104BCourt may reopen proceeding to correct penalties imposed contrary to law

104B Court may reopen proceeding to correct penalties imposed contrary to law (1) This section applies to a criminal proceeding (including an appeal) in which a court has— (a) imposed a penalty that is contrary to law; or (b) failed to impose a penalty that is required to be imposed by law. (2) The court may, at any time, reopen the proceeding on its own motion or on application by a party and, after giving the parties an opportunity to be heard— (a) may impose a penalty that is in accordance with the law; and (b) if necessary, may amend any conviction or order. (3) In determining whether to reopen a proceeding under this section, the court must have regard to the time that has elapsed since the imposition of, or failure to impose, the original penalty. (4) In determining a new penalty on a reopening of a proceeding in which a court has imposed a penalty, the court must take into account the extent to which the person to whom the proceeding relates has served, paid, complied with or otherwise suffered the consequences of the original penalty. (5) For the purposes of this section, the court may require the attendance of the person to whom the proceeding relates and, if the person fails to attend, may issue a warrant to arrest the person if the court is satisfied that the person has had reasonable notice of the requirement to attend. (6) For the purposes of this section, a penalty is not contrary to law only because the decision to impose it was reached by a process of erroneous reasoning or factual error. (7) In this section— S. 104B(7) def. of *attend* substituted by No. 38/2016 s. 11, amended by No. 11/2021 s. 109. ***attend***, in relation to a person, means— (a) be physically present in court; or (b) if authorised or required to do so under Division 3 of Part IIA of the **Evidence (Miscellaneous Provisions) Act 1958**, appear or be brought before the court by audio visual link or audio link; S. 104B(7) def. of *impose a penalty* amended by No. 43/2020 s. 33. ***impose a penalty*** includes— (a) impose a sentence of imprisonment or a fine; and (b) make any of the following orders under this Act— (i) an order under section 11 fixing a non-parole period; (ii) a Court Secure Treatment Order; (iii) a drug and alcohol treatment order; (iv) a residential treatment order; (v) a youth justice centre order; (vi) a youth residential centre order; and (c) make a community correction order or attach a condition to a community correction order; and (d) adjourn a proceeding under section 72 or 75; and (e) make a supervision order under the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997**; and (f) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss, suspension or variation of a licence or privilege. S. 104C inserted by No. 19/2015 s. 7.