MacKenzie v R (No 2)

[2012] NSWCCA 122

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MACKENZIE v R (No 2) [2012] NSWCCA 122

Hearing dates:

8 February 2011

Decision date:

06 June 2012

Before:

RS Hulme J at [1]
Adams J at [11]

Decision:

(1) Set aside the orders in respect of CAN 3 and CAN 4 made on 25 February 2011.

(2) Sentence the Applicant on CANs 3 and 4 as follows:-

CAN 4: imprisonment for a fixed term of 1 year commencing on 28 August 2010 expiring on 27 August 2011.

CAN 3: imprisonment for a non-parole period of 8 months to commence on 28 June 2011 and expiring on 27 February 2012 and a balance of term of 1 year and 4 months commencing on 28 February 2012 and expiring on 27 June 2013.

Catchwords:

Criminal law - appeal - variation of order

Legislation Cited:

Criminal Appeal Act 1912

Cases Cited:

Mackenzie v R [2011] NSWCCA 21

Category:

Consequential orders

Parties:

Ryan John Mackenzie v R

Representation:

C: J Dwyer
A: W Hunt
C: S Kavanagh
A: S O'Connor

File Number(s):

2009/134710

 Decision under appeal 

Date of Decision:

2010-02-10 00:00:00

Before:

Johnstone DCJ

File Number(s):

2009/134710

Judgment

1. RS HULME J: The Court delivered a judgment concerning this matter on 25 February 2011 - Mackenzie v R [2011] NSWCCA 21.

1. By letter dated 25 February, but received by the Court on 1 March 2011, the solicitors for the Applicant made a request that the Court correct it. That request was made under Rule 50C of the Criminal Appeal Rules 1952 and was within the 14 day period thereby limited.

1. The Applicant had been sentenced in respect of four offences the subject of four Court Attendance Notices referred to as "CANs 1 to 4". The correction sought was expressed as follows:-

It appears that in the process of re-sentencing the Appellant on CAN 1 and 3, and varying the sentences on CAN 2 and 4, the sentences imposed upon CAN 3 (reckless wounding) and CAN 4 (intimidation with intent to cause fear of physical or mental harm) have been transposed. Whilst the transposition has no effect on the aggregate sentence or non-parole period imposed upon the Appellant, it is respectfully requested that this matter be brought to his Honour Justice Giles' attention for correction.

1. Justice Giles has retired and this decision and these reasons are of the other members of the bench, Justice RS Hulme and Justice Adams.

1. The offences charged and the sentences which were the subject of appeal were as follows:-

CAN 1: Assault occasioning actual bodily harm - imprisonment for 2 years and 6 months commencing on 28 February 2009.

CAN 2: Intimidation - imprisonment for 1 year commencing on 28 February 2009.

CAN 3: Reckless wounding. - imprisonment for 2 years commencing on 28 February 2010 with an additional term of 1 year and 4 months.

CAN 4: Intimidation - imprisonment for 1 year commencing on 28 August 2009.

1. The application for leave to appeal complained only of the sentences imposed on CANs 1 and 3. There was no appeal in respect of the sentences imposed in respect of the offences the subject of CANs 2 and 4.

1. At [39] of his reasons, Giles JA adverted to the fact that the Court could vary the sentences on CANs 2 and 4 pursuant to the terms of s 7(1A) of the Criminal Appeal Act 1912 but at [42] remarked that those sentences "are not open to be varied". In that same paragraph, his Honour said there should be sequential partial accumulation of all sentences.

1. His Honour then proposed the following orders:-

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Quash the sentences imposed on CANS 1 and 3.

(4)Sentence the appellant on CANs 1 and 3 and vary the sentences on CANs 2 and 4 as follows -

CAN 1: imprisonment for a fixed term of 1 years (sic) and 8 months commencing on 28 February 2009 and expiring on 27 October 2010.

CAN 2: imprisonment for a fixed term of 1 year commencing on 28 February 2010 and to expire on 27 February 2011.

CAN 3: imprisonment for a fixed term of 1 year commencing on 28 August 2010 and to expire on 27 August 2011

CAN 4: imprisonment for a non-parole period of 8 months to commence on 28 June 2011 and to expire on 28 February 2012 and a balance of term of 1 year and 4 months to expire on 27 June 2013

The appellant will be eligible for release on parole on 27 February 2012. It will be seen that this is the same effective sentence as before

1. The effect of these orders was thus to increase the sentence for the offence the subject of CAN 4, one of those which his Honour was said was not open to be varied and which was not the subject of appeal, from a fixed term of 12 months to one of 2 years including a non-parole period of 8 months. Demonstrably, the error to which the Applicant's solicitors adverted in their letter of 25 February 2011 occurred.

1. Accordingly, I propose the following orders:-

(1) Set aside the orders in respect of CAN 3 and CAN 4 made on 25 February 2011.

(2)   Sentence the Applicant on CANs 3 and 4 as follows:-

CAN 4: imprisonment for a fixed term of 1 year commencing on 28 August 2010 expiring on 27 August 2011.

CAN 3: imprisonment for a non-parole period of 8 months to commence on 28 June 2011 and expiring on 27 February 2012 and a balance of term of 1 year and 4 months commencing on 28 February 2012 and expiring on 27 June 2013.

1. ADAMS J: I agree with RS Hulme J.

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