Published by Geoff Harrison | 13 June 2024
Section 58 of the Crimes (Sentencing Procedure) Act 1999 constrains a Local Court's sentencing jurisdiction by preventing it from imposing a new sentence, if the date of the new sentence ends more than five years after when the existing sentence began. As noted from the Sentencing Bench Book [2-860]:
Section 58 empowers the Local Court to accumulate sentences up to five years within the prescribed limits outlined above. The operation of s 58 was considered in R v Perrin [2022] NSWCCA 170 where Wright J (Ward P and Harrison J agreeing) held that:
1. If there is no existing sentence, s 58 is not engaged: [80], [81].
2. Whether a sentence is “existing” or “unexpired” for the purposes of s 58(1) and (4) is determined on the date the new sentence is imposed: [46], [66], [80]; Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735 at [33].
3. The prohibition or limitation in s 58(1) relates directly to imposing a new sentence to be served consecutively or partly concurrently and partly consecutively with an existing sentence only if the expiry date of the new sentence is more than 5 years after the existing sentence commenced: [46], [71].
4. The practical effect of s 58 is to constrain to a greater or lesser extent the length of the new sentence: [71]–[77].
Accordingly, when the new sentence is imposed, the Local Court must determine:
whether there is an “existing sentence”, being an “unexpired sentence” that also includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence “is being served” wholly or partly consecutively; and
whether the date on which the new sentence would end is more than 5 years after the date on which that “existing sentence” began: R v Perrin at [46].
Other Resources:
Cases:
Extracted Legislation:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 53B
Limitation on aggregate sentences imposed by Local Court
For the avoidance of doubt, the Local Court may impose an aggregate sentence of imprisonment that does not exceed 5 years.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 58
Limitation on consecutive sentences imposed by Local Court
(1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.
(2) Any period for which an existing sentence has been extended under this or any other Act is to be disregarded for the purposes of this section.
(3) This section does not apply if--
(a) the new sentence relates to--
(i) an offence involving an escape from lawful custody, or
(ii) an offence involving an assault or other offence against the person, being an offence committed (while the offender was a convicted inmate) against a correctional officer or (while the offender was a person subject to control) against a juvenile justice officer, and
(b) either--
(i) the existing sentence (or, if more than one, any of them) was imposed by a court other than the Local Court or the Children's Court, or
(ii) the existing sentence (or, if more than one, each of them) was imposed by the Local Court or the Children's Court and the date on which the new sentence would end is not more than 5 years and 6 months after the date on which the existing sentence (or, if more than one, the first of them) began.
(3A) In addition, this section does not apply if the new sentence relates to an offence against the regulations under the Crimes (Administration of Sentences) Act 1999 ) involving--
(a) introducing or supplying (or attempting to introduce or supply) a drug, alcohol or other substance prohibited by those regulations into a place of detention, or
(b) introducing or supplying (or attempting to introduce or supply) syringes into a place of detention, or
(c) possessing an offensive weapon or instrument within the meaning of the Crimes Act 1900, or
(d) possessing a mobile phone, a mobile phone SIM card or mobile phone charger (or any part of these).
(3B) This section does not apply if the new sentence relates to an offence against the Mandatory Disease Testing Act 2021.
(4) In this section--
"existing sentence" means an unexpired sentence, and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively).
"sentence of imprisonment" includes an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.
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