked - Non-parole period previously set - No power to re-set period

RES JUDICATA - Suspended sentence - Amending legislation - Bond revoked - Existing sentence not affected by amendment

The applicant pleaded guilty to the manslaughter by neglect of her infant daughter who drowned in a bath when left unattended. In February 2006 she was sentenced to 2 years imprisonment with a non-parole period of 12 months but the sentence was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 upon her entering into a good behaviour bond for 2 years. The bond was revoked after the commencement of the amendments to the Act which took effect in November 2006. The original sentence had not been formally entered. The Judge held that he had no power to reopen the non-parole period which had already been set and ordered that the sentence take effect. The applicant sought leave to appeal against the original sentence and the later order, following revocation of the bond, that it take effect.

Held: (1) Since the sentence had not been formally entered the Judge had power to reconsider the original sentence, but a case…

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 Rickard v R

Details

AGLC: Rickard v The Queen [2007] NSWCCA 332
Case: [2007] NSWCCA 332
Decision Date: 4 December 2007

CaseChat Overview and Summary

The case of Rickard v R involved the respondent, the Crown, appealing against the decision of the sentencing judge to revoke a suspended sentence and impose a custodial sentence on the applicant. The applicant had been sentenced to a suspended sentence with a non-parole period previously set. The application for the revocation of the suspended sentence was brought before the court after the applicant breached the terms of the bond. The appeal was heard by the High Court of Australia.

The central legal issues in this case were whether the sentencing judge had the power to re-set the non-parole period after it had been previously set, and whether the court could amend the existing sentence in light of the subsequent legislation. The applicant argued that the sentencing judge had no power to re-set the non-parole period and that the existing sentence could not be affected by the subsequent legislation. The Crown, on the other hand, argued that the sentencing judge had the power to re-set the non-parole period and that the subsequent legislation was applicable to the existing sentence.

In its decision, the court held that the sentencing judge had no power to re-set the non-parole period as it had already been set by a prior court. The court also held that the subsequent legislation did not affect the existing sentence, as the principle of res judicata applied. The court further held that the applicant's sentence could not be altered by the subsequent legislation, as it would amount to an impermissible alteration of the existing sentence. The court found that the applicant's sentence was valid and that the sentencing judge's decision to revoke the suspended sentence and impose a custodial sentence was not flawed.

The court's final orders were that the appeal be dismissed, and the decision of the sentencing judge be upheld. The court held that the sentencing judge had the power to revoke the suspended sentence and impose a custodial sentence, and that the subsequent legislation did not affect the existing sentence. The court further held that the applicant's sentence was valid and that the sentencing judge's decision was not flawed. The court's decision in this case clarifies the scope of the sentencing judge's power to re-set the non-parole period and the applicability of subsequent legislation to existing sentences.

Orders