Roads and Maritime Services v Porret

(2014) 86 NSWLR 467; [2014] NSWCA 30

NSW Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › Power to vary sentence
5. › Setting aside conviction and making order under s 10
6. › Whether variation operates prospectively or retrospectively ab initio
7. › Crimes (Appeal and Review) Act 2001 (NSW), ss 3(3), 3(3A), 20
1. Criminal Law
2. › Driving offences
3. › Driving whilst disqualified
4. › Whether disqualification subsists where underlying conviction subsequently set aside on appeal
5. › Road Transport (Driver Licensing) Act 1998 (NSW), s 25A
1. Administrative Law
2. › Judicial review
3. › Certiorari
4. › Jurisdictional error of inferior court
5. › Privative clause
6. › Whether misconstruction of statute by District Court constituted jurisdictional error
7. › District Court Act 1973 (NSW), s 176
1. Judgments and Orders
2. › Effect of judgment
3. › Setting aside conviction on appeal
4. › Whether conviction avoided ab initio or only prospectively
5. › Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 distinguished

Quick Take

Where a conviction is set aside on a sentence appeal under s 20 of the Crimes (Appeal and Review) Act 2001 (NSW), including by making an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the setting aside operates prospectively only. A person who committed an offence (such as driving whilst disqualified) during the period before the conviction was set aside on appeal remains liable for that offence. The Cavanough principle that a reversed conviction is avoided ab initio does not apply to sentence variations under s 20.