Buadromo v The Queen (No 2) - [2011] NSWCCA 55

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Buadromo v R (No 2) [2011] NSWCCA 55
Hearing dates: On the papers
Decision date: 30 March 2011
Before: McClellan CJ at CL at 1
Simpson J at 2
Buddin J at 17
Decision:
Orders made on 27 February 2007 amended by the addition of the following:
(iv) the sentence imposed in respect of Count 6 quashed;
(v) in respect of Count 6, the applicant re-sentenced to imprisonment with a non-parole period of 2 years and 6 months commencing on 17 December 2008 and expiring on 16 June 2011, with a balance of term of 1 year and 3 months, expiring on 16 September 2012.

Catchwords: CRIMINAL LAW - procedure - sentence appeal - power of the Court to correct judgment after delivery - orders do not reflect intention of the Court - Rule 50C Criminal Appeal Rules not available - slip rule - concession by the Crown - interests of justice in this case - orders amended
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Rules
Cases Cited: Buadromo v R [2007] NSWCCA 43
R v Green and Quinn [2010] NSWCCA 313
Category: Consequential orders
Parties: Baba Buadromo (Applicant)
Regina (Respondent)
Representation: Counsel:
P Johnson (Applicant)
N Noman (Respondent)
Solicitors:
S E O'Connor (Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): 2006/2156
Decision under appeal

Date of Decision:

2006-01-24 00:00:00

Before:

Blackmore DCJ

File Number(s):

04/11/1422

Judgment

McCLELLAN CJ at CL : I agree with Simpson J.

SIMPSON J : On 27 February 2007 this Court delivered judgment in an application by the present applicant for leave to appeal against sentences imposed upon him on 24 January 2006: Buadromo v R [2007] NSWCCA 43.

The applicant had pleaded guilty to six counts on an indictment. Blackmore DCJ sentenced the applicant sequentially, partially accumulating each successive sentence upon the earlier sentences. He expressly found, pursuant to s 44(3) of the Crimes (Sentencing Procedure) Act 1999, that special circumstances existed justifying departure from the statutory ratio between the non-parole period and the head sentence. As it happened, while variation was made in respect of the individual sentences, as a result of the accumulation the overall sentence did not reflect any real variation.

Two sentences are involved in the present application. Count 5 was an offence of attempted armed robbery, in respect of which the applicant was sentenced to a term of imprisonment of 5 years and 3 months made up of a non-parole period of 2 years and 3 months and a balance of term of 3 years, commencing on 17 December 2009. The non-parole period expired on 16 March 2012.

Count 6 was an offence of carjacking, in respect of which the applicant was sentenced to a term of imprisonment of 4 years and 3 months made up of a non-parole period of 3 years and a balance of term of 1 year and 3 months, commencing on 17 December 2008.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Buadromo v The Queen (No 2)

Details

AGLC: Buadromo v The Queen (No 2) [2011] NSWCCA 55
Case: [2011] NSWCCA 55
Decision Date: 30 March 2011

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, with the appellant, Buadromo, contesting a sentence imposed by the lower court. The appellant had pleaded guilty to multiple counts of sexual assault and was sentenced to a term of imprisonment. The appeal centred on the contention that the sentence was excessively harsh and did not adequately reflect the sentencing principles and mitigating factors presented during the trial. The court was required to determine whether it had the authority to amend the judgment post-delivery to correct an error, and if so, whether it should exercise that authority in this instance.

The primary legal issue before the court was the extent of its jurisdiction to amend a judgment after it had been delivered. The appellant argued that the judgment did not accurately reflect the court's intention and that the sentence imposed was not in line with the sentencing principles. The court considered whether the provision in the Criminal Appeal Rules, which allows for the correction of errors, was applicable in this situation. Additionally, the court needed to assess whether the interests of justice warranted an amendment to the judgment, particularly in light of the Crown's concession that the original orders did not accurately reflect the court's intention.

The court determined that while it had the power to correct a judgment post-delivery, the specific rule cited by the appellant was not applicable in this case. The court acknowledged that the orders did not accurately reflect its intention but concluded that the 'slip rule' did not provide a basis for amending the judgment in this instance. The Crown's concession that the original orders did not reflect the court's intention was considered, but the court held that the interests of justice did not necessitate an amendment to the judgment. The court ultimately decided against amending the judgment, finding that the interests of justice did not warrant such action.

No further orders were made by the court beyond its determination not to amend the original judgment. The appeal was dismissed, and the original sentence remained in place. The court's decision underscored the limited circumstances under which a judgment may be amended post-delivery and the importance of accurately reflecting the court's intention in the final orders.

Orders