Mustafa v The Queen - [2002] WASCA 357

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MUSTAFA -v- THE QUEEN [2002] WASCA 357

CORAM: MALCOLM CJ
MURRAY J
STEYTLER J

HEARD: 23 OCTOBER 2002

DELIVERED : 19 DECEMBER 2002

FILE NO/S: CCA 209 of 1998

BETWEEN: ABIB MUSTAFA
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against sentence heard and determined by Court of Criminal Appeal - Whether, for errors in reasons for allowing the appeal, the Court has power to recall a sentence passed and resentence the appellant

Criminal law and procedure - Sentencing - Drug offences - Parity of sentencing a number of cooffenders

Legislation:

Criminal Code (WA), s 697

Sentencing Act 1995 (WA), s 34, s 35, s 36, s 37, s 37A

Supreme Court Act 1935 (WA), s 57, s 58

Result:

Application to vary sentence dismissed

Category: A

Representation:

Counsel:

Appellant: Mr D Grace QC & Mr L M Levy
Respondent: Mr H G Dembo

Solicitors:

Appellant: Laurie Levy
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Baber v Purvis (1887) 56 LT 131
Chessum & Sons v Gordon [1901] 1 KB 694
Commonwealth v McCormack (1984) 155 CLR 273
Davies and Cody v The Queen (1937) 57 CLR 170
Diefenbach v The Queen (1999) 108 A Crim R 19
DJL v Central Authority (2000) 201 CLR 226
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Fritz v Hobson (1880) 14 Ch D 542
Gould v Vaggelas (1985) 157 CLR 215
Grierson v The Queen (1938) 60 CLR 431
Griffiths v The Queen (1977) 137 CLR 293
Johnson & Co Ltd v Clifford (1904) 7 WALR 130
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Link Blocks (1981) Pty Ltd v Fullin [1986] WAR 187
Maxwell v The Queen (1996) 184 CLR 501
Milson v Carter [1893] AC 638
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Mustafa v The Queen [2001] WASCA 192
Pantorno v The Queen (1989) 166 CLR 466
Postiglione v The Queen (1997) 189 CLR 295
Punevski v The Queen [2000] WASCA 397
R v Allen (1994) 1 Qd R 526
R v Nam & Sansbury [1968] SASR 107
R v Olbrich (1999) 199 CLR 270
R v Powell (2001) 126 A Crim R 137
R v Suarez‑Mejia [2002] WASCA 187
Re Inchcape (Earl of); Craigmyle v Inchcape [1942] 1 Ch 394
Ruvinovski v The Queen [2000] WASCA 398
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Western Power Corporation v Normandy Power Pty Ltd [2002] WASC 113
Wong v The Queen (2001) 76 ALJR 79

Case(s) also cited:

Nil

MALCOLM CJ: The history of this matter is set out in the reasons for judgment to be published by Murray J. There was a mathematical error in calculating a discount in respect of the non‑parole period which was not detected, namely, a reduction of a sentence of 14 years by applying a discount of 25 per cent was not a reduction of 2½ years but a reduction of 3½ years. While this error led to the imposition of a sentence of 10 years and 6 months and the fixing of a non‑parole period of 5 years and 6 months in lieu of the original sentence of 12 years' imprisonment with a non‑parole period of 7 years, I was satisfied that by comparison of those sentences with the sentences imposed upon the appellant's co‑offenders, the sentence and the non‑parole period fairly reflected his position in the hierarchy of offenders both with respect to those who were above him and those who were below him. I remain of that view. In the result, therefore, the fact that there was a mathematical error in the calculation is, in my opinion, of little relevance. The question which the Court was required to resolve was whether and to what extent the arithmetical error required the non‑parole period to be adjusted.
I agree with Murray and Steytler JJ that the head sentence of 10 years and 6 months with a non‑parole period of 5 years and 6 months accurately reflected the applicant's role and responsibility in relation to the relevant offences compared to that of his co‑offenders who were both above and below him in the hierarchy. For those reasons, I am of the opinion that the error in calculation, although greatly to be regretted, is in the end irrelevant. In particular, I agree with Murray J that, given the relevant circumstances, a non‑parole period of 5 years and 6 months represented the most lenient sentence the Court could impose upon the appellant consistently with maintaining parity and consistency as between the appellant and his co‑offenders. It also needs to be borne in mind that the appellant's sentence was backdated to commence on 1 April 1998.
Murray J has detailed the steps to be taken and the formalities to be observed in the sentencing process. His Honour has expressed the view that, at least upon the issue of the warrant of commitment, if not upon the pronouncement of sentence by the Judge, the order by which the sentences imposed is perfected, because it is clear that upon the issue of the warrant, those to whom it is directed are obliged to give it force and effect and the offender's liability to serve the term of imprisonment commences.
The sentencing process is relevantly detailed in ss 34 – 37A of the Sentencing Act 1995 (WA). Section 34 requires that a Court sentencing the offender must explain to the offender, in language likely to be understood, the effect of the sentence and the obligations of the offender and consequences of not complying with them, that result from the sentence and any order in addition to the sentence. Section 35 imposes a number of requirements relating to the imposition of a sentence of 12 months or less which specifies that written reasons must be given why no other available sentencing option was appropriate (subs (1)); the written reasons are to be kept as records of the Court (subs (2)), but subject to a proviso in subs (3) that subs (1) does not apply if:
(a)the term imposed is mandatory under a written law;
(b)the aggregate of the term imposed and any other term of imprisonment that the offender is serving or has yet to serve is more than 12 months; or
(c)the term is imposed under s 79 of the Prisons Act 1981.
Subsection (4) provides that in s 35 "written reasons" includes reasons given orally and subsequently transcribed. Section 36 requires that if a Court imprisons an offender and does not suspend the term, it must issue a warrant of commitment accordingly.
Section 37 of the Sentencing Act 1995 provides that:
"(1) If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.
(2)The powers in subsection (1) may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but in any event the court must give all parties the opportunity to be heard.
(3)If a court's order imposing a sentence contains a clerical mistake or an error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction.
(4)This section does not affect any right of appeal against a sentence.
(5)In this section —
'sentence' includes an order in addition to sentence."
A sentence of imprisonment is carried out by the issue of a warrant of commitment under s 36 of the Sentencing Act and the Criminal Procedure Rules 2000 (WA) r 44 which identifies the appropriate form as Form 1 in Sch 1 of the Sentencing Regulations 1996.
I agree with Murray J that upon the completion of that form by the sentencing Judge or a Clerk of Arraigns, as is commonly the case, the order by which the sentence is imposed is perfected because, upon its issue and service, those to whom it is directed are obliged to give it full force and effect and the offender's liability to serve the term of imprisonment commences.
I also agree with Murray J that the same position applies to a sentence imposed by the Court of Criminal Appeal. In the present case when the appellant was resentenced on 4 September 2002, a warrant of commitment in the appropriate form issued.
The question raised by the present application is whether, having pronounced the formal order and effect having been given to it by the implementation of the warrant of commitment, the Court has the power or jurisdiction to reopen the proceedings. By s 687(1) of the Criminal Code, the Full Court, as defined by s 57 of the Supreme Court Act 1935 (WA), is vested with jurisdiction to hear and determine criminal appeals under ch 69 of the Criminal Code "and the expression Court of Criminal Appeal" is defined in s 687(1) of the Code to mean the Full Court. It is provided in s 687(3) that:
"The Court of Criminal Appeal shall, for the purposes of and subject to the provisions of this chapter, have full power to determine, in accordance with this chapter, any questions necessary to be determined for the purpose of doing justice in the case before the Court."
By s 688(1a)(a), a person convicted on indictment may appeal to the Court of Criminal Appeal against a sentence of indefinite imprisonment passed under the Sentencing Act 1995; and, s 688(1a)(b), with the leave of the Court of Criminal Appeal, may appeal against any other sentence passed upon him, unless the sentence is one fixed by law.
As is the position in the case of the Full Court, the Court of Criminal Appeal is a Court created by statute. By the Supreme Court Ordinance 1861 s 4, the Supreme Court was established as a Court of Judicature and it provided that the Court was:
"… invested with and shall exercise within the said Colony and its Dependencies all the powers, properties, rights, superintendence, force, effect, jurisdiction, authority, pre‑eminence, and advantages which belonged to and are enjoyed, used and in any manner practised in England, in and by the Courts of Queen's Bench, Common Pleas, and Exchequer at Westminster; and the said Court shall also be at all times a Court of Oyer and Teminer and general gaol delivery in and for the said Colony and its Dependencies."
Section 4 went on to:

"… vest in the Supreme Court and its Chief Justice to exercise the jurisdiction of the Court with jurisdiction co‑existent with all of the Courts at Westminster to be adjudged and determined in all and every the same matters according to the laws and statutes of Great Britain in force 'here', and the laws of this Colony …"

In other words the Supreme Court was vested with all of the jurisdiction of the English courts and, in particular, the common law, civil and criminal jurisdiction of those courts. By s 30 of the Supreme Court Ordinance, the Governor in Executive Council was empowered from time to time to hold a Court to be called "The Court of Appeal of Western Australia" which had power in all cases where an appeal did not lie to the Privy Council.
As has been seen, the Court of Criminal Appeal is a creature of statute, the existence of which is acknowledged by s 57(1) and s 58(1)(g) of the Supreme Court Act by which the Full Court has jurisdiction to hear appeals to the Court of Criminal Appeal subject to ch 69 of the Criminal Code. The jurisdiction and powers of the Court of Criminal Appeal are set out in ss 687 ‑ 697. As to appeals against sentence, s 689(3) provides that:
"On an appeal against sentence, the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefore as they think ought to have been passed and in any other case shall dismiss the appeal."
Section 697 confers on the Court of Criminal Appeal a number of supplemental powers which are specified and also provides that the Court may, if they think it necessary or expedient in the interests of justice:
"… exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the Court:
Provided that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial."
It is apparent, therefore, that the Court of Criminal Appeal has the same powers in the context of a criminal appeal as the Full Court has in the context of civil appeals, in respect of which it has been held that the Court has an inherent jurisdiction to revisit or reopen a case which has been decided to remedy a denial of procedural fairness, whether or not the order of the Court has been perfected. In Pantorno v The Queen (1989) 166 CLR 466 at 474 per Mason CJ and Brennan J said:
"Failure to argue a point before a court of criminal appeal presents a considerable obstacle to an applicant who seeks special leave to argue it in this Court. Even if the point emerges clearly only when a court pronounces its judgment, it should be appreciated by counsel who receive judgment that they are under a duty to draw the court's attention to issues which, in the light of the judgment, require further consideration by that court and to move the court to consider any such issues before the formal order of the court is perfected. On occasions, a court of criminal appeal may have to give further consideration to issues which were relegated to the margin of attention during the argument, though it is not required to consider new grounds which counsel abstained from raising on the appeal. In the present case, the failure of counsel to seek further consideration of the natural justice issue once Bridges was overruled by the Full Court is a factor which counts against the grant of special leave. However, as there seems to have been an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a court of criminal appeal once its judgment is pronounced, it is not a fatal objection to the grant of special leave in this case. In this case, as a denial of natural justice appears from the concession made in this Court, as the point was covered by the grounds of appeal in the Court of Criminal Appeal and as argument in this Court proceeded upon the tacit assumption that the formal order of the Court of Criminal Appeal had been perfected so that there are now no means of remedying the position save an appeal to this Court, special leave should be granted."
The implication in that passage was that the assumption was incorrect. In Postiglione v The Queen (1997) 189 CLR 295 at 300, Dawson and Gaudron JJ:
"The view was expressed in Pantorno [at 474] that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected."
On the basis of that authority, this Court constituted by Wallwork, Anderson and Wheeler JJ unanimously held in R v Pallister [2002] WASCA 68(S) that the Court of Criminal Appeal had jurisdiction to reopen a Crown appeal against sentence on the ground that the applicant had served longer in prison prior to the sentence than had been calculated by the Court of Criminal Appeal. Following the reopening of the case, the Court set aside the term of imprisonment which had been imposed and substituted an intensive supervision order ("ISO"). It was also contended that in originally imposing a sentence of imprisonment for 2 years, the Court had acted without any information regarding the effect on the respondent of the 12 months he had already spent in custody; that he had been given no opportunity to present material to the Court on that question, as well as with respect to his rehabilitation.
Section 689 of the Criminal Code has an equivalent in s 668E of the Criminal Code (Qd). In R v Allen (1994) 1 Qd R 526, the Court of Criminal Appeal of Queensland held, by a majority, that it had inherent jurisdiction to vary its order where the order arose from a slip or accidental omission, notwithstanding that such order had been perfected. That decision appears to be consistent with the decisions in Pantorno and Postiglione. It follows that previous decisions such as Grierson v The Queen (1938) 60 CLR 431 and Davies and Cody v The Queen (1937) 57 CLR 170 which held that the Court of Criminal Appeal had no jurisdiction to reopen an appeal which it had heard on the merits and finally determined must be read as subject to exception, particularly taking into account the reference in s 697 to the exercise in relation to the proceedings of the Court any of the powers exercisable by the Full Court in civil appeals. In Johnson & Co Ltd v Clifford (1904) 7 WALR 130, the Court considered that, although a Judge who had made a self‑executing order which had taken effect had no power to extend the time which conditioned that order, the time could be enlarged by the Full Court in the exercise of its appellate jurisdiction. As Burt CJ (with whom Kennedy and Rowland JJ agreed) said in Link Blocks (1981) Pty Ltd v Fullin [1986] WAR 187 at 190:
"That has now become the established position: Bailey v Marinoff (1971) 125 CLR 529; Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VR 187 at 193; Freeman v Rabinov [1981] VR 539; Composite Buyers Ltd v JC Taylor Constructions Pty Ltd [1983] 2 VR 311; and Maher v Wallace Dairy Co Ltd [1984] VR 129."
The general rule, however, is that once an order has been sealed or a judgment entered up, it may only be varied by an appeal to the Full Court. However, after an order has been drawn up, passed and entered, the Court may amend it to make good an omission due to the inadvertence of Court officers or the Court: Milson v Carter [1893] AC 638 at 640, or due to the inadvertence of a party's legal representatives: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594.
Order 21 r 10 of the Rules of the Supreme Court 1971 provides that:
"Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal."
That rule is in the form of a traditional form of a slip rule as to which Mason ACJ, Wilson and Deane JJ said in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (supra) at 594:
"It reflects the inherent jurisdiction of a Court 'at any time to correct an error in a decree or order arising from a slip or accidental omission' (see Milson v Carter [1893] AC 638 at 640). In terms, the rule provides, inter alia, that 'an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons'. The rule extends to authorise an omission resulting from the inadvertence of a party's legal representative (see Fritz v. Hobson (1880) 14 ChD 542, at pp 561-562; Chessum & Sons v. Gordon (1901) 1 KB 694, at p 698; In re Inchcape (Earl) (1942) Ch 394, at pp 397-398; Coppins v. Helmers & Brambles Constructions (1969) 2 NSWR 279, at pp 281-282; Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co. (1973) 1 WLR 300, at p 304). This is so, regardless of whether the order has been drawn up, passed and entered (see Milson v. Carter [1893] AC 638, at p 640; Fritz v. Hobson (1880) 14 Ch D, at p 560)."
In Gould v Vaggelas (1985) 157 CLR 215, the High Court allowed an appeal and dismissed a cross‑appeal, ordered that the judgment of the Full Court be set aside and that in lieu thereof the appeal to that Court be dismissed with costs. The effect of those orders was to restore the judgment of the trial Judge. There was a misstatement of an amount in the formal order which was corrected under the slip‑rule in O 29 r 11 of the High Court Rules. The appellants also asked that there be included in the order of the High Court an additional order, namely, an order that the order of the Full Court of the Supreme Court of Queensland for interest to be paid from the date of judgment to the date of payment at 12 per cent per annum from 18 September. It appears that when the High Court pronounced judgment, counsel for the appellant had inadvertently failed to make an application for an order that the amount of the judgment bear interest.

Accidental slips or omissions are not confined to subsidiary and consequential matters, but may relate to any matter in issue in the proceedings, or to something incidental to such a matter. The error should be of a kind that had the matter been drawn to the Court's attention at the time, the correction would have been made at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 447, 453 and 455. The slip rule itself appears to be founded on the inherent jurisdiction of the Court to prevent an injustice.
In Fritz v Hobson (1880) 14 Ch D 542, it was held by Fry J that while liberty to apply was not expressly reserved by the judgment of the Court, liberty to apply was implied in the order adjourning a motion for an interim injunction. Alternatively, an application could be made under the slip‑rule. The relevant application was made after the judgment had been drawn up, passed and entered. This was also the position in Milson v Carter [1893] AC 638 at 640 per Lord Hobhouse.
In Re Inchcape (Earl of); Craigmyle v Inchcape [1942] 1 Ch 394, judgment was given on a summons to determine the domicile of a testator and an order made for the taxation and payment of the costs of all parties out of the estate. Counsel omitted to ask for inclusion of the substantial costs incurred obtaining advice and evidence prior to issue of the summons. The relevant order had been drawn up, passed and entered and the taxing Master refused to allow such costs. It was contended that the omission of counsel to ask for costs in respect of some aspects of the costs did not constitute an accidental slip or omission for the purposes of the rule. As in Fritz v Hobson ((supra), Morton J said at 398 that such an order would have been made if it had been requested. Reference was made to cases where the omission was made by counsel (Fritz v Hobson (supra), a solicitor (Chessum & Sons v Gordon [1901] 1 KB 694); and a party to the proceedings (Baber v Purvis (1887) 56 LT 131). It was held that by reason of counsel's "accidental omission" the costs had not been provided for so that the Court had jurisdiction to amend the order by making provision for payment of the relevant costs.
In Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 407 I said:
"The jurisdiction to add to or vary a judgment which has been delivered and which has been perfected by formal judgment being entered and extracted in the court is an unusual one. The jurisdiction, of course, exists. Quite apart from the slip rule in O 21 r 10, the court has an inherent jurisdiction to rectify situations which may perpetuate an injustice to litigants.
In Gould v Vaggelas (supra) at 274 – 275, Gibbs CJ, Wilson, Brennan and Dawson JJ in a joint judgment said:
'Recent decisions of this Court provide illustrations of the injustice that may be caused to litigants by the inadvertence of counsel and the willingness of the Court in appropriate circumstances to grant a remedy - L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council (No. 2) (1982) 151 CLR 590; The Commonwealth v. McCormack (1984) 155 CLR 273. (cf. also Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co. [1973] 1 WLR 300; (1973) 1 All ER 569). Nevertheless, the jurisdiction is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation.'
At 275 their Honours noted considerations which would favour an application being granted. The first was that the application in that case did not come as an afterthought. The evidence in that case was that the failure to advert to the question of interest in the High Court was an accidental omission on the part of the appellant's legal representatives. Reference was made to the complexity of the legal issues and the facts in order to explain how the omission came about.
It was relevant in that case that a similar application had been made to the Full Court for such an order. The implication in the reasons is that it was part of counsel's instructions which he accidentally failed to carry out. Of course, so far as interest is concerned, a compelling reason for granting the application was, as their Honours said at 275:
'Clearly an award of interest is necessary to preserve to the appellants the full benefit of their judgment.'
Tak Ming Co Limited v Yee Sang Metal Supplies Co [1973] 1 WLR 300; [1973] 1 All ER 569 was a similar case. In that case the learned trial Judge had determined the issue of liability for work done under a construction contract and awarded costs. Damages were to be assessed. No reference was made to the question of interest on the damages to be quantified. The damages were assessed on 30 July 1969. On 6 August 1969 the respondents took out a summons for an order that interest be paid on the sum due. The matter came before a Judge, other than the trial Judge, who declined jurisdiction. Eventually, on 26 May 1970, a notice of motion was filed seeking to correct the original judgment of the trial judge under the slip rule by the inclusion of an order for interest on the ground that the order had been accidentally omitted. The trial Judge made the necessary correction. An appeal to the Supreme Court of Hong Kong was dismissed and the Privy Council dismissed a subsequent appeal. Their Lordships took the view that, although there had been considerable delay in making the application under the slip rule, such delay did not appear to have caused the appellants to take any step which they would otherwise have refrained from taking, or to omit any step which they would otherwise have taken, and there was no sufficient ground for interfering with the exercise of discretion made by the Judge and affirmed by the Full Court."
In Western Power Corporation v Normandy Power Pty Ltd [2002] WASC 113 McKechnie J said at pars [11] – [12]:
"11.The jurisdiction which Normandy Power Pty Ltd invokes to vary the orders made by Murray J arises in Esther Investments Pty Ltd v Markalinga PtyLtd (1992) 8 WAR 400. Malcolm CJ said at p 407:
'The jurisdiction to add to or vary a judgment which has been delivered and which has been perfected by formal judgment being entered and extracted in the court is an unusual one. The jurisdiction, of course, exists. Quite apart from the slip rule in O 21 r 10, the court has an inherent jurisdiction to rectify situations which may perpetuate an injustice to litigants.'
12.I accept that statement of the law as founding jurisdiction. I do not understand the recent decision in DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 to be authority to the contrary. That case was concerned with the specific power of a statutory court of appeal, not the inherent power of a Supreme Court."
In Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 I made the observation that the Court has an inherent jurisdiction to rectify situations of injustice and referred back to Esther Investments Pty Ltd v Markalinga (supra); as well as Gould v Vaggelas (supra); L Shaddock & Associates v Paramatta City Council [No 2] (supra), and Commonwealth v McCormack (1984) 155 CLR 273, saying:
"Those cases are authority for the proposition that if an order of the Court is made or not made which turns out to be incorrect as a result of the inadvertence of counsel or, I would add, a mistake being made by a Judge which is not corrected by counsel, there is an inherent jurisdiction quite apart from the slip rule, to rectify the orders to avoid injustice."
While that part of the reasons was obiter, Kennedy J expressed his agreement with them.
In my opinion, although each of the cases to which I have referred was within the civil jurisdiction of the Court, that jurisdiction is made available to the Full Court as a Court of Criminal Appeal by virtue of s 697 of the Criminal Code.
I note that Murray J has referred to Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 and the discussion in that case of the capacity of the Full Court of the Family Court of Australia to recall final orders supports the conclusion that the Full Court of this Court, as such, as well as sitting as the Court of Criminal Appeal, in the exercise of appellate jurisdiction, is a creature of statute exercising statutory powers and jurisdiction in the determination of appeals. It needs to be borne in mind, however, that by s 4 of the Supreme Court Ordinance 1861, the Supreme Court and the Chief Justice were invested with and were given the same jurisdiction to exercise in Western Australia as the Courts of Westminster.
In my opinion, the Supreme Court Ordinance invested the Supreme Court with the same inherent jurisdiction of the various Courts at Westminster. Section 16(1) of the Supreme Court Act 1935 in turn provides that:
"Subject as otherwise provided in this Act, and to any other enactment in force in this State, the Supreme Court –
(a)is invested with and shall exercise such and the like jurisdiction, powers and authority within Western Australia and its Dependencies as the Courts of Queen's Bench, Common Pleas, and Exchequer, or either of them, and the Judges thereof, had and exercised in England at the commencement of the Supreme Court Ordinance 1861; and
(b)shall be at all times a Court of Oyer and Terminer and general gaol delivery in and for Western Australia and its Dependencies; and
(c)is authorised, empowered, and required to take cognisance of and hold all pleas and all manner of causes, suits, actions, pleas of the Crown, prosecutions, and informations, whether civil, criminal or mixed, with the same and as full power within Western Australia and its Dependencies to hear, judge, determine and execute therein as the Courts of Queen's Bench, Common Pleas, and Exchequer, and as Justices of Oyer and Terminer and general gaol delivery, had in England at the commencement of the Supreme Court Ordinance 1861, and as shall be necessary for carrying into effect the several jurisdictions, powers, and authorities committed to the Court and shall adjudge and determine in all and every the same matters according to the laws and statutes of the realm of England in force in Western Australia, the laws and statutes of Western Australia and the Acts of the Commonwealth of Australia."
…
(2)There shall be vested in the Supreme Court and the Judges thereof all original and appellate jurisdiction which, under and by virtue of any statute which came into force in Western Australia after the commencement of the Supreme Court Act 1880, and is not repealed, was immediately before the commencement of this Act vested in or capable of being exercised by the Court or a Judge thereof, and such other jurisdiction as by and under this Act or any subsequent statute or otherwise is conferred on or vested in the Court and the Judges thereof."
(3)The jurisdiction vested in the Court and the Judges thereof shall include all ministerial powers, duties and authorities incident to any and every part of such jurisdiction."
Section 6 of the Supreme Court Act provides that:
"There shall continue to be in and for Western Australia and its dependencies a Supreme Court of Judicature, styled as heretofore the Supreme Court of Western Australia:
Provided and it is hereby declared that the Supreme Court of Western Australia heretofore and now held and henceforth to be held is and shall be deemed and taken to be the same Court."
In my opinion, provision makes it clear that the Supreme Court as established by the Supreme Court Ordinance is continued as the same Court by the Supreme Court Act. Section 16(1) provides that, subject to that Act and any other enactment in force in the State, the Supreme Court continues to be invested with the jurisdiction conferred by the Supreme Court Ordinance. Section 16(2), vests in the Supreme Court and the Judges of the Court all original and appellate jurisdiction under any statute which came into force after the commencement of the Supreme Court Act 1880, and is not repealed, which was vested in or capable of being exercised by the Court. Section 16(2) also confers on the Court or a Judge thereof, such other jurisdiction as by or under this Act or any subsequent statute or otherwise is conferred on or vested in the Court or the Judges of the Court.
Provision is made in s 20(a) for the appellate jurisdiction to apply to any appeal from any court "which might immediately before the commencement of this Act have been made to a Court or a Judge". The jurisdiction conferred on the Court of Criminal Appeal under s 697 to exercise the powers of the Full Court in relation to civil matters and issue warrants for enforcing the orders of the Court of Criminal Appeal was conferred by the Criminal Code as first enacted in 1902. There has been no amendment to s 697 except for a minor amendment relating to the evidence of a wife or husband by s 12(10) of the Acts Amendment (Evidence) Act 1991 and a minor amendment to s 697(b) deleting "rules of the Court" and substituting "rules of Court".
Section 22(2) of the Supreme Court Act provides that:
"Subject to the Rules of Court and the General Rules prescribed under The Criminal Code, the practice and procedure in all criminal causes and matters whatsoever in the Supreme Court shall be the same as the practice and procedure in force at the commencement of this Act in relation to similar causes and matters."
In my opinion, the effect of the various provisions to which I have referred, coupled with the inherent jurisdiction of the Court, is that the Court of Criminal Appeal does have jurisdiction or power to recall or reopen a sentence passed by the Court and re‑sentence the appellant,

notwithstanding the perfection of the order imposing the sentence by the issue of a warrant of commitment.

For the reasons I have stated, I do not consider that it is necessary in this case to recall the order of the Court and the warrant and re‑sentence the appellant. If I am wrong in that view, I would be prepared to recall the order and the warrant and re‑sentence the appellant on the basis that the head sentence of 10 years and 6 months and the fixing of a non‑parole period of 5 years and 6 months were just and appropriate in all the circumstances.
MURRAY J: I should commence these reasons by setting out the relevant history of the appellant's application for leave to appeal against severity of sentence.
The appellant pleaded guilty to an offence under the Customs Act 1901 (Cth), s 233B(1)(c), that he attempted to obtain possession of a commercial quantity of narcotic goods, the substance commonly known as "MDMA" or "Ecstasy". The Judge imposed a sentence of 12 years imprisonment and fixed a non‑parole period of 7 years under the Crimes Act 1914 (Cth). The sentence was imposed on 18 December 1998 and was backdated to commence on 1 April 1998 when the appellant was arrested. An error crept into the reasons of this Court in that the date of commencement of the sentence was at one point identified as 3 April 1998. It is an error of no moment to which I shall not again refer because this Court made no adjustment to the commencement date ordered by the sentencing Judge.
The application for leave to appeal to this Court was heard on 21 March 2001. On 27 June 2001, this Court published reasons (Malcolm CJ with whom Murray and Steytler JJ agreed) granting leave to appeal, allowing the appeal and varying the sentence imposed by reducing the non‑parole period from 7 years to 6 years: Mustafa v The Queen [2001] WASCA 192.
The appellant sought special leave to appeal to the High Court. He obtained that leave and the High Court allowed his appeal on 31 May 2002. It quashed the sentence as varied by this Court and remitted the matter to this Court for re‑sentencing. The error identified was this Court's failure to adjust the sentence imposed as well as the non‑parole period.
The matter was again heard by this Court on 31 July 2002 and, in further reasons of Malcolm CJ, with whom Murray and Steytler JJ again

agreed, the Court completed the task of re‑sentencing by imposing a sentence of imprisonment for 10 years and 6 months with a non‑parole period of 5 years and 6 months in lieu of the original sentence of 12 years imprisonment with a non‑parole period of 7 years.

In arriving at that conclusion, Malcolm CJ said at par [27] and par [28]:
"In all the circumstances, I have concluded that the sentence which the offence warranted was one of imprisonment for 14 years which I would discount by 25 per cent to 11 years and 6 months on account of the appellant's plea of guilty, with a further reduction to 10 years and 6 months on account of all other relevant factors including the fact that the appellant has been approved as a "Trusty Prisoner" and is now serving his sentence at the East Perth Lockup. In addition, of course, being a foreign national there is an element of hardship in his lack of close contact with his family in Macedonia. The hardship to the family is not a mitigating factor. The hardship of serving a sentence in this country remote from family support is a limited factor in mitigation.
Finally, it is necessary to adjust the non‑parole period in relation to the sentence of 10 years and 6 months. Having regard to the non‑parole periods fixed in relation to the appellant's co‑offenders, particularly having regard to the appellant's status as a foreign national, I fix the non‑parole period to be served as 5 years and 6 months."
This case requires no discussion of the two‑tiered reasoning process employed by Malcolm CJ: cfWong v The Queen (2001) 76 ALJR 79; R v Powell (2001) 126 A Crim R 137 and the recent decision of this Court in R v Suarez‑Mejia [2002] WASCA 187; 17 July 2002, in which most of the relevant authorities are reviewed. The point presently at issue is that the reasoning process contains within it a mathematical error which I did not detect when I expressed my agreement with what his Honour had written and the conclusion to which he had come. A 25 per cent reduction of the period of 14 years is not 2‑1/2 years but 3‑1/2 years but, from my point of view, that mathematical error does not result in the conclusion that there was error in the final result.
The sentence of 14 years imprisonment was one which might hypothetically have been passed were it not for the other matters identified by Malcolm CJ in his reasons. For my part, I was entirely in accord with the view that the major mitigation of sentence was to be found in the plea of guilty made. This was to be allowed for and, to a lesser extent, mitigation was to be found in other matters personal to the appellant including, particularly, those expressly identified by his Honour. I looked to the final result of 10 years and 6 months imprisonment with a non‑parole period of 5 years and 6 months and found that to be in accord with my view as to the sentence appropriate to be passed.
In that regard, I was particularly moved by parity considerations of the kind recently discussed by the High Court in Postiglione v The Queen (1997) 189 CLR 295. The enterprise as a result of which this appellant was sentenced involved a number of co‑offenders whose respective criminal culpability had to be considered for parity purposes. The relative seriousness and criminality of their offending had to be understood, without overlooking all relevant circumstances applicable to each individual case: R v Olbrich (1999) 199 CLR 270.
The basic facts relating to the commission of the offence and describing the roles of the appellant's co‑offenders are set out in the reasons of the Chief Justice in [2001] WASCA 192 at pars [5] ‑ [14]. For present purposes, it is sufficient to say that the most culpable of the offenders before the Court were accepted to be men named Punevski and Ruvinovski. Their role might be described as that of collectors of the drug upon its importation. After trial and appeals, each was sentenced to 13 years imprisonment with a non‑parole period of 6 years and 8 months. Their roles were virtually indistinguishable: see Punevski v The Queen [2000] WASCA 397 and Ruvinovski v The Queen [2000] WASCA 398 respectively.

Mustafa was to perform a similar role, but his culpability was accepted to be not so great as the other two. He was recruited by them to assist them to deal with the couriers who had brought the drug into the country and, in particular, to deal with a person named Schubert. As between all those who were effectively collectors of the drug here, the appellant's role was accepted by this Court to be "the minor role".
There were four couriers who brought the drug into the country from Amsterdam via Kuala Lumpur. Their names were Schubert, Lindke, Jezowski and Diefenbach. Lindke and Jezowski pleaded guilty. Each was sentenced to 9 years imprisonment with a non‑parole period of 4 years and 6 months. Schubert agreed to co‑operate with the investigating authorities to make a controlled delivery of the drug to those who were to collect it. He did co‑operate in the process and, as a result, the evidence was obtained which led to Punevski, Ruvinovski and Mustafa being arrested and charged. He was sentenced to imprisonment for 5 years and 6 months with a non‑parole period of 2 years and 6 months.
The remaining courier was Diefenbach. She was deemed to be the most culpable of that group of offenders because it was she who had something of an organising role in respect of the activities of the couriers. She also pleaded guilty. Following an appeal against severity of sentence, she was sentenced to 10 years imprisonment with a non‑parole period of 5 years: Diefenbach v The Queen (1999) 108 A Crim R 19.
To my mind, then, Mustafa should receive a sentence which placed him appropriately between the 13 year sentences with non‑parole periods of 6 years and 8 months imposed on Punevski and Ruvinovski, and the 10 year sentence with a non‑parole period of 5 years imposed on Diefenbach. The final outcome of the appellate process for Mustafa, a sentence of 10 years and 6 months with a non‑parole period of 5 years and 6 months, represented, in my view, the most lenient sentence which the Court could impose on the appellant in all the circumstances of his case and, particularly, having regard to considerations of parity of sentencing.
The matter comes again before this Court upon the application of the appellant that the Court should, on the ground of the mathematical error identified earlier in these reasons, recall the sentence it imposed and, in lieu of that sentence, impose a sentence of 9 years and 6 months imprisonment with a non‑parole period of an appropriate proportion of that term, suggested by counsel for the appellant to be a period of, say, 4 years and 9 months. That would take the sentence and the non‑parole period below that imposed on Diefenbach for a subsidiary role and would leave the appellant with a sentence only minimally longer than the other couriers, Lindke and Jezowski. In my view, to so sentence this appellant would involve the Court in error, having regard to all the relevant circumstances affecting the situation of each of the offenders and the parity considerations. If the Court has power to take the course proposed by the appellant, I would not think it proper to do so.
The question of the Court's jurisdiction was debated when this application was heard. I should express my views upon the question as shortly as I may. I bear in mind that the question of jurisdiction in these circumstances will turn completely upon the procedural requirements of the law. The reason why I make that observation will, I hope, become apparent.
The Criminal Code (WA) is, of course, a complete code of the substantive criminal law but it is not a complete code of procedural law. Most notably, the most important such requirement of all, that guilt be proved beyond reasonable doubt, is not mentioned in the Criminal Code or a requirement of any other statutory provision, but there are many aspects of the procedural law which are dealt with in the Code.
So far as sentencing is concerned, the punishments available are, of course, provided by the Code as maximum penalties. As to procedural requirements, one starts with s 654 of the Code, which provides:
"When an accused person pleads that he is guilty of any offence, and when, upon trial, an accused person is convicted of any offence, the proper officer is required to ask him whether he has anything to say why sentence should not be passed upon him: But an omission to do so does not invalidate the judgment."
The administration of what is called traditionally the allocutus may be put to one side. If judgment is not arrested under s 655, s 656 provides that, "the court may sentence and make other orders in respect of the offender under the Sentencing Act 1995". The Code, therefore, requires no particular formality to establish the fact of conviction upon which the liability to be sentenced will arise. Many Judges will say at the appropriate time that judgment of conviction is made or entered, but they do not in fact do anything formally to record conviction and it is sufficient in law if some step is taken towards or in furtherance of the sentencing process: Griffiths v The Queen (1977) 137 CLR 293 (from which case the practice of making a formal announcement of conviction stems); Maxwell v The Queen (1996) 184 CLR 501.
Rather more formality is attendant upon the sentencing process under the Sentencing Act 1995 (WA), but the pronouncement of sentence remains an essentially oral process. Generally speaking, by s 14, the offender is to be present in court. However, that obligation may be discharged if the offender is effectively present by videolink: s 14A. By s 34, the sentence is to be explained to the offender and, by s 35, written reasons are to be provided where a short sentence of imprisonment is to be imposed.
A sentence of imprisonment is given effect by the issue of a warrant of commitment under the Sentencing Act, s 36 and the Criminal Procedure Rules 2000 (WA), r 44, which identifies the appropriate form as Form 1 in Sch 1 to the Sentencing Regulations 1996. The form is a simple one. It recites that the offender has been sentenced to imprisonment and directs his or her imprisonment for the term stated from the date when, according to the pronouncement of sentence, the term is taken to have commenced. There is provision for the form to be signed by the Judge or clerk of arraigns, as is commonly the case. In my opinion, at least upon the issue of the warrant of commitment, if not upon the precedent pronouncement of sentence by the Judge, the order by which the sentence is imposed is perfected, because it is clear that upon the issue of the warrant, those to whom it is directed are obliged to give it force and effect and the offender's liability to serve the term of imprisonment commences.
In my opinion, the same position applies to a sentence imposed by the Court of Criminal Appeal. The process of the issue of a warrant is provided for generally in the Criminal Procedure Rules 2000, r 67, the warrant being in a form provided for by Pt 9 of the Rules in which r 44 is to be found. The records of this Court reveal that when the appellant was re‑sentenced on 4 September 2002 by this Court, a warrant of commitment in the appropriate form issued.
There is, under the Sentencing Act, s 37, a strictly limited power to recall an order imposing such a sentence if a Court sentences an offender, "in a manner that is not in accordance with this Act or the written law under which the offence is committed": section 37(1). The procedure is provided by the Act, s 37(2) and reg 5 of the Sentencing Regulations 1996. That is not, of course, this case.
There is a further specific power, which may be exercised without formally recalling the order by which the sentence was imposed, which is provided in s 37(3), as follows:
"If a court's order imposing a sentencing contains a clerical mistake or an error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction."
That process involves no application or hearing in open court and, again, it is sufficient to say that it is not suggested that the sentence, as distinct from the reasons for its imposition, contained a clerical mistake or error arising from an accidental slip or omission.
It was at one time thought that a Judge, having imposed a sentence during a criminal session, had the power to reconsider and vary the sentence at any time before the end of the particular session, a point in time marked by the date upon which the Judge signed a Calendar after sentencing the last prisoner dealt with at the session: R v Nam & Sansbury [1968] SASR 107, where the history supporting that view is reviewed. However, I doubt whether that would now be the case because of the procedure and effect of the issue of a warrant of commitment and because of the fact that, under the Criminal Procedure Rules 2000, the record finally created is in relation to each individual offender sentenced by the court and the concept of sittings of the court is not given the same legal force and effect as in former days.
At first instance, the record is in the form of the certificate of the clerk of arraigns, signed by that officer or by the Judge, to which the warrant is attached, under r 78. By r 78(6), the certificate is the formal record of the court. The same process is provided by r 68 in relation to the final orders made on appeal by the Court of Criminal Appeal. The certificate is issued by a Registrar, any warrant is attached and, by r 68(5), the certificate is the formal record of the Court of Criminal Appeal and forms part of the record of the Supreme Court.
The Court of Criminal Appeal is, of course, a creature of statute. Its existence is recognised in the Supreme Court Act 1935 (WA), s 57(1) and s 58(1)(g), which empowers the Full Court to hear and determine appeals to the Court of Criminal Appeal under and subject to Ch 69 of the Criminal Code. It is that enactment which constitutes and provides the powers of the Court of Criminal Appeal: see particularly ss 687 ‑ 693. As to appeals against sentence, s 689(3) provides:
"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefore as they think ought to have been passed and in any other case shall dismiss the appeal."
Subject only to the decision of the High Court upon any further application for special leave to appeal (about which I say nothing, of course, as to the competence of such an application), in my opinion, this Court discharged its function finally on 4 September 2002. Certainly,

there is no power expressly, or I think by necessary implication, provided in the Code for the Court to hear and allow an application, as this was, by oral motion to recall a sentence so passed and impose a further sentence in substitution for the sentence originally passed. Indeed, in my opinion, the whole tenor of the provisions of the Code is that upon the completion of its statutory functions this Court is functus officio: cf Postiglione per Dawson and Gaudron JJ at 300.

In my opinion, to so hold would be consistent also with s 20 of the Supreme Court Act which, so far as material, provides that the Supreme Court shall have jurisdiction to hear and determine:
"(b)any application, or any appeal, whether by way of case stated or otherwise, which by virtue of any enactment the Court or a Judge has power to hear and determine."
The point thus made is that to which I have referred. The Court in the exercise of appellate jurisdiction is a creature of statute exercising statutory powers and jurisdiction in the determination of appeals.
If that is right, it follows that this Court can have no inherent jurisdiction to recall a sentence passed by it and to re‑sentence the appellant upon the application now made to it. That is not to say that the Full Court may not have some inherent jurisdiction, to which reference was generally made by Malcolm CJ in Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 at 524. His Honour's remarks were obiter dicta and this case does not require their reconsideration. See also the decision of the High Court in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
In my opinion, the discussion by the High Court of the capacity of the Full Court of the Family Court to recall final orders supports the conclusion to which I have come in relation to the Court of Criminal Appeal: see DJL v Central Authority (2000) 201 CLR 226 at 240 ‑ 246 [25] ‑ [40]. The conclusion to which I would come is that the Court of Criminal Appeal has no power to recall and set aside a sentence imposed pursuant to its statutory power in the final determination of an appeal, at least, as in this case, once that sentence has been perfected and become of full force and legal effect.
STEYTLER J: I have had the advantage of reading the judgment of Murray J. It is consequently unnecessary for me to recite the relevant history of the application.
Like Murray J, when expressing my agreement with the judgment of the Chief Justice delivered on 4 September 2002, I considered that the

final result of 10 years and 6 months' imprisonment, with a non‑parole period of 5 years and 6 months, was appropriate in all of the circumstances of the case. However, a 25 per cent discount on account of the appellant's plea of guilty seemed to me also to be appropriate and I was not, of course, aware of the mathematical error which had occurred. If the mathematics were now to be corrected, the discounted sentence would, after taking into account the further reduction of 1 year, be one of 9 years and 6 months' imprisonment. Moreover, if the non‑parole period was to be adjusted in the manner suggested by counsel for the appellant, that period would be one of only 4 years and 9 months' imprisonment.

After giving the matter some anxious consideration, more particularly so due to its vexed history, I have come to the conclusion that neither result would be appropriate, particularly when regard is had to the parity considerations which have been extensively referred to by Murray J.
Like Murray J, and for the reasons expressed by his Honour, it seems to me that the appellant should receive a sentence which placed him between the 13‑year sentences with non‑parole periods of 6 years and 8 months imposed on Punevski and Ruvinovski and the 10‑year sentence with a non‑parole period of 5 years imposed on Diefenbach. The sentence, as it stands, achieves that objective. If either the head sentence or the non‑parole period was to be further reduced, the result would, in my respectful opinion, not be an appropriate one having regard for the seriousness of the appellant's offence and for the considerations of parity to which I have referred.
That being so, I am not prepared to interfere with the sentence previously imposed, even though that will have the result that the discount given to the appellant in respect of his plea of guilty, while remaining the same in terms of length of time, will be a smaller percentage than that which I had previously understood it to be.
In reaching this conclusion I am prepared to assume, without deciding (the question has not been argued fully), that the Court has jurisdiction to revisit the sentence imposed by it in circumstances of this kind. Murray J has set out, in his Honour's careful consideration of the matter, a number of the considerations which bear upon that issue. I would add, to what his Honour has said, a reference to Pantorno v The Queen (1989) 166 CLR 466 at 484 in which Deane, Toohey and Gaudron JJ said (at 484), in a case in which there had been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, that it would ordinarily be preferable that the matter be dealt with by further application to that Court, although the Court expressed no view on the validity of an assumption that the Court of Criminal Appeal lacked the jurisdiction to do so. (See also Postiglione v The Queen (1997) 189 CLR 295 at 300.)
The upshot of the aforegoing is that I am not prepared to interfere in the sentence previously imposed.