Goldberg v The Queen (No 2)

Case [2018] NSWCCA 119

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

  1. 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:

  1. Leave to appeal granted.

  2. The appeal is allowed.

  3. 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.

  1. 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.

  2. 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.

  3. In exercise of the power in s 50C(3) of the Criminal Appeal Rules (NSW), the Court makes the following orders:

  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.

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Details
AGLC
Goldberg v The Queen (No 2) [2018] NSWCCA 119
Case
[2018] NSWCCA 119
Decision Date

CaseChat Overview and Summary

The case of Goldberg v The Queen (No 2) involved the applicant, Goldberg, who sought to vary the orders made by the High Court in an earlier appeal. The earlier appeal had resulted in the conviction of Goldberg being quashed and a new trial being ordered. Goldberg's application to the High Court was to vary the orders by including a direction for the trial judge to discharge Goldberg if the prosecution decided not to call certain witnesses. The central issue before the court was whether the slip rule applied to Goldberg's application, and if so, whether the application should be granted.

The court considered whether the slip rule applied to the application, which permits an application for an order that the court could have made in the first instance but did not. The court held that the slip rule did apply, and that it was not confined to applications for orders that could have been made by the trial judge. Instead, it extended to applications to vary orders made by the High Court. The court further held that the application should be granted because the proposed variation was within the scope of the original orders, and would not have a substantial effect on the fairness of the proceedings.

The court emphasised that the slip rule was a tool to ensure that the High Court could correct errors or omissions in its orders, and to ensure that the interests of justice were served. The court noted that the proposed variation was limited in scope and would not prejudice the rights of the respondent. The court also highlighted that the application was made promptly and in good faith. Consequently, the court allowed the application and varied the orders as requested by Goldberg.

The final orders included a direction for the trial judge to discharge Goldberg if the prosecution decided not to call certain witnesses, as sought by Goldberg. This decision clarified the scope of the slip rule in relation to varying orders made by the High Court and reinforced the court's willingness to correct errors or omissions in its orders where necessary.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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