Lemuelle Nelson v Michael Woodburn
[2011] ACTSC 151
•11 August 2011
LEMUELLE NELSON v MICHAEL WOODBURN
[2011] ACTSC 151 (11 August 2011)
JUDGMENT AND ORDER – amendment – criminal proceedings – order made based on incorrect submissions of the prosecution – power to amend – r 6906, Court Procedures Rules 2006 (ACT).
Magistrates Court Act 1930 (ACT), ss 216, 218
Crimes Act 1900 (ACT), s 309
Crimes (Sentencing) Act 2005 (ACT), ss 61, 63
Court Procedures Rules 2006 (ACT), r 6906
Hadba v The Queen (2004) 182 FLR 472
Ledson v Taylor (No. 2) (2010) 239 FLR 360
R v Gorman [2009] ACTSC 7
R v Cripps; Ex parte Muldoon [1984] QB 686
Keller & Anor v Bayside City Council [1996] 1 VR 356
Westsub Discounts Pty Ltd v IDAPS Australia (No 2) (1990) 94 ALR 310
Re Bickford Joinery Pty Ltd (1974) 7 SASR 438
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 88 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 11 August 2011
IN THE SUPREME COURT OF THE )
) No. SCA 88 of 2010
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
LEMUELLE NELSON
Appellant
v
MICHAEL WOODBURN
Respondent
ORDER
Judge: Refshauge J
Date: 11 August 2011
Place: Canberra
THE COURT ORDERS THAT:
The order of the Honourable Justice Refshauge made on 8 August 2011 be set aside.
The period of Lemuelle Nelson’s sentence of imprisonment end on 5 October 2012.
The non-parole period of Lemuelle Nelson’s sentence of imprisonment end on 16 April 2011.
Mr Lemuelle Nelson appeared in the ACT Magistrates Court on 6 December 2010 when he was convicted of charges of dishonestly driving a motor vehicle, failing to appear in accordance with a bail undertaking, providing a false name to a police officer and fighting in a public place.
Chief Magistrate Burns, as his Honour then was, imposed sentences of imprisonment for a period totalling 17 months for the first two offences and a Good Behaviour Order for six months for the latter two offences.
His Honour directed that the sentence of imprisonment commence on 12 October 2010, presumably because that was the date on which Mr Nelson was first taken into custody on these offences, that being the date on which they were committed. His Honour set a non-parole period of eleven months from 12 October 2010.
Mr Nelson himself prepared a Notice of Appeal which he lodged with the Supreme Court on 13 December 2010. Under s 216 of the Magistrates Court Act 1930 (ACT), this stayed the sentence and Mr Nelson became a remand prisoner, no longer serving his sentence.
That Notice of Appeal, however, only referred to the first sentence, being that imposed on the charge of dishonestly driving a motor vehicle without consent, for which Mr Nelson was sentenced to 15 months’ imprisonment.
Mr Nelson was apparently granted Legal Aid and on 8 February 2011. He was permitted to file an Amended Notice of Appeal which also included an appeal against the sentence imposed for the other offences, including the offence for which a sentence of imprisonment had also been imposed, namely, failing to appear in accordance with a bail undertaking. For that offence a sentence of four months’ imprisonment had been imposed, two months of which was to be served consecutively on the earlier sentence.
On 14 January 2011, Mr Nelson appeared in this court seeking bail pending the hearing of the appeal and bail was granted.
The appeal ultimately came on for hearing on 25 February 2011 and Mr Nelson failed to appear. His lawyer sought and was granted leave to withdraw. As a result the appeal was dismissed and a warrant was issued for Mr Nelson’s arrest.
On or about 8 August 2011, Mr Nelson was arrested and came before me. He had apparently also been arrested on other charges, for which he had earlier appeared in the Magistrates Court, when an order under s 309 of the Crimes Act 1900 (ACT), had been made. The existence of the warrant and the dismissal of the appeal, however, meant that he had been taken immediately into custody to serve the balance of his sentence of imprisonment.
I considered, and the prosecution agreed, that there were consequential orders that had to be considered as a result of the period of custody that Mr Nelson had served before bail was granted, but which was not part of the sentence he was serving because of the statutory stay. That the court has this power was clearly stated by the Court of Appeal in Hadba v The Queen (2004) 182 FLR 472.
As I outlined in Ledson v Taylor (No 2) 239 FLR 360, the result of the dismissal of the appeal is to impose the balance of the original sentence. When doing so, however, it is required that the court consider any period of pre-sentence custody (see s 63 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act)). In this case, that meant the period between the commencement of the stay of the sentence on 13 December 2010 and the granting of bail on 14 January 2011.
As that had not been considered when the appeal was dismissed, I proceeded to do so under s 61 of the Sentencing Act, and directed that the sentence imposed on Mr Nelson be varied under s 218 of the Magistrates Court Act1930 (ACT), because of the stay under s 216 of that Act, to take into account that period of custody, and I directed that it end on 29 October 2012, with a non-parole period ending on 29 April 2012.
Regrettably, I had, in preparing to make those orders, been misinformed about the relevant dates. I have no doubt that this was due to an accidental omission by the prosecutor who had informed me that the sentence had commenced on 6 December 2010 (and not 12 October 2010, when it actually had commenced) and that bail had been granted on 14 February 2011 (and not on 14 January 2011, when it actually had been granted).
This led me to make inaccurate calculations needed for the determination of the period of custody and the period of the non-parole period.
In my view, I can now rectify that inaccuracy under r 6906 of the Court Procedures Rules 2006 (ACT). This rule applies to criminal proceedings: R v Gorman [2009] ACTSC 7.
Whilst the decision I made was a considered one, to set the periods of imprisonment and the non-parole period, it was not a deliberate decision in the sense that it disentitled me to proceed under r 6906. Clearly I intended not to impose necessarily those periods, but the periods that would properly reflect the pre-sentence custody served by Mr Nelson. In that sense it was not an intended decision that would, as noted by Sir John Donaldson MR in R v Cripps; Ex parte Muldoon [1984] 1 QB 686, bring the amendment outside the scope of the rule.
As is clear from decisions such as Keller v Bayside City Council [1996] 1 VR 356, the accidental error can be one made by a party, as happened here, when the incorrect information was given to me by the prosecution. That, on an inspection of the documents on the court file, I could have seen some parts, if not all, of the error, does not mean that I did not rely on the prosecutor’s information supplied in error, thus bringing the situation within the scope of the rule.
Though the issue under s 63 of the Sentencing Act is one of discretion and it is sometimes said that discretionary decisions cannot be corrected under r 6906 (see Westsub Discounts Pty Ltd v IDAPS Australia Ltd (No 2) (1990) 94 ALR 310), it seems to me that this is not so much the exercise of the discretion, in that sense, but the consequences of the exercise of that discretion. Thus, I am not re-exercising the discretion but, having exercised it, the dates which flow are the results of the accidental error.
In any event, if it is the re-exercise of a discretion, I am fortified by the fact that, in Re Bickford Joinery Pty Ltd (1974) 75 ASR 438, Hogarth J held that it was not always impermissible to re-exercise a discretion in such circumstances. This is clearly such a circumstance.
Accordingly, I will set aside the order I made on 8 August 2011.
Mr Nelson was relevantly in custody from 12 October 2010 to 14 January 2011, a period of three months and two days.
I therefore order that the period of Mr Nelson’s sentence of imprisonment end on 5 October 2012 and that the non-parole period end on 16 April 2012.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2 September 2011
Counsel for the appellant: Ms H Hayunga
Solicitor for the appellant: ACT Legal Aid Office
Counsel for the respondent: Mr D Sahu Khan and Mr S Drumgold
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 8 and 11 August 2011
Date of judgment: 11 August 2011
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