Norford v The Queen (No 2)

[2020] NSWCCA 175

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Norford v R (No 2) [2020] NSWCCA 175

Hearing dates:

On the papers

Date of orders:

27 July 2020

Decision date:

27 July 2020

Before:

Simpson AJA at [1]
Rothman J at [1]
Bellew J at [1]

Decision:

(1) The orders pronounced by the Court on 27 May 2020 are set aside and the following orders substituted in lieu thereof.

(2) Leave to appeal against sentence granted.

(3) Appeal allowed.    

(4) The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.

(5) In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 31 October 2018 and to expire on 30 July 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 31 July 2020 and expiring on 30 April 2022.

Catchwords:

PRACTICE AND PROCEDURE – Amendment of orders – Unintended slip – No point of principle

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Rules (NSW)

Cases Cited:

Akkawi v R (No 2) [2013] NSWCCA 72

Alramadan v R (No 2) [2008] NSWCCA 69

Norford v R [2020] NSWCCA 104

Category:

Principal judgment

Parties:

Timothy John Norford – Applicant
Regina – Respondent

Representation:

Counsel:
P Coady – Applicant
C Young – Respondent

Solicitors:
Legal Aid NSW – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s):

2018/333824

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 July 2019

Before:

Acting Judge Conlon SC

Judgment

THE COURT:

1. The Court delivered judgment in this matter on 27 May 2020 and made the following orders:[1]

   1. Norford v R [2020] NSWCCA 104.

1. Leave to appeal against sentence granted.

2. Appeal allowed.    

3. The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.

4. In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 30 November 2018 and to expire on 29 August 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 30 August 2020 and expiring on 29 May 2022.

2. On 19 June 2020 the solicitor for the applicant, with the consent of the Crown, wrote to the Registrar of the Court querying whether there was an error in order (4) in terms of the commencement date of the sentence imposed by this Court. The applicant’s solicitor submitted that having regard to the sentence imposed at first instance, and having regard to the reasons for judgment, the commencement date should have been 31 October 2018 and not 30 November 2018. The Crown made no submission to the contrary.

3. The applicant was originally sentenced in respect of two separate offences. The first was contrary to s 111(2) of the Crimes Act 1900 (NSW), in respect of which the applicant was sentenced to 18 months imprisonment commencing on 31 October 2018. The second was contrary to s 112(2) of the Crimes Act 1900 (NSW), in respect of which the applicant was sentenced to 2 years and 6 months imprisonment, commencing on 31 October 2018. Accordingly, the sentence imposed for the first offence was wholly subsumed in the sentence imposed for the second.

4. The application for leave to appeal against sentence was restricted to the sentence imposed for the second of the two offences. As set out above, this Court quashed that sentence and imposed, in lieu thereof, a non-parole period of 1 year and 9 months imprisonment, with an additional term of 1 year and 9 months imprisonment. It will be evident from the Court’s reasons that there was no intention to commence that sentence one month later than the original sentence imposed at first instance. The commencement date of 30 November 2018 in order (4) is an accidental slip and should have read 31 October 2018. The order as pronounced did not reflect the Court’s intention and the variation which is sought on behalf of the applicant does not alter the Court’s reasons for judgment.

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

50C Power to set aside or vary order

(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.

(1A) An application to set aside or vary an order may only be made with the leave of the Court.

(1B) The Court may determine both whether to grant leave and the application on the papers.

(2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.

(3) 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.

(4) The Court may not extend the time limited by subrule (2) or (3).

(5) Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions).

6. Noting the terms of r 50C(5), the Court has power to correct an accidental slip of this nature. [2]

   2. Akkawi v R (No 2) [2013] NSWCCA 72; Alramadan v R (No 2) [2008] NSWCCA 69.

7. In these circumstances the Court makes the following orders:

1. The orders pronounced by the Court on 27 May 2020 are set aside and the following orders substituted in lieu thereof.

2. Leave to appeal against sentence granted.

3. Appeal allowed.    

4. The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.

5. In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 31 October 2018 and to expire on 30 July 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 31 July 2020 and expiring on 30 April 2022.

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Endnotes

Amendments

27 July 2020 - Para. 2 date changed to 30 November 2018

29 July 2020 - Coversheet (5) - Expiration date of 30 May 2022 amended to 30 April 2022.

Para [7] (5) - Expiration date of 30 May 2022 amended to 30 April 2022.

Decision last updated: 29 July 2020