Fitzgerald v The Queen (No. 2)

[2018] NSWCCA 179

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Fitzgerald v R (No. 2) [2018] NSWCCA 179

Hearing dates:

On the papers

Date of orders:

20 August 2018

Decision date:

20 August 2018

Before:

Hoeben CJ at CL, Price & Davies JJ at [1]

Decision:

Vary the orders made on 6 August 2018 so that they read:

 

(1) Leave to appeal granted.

 

(2) Appeal dismissed.

 

(3) Time not to count except for 79 days.

 (4) The sentence will now expire on 16 April 2020 and the non-parole period will expire on 16 May 2019.

Catchwords:

SENTENCING – slip rule – applicant bailed after sentence imposed by sentencing judge – incorrect calculation of expiry date by Court after dismissing appeal – sentence corrected

Legislation Cited:

Criminal Appeal Rules 1952 (NSW)

Cases Cited:

Nil

Category:

Procedural and other rulings

Parties:

Karina Lorraine Fitzgerald (Applicant)
Crown (Respondent)

Representation:

Counsel:
P Lange, C Parkin & E Olivier (Applicant)
F Veltro (Respondent)

  Solicitors:
B Wrench (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/96320

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

19 April 2017

Before:

Delaney ADCJ

File Number(s):

2016/96320

Judgment OF THE COURT

1. On 6 August 2018 the Court delivered judgment granting leave to appeal but dismissing the appeal. The applicant had been sentenced to a term of imprisonment by Delaney ADCJ on 19 April 2017. She was subsequently released to bail pending the hearing of her application for leave to appeal.

2. The Court was wrongly informed by the Crown that the applicant had spent 49 days in custody prior to being released to bail. In those circumstances the Court indicated in its judgment that the sentence would expire on 16 May 2020 and the non-parole period would expire on 16 June 2019.

3. In fact, the applicant had spent 79 days in custody before she was released to bail.

4. Rule 50C of the Criminal Appeal Rules 1952 (NSW) relevantly provides:

50C Power to set aside or vary order

(cf UCPR rule 36.16)

(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before the entry of the order.

…

(2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.

(3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.

(4) The Court may not extend the time limited by subrule (2) or (3).

(5) Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions).

5. The Rule is appropriate in the present case to correct what is a clear clerical mistake or an error arising from an accidental slip arising from the Crown’s submissions.

6. Accordingly, the orders made on 6 August 2018 should be varied so that they read as follows:

1. Leave to appeal granted.

2. Appeal dismissed.

3. Time not to count except for 79 days.

4. The sentence will now expire on 16 April 2020 and the non-parole period will expire on 16 May 2019.

**********

Decision last updated: 20 August 2018