sec.188Court may reopen sentencing proceedings

### sec.188 Court may reopen sentencing proceedings If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal— imposed a sentence that is not in accordance with the law; or failed to impose a sentence that the court legally should have imposed; or imposed a sentence decided on a clear factual error of substance; or failed to fix a date for the offender to be released on parole as required under part 9 , division 3 ; the court, whether or not differently constituted, may reopen the proceeding. Also, if— a court has in, or in connection with, a criminal proceeding reduced a sentence because the offender has undertaken in a written declaration to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding; and the offender, without reasonable excuse, does not cooperate under the undertaking; the court, whether or not differently constituted, may reopen the proceeding. If a court reopens a proceeding, it— must give the parties an opportunity to be heard; and may resentence the offender— for a reopening under subsection (1) (a) —to a sentence in accordance with law; or for a reopening under subsection (1) (b) —to a sentence the court legally should have imposed; or for a reopening under subsection (1) (c) —to a sentence that takes into account the factual error; or for a reopening under subsection (2) —to a sentence under subsection (4) ; and may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b) . On an application under subsection (2) — if the court is satisfied that the offender has completely failed to cooperate, the court must resentence the offender having regard to the sentence that would otherwise have been imposed if an undertaking under section 13A had not been given; or if the court is satisfied that the offender has partly failed to cooperate, the court may substitute for the reduced sentence the sentence it considers appropriate, not greater than the sentence that would have been imposed if the undertaking had not been given. The court may reopen the proceeding— on its own initiative at any time; or for a reopening under subsection (1) —on the application of a party to the proceeding made within— 28 days after the day the sentence was imposed; or any further time the court may allow on application at any time; or for a reopening under subsection (1) (d) —on the application of the chief executive (corrective services); or for a reopening under subsection (2) —on the application of the prosecution made at any time, whether or not the appeal period under the Criminal Code , section 671 (2) has expired. Subject to subsection (7) , this section does not affect any right of appeal. For an appeal under any Act against a sentence imposed under subsection (3) or (4) , the time within which the appeal must be made starts from the day the sentence is imposed under subsection (3) or (4) . This section applies to a sentence imposed, or required to be imposed, whether before or after the commencement of this section. s 188 sub 1997 No. 3 s 122 sch 2 amd 2006 No. 29 s 502 (sec.188-ssec.1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal— imposed a sentence that is not in accordance with the law; or failed to impose a sentence that the court legally should have imposed; or imposed a sentence decided on a clear factual error of substance; or failed to fix a date for the offender to be released on parole as required under part 9 , division 3 ; the court, whether or not differently constituted, may reopen the proceeding. (sec.188-ssec.2) Also, if— a court has in, or in connection with, a criminal proceeding reduced a sentence because the offender has undertaken in a written declaration to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding; and the offender, without reasonable excuse, does not cooperate under the undertaking; the court, whether or not differently constituted, may reopen the proceeding. (sec.188-ssec.3) If a court reopens a proceeding, it— must give the parties an opportunity to be heard; and may resentence the offender— for a reopening under subsection (1) (a) —to a sentence in accordance with law; or for a reopening under subsection (1) (b) —to a sentence the court legally should have imposed; or for a reopening under subsection (1) (c) —to a sentence that takes into account the factual error; or for a reopening under subsection (2) —to a sentence under subsection (4) ; and may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b) . (sec.188-ssec.4) On an application under subsection (2) — if the court is satisfied that the offender has completely failed to cooperate, the court must resentence the offender having regard to the sentence that would otherwise have been imposed if an undertaking under section 13A had not been given; or if the court is satisfied that the offender has partly failed to cooperate, the court may substitute for the reduced sentence the sentence it considers appropriate, not greater than the sentence that would have been imposed if the undertaking had not been given. (sec.188-ssec.5) The court may reopen the proceeding— on its own initiative at any time; or for a reopening under subsection (1) —on the application of a party to the proceeding made within— 28 days after the day the sentence was imposed; or any further time the court may allow on application at any time; or for a reopening under subsection (1) (d) —on the application of the chief executive (corrective services); or for a reopening under subsection (2) —on the application of the prosecution made at any time, whether or not the appeal period under the Criminal Code , section 671 (2) has expired. (sec.188-ssec.6) Subject to subsection (7) , this section does not affect any right of appeal. (sec.188-ssec.7) For an appeal under any Act against a sentence imposed under subsection (3) or (4) , the time within which the appeal must be made starts from the day the sentence is imposed under subsection (3) or (4) . (sec.188-ssec.8) This section applies to a sentence imposed, or required to be imposed, whether before or after the commencement of this section. - (a) imposed a sentence that is not in accordance with the law; or - (b) failed to impose a sentence that the court legally should have imposed; or - (c) imposed a sentence decided on a clear factual error of substance; or - (d) failed to fix a date for the offender to be released on parole as required under part 9 , division 3 ; - (a) a court has in, or in connection with, a criminal proceeding reduced a sentence because the offender has undertaken in a written declaration to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding; and - (b) the offender, without reasonable excuse, does not cooperate under the undertaking; - (a) must give the parties an opportunity to be heard; and - (b) may resentence the offender— (i) for a reopening under subsection (1) (a) —to a sentence in accordance with law; or (ii) for a reopening under subsection (1) (b) —to a sentence the court legally should have imposed; or (iii) for a reopening under subsection (1) (c) —to a sentence that takes into account the factual error; or (iv) for a reopening under subsection (2) —to a sentence under subsection (4) ; and - (i) for a reopening under subsection (1) (a) —to a sentence in accordance with law; or - (ii) for a reopening under subsection (1) (b) —to a sentence the court legally should have imposed; or - (iii) for a reopening under subsection (1) (c) —to a sentence that takes into account the factual error; or - (iv) for a reopening under subsection (2) —to a sentence under subsection (4) ; and - (c) may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b) . - (i) for a reopening under subsection (1) (a) —to a sentence in accordance with law; or - (ii) for a reopening under subsection (1) (b) —to a sentence the court legally should have imposed; or - (iii) for a reopening under subsection (1) (c) —to a sentence that takes into account the factual error; or - (iv) for a reopening under subsection (2) —to a sentence under subsection (4) ; and - (a) if the court is satisfied that the offender has completely failed to cooperate, the court must resentence the offender having regard to the sentence that would otherwise have been imposed if an undertaking under section 13A had not been given; or - (b) if the court is satisfied that the offender has partly failed to cooperate, the court may substitute for the reduced sentence the sentence it considers appropriate, not greater than the sentence that would have been imposed if the undertaking had not been given. - (a) on its own initiative at any time; or - (b) for a reopening under subsection (1) —on the application of a party to the proceeding made within— (i) 28 days after the day the sentence was imposed; or (ii) any further time the court may allow on application at any time; or - (i) 28 days after the day the sentence was imposed; or - (ii) any further time the court may allow on application at any time; or - (c) for a reopening under subsection (1) (d) —on the application of the chief executive (corrective services); or - (d) for a reopening under subsection (2) —on the application of the prosecution made at any time, whether or not the appeal period under the Criminal Code , section 671 (2) has expired. - (i) 28 days after the day the sentence was imposed; or - (ii) any further time the court may allow on application at any time; or