The High Court has unanimously dismissed an appeal against the decision of the New South Wales Court of Criminal Appeal to refuse an application to re-consider a 2011 ruling of that Court to lift a drug trafficking sentence to be in line with NSW’s ‘standard’ non-parole period laws. The application was argued on the basis that the High Court had later overruled the key NSW precedent on the non-parole period laws, however the NSWCCA held that the decision neither permitted a reopening of the earlier case, nor would it have led to a different outcome.

Section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows the court to reopen the case and amend a penalty where the current penalty is ‘contrary to law’. The High Court construed that section to apply only to penalties that were unlawful (for example, in excess of a maximum penalty for the offence), and does not extend to any penalty that was imposed under the influence of an alleged an error of law or fact. Correcting those kinds of errors are a matter for criminal appeals, not the re-opening of a case. The Court held that the sentences imposed by the NSWCCA were not ‘contrary to law’ and that the NSWCCA did not err in its application of s 43.