321. New evidence—effect on sentence

321. New evidence—effect on sentence

(1) Subject to subsections (2) and (3), on an appeal under this Part, including an appeal by the DPP, the Court of Appeal must not increase a sentence by reason of any evidence that was not given at the trial or sentencing hearing.

(2) On an appeal under section 291, the Court of Appeal may increase a sentence by reason of evidence of the failure to fulfil an undertaking referred to in section 291(a).

(3) On an appeal under this Part, including an appeal by the DPP, the Court of Appeal may increase a sentence, by reason of any evidence that was not given at the trial or sentencing hearing, if the court considers that—

(a) the originating court was misled at the sentencing hearing as to a material fact; and

(b) an increase in sentence is necessary in the interests of justice.

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294. Powers of Court of Appeal on successful appeal

294. Powers of Court of Appeal on successful appeal

(1) If the Court of Appeal allows an appeal under section 291, it may—

(a) set aside the sentence imposed by the originating court; and

(b) impose the sentence that it considers appropriate, having regard to the failure of the respondent to fulfil the undertaking.

(2) In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

Note

Section 321 provides for the effect on sentence of new evidence.

Sub-section (3), which excludes this section from the prohibition on increasing a sentence based on new information, was repealed and the note added to clarify that a failure to fulfil an undertaken is new information the Court can rely upon in increasing a sentence.

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289. Determination of Crown appeal

289. Determination of Crown appeal

(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that—

(a) there is an error in the sentence first imposed; and

(b) a different sentence should be imposed.

(2) In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.

(3) In any other case, the Court of Appeal must dismiss an appeal under section 287.

Section 289(2) marks a departure from the existing common law position, where double jeopardy (the accused effectively going before a court twice for the same offence) was always a relevant consideration in deciding whether to grant an appeal on sentence by the DPP.

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59. Adjournment to undertake diversion program

59. Adjournment to undertake diversion program

(1) This section does not apply to-

(a) an offence punishable by a minimum or fixed sentence or penalty, including cancellation or suspension of a licence or permit to drive a motor vehicle but not including the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act; or

(b) an offence against section 49(1) of the Road Safety Act 1986 not referred to in paragraph (a).

(2) If, at any time before taking a formal plea from an accused in a criminal proceeding for a summary offence or an indictable offence that may be heard and determined summarily-

(a) the accused acknowledges to the Magistrates' Court responsibility for the offence; and

(b) it appears appropriate to the Magistrates' Court, which may inform itself in any way it considers appropriate, that the accused should participate in a diversion program; and

(c) both the prosecution and the accused consent to the Magistrates' Court adjourning the proceeding for this purpose-

the Magistrates' Court may adjourn the proceeding for a period not exceeding 12 months to enable the accused to participate in and complete the diversion program.

(3) An accused's acknowledgment to the Magistrates' Court of responsibility for an offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea.

(4) If an accused completes a diversion program to the satisfaction of the
Magistrates' Court-

(a) no plea to the charge is to be taken; and

(b) the Magistrates' Court must discharge the accused without any finding of guilt; and

(c) the fact of participation in the diversion program is not to be treated as a finding of guilt except for the purposes of-

(i) Division 1 of Part 3 and Part 10 of the Confiscation Act 1997; and

(ii) section 9 of the Control of Weapons Act 1990; and

(iii) section 151 of the Firearms Act 1996; and

(iv) Part 4 of the Sentencing Act 1991; and

(d) the fact of participation in the diversion program and the discharge of the accused is a defence to a later charge for the same offence or a similar offence arising out of the same circumstances.

(5) If an accused does not complete a diversion program to the satisfaction of the Magistrates' Court and the accused is subsequently found guilty of the charge, the Magistrates' Court must take into account the extent to which the accused complied with the diversion program when sentencing the accused.

(6) Nothing in this section affects the requirement to observe the rules of natural justice.

(7) This section does not affect the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act.

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