Double jeopardy revisited

Thu, 12 Nov 2009 15:57:24 +1100

I have revisited my earlier posting on double Jeopardy as it was not as clear as it should have been and have rewritten it significantly. Thus, it is appearing as a new post.

The Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 makes further changes to the double jeopardy laws in New South Wales. The Act has now received assent and commenced operation on 24 September 2009. The Act inserted a new section 68A into the Crimes (Appeal and Review) Act 2001 (NSW).

The new section 68A:

68A Double jeopardy not to be taken into account in prosecution appeals against sentence

(1) An appeal court must not:

(a): dismiss a prosecution appeal against sentence, or
(b): impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of any element of double jeopardy involved in the respondent being sentenced again.

Before the commencement of this new section, there was a danger, if the crown made an appeal against a sentence imposed in a lower court, for the Appeal court to still impose a lesser sentence than one that ought to have been imposed.

This is what happened in the matter of R v King [2009] NSWCCA 117. The case concerned the sexual assault on a girl under ten years of age. The District Court Judge could have imposed a maximum sentence of 25 years, with a non parole period of 15 years. However, the Judge sentenced King to imprisonment for two years and suspended the sentence as he had already been in custody for 15 months. he was also given a bond for two years.

There was such a public outcry at this sentence, that the Crown appealed against the leniency of this sentence saying that it was manifestly inadequate. The Judges in the Appeal decision said "the term of imprisonment that ought to have been passed upon the respondent by the Judge after a 25 per cent discount should have been in the vicinity of 9 years. As there were no special circumstances warranting a reduction in the minimum period of custody, the non-parole period should have been six years and nine months. Such a sentence would have shown due regard to the standard non-parole period notwithstanding that it was a sentence imposed after a plea. (pg 15, paragraph 70.)

The Court of Criminal Appeal did increase the sentence to a term of imprisonment comprising a non-parole period of four years six months and a balance of term of two years six months. However, if this case had been heard after this new legislation, the Court might well have imposed a higher sentence again.

Michael Pelly discusses the implications of this new legislation in a piece in The Australian "Power for NSW judges to act on 'lenient' sentences".

The Office of Public Prosecution have Prosecution Guidelines that provide directions for Appeals against sentence. (see page 53.) One factor they need to consider is "the element of double jeopardy involved in a prosecution/Crown appeal and its likely effect on the outcome (the probable imposition of a lesser sentence than was appropriate at first instance". However, this new legislation will over ride this guideline rule.

LIAC Crime Library - October 2009

Mon, 02 Nov 2009 10:51:27 +1100

The LIAC Crime Library has been updated. It includes the following new cases:

R v Bui - a district court decision that involved exposing children to the cultivation of cannabis,
R v Thomas & Manju Sam - the parents who were found guilty of manslaughter by criminal negligence of their baby daughter Gloria,
R v Walsh - John Walsh's conviction for the murder of his wife and two grandchildren in Cowra,
R v BW & SW - the murder and manslaughter of Ebony, the daughter of BW and SW by starvation, and
R v Barker - the stabbing attack of a teenager that was heard in the District Court.

The entries for the convictions of Bruce Burrell for the murder of Kerrie Whelan and Dorothy Davis have also been updated.

HSC Legal Studies: News Watch - LIAC Crime Library

Double jeopardy revisited

LIAC Crime Library - October 2009