Northern Territory Explanatory Statements

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CRIMINAL CODE AMENDMENT (REMISSION FOR RESENTENCING) BILL 2014

The purpose of this Bill is to provide the Court of Criminal Appeal with the power to remit matters back to the sentencing court for re-sentence upon a successful appeal.

NOTES ON CLAUSES

Part 1 Preliminary matters

Clause 1. Short Title

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Criminal Code Amendment (Remission for Resentencing) Act 2014.

Clause 2. Commencement

This is a formal clause which provides that the Act will commence on a day fixed by the Administrator by Gazette notice.

Clause 3. Act amended

This is a formal clause which provides that the Bill will amend the Criminal Code.

Clause 4. Section 411 amended

Clause 4 repeals current section 411(4) of the Criminal Code replacing it with an amended section 411(4) which provides the Court of Criminal Appeal with the power to remit matters back to the sentencing court for re-sentence upon a successful appeal.

This amendment will allow the Court of Criminal Appeal to remit matters back to the Supreme Court for re-sentence upon a successful appeal. However, the provision of this new power will not preclude the Court of Criminal Appeal from re-sentencing the appellant, if appropriate.

The power to remit has been drafted so that the Court of Criminal Appeal has a broad discretion to remit matters back to the sentencing court for re-sentence as appropriate, rather than restricting the power to matters where new information has come to hand following the original sentence.

Clause 5. Part XI, Division 10 inserted

Clause 5 inserts new Division 10, section 453 into the Criminal Code, after section 452. Section 453 contains the transitional provision for the application of the amendments to section 411(4) of the Criminal Code.

It is the intention of the Bill that the amendments apply to any appeal against sentence that is heard after commencement of the Act.

The transitional provision contained in section 453 specifically provides that the Court of Criminal Appeal may exercise power under amended section 411(4) of the Criminal Code:

(a) even if the appellant was found guilty before the commencement; and

(b) regardless of when the appellant filed an originating process as defined in rule 82.01 of the Supreme Court Rules in relation to the appeal.

Rule 82.01 of the Supreme Court Rules defines an ‘originating process’ as ‘a notice of appeal, an application for leave to appeal or an application for an extension of time within which that notice shall be given or application made’. This definition was specifically used to ensure that the transitional provision captured the lodgement of any appeal documents.

In essence, this means that the amended provisions of section 411(4) are to apply, even if the appellant was found guilty or lodged appeal documents prior to commencement of the Criminal Code Amendment (Remission for Resentencing) Act 2014, as long as the appeal is heard after commencement.

Clause 6. Expiry of Act

This is a standard clause which provides that the Criminal Code Amendment (Remission for Resentencing) Act 2014 expires the day after it commences.

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