Goldberg v The Queen (No 2)
[2018] NSWCCA 119
•08 June 2018
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Goldberg v R (No 2) [2018] NSWCCA 119 Hearing dates: On the papers Date of orders: 28 May 2018 Decision date: 08 June 2018 Before: Hoeben CJ at CL; White JA; Fullerton J Decision: 1. Set aside order 3 made on 28 May 2018 and make the following order:
Quash the sentence imposed by Blackmore DCJ on 9 March 2017 and, in lieu thereof, impose an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months commencing on 5 November 2015 and expiring on 4 March 2022 with a balance of term of 2 years and 2 months expiring on 4 May 2024.Catchwords: PRACTICE AND PROCEDURE – slip rule – variation of orders Legislation Cited: Criminal Appeal Rules (NSW), s 50C(3) Cases Cited: Goldberg v R [2018] NSWCCA 99 Category: Consequential orders (other than Costs) Parties: John Goldberg (Applicant)
The Crown (Respondent)File Number(s): 2016/51338 Decision under appeal
- Court or tribunal:
- District Court
- Date of Decision:
- 9 March 2017
- Before:
- Blackmore DCJ
- File Number(s):
- 2016/51338
Judgment
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THE COURT: On 28 May 2018, in the disposition of an appeal by the applicant against the severity of his sentence (Goldberg v R [2018] NSWCCA 99), the Court made the following orders:
Leave to appeal granted.
The appeal is allowed.
Quash the sentence imposed by Blackmore DCJ on 9 March 2017 and, in lieu thereof, impose an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months commencing on 5 November 2015 and expiring on 4 March 2022 with a balance of term of 2 years and 1 month expiring on 4 April 2024.
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On 29 May 2018 the Registrar of the Court of Criminal Appeal alerted the Court (comprised of Hoeben CJ at CL, White JA and Fullerton J) to a potential error in order 3 above in that either the total term should have been appointed as 8 years and 5 months to conform with a balance of term of 2 years and 1 month after specification of a non-parole period of 6 years and 4 months, or on the total term of 8 years and 6 months with a non-parole period of 6 years and 4 months, the balance of term has been wrongly specified as 2 years and 1 month expiring on 4 April 2024, when it should have been specified as 2 years and 2 months, expiring on 4 May 2024.
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Having regard to [127] of the judgment and the clear intention to impose an aggregate sentence of 8 years and 6 months comprised of a non-parole period of 6 years and 4 months, there is an arithmetical error in the calculation of the balance of term. Instead of appointing the balance of term of 2 years and 2 months, a term of 2 years and 1 month has been specified; an error which has been translated, uncorrected, into the orders of the Court.
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In exercise of the power in s 50C(3) of the Criminal Appeal Rules (NSW), the Court makes the following orders:
Set aside order 3 made on 28 May 2018 and make the following order.
Quash the sentence imposed by Blackmore DCJ on 9 March 2017 and, in lieu thereof, impose an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months commencing on 5 November 2015 and expiring on 4 March 2022 with a balance of term of 2 years and 2 months expiring on 4 May 2024.
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Decision last updated: 08 June 2018