Langbein v Regina (No. 2)

[2013] NSWCCA 100

Court of Criminal Appeal

New South Wales

Case Title:

Langbein v Regina (No. 2)

Medium Neutral Citation:

[2013] NSWCCA 100

Hearing Date(s):

9 November 2012

Decision Date:

01 May 2013

Before:

McClellan JA
Fullerton J
Campbell J

Decision:

The orders pronounced on 26th April 2013 are set aside and the Court makes the following orders:

1. Grant leave to appeal.

2. Appeal allowed.

3. Confirm the sentences imposed by the sentencing judge in respect of the offence of driving whilst disqualified including the period of disqualification imposed by his Honour.

4. Otherwise, the sentences imposed by the sentencing judge are quashed and the following sentences are imposed in substitution:

(a) In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the C4 Café, the applicant is sentenced to 3 years imprisonment comprising a non-parole period of 2 years and 3 months commencing on 17 February 2011 and expiring on 16 May 2013, with a balance of term of 9 months commencing on 17 May 2013 and expiring on 16 February 2014;

(b) In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the Devine Café, the applicant is sentenced to 4 years and 6 months imprisonment comprising a non-parole period of 3 years commencing on 17 May 2011 and expiring on 16 May 2014, with a balance of term of 1 year and 6 months commencing on 17 May 2014 and expiring on 16 November 2015.

Catchwords:

CRIMINAL LAW - practice and procedure - judgments and orders - slip rule - amendment of error in term of sentence

Legislation Cited:

Criminal Appeal Rules

Cases Cited:

Akkawi v R (No 2) [2013] NSWCCA 72
R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143

Category:

Principal judgment

Parties:

Luke Langbein (Applicant)
Regina (Respondent)

Representation

- Counsel:

Counsel:
P. Winch (Applicant)
S. Dowling (Respondent)

- Solicitors:

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2011/14368

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Acting Judge Nield

- Date of Decision: 

29 July 2011

- Court File Number(s):

2011/14368

JUDGMENT

1. THE COURT: The Court pronounced orders disposing of the appeal and publishing its reasons on 26th April 2013. It has come to our attention that there is an error in the orders pronounced. Order 4 does not accord with the Court's intention as stated at [57] in the joint judgment of Fullerton and Campbell JJ. The error is a merely clerical one, in the nature of a slip.

2. Rule 50C(3) of the Criminal Appeal Rules is in the following terms:

   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.

3. Ordinarily an order is taken to be entered when it is recorded in the Court's computerised record system, typically on the day on which judgment was handed down: Rule 50B(2). These rules were fully discussed by this Court (Simpson, Blanch and Rothman JJ) in Akkawi v R (No. 2) [2013] NSWCCA 72. It is not necessary to go over that ground here. Suffice it to say that the rule amply empowers the Court to correct the "slip" made when the orders were pronounced, and entered, on 26th April 2013: R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143 at [34].

4. The Court echoes the views expressed in Akkawi (No. 2) at [27], whilst it well appreciates the effect that the alteration to the orders pronounced may have on the appellant, nevertheless there was an obvious inconsistency between the clear intention expressed at paragraph [57] of the joint reasons, with which McClellan CJ at CL agreed, and the orders pronounced. As in Akkawi (No 2) the corrected orders still substantially reduce the sentence imposed at first instance.

5. The orders pronounced on 26th April 2013 are set aside and the Court makes the following orders:

   1. Grant leave to appeal.

   2. Appeal allowed.

   3. Confirm the sentences imposed by the sentencing judge in respect of the offence of driving whilst disqualified including the period of disqualification imposed by his Honour.

   4. Otherwise, the sentences imposed by the sentencing judge are quashed and the following sentences are imposed in substitution:

   (a)In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the C4 Café, the applicant is sentenced to 3 years imprisonment comprising a non-parole period of 2 years and 3 months commencing on 17 February 2011 and expiring on 16 May 2013, with a balance of term of 9 months commencing on 17 May 2013 and expiring on 16 February 2014;

   (b)In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the Devine Café, the applicant is sentenced to 4 years and 6 months imprisonment comprising a non-parole period of 3 years commencing on 17 May 2011 and expiring on 16 May 2014, with a balance of term of 1 year and 6 months commencing on 17 May 2014 and expiring on 16 November 2015.

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