Jeremy Schwalm v The Queen (No 2)
[2012] ACTCA 56
•6 December 2012
JEREMY SCHWALM v THE QUEEN (No 2)
[2012] ACTCA 56 (6 December 2012)
APPEAL – jurisdiction, practice and procedure – judgments and orders – amending, varying and setting aside – where order of the Court not correctly recorded – where sentence end date incorrectly calculated – power to amend order not representing intention of the Court.
Crimes (Sentencing) Act 2005 (ACT), s 61
Magistrates Court Act 1930 (ACT), s 216
Burrell v The Queen (2008) 238 CLR 218
Schwalm v The Queen [2012] ACTCA 43
EX TEMPORE JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA – 30 of 2012
No. SCA 9 of 2012
Judges: Refshauge, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory
Date: 6 December 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 30 – 2012
) No. SCA 9 of 2012
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JEREMY SCHWALM
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Refshauge, Penfold and Burns JJ
Date: 6 December 2012
Place: Canberra
THE COURT DIRECTS THAT:
The order of the Court of 30 October 2012 be amended by:
(a) omitting “14” and substituting “13”; and
(b) adding a second order as follows:
“2. The appeal otherwise be dismissed”.
IN THE SUPREME COURT OF THE ) No. ACTCA 30 – 2012
) No. SCA 9 of 2012
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JEREMY SCHWALM
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge, Penfold and Burns JJ
Date: 6 December 2012
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
On 30 October 2012, the Court heard the appeal of Jeremy Schwalm against the Supreme Court’s dismissal of his appeal from a sentence of imprisonment imposed by the Magistrates Court.
The Court upheld the appeal to the extent necessary to make an order that the period of custody he served between lodgement of his Notice of Appeal from the Magistrates Court until he was granted bail, but which was stayed by s 216 of the Magistrates Court Act 1930 (ACT), should be directed to count in the period of imprisonment he is to serve under the sentence. Otherwise the appeal was dismissed.
Regrettably, there were two errors in the sealed order of the Court. In the first place, the dismissal of the appeal was not recorded. It appears that the Court did orally announce that the appeal was dismissed but this did not find its way into the sealed order which, therefore, must be amended.
More significantly for Mr Schwalm, the order set the last day of the sentence of imprisonment to be served by Mr Schwalm as 14 December 2012. This was the date advised to the Court by the prosecutor in the Supreme Court. This date has turned out to have been incorrectly calculated and Mr Schwalm is entitled to be released on
13 December 2012 in accordance with the intention of the Court: see Schwalm v The Queen [2012] ACTCA 43 at [2].Despite the fact that the court order has been sealed and the Court is otherwise functus officio, the Court may alter an order it has made where the order does not truly represent what the Court pronounced or intended to pronounce, as explained in Burrell v The Queen (2008) 238 CLR 218 at 224–5; [21].
In our view, both these matters can be resolved under this power. In addition, s 61 of the Crimes (Sentencing) Act 2005 (ACT) would provide support for, at the very least, the correction of the wrong date.
Accordingly, the Court will direct that the order of the court of 30 October 2012 be amended by:
(1)Omitting “14” and substituting “13”; and
(2)Adding a second order as follows:
“2. The appeal otherwise be dismissed”.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 8 January 2013
Counsel for the Appellant: The appellant appeared in person
Counsel for the Respondent: Mr D Sahu Khan
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 6 December 2012
Date of judgment: 6 December 2012
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