MK v R (No 2) [2014] NSWCCA 340

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MK v R (No 2) [2014] NSWCCA 340 Hearing dates: On the papers Decision date: 22 December 2014 Before: Hoeben CJ at CL at [1] Fullerton J at [11] Hamill J at [12] Decision: In respect of the robbery offence which occurred on 7 February 2011 the commencement date for the sentence is varied so as to read "Imprisonment with a non-parole period of 18 months commencing 9 April 2011 and expiring 8 October 2012 with a balance of term of 18 months, expiring 8 April 2014. Catchwords: CRIMINAL LAW – Successful conviction appeal – need to alter commencement date of sentence for unrelated offence. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 – s 59 Cases Cited: MK v R [2014] NSWCCA 274 Category: Consequential orders (other than Costs) Parties: MK - Applicant Regina – Respondent Crown Representation: Counsel: Mr H Dhanji SC - Applicant Ms T Smith – Respondent Crown

Solicitors: Abigail Bannister - Applicant S Kavanagh, Solicitor for Public prosecutions - Respondent File Number(s): 2011/43255

Judgment 1. HOEBEN CJ at CL: On 23 July 2013 her Honour Judge Quirk sentenced the applicant as follows: Count 1 (Take without consent with intent to obtain advantage on 6 February 2011) – a fixed term of imprisonment for 12 months commencing 9 April 2011 and expiring 8 April 2012. Count 2 (Aggravated Indecent Assault on 6 February 2011) – imprisonment with a non-parole period of 24 months from 24 April 2011 to 8 April 2013 with a balance of parole of 12 months to expire 8 April 2014. Count 3 (Aggravated Indecent Assault on 6 February 2011) – imprisonment with a non-parole period of 24 months from 9 April 2011 to 8 April 2013 with a balance of parole of 12 months to expire 8 April 2014. 1. The applicant had pleaded guilty to an offence of armed robbery committed on the day after the offences just referred to (i.e., 7 February 2011) and was sentenced at the same time by her Honour Judge Quirk to imprisonment with a non-parole period of 18 months to date from 9 July 2012, expiring 8 January 2014 with a balance of term of 18 months expiring 8 July 2015. 2. Her Honour's express intention was to commence the sentences on 9 April 2011. Her Honour said: "However I propose to start his sentence for the present offences two months after the date he went into custody to allow for some custodial punishment for those offences." (23.7.2013 – T.3.6) 1. The applicant had been arrested and taken into custody on 9 February 2011 and in accordance with her Honour's express intention to commence the sentences two months after he was taken into custody, her Honour commenced those sentences from 9 April 2011. 2. On 12 September 2014 this Court heard an appeal by the applicant against his convictions for Counts 1, 2 and 3 above. On 26 November 2014 this Court delivered judgment in relation to that appeal (MK v R [2014] NSWCCA 274) upholding the appeal, quashing the convictions in Counts 1, 2 and 3 and remitting the matter to the District Court for re-trial. 3. As such the only remaining sentence was that in the robbery matter, against which there was no appeal. The sentence in the robbery matter was made partially accumulated upon Counts 1, 2 and 3 by 3 months. 4. Given that the convictions in Counts 1, 2 and 3 have been quashed, the sentence in the robbery offence should now be adjusted to commence on 9 April 2011 as was her Honour's express intention for the start date of the sentences. The Crown agrees that this Court should adjust the sentence in this way. 5. Section 59 of the Crimes (Sentencing Procedure) Act 1999 empowers the Court to make such an adjustment. Relevantly that section provides: "59 Court may vary commencement of sentence on quashing or varying other sentence (1) A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court. (2) If a person is subject to two or more sentences, this section applies to each of them. (3) A court may vary a sentence under this section on its own initiative or on the application of a party to the proceedings on the quashing or variation of the other sentence. …" 1. It follows that the sentence for the robbery offence should be one of 3 years, being imprisonment with a non-parole period of 18 months to commence 9 April 2011 and expire 8 October 2012, with a balance of term of 18 months to expire 8 April 2014. 2. Since the Crown and the applicant have agreed that the sentence for the robbery offence should be adjusted in this way, and since both the Crown and the applicant agree that the Court can deal with this matter in chambers without a formal hearing, the order of the Court should be: 1. The commencement date for the robbery offence which occurred on 7 February 2011 is varied so that the sentence imposed on the applicant should now read: "Imprisonment with a non-parole period of 18 months commencing 9 April 2011 and expiring 8 October 2012 with a balance of term of 18 months expiring 8 April 2014." 1. FULLERTON J: I agree with Hoeben CJ at CL. 2. HAMILL J: I agree with Hoeben CJ at CL