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Sentencing Amendment (Correction of
Sentencing Error) Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill, which is to amend the
Sentencing Act 1991 to provide further for the correction of
sentencing errors.
Clause 2 provides that this Act will commence on the day after the day on
which it receives the Royal Assent.
Clause 3 provides that the Sentencing Act 1991 is referred to as the
Principal Act.
Clause 4 substitutes a new heading to Part 7 of the Sentencing Act 1991
such that the heading reads "Correction of Errors", rather than
referring to the correction of sentences. This heading better
reflects the scope of that Part as amended by this Bill.
Clause 5 amends section 104 of the Sentencing Act 1991 to provide that it
relates only to the Supreme Court's powers upon an application
for certiorari with respect to a sentence imposed by an inferior
court. The Supreme Court's power to correct its own sentences
imposed beyond jurisdiction, which is currently in section 104,
will now be set out in new section 104B of the Sentencing Act
1991, which is to be inserted by clause 7.
These amendments are not intended to limit in any way the
powers the Supreme Court has to remedy jurisdictional error in
its own sentences.
Subclause (1) inserts a new heading to section 104 to reflect this
change.
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Clause 6 amends section 104A(2) of the Sentencing Act 1991 to
remove the 14 day time limit on the exercise of the power to
correct clerical mistakes, slips and certain omissions under
section 104A(1). The sentencing judge or magistrate will be able
to correct such errors or omissions at any time. This power
extends beyond the time the judgment or sentence is entered into
the court's record.
Section 104A(1), including the power with respect to omissions
in section 104A(1)(b), does not enable reconsideration of the
sentencing discretion or the making of changes resulting from
further consideration of the appropriateness of the sentence in the
circumstances--see DPP v Green (2007) 17 VR 293.
Subclause (2) inserts new section 104A(5A) into the Sentencing
Act 1991. Section 104A(5A) is intended to ensure that the Court
of Appeal may exercise the powers in section 104A(1) with
respect to the judgment below even when it otherwise refuses
leave to appeal, or dismisses the appeal. This includes situations
where the Court of Appeal refuses leave to appeal against
conviction and a slip or miscalculation is discovered in the
sentence imposed below.
The power under new section 104A(5A) may be exercised by the
Court of Appeal constituted by a single Judge of Appeal under
section 315 of the Criminal Procedure Act 2009.
Clause 7 inserts new sections 104B, 104C and 104D into the Sentencing
Act 1991.
Section 104B
New section 104B(1) provides that new section 104B applies to
criminal proceedings (including an appeal) in which a court has
imposed a penalty that is contrary to law, or failed to impose a
penalty that is required to be imposed by law.
New section 104B(2) enables the court, at any time, to reopen a
proceeding referred to in section 104B(1) on its own motion or
on application by a party. The power to reopen is discretionary.
Upon reopening, and after giving the parties an opportunity to be
heard, the court may impose a penalty that is in accordance with
the law, and, if necessary, may amend any conviction or order.
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The reopening power is intended to facilitate quick and cost-
efficient correction of penalties that are contrary to law, and to
enable the imposition of mandatory penalties where that has not
been done.
For example, the provision will enable the correction of a penalty
erroneously imposed in excess of the maximum penalty
prescribed for an offence. It is also intended that the reopening
power enable the correction of a suspended sentence imposed for
an offence committed after the abolition of suspended sentences
for the relevant offence--see DPP v Edwards [2012] VSCA 293.
In that circumstance, the court will then be able to impose any
penalty available to it in accordance with law.
The judge or magistrate who imposed the original penalty, or
failed to impose a penalty, will usually be in the best position to
determine any application to reopen the proceeding. However, as
the reopening power is vested in "the court", it may be exercised
by the court however constituted (see, for example, section 3B of
the County Court Act 1958). For example, if the judge who
imposed the original penalty has retired or is otherwise
unavailable, a different judge may determine the application to
reopen.
New section 104B(3) provides that in determining whether to
reopen a proceeding, the court must have regard to the time that
has elapsed since the imposition of, or the failure to impose, the
original penalty.
This provision does not impose a time limit on the reopening
power. The desirability of reopening a proceeding to correct
error must be balanced against the effect that reopening would
have upon the principle of finality. It is for the court to make an
assessment of whether it is desirable to reopen the proceeding in
the circumstances.
New section 104B(4) provides that in determining a new penalty
upon reopening, the court must take into account the extent to
which the person has served or otherwise suffered the
consequences of the original penalty, if any. The provision
reflects that the offender is not to be punished again for the same
offending, and that the original penalty--despite being contrary
to law--has practically affected the offender's liberty or rights.
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Taking the extent of compliance with the original penalty into
account will not necessarily require any substantively different
sentence to be imposed upon reopening. For example, if an
offender has been complying with the conditions of an invalid
community correction order for some time, taking this matter into
account may influence the court's decision to impose a
community correction order with the same conditions, for the
same term, which is taken to have commenced when the original
penalty was imposed. This course was taken in DPP v Edwards
[2012] VSCA 293, [131], [242].
New section 104B(5) provides that the court may require the
attendance of the person to whom the criminal proceeding
relates, and may, if the person fails to attend, issue a warrant for
the person's arrest if satisfied that the person has had reasonable
notice of the requirement to attend.
Consistent with the decision of the High Court in Achurch v The
Queen (2014) 306 ALR 566, new section 104B(6) provides that a
penalty is not contrary to law only because the decision to impose
it was reached by a process of erroneous reasoning or factual
error. The section is not intended to enable correction of errors
made in the imposition of a lawful penalty.
New section 104B(7) provides definitions of attend and impose a
penalty, as used in section 104B. The term attend is defined to
mean be physically present in court or, in some circumstances, to
appear by audio visual link. The definition of attend is drawn
from that used in the Criminal Procedure Act 2009, although
unlike the definition in that Act it does not refer specifically to
appearance by video link pursuant to Division 2 of Part IIA of the
Evidence (Miscellaneous Provisions) Act 1958, which relates to
persons other than the accused.
Section 104C
New section 104C describes the effect of reopening a proceeding
under section 104B.
New section 104C(1) provides that, except as provided in
subsection (2), a penalty imposed on the reopening of a
proceeding is taken to have been imposed at the time the court
imposed the original penalty or failed to impose the penalty.
The court retains the power to otherwise order where appropriate
to do so.
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New section 104C(2) provides that the time in which to appeal,
to seek leave to appeal, or to seek a review of, a penalty imposed
on reopening under section 104B commences on the day on
which the penalty is so imposed.
New section 104C(3) provides that nothing in section 104B or
section 104C takes away from any right to appeal against, or to
seek leave to appeal against, or a review of, a sentence that any
party to a criminal proceeding otherwise has.
Section 104D
New section 104D provides that the possibility that a proceeding
could be reopened under section 104B is not to be taken into
account in establishing whether a proceeding has been finally
disposed of. The provision applies where it is necessary to
establish whether the proceeding has been finally disposed of for
the purposes of an enactment (for example, section 33(2)(a) of
the Inquiries Act 2014).
Clause 8 inserts new section 156A into the Sentencing Act 1991, which is
a transitional provision. It provides that the amendments to
section 104A (made by clause 6) apply to judgments and
sentences imposed before, on, or after commencement of those
amendments.
The section also provides that new section 104B (inserted by
clause 7) applies in relation to the imposition of a penalty, or the
failure to impose a penalty, before, on or after the
commencement of this Act.
Clause 9 provides for the repeal of this Act on the first anniversary of
its commencement. The repeal of this Act does not affect
the continuing operation of the amendments made by it
(see section 15(1) of the Interpretation of Legislation Act
1984).
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