Walker v R
10 May 2001 - Mildren ACJ, Bailey and Riley JJ

On 13 November 2000 the applicant was convicted of further breaches of a suspended sentence originally imposed on 16 July 1997 by Angel J. The outstanding sentence of 16 months was fully restored by the court, the applicant having already served four months.

On 30 November 2000 the applicant applied to re-open proceedings pursuant to s.112 of the Sentencing Act, seeking an order that a non-parole period pursuant to s.53(1)(b) of the Sentencing Act be set. The court declined to set a non-parole period and referred the question of whether he could set a non-parole period in the circumstances to the Full Court of the Supreme Court pursuant to s.21 of the Supreme Court Act.

The Full Court considered whether, under s.43(5)(c) or (d) of the Sentencing Act, when a court restores a sentence, or part of a sentence, which is for a period of 12 months or longer, and orders the offender to serve it, the court has power to fix a non-parole period pursuant to s.53(1) of the Sentencing Act. The Crown supported the applicant's submissions.

The Full Court made the unanimous finding that the court does have such a power.

The court ordered that the matter be remitted to Angel J for further consideration, as to whether or not the court should fix a non-parole period in the circumstances.