Humphries v The Queen; Ponfield v The Queen (No. 2)

[2016] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Humphries v R; Ponfield v R (No. 2) [2016] NSWCCA 91

Hearing dates:

13 May 2016

Decision date:

16 May 2016

Before:

Hoeben CJ at CL at [1]
Davies J at [1]
Beech-Jones J [1]

Decision:

(1) The reference at [5] in the principal judgment to “18 January 2021” is amended to read “18 April 2021”;

 

(2) The reference at [7] in the principal judgment to “18 June 2017” is amended to read”18 March 2017”;

 

(3) Order (3) at [73] and in the form of the sentence ordered by the Court on 13 May 2016 is amended to read:

 

In lieu, sentence the Appellant Mark Humphries to a sentence for each count comprising a non-parole period of three years nine months commencing 19 January 2015 and expiring 18 October 2018 with an additional term of two years and three months expiring 18 January 2021. The sentences are to be served concurrently.

 (4) The orders republished on 16 May 2016 stand as a consolidated statement of the orders of the Court.

Catchwords:

CRIMINAL LAW – appeal – errors in judgment – correction pursuant to r 50C

Legislation Cited:

Criminal Appeal Rules 1952 (NSW)

Cases Cited:

Humphries v R; Ponfield v R [2016] NSWCCA 86

Category:

Procedural and other rulings

Parties:

Mark Wayne Humphries (Applicant)
Wade Allan Ponfied (Applicant)
Crown (Respondent)

Representation:

Counsel:
P Segal (for the Applicant Humphries)
W Hunt & J Paingakulam (for the Applicant Ponfield)
H Baker (Crown)

  Solicitors:
Brock Partners (for the Applicant Humphries)
Legal Aid NSW (for the Applicant Ponfield)
Solicitor of Public Prosecutions (Crown)

File Number(s):

2013/181950 & 2013/187215

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 September 2014

Before:

Arnott DCJ

File Number(s):

2013/181950 & 2013/187215

Judgment of the COURT

1. After judgment was delivered on this appeal on 13 May 2016 the solicitor for the DPP drew the Court‘s attention to two apparent errors in the judgment: Humphriesv R; Ponfield v R [2016] NSWCCA 86 (the principal judgment).

2. The first error at [7] was a reference to the expiry date for the sentence at first instance in respect of Mr Ponfield as 18 June 2017. The correct expiry date for the non-parole period was 18 March 2017.

3. The second error was contained in order (3) that appeared at appeared at [73] and in the orders made by the Court. That order made reference to a non-parole period of three years six months commencing 19 January and expiring 18 October 2018.

4. At [72] the judgment of Davies and Beech-Jones JJ (with whom Hoeben CJ at CL agreed) said:

Having regard to the objective seriousness of the offending, Mr Humphries’ subjective matters and the sentences imposed on Mr Ponfield and Mr Wilson, we consider that the appropriate sentence for Mr Humphries for each of the offences is a non-parole period of three years and nine months commencing 19 January 2015 and expiring 18 October 2018 with an additional term of two years and three months expiring 18 January 2021.

5. The Court’s intention, as appears from that passage, was that Mr Humphries should be sentenced to a non-parole period of three years and nine months commencing 19 January 2015 and expiring 18 October 2018. The sentence was incorrectly recorded at [73] and subsequently in the orders made by the Court. The error should be corrected to reflect the Court’s intention. Order (3) should read:

(3)   In lieu, sentence the Appellant Mark Humphries to a sentence for each count comprising a non-parole period of three years nine months    commencing 19 January 2015 and expiring 18 October 2018 with an additional term of two years and three months expiring 18 January 2021. The sentences are to be served concurrently.

6. The Court notes a further error in the principal judgment at [5]. The reference to the sentence imposed by Judge Arnott should have been to an additional term of two years and six months expiring 18 April 2021 instead of 18 January 2021.

7. Rule 50C of the Criminal Appeal Rules 1952 (NSW) empowers the Court to correct the errors.

8. An amended judgment correcting the three errors will be published.

9. The orders of the Court are:

1. The reference at [5] in the principal judgment to “18 January 2021” is amended to read “18 April 2021”;

2. The reference at [7] in the principal judgment to “18 June 2017” is amended to read ”18 March 2017”;

3. Order (3) at [73] and in the form of the sentence ordered by the Court on 13 May 2016 is amended to read:

In lieu, sentence the Appellant Mark Humphries to a sentence for each count comprising a non-parole period of three years nine months   commencing 19 January 2015 and expiring 18 October 2018 with an additional term of two years and three months expiring 18 January 2021. The sentences are to be served concurrently.

4. The orders republished on 16 May 2016 stand as a consolidated statement of the orders of the Court.

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