Allen v R (No 2)

[2020] NSWCCA 196

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Allen v R (No 2) [2020] NSWCCA 196

Hearing dates:

In chambers

Date of orders:

07 August 2020

Decision date:

07 August 2020

Before:

Bell P; Davies J; Button J

Decision:

Vary Order 4 of the Orders made on 22 July 2020 to insert the word “First” before “Indictment” and to add the words “and counts 1 and 2 of the Second Indictment” after “Indictment” so that Order 4, as varied, reads:

“In respect of counts 2 and 4 – 25 of the First Indictment and counts 1 and 2 of the Second Indictment, resentence the applicant to an aggregate term of imprisonment for 18 months, which term of imprisonment is taken to have commenced on 15 March 2017 with an aggregate non-parole period of 12 months that expired on 14 March 2018.”

Category:

Consequential orders (other than Costs)

Parties:

Michael Francis Allen (Appellant)
The Crown (Respondent)

Representation:

Counsel:
R Roger (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/62653; 2017/80608

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

07 June 2019

Before:

O’Brien AM DCJ

File Number(s):

2017/62653; 2017/80608

Judgment

1. THE COURT: On 22 July 2020, the Court delivered its judgment in Allen v R [2020] NSWCCA 173 (the appeal judgment). Order 4 of the orders made on that day was as follows:

“In respect of counts 2 and 4-25 of the Indictment, resentence the Applicant to an aggregate term of imprisonment for 18 months, which term of imprisonment is to be taken to have commenced on 15 March 2017, with an aggregate non-parole period of 12 months that expired on 14 March 2018”.

2. Mr Allen was charged on two indictments. The first indictment (the First Indictment), referred to at [1] of the appeal judgment, contained some 36 counts. Mr Allen was convicted on 30 of those counts. Of those counts on which he was convicted, counts 2 and 4-25 of the First Indictment related to what were described in the appeal judgment as “reporting offences”.

3. Mr Allen had also been charged on a second indictment (the Second Indictment) with two further reporting offences. He pleaded guilty to those counts on the first day of trial.

4. The aggregate sentence imposed by the trial judge was in respect of both of those counts as well as the counts on the First Indictment in respect of which Mr Allen was found guilty by the jury. For the reasons explained in the appeal judgment, it became necessary to resentence Mr Allen. As indicated at [107] of that judgment, all indicative sentences provided by the trial judge in relation to the reporting offences on both indictments were confirmed.

5. Order 4, as made on 22 July 2020 and by which Mr Allen was resentenced, referred in terms only to the reporting offences on the First Indictment in respect of which Mr Allen had been convicted. The resentence imposed in Order 4 of the orders made on 22 July 2020 (see [1] above) was intended, however, to apply not only to counts 2 and 4-25 of the First Indictment but also to both counts on the Second Indictment in respect of which Mr Allen had pleaded guilty and which were taken up in the aggregate sentence imposed by the trial judge.

6. The Court has implied or inherent power, of its own motion, to correct accidental slips and clerical mistakes such as the kind made in Order 4: see R v Green and Quinn [2011] NSWCCA 71.

7. Order 4 of the Orders made on 22 July 2020 should have read:

“In respect of counts 2 and 4 – 25 of the First Indictment and counts 1 and 2 of the Second Indictment, resentence the applicant to an aggregate term of imprisonment for 18 months, which term of imprisonment is taken to have commenced on 15 March 2017 with an aggregate non-parole period of 12 months that expired on 14 March 2018.” (changes marked in italics).

8. Accordingly, the following order should be made:

“Vary Order 4 of the Orders made on 22 July 2020 to insert the word “First” before “Indictment” and to add the words ‘and counts 1 and 2 of the Second Indictment’ after “Indictment” so that Order 4, as varied, reads:

‘In respect of counts 2 and 4 – 25 of the First Indictment and counts 1 and 2 of the Second Indictment, resentence the applicant to an aggregate term of imprisonment for 18 months, which term of imprisonment is taken to have commenced on 15 March 2017 with an aggregate non-parole period of 12 months that expired on 14 March 2018.’”

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