Director of Public Prosecutions (NSW) v Kmetyk

[2018] NSWCA 156

NSW Court of Appeal

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Interrogate

Catchwords

1. Judicial Review
2. › Jurisdictional error
3. › District Court exercising appellate jurisdiction
4. › Appeal against sentence from Local Court
5. › Whether District Court had power to quash conviction and reconvict when only appeal against sentence was brought
6. › Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 20
1. Traffic Law
2. › Driver licence disqualification
3. › Statutory disqualification upon conviction
4. › Automatic disqualification under s 54(8) of Road Transport Act 2013 (NSW)
5. › Whether statutory disqualification could be altered on appeal against sentence
6. › Whether repeal of s 54(8) affected existing disqualification
7. › Road Transport Act 2013 (NSW), ss 54, 205A, 207
8. › Interpretation Act 1987 (NSW), s 30
1. Criminal Law
2. › Appeal
3. › Appeal against sentence
4. › Scope of power to vary sentence
5. › Whether power to set aside conviction on sentence appeal limited to cases where s 10 order made
6. › Crimes (Appeal and Review) Act 2001 (NSW), ss 3(3), 3(3A), 20(2)
1. Criminal Law
2. › Appeal
3. › Stay of execution pending appeal
4. › Whether automatic stay applies to statutory disqualification arising from conviction where only sentence appealed
5. › Crimes (Appeal and Review) Act 2001 (NSW), s 63
6. › Road Transport Act 2013 (NSW), s 207(6)

Quick Take

On an appeal against sentence only under s 11(1) of the Crimes (Appeal and Review) Act 2001, the District Court has no power to quash the Local Court conviction or to alter a statutory disqualification that is an automatic consequence of conviction; the power under s 3(3A) to set aside a conviction on a sentence appeal is limited to cases where a s 10 order is to be made.