Achurch v R [2014] HCA 10: Drug Supply

The High Court has unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in the case of Achurch v the Queen [2014] HCA 10. The Court of Appeal had dismissed an application under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to re-open proceedings after the appellant had been re-sentenced upon a successful Crown appeal.

Mr Brian William Achurch was convicted for supply of drugs and was sentenced to imprisonment. A Crown appeal followed against the inadequacy of the sentence and was successful. It is noted that in re-sentencing Mr Achurch, the Court of Appeal applied a precedent which was later held to be incorrect by the High Court in the case of Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

Mr Achurch applied to the Court of Criminal Appeal to re-open the proceedings on the Crown appeal.  He invoked ss 43(1)(a) and 43(2)(a) of the Sentencing Act, which authorise a court to re-open criminal proceedings, including proceedings on appeal, in which the court has "imposed a penalty that is contrary to law", and "impose a penalty that is in accordance with the law".

The question before the High Court was whether s 43 authorised re-opening proceedings in which a sentence open at law was reached by a process of reasoning involving an error of law. The High Court found that the penalty is not “contrary to law” for the purposes of s 43 simply because it was reached by a process of erroneous reasoning. The Court outlined that errors of that nature may be rectified by the process of appeal. 

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Achurch v The Queen [2014] HCA 10