The NSW Supreme Court has reopened sentence proceedings in a Project Wickenby matter, following the High Court’s decision on 14 February 2014 in Milne v The Queen [2014] HCA 4, where it quashed the conviction in relation to the money laundering count. This left the charge on which he was convicted in December 2012, of dishonestly obtaining a gain from the Commonwealth. The Supreme Court reopened the sentencing for this charge.
The Supreme Court said the offender was sentenced in December 2012 to a term of imprisonment. However, following the High Court’s decision noted above, the Supreme Court said its December 2012 sentence was now contrary to law. It therefore reopened the sentence proceedings and varied its 12 December 2012 sentence as follows: 2 years to date from 17 June 2013 expiring 16 June 2015. The Court also made a recognizance release order pursuant to s 19AC(2) of the Crimes Act for Mr Milne’s immediate release, which in the result would represent a pre-release period of 3 years, 2 months and 4 days. It said the term of the recognizance was to be equal to the aggregate sentence imposed. The recognizance was to be entered without security in the sum of $500.
(R v Milne (No 2) [2014] NSWSC 113, NSW Supreme Court, Fullerton J, 20 February 2014.)
[LTN 47, 11/3/14]
Section 19AC of the Crimes Act 1904 (Cwth)
19AC When court must fix a recognizance release order
(1) Subject to subsections (3) and (4), where:
(a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and
(b) the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and
(c) at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;
the court must make a recognizance release order in respect of that sentence or those sentences and must not fix a non-paroleperiod.
(2) Subject to subsections (3) and (4), where:
(a) while a person is in prison and is serving or subject to a federal sentence, a further federal sentence is imposed on the person; and
(b) the result is that the person is to serve or to complete federal sentences the unserved portions of which do not exceed, in the aggregate, 3 years; and
(c) at the time the further federal sentence is imposed, the person is not already subject to a recognizance release order in respect of a federal sentence;
the court imposing the further sentence must make a recognizance release order in respect of all federal sentences to be served or completed by the person and must not fix a non-parole period.
(3) Where:
(a) the federal sentence or federal sentences referred to in paragraph (1)(b); or
(b) the unserved portions of the federal sentences referred to in paragraph (2)(b);
in the aggregate, do not exceed 6 months, the court is not required to make a recognizance release order.
(4) Where, but for this subsection, a court would be required by this section to make a recognizance release order in respect of a person, the court may decline to do so if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that such an order is not appropriate.
(5) Where the court decides that a recognizance release order is not appropriate, the court must:
(a) state its reasons for so deciding; and
(b) cause the reasons to be entered in the records of the court.