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PENALTIES AND SENTENCES ACT 1992 - SECT 188
Court may reopen sentencing proceedings
188 Court may reopen sentencing proceedings
(1) If a court has in, or in connection with, a criminal proceeding, including
a proceeding on appeal— (a) imposed a sentence that is not in accordance
with the law; or
(b) failed to impose a sentence that the court legally
should have imposed; or
(c) imposed a sentence decided on a clear factual
error of substance; or
(d) failed to fix a date for the offender to be
released on parole as required under part 9 , division 3 ;
the court, whether
or not differently constituted, may reopen the proceeding.
(2) Also, if—
(a) a court has in, or in connection with, a criminal proceeding reduced a
sentence because the offender has undertaken in a written declaration to
cooperate with law enforcement agencies in a proceeding about an offence,
including a confiscation proceeding; and
(b) the offender, without reasonable
excuse, does not cooperate under the undertaking;
the court, whether or not
differently constituted, may reopen the proceeding.
(3) If a court reopens a
proceeding, it— (a) must give the parties an opportunity to be heard; and
(b) may resentence the offender— (i) for a reopening under subsection (1)
(a) —to a sentence in accordance with law; or
(ii) for a reopening under
subsection (1) (b) —to a sentence the court legally should have imposed; or
(iii) for a reopening under subsection (1) (c) —to a sentence that takes
into account the factual error; or
(iv) for a reopening under subsection (2)
—to a sentence under subsection (4) ; and
(c) may amend any relevant
conviction or order to the extent necessary to take into account the sentence
imposed under paragraph (b) .
(4) On an application under subsection (2) —
(a) if the court is satisfied that the offender has completely failed to
cooperate, the court must resentence the offender having regard to the
sentence that would otherwise have been imposed if an undertaking under
section 13A had not been given; or
(b) if the court is satisfied that the
offender has partly failed to cooperate, the court may substitute for the
reduced sentence the sentence it considers appropriate, not greater than the
sentence that would have been imposed if the undertaking had not been given.
(5) The court may reopen the proceeding— (a) on its own initiative at any
time; or
(b) for a reopening under subsection (1) —on the application of a
party to the proceeding made within— (i) 28 days after the day the sentence
was imposed; or
(ii) any further time the court may allow on application at
any time; or
(c) for a reopening under subsection (1) (d) —on the
application of the chief executive (corrective services); or
(d) for a
reopening under subsection (2) —on the application of the prosecution made
at any time, whether or not the appeal period under the Criminal Code ,
section 671 (2) has expired.
(6) Subject to subsection (7) , this section
does not affect any right of appeal.
(7) For an appeal under any Act against
a sentence imposed under subsection (3) or (4) , the time within which the
appeal must be made starts from the day the sentence is imposed under
subsection (3) or (4) .
(8) This section applies to a sentence imposed, or
required to be imposed, whether before or after the commencement of this
section.
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