R v AB (No 2)

[2011] NSWCCA 256

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v AB (No. 2) [2011] NSWCCA 256

Hearing dates:

On written submissions

Decision date:

02 December 2011

Before:

Bathurst CJ at 1
Hoeben J at 2
Johnson J at 3

Decision:

1. Pursuant to Rule 50C Criminal Appeal Rules , orders made by the Court on 14 October 2011 are set aside.

2. Crown appeal allowed.

3. Sentences imposed in the District Court on 9 March 2011 with respect to the first, second, third and fourth counts are quashed.

4. On the first count, the Respondent is sentenced to a fixed term of imprisonment of three months commencing on 28 May 2010 and expiring on 27 August 2010.

5. On the second count, the Respondent is sentenced to a fixed term of imprisonment of 18 months commencing on 28 June 2010 and expiring on 27 December 2011.

6. On the third count, the Respondent is sentenced to a fixed term of imprisonment of two years commencing on 28 November 2011 and expiring on 27 November 2013.

7. On the fourth count, the Respondent is sentenced to imprisonment for three years commencing on 28 October 2013 and expiring on 27 October 2016, with that sentence comprising a non-parole period of one year and four months commencing on 28 October 2013 and expiring on 27 February 2015 and a balance of term of one year and eight months commencing on 28 February 2015 and expiring on 27 October 2016.

8. The sentence imposed in the District Court on 9 March 2011 for the offence of driving whilst disqualified, pursuant to a certificate under s.166 Criminal Procedure Act 1986 is confirmed.

9. The orders for disqualification made in the District Court on 9 March 2011 are confirmed.

10. Under s.50 Crimes (Sentencing Procedure) Act 1999, it is directed that the Respondent be released on parole on 28 February 2015.

Catchwords:

CRIMINAL LAW - Crown appeal - appeal allowed and Respondent resentenced - aggregate sentencing provisions utilised - aggregate sentencing provisions not available given timing of pleas of guilty - further slip in calculation of sentences - application under Rule 50C Criminal Appeal Rules - misapprehension of law materially affecting appeal judgment - order made under Rule 50C - Respondent resentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment Act 2010
Criminal Procedure Act 1986
Criminal Appeal Rules

Cases Cited:

R v AB [2011] NSWCCA 229
R v Green and Quinn [2011] NSWCCA 71

R v Burrell [2007] NSWCCA 79; 175 A Crim R 21
Alramadan v Director of Public Prosecutions (NSW) No. 2) [2008] NSWCCA 69
Kauwenberghs v R (Cth) [2009] NSWCCA 201
Erceg v District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455
R v Finnie (No. 2) [2004] NSWCCA 150

Category:

Consequential orders

Parties:

Regina (Appellant)
AB (Respondent)

Representation:

Ms S Dowling (Appellant)
Mr G Corr (Respondent)
Solicitor for Public Prosecutions (Appellant)
M Doughty (Respondent)

File Number(s):

2009/55060

 Decision under appeal 

Date of Decision:

2011-03-09 00:00:00

Before:

Her Honour Judge Murrell SC

File Number(s):

2009/55060

Judgment

1. BATHURST CJ : I agree with Johnson J.

1. HOEBEN J : I agree with Johnson J and the orders which he proposes.

1. JOHNSON J : On 14 October 2011, the Court gave judgment in this Crown appeal, allowing the appeal and making orders which effectively increased the period of imprisonment which the Respondent is to serve for his offences: R v AB [2011] NSWCCA 229 ("the principal judgment").

1. By letter dated 28 October 2011, the solicitor for the Crown wrote to the Registrar of the Court of Criminal Appeal, at the request of Mr Corr, counsel for AB. The letter brought to the Court's attention, for the purpose of Rule 50C Criminal Appeal Rules , what were said to be two errors in the principal judgment. Thereafter, written submissions on behalf of the Crown and the Respondent were filed on 4 November 2011.

The Issues Raised

1. Both the Crown and the Respondent contend that:

(a) there has been a slip made in the calculation of the period of aggregation of the notional sentences, creating a three-month gap between the expiry of the sentence on Count 3 and the commencement of the sentence on Count 4, during which period the Respondent would not be serving a sentence;

(b) it was not open to the Court to impose an aggregate sentence pursuant to s.53A Crimes (Sentencing Procedure) Act 1999 as s.53A does not apply to sentences for offences in respect of which a plea of guilty had been entered prior to the commencement of that section on 14 March 2011.

1. The Respondent submitted further that there has been an arithmetical error in the calculation of the total sentence and that this should be corrected pursuant to s.43 Crimes (Sentencing Procedure) Act 1999 .

Consideration of Application

1. Both the Crown and the Respondent request the Court to make orders under Rule 50C Criminal Appeal Rules to overcome the agreed difficulties identified at [5] above.

1. Rule 50C allows the Court to set aside or vary an order in the circumstances outlined in the Rule where application is made within 14 days after the order is entered. I am satisfied that the application was made within the time specified in the Rule.

1. I accept that the letter dated 28 October 2011 is sufficient to constitute an application under Rule 50C: R v Green and Quinn [2011] NSWCCA 71 at [27]-[30].

1. As mentioned in R v Green and Quinn at [23], Rule 50C was introduced in 2007 following the decision of this Court in R v Burrell [2007] NSWCCA 79; 175 A Crim R 21.

1. This Court has held that Rule 50C may be utilised where there has been some misapprehension of fact or law, not solely attributable to the applicant, which materially affected this Court's judgment in the appeal: Alramadan v Director of Public Prosecutions (NSW) No. 2) [2008] NSWCCA 69 at [7]; Kauwenberghs v R (Cth) [2009] NSWCCA 201 at [8]-[10]. The Court has power, in any event, to correct accidental slips or omissions so as to ensure that orders finally made reflect the intention of the Court: R v Green and Quinn at [21].

1. With respect to the first issue raised, it is clear that there is a gap of three months from 27 September 2013 from the conclusion of the notional sentence on the third count and the commencement of the notional sentence on the fourth count. It is appropriate to remedy this slip.

1. The second issue raised concerns the commencement of the provisions allowing aggregate sentencing for New South Wales offences. The topic of aggregate sentencing was touched upon in the principal judgment at [11], [127]-[143]. Although there was some discussion at the hearing before this Court on 16 August 2011 concerning the commencement date of the statutory scheme for aggregate sentencing, with 14 March 2011 being identified for that purpose, a further significant part of the transitional provisions was not picked up by the parties or members of the Court.

1. The amendment made by the Crimes (Sentencing Procedure) Amendment Act 2010 , which introduced the aggregate sentencing scheme, applies to the determination of a sentence for an offence whenever committed, unless a court has convicted the person being sentenced of the offence, or a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of the amendment on 14 March 2011: Clause 62, Schedule 2, Crimes (Sentencing Procedure) Act 1999 .

1. The Respondent pleaded guilty in the Local Court on 2 March 2010 and was thereafter committed for sentence. He adhered to those pleas of guilty in the District Court. Accordingly, as the Respondent pleaded guilty to the charges prior to commencement of ss.44(2A) and 53A, it was not open to this Court to impose an aggregate sentence under s.53A or a single non-parole period under s.44(2A) as part of an aggregate sentence.

1. Each of the issues raised by the parties constitutes a misapprehension of fact or law, not solely attributable to the parties, which materially affected this Court's judgment in the appeal. Orders may be made under Rule 50C to remedy the position. The aggregate sentencing error would also be amenable to correction under s.43 Crimes (Sentencing Procedure) Act 1999 : Erceg v District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455; R v Finnie (No. 2) [2004] NSWCCA 150. However, the parties have applied to the Court under Rule 50C, and that is the provision which ought be utilised in the circumstances.

1. Subject to mention of the further matter raised on behalf of the Respondent, it is appropriate that the Court make orders under Rule 50C to remedy the position.

1. In his written submissions, Mr Corr contended that there has been a further arithmetical error in the calculation of the sentence beyond the matters agreed between the parties. I do not accept the arguments advanced in support of this proposition.

1. I am satisfied that the appropriate course is that the Court make orders to remedy the matters agreed between the parties as requiring further orders of the Court. This course will give effect to the intention of the Court in determining the appeal.

Appropriate Orders

1. The submission of the Crown on the appeal, which was accepted by the Court, was that the individual sentences for the offences should not be increased. Rather, if the Crown appeal was allowed, the Crown submission was that there should be increased levels of accumulation so that the Respondent would be required to serve a significantly longer period of imprisonment for his offences, with an increased minimum term.

1. In sentencing the Respondent other than by use of aggregate sentencing, it is appropriate that the Court should maintain the approach of not increasing the individual sentences.

1. The Court should maintain the approach taken at [141] of the principal judgment that the minimum period of imprisonment which the Respondent should be required to serve for his offences is a period of four years and nine months, with an appropriate period of conditional liberty being available after release on parole.

1. I consider that the appropriate course is to impose fixed terms of imprisonment on Counts 1, 2 and 3. In the circumstances of this case, I am satisfied that fixed term sentences are appropriate for these counts to give effect to the Court's intention: s.45 Crimes (Sentencing Procedure) Act 1999 .

1. A largely cumulative term of imprisonment for three years, comprising both a non-parole period and a balance of term, will be imposed on the fourth count. The sentence on the fourth count will comprise a non-parole period of one year and four months with a balance of term of one year and eight months. A finding of "special circumstances" ought be made flowing from the substantial level of accumulation of the sentences, warranting a variation in the statutory ratio under s.44 Crimes (Sentencing Procedure) Act 1999 on the fourth count.

1. Because the head sentence on the fourth count will involve imprisonment for three years, the Court will make an order under s.50 Crimes (Sentencing Procedure) Act 1999 directing the release of the Respondent on parole at the end of the non-parole period. This order will work in the interests of the Respondent.

1. There will be a very substantial measure of accumulation, which will result in a total effective minimum period of four years and nine months, with an effective balance of term of one year and eight months.

1. To allow a single coherent understanding of all orders to be made, the appropriate course in this case is to set aside the entirety of the orders made by the Court on 14 October 2011 and to make orders to give effect to this judgment.

1. I propose the following orders:

(a) pursuant to Rule 50C Criminal Appeal Rules , orders made by the Court on 14 October 2011 are set aside;

(b) Crown appeal allowed;

(c) sentences imposed in the District Court on 9 March 2011 with respect to the first, second, third and fourth counts are quashed;

(d) on the first count, the Respondent is sentenced to a fixed term of imprisonment of three months commencing on 28 May 2010 and expiring on 27 August 2010;

(e) on the second count, the Respondent is sentenced to a fixed term of imprisonment of 18 months commencing on 28 June 2010 and expiring on 27 December 2011;

(f) on the third count, the Respondent is sentenced to a fixed term of imprisonment of two years commencing on 28 November 2011 and expiring on 27 November 2013;

(g) on the fourth count, the Respondent is sentenced to imprisonment for three years commencing on 28 October 2013 and expiring on 27 October 2016, with that sentence comprising a non-parole period of one year and four months commencing on 28 October 2013 and expiring on 27 February 2015 and a balance of term of one year and eight months commencing on 28 February 2015 and expiring on 27 October 2016;

(h) the sentence imposed in the District Court on 9 March 2011 for the offence of driving whilst disqualified, pursuant to a certificate under s.166 Criminal Procedure Act 1986 is confirmed;

(i) the orders for disqualification made in the District Court on 9 March 2011 are confirmed;

(j) under s.50 Crimes (Sentencing Procedure) Act 1999, it is directed that the Respondent be released on parole on 28 February 2015.

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Decision last updated: 02 December 2011