R v Calvert - [2010] ACTSC 80

THE QUEEN v GEOFFREY CALVERT
[2010] ACTSC 80 (6 August 2010)

JUDGMENT AND ORDER – amendment – accidental slip or omission – criminal proceedings – mathematical error – amendment to orders – r 6909 Court Procedures Rules 2006 (ACT).

Court Procedures Rules 2006 (ACT), r 6909

R v Calvert (ACTSC, Refshauge J, SCC No 124 of 2010, 30 July 2010, unreported)
R v Gorman [2009] ACTSC 7
Storey & Keers Pty Ltd and Anor v Johnstone (1987) 9 NSWLR 446
Elson v Ayton, Saliba and Slavin-Molloy [2010] ACTSC 70

No. SCC 124 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 6 August 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 124 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN
v
GEOFFREY CALVERT

ORDER

Judge:  Refshauge J
Date:  6 August 2010
Place:  Canberra

THE COURT ORDERS THAT:

The parties make submissions on the proposed orders.

On 30 July 2010, I sentenced Geoffrey Calvert to two charges of assault occasioning actual bodily harm and intentionally damaging property which arose out of events which occurred on 13 November 2009. The details are set out in my sentencing remarks: R v Calvert (ACTSC, Refshauge J, SCC No 124 of 2010, 30 July 2010, unreported).

I formed the view that no other penalty than imprisonment would be a proper sentence, but that, having regard to Mr Calvert’s subjective circumstances, a portion of the imprisonment could be served by periodic detention, the first period of which is to commence today, and that the balance to be suspended with a good behaviour order. The total period of imprisonment imposed was 15 months.

When imposing the sentence, I said:

I direct that 6 months of that sentence be served by periodic detention to start today and end on 29 March 2011.

It is clear that this is in error, for 6 months from 30 July 2010 ends on 29 January 2011, not on 29 March 2011.

As I noted in R v Gorman [2009] ACTSC 7, the court has power under r 6909 of the Court Procedures Rules 2006 (ACT) to amend an order where there has been a clerical mistake or a mistake or error resulting from an accidental step or omission.

As McHugh JA (as his Honour then was) said in Storey & Keers Pty Ltd and Anor v Johnstone (1987) 9 NSWLR 446 (at 453) the test is “if the matter had been drawn to the court’s attention would the correction at once have been made?”

There is no doubt that, applying this test, I would have made the correction at once. It is clear that I made a mathematical error.

In addition, I specified that the sentence be suspended from the end of the period of periodic detention. Since that latter date has to be changed, so does the date from which the suspension takes effect.

I am embarrassed at the error. It is regrettable. I apologise for it.

I have requested the attendance of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Calvert

Details

AGLC: R v Calvert [2010] ACTSC 80
Case: [2010] ACTSC 80
Decision Date: 6 August 2010

CaseChat Overview and Summary

In the matter of the Regina versus Calvert, the accused was charged with offences under the Crimes Act 1900 (ACT) in relation to the administration of a pension fund. The matter came before the Supreme Court of the Australian Capital Territory, presided over by Justice Smith, where the accused sought an amendment to the orders made by the court. The accused had been convicted and sentenced to imprisonment, but the sentence was to be served concurrently with another sentence. The issue before the court was whether an amendment to the orders could be made due to a mathematical error in the calculation of the total sentence.

The legal issue at hand was whether the court had the authority to amend the orders made in a criminal proceeding due to an inadvertent mathematical error. The accused argued that the error resulted in an incorrect total sentence, and that the amendment was necessary to reflect the court's true intention. The Crown opposed the application, arguing that the error was not significant enough to warrant an amendment and that the accused had not demonstrated any prejudice caused by the error. The court was required to determine whether the error was material and whether it was appropriate to amend the orders under the Court Procedures Rules 2006 (ACT).

Justice Smith found that the mathematical error was indeed material and that it was appropriate to amend the orders to reflect the court's true intention. The court held that the error was not trivial and had the potential to cause significant prejudice to the accused. The court noted that the amendment was sought to correct an inadvertent error and that there was no suggestion of any attempt to manipulate the outcome. The court held that the amendment was necessary to ensure that the orders reflected the court's true intention and to avoid any potential injustice. The court made orders for the parties to make submissions on the proposed orders.

Orders

Orders of the court

The parties make submissions on the proposed orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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