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R v Carmody (No 2)

R v Carmody (No 2)

Case [2017] ACTSC 25 14 February 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Carmody (No 2)
Citation:	[2017] ACTSC 25
Hearing Date:	31 January 2017
DecisionDate:	14 February 2017
Before:	Refshauge J
Decision:	1. That order 3 of the order made by the Honourable Justice Penfold on 27 July 2012 be amended by omitting “3 years” and substituting “18 months”. 2. The parties be heard as to how the sentencing proceedings should now be conducted.
Catchwords:	PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Amendment to a Court order – slip rule – period of Good Behaviour Order incorrectly entered by the Court registry – new order made reflecting original pronouncement by sentencing Judge – proceedings adjourned awaiting receipt of the assessment for an Intensive Correction Order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 86, Pt 6.4, Pt 6.5 Crimes (Sentencing) Act 2005 (ACT), ss 11, 11(3), 13(2), 78(1)(b) Court Procedures Rules 2006 (ACT), r 6906
Cases Cited:	Auld v The Queen [2013] ACTCA 21 Boney v The Queen [2015] NSWCCA 291 Brennand v Hartung (No 3) [2015] ACTSC 149 Elson v Ayton [2010] ACTSC 70; 241 FLR 178 Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580 Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 198; 280 FLR 118 R v Carmody (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 27 July 2012) R v Carmody [2016] ACTSC 382 R v Gorman [2009] ACTSC 7 R v NF (No 2) [2016] ACTSC 227 Sampson v De Haan [2016] ACTSC 327 Wickey v The Queen (No 2) [2012] ACTCA 51; 269 FLR 289
Parties:	The Queen (Crown) Jakson Mark Carmody (Accused)
Representation:	Counsel Mr T Hickey (Crown) Ms L Taylor (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)
File Numbers:	SCC 259 of 2015 SCC 258 of 2015 SCC 106 of 2009 SCC 16 of 2009 SCC 377 of 2008 SCC 283 of 2008 SCC 211 of 2008 SCC 272 of 2007

REFSHAUGE J:

The accused, Jakson Mark Carmody, has a long and serious criminal history, apparently contributed to significantly by drug abuse and mental impairment.

More recently, however, he appears to have been overcoming his challenges and making good progress with rehabilitation.

Unfortunately, however, he was involved in an altercation with a visitor to a neighbouring property on 11 June 2015. That led to him being charged with offences of recklessly inflicting grievous bodily harm and damaging property, to which he pleaded guilty on 24 August 2016.

On 16 December 2016, I commenced sentencing proceedings and convicted Mr Carmody of those two offences but adjourned the further sentencing to investigate the possibility of making an Intensive Correction Order under s 11 of the Crimes (Sentencing) Act 2005 (ACT).

In addition to the seriousness of the offences themselves, it was alleged that Mr Carmody, by committing the offences, had breached a Good Behaviour Order made on 27…

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 Carmody (No 2)

Details

AGLC: R v Carmody (No 2) [2017] ACTSC 25
Case: [2017] ACTSC 25
Decision Date: 14 February 2017

CaseChat Overview and Summary

The case of R v Carmody (No 2) involved the defendant, Carmody, and the Crown, and was heard in the Supreme Court of Victoria. The dispute centred on an amendment to a court order, specifically a Good Behaviour Order, that had been incorrectly entered by the Court registry. The original order had been made by Justice Penfold on 27 July 2012, but contained an error in the duration of the Good Behaviour Order, which was incorrectly stated as 3 years instead of 18 months, as originally pronounced by the sentencing judge. The Crown sought to have this error corrected through the application of the 'slip rule', which allows for the correction of errors in court orders.

The legal issue before the court was whether the error in the court order could be corrected under the 'slip rule', and if so, what the appropriate remedy would be. The court had to consider the principles governing the correction of errors in court orders, and whether the error in this case was such that it could be corrected without causing unfairness or injustice to either party. The court also had to consider the appropriate remedy for the error, and whether the original order should be amended to reflect the correct duration of the Good Behaviour Order.

The court held that the error in the court order could be corrected under the'slip rule', and that the appropriate remedy was to amend the order to reflect the correct duration of the Good Behaviour Order. The court noted that the error was a clerical one, and that there was no dispute as to the correct duration of the order. The court also noted that the error did not cause any unfairness or injustice to either party, and that correcting the error would simply ensure that the court order accurately reflected the original pronouncement by the sentencing judge. The court therefore made the appropriate orders to amend the court order, and adjourned the proceedings to allow for the parties to be heard as to how the sentencing proceedings should now be conducted.

In summary, the court held that the error in the court order could be corrected under the'slip rule', and that the appropriate remedy was to amend the order to reflect the correct duration of the Good Behaviour Order. The court made the appropriate orders to amend the court order, and adjourned the proceedings to allow for the parties to be heard as to how the sentencing proceedings should now be conducted.

Orders

Orders of the court

1. That order 3 of the order made by the Honourable Justice Penfold on 27 July 2012 be amended by omitting “3 years” and substituting “18 months”.

2. The parties be heard as to how the sentencing proceedings should now be conducted.

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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Citations

AGLC Citation

R v Carmody (No 2) [2017] ACTSC 25

Most Recent Citation

R v Carmody (No 3) [2017] ACTSC 60

Cases citing this decision · 3 of 3 shown

R v Elphick (No 3)
[2017] ACTSC 302 Para 1

…In R v Carmody (No 2) [2017] ACTSC 25 at [36], I amended a sentence where the Good Behaviour Order it made had expired. In that case, there was a live issue as to whether the offences for which I was dealing with Mr Carmody had constituted a breach of the earlier, incorrectly recorded, Court order. Both parties we…
Indigenous Business Australia v Schofield
[2017] ACTSC 56 Para 1

…called “slip rule” now enacted in r 6906 of the Court Procedures Rules 2006 (ACT). I have discussed the principles recently in R v Carmody (No 2) [2017] ACTSC 25 at [23]-[26].…
R v Carmody (No 3)
[2017] ACTSC 60 Para 1

…that Mr Carmody could no longer be found to be in breach of the Good Behaviour Order that had in fact been imposed by her Honour: R v Carmody (No 2) [2017] ACTSC 25.…

View all 3 citing cases →

Cases cited in this decision · 12 of 12 shown

Sampson v De Haan
[2016] ACTSC 327 Para 1

…an aggravating factor in respect of the overall circumstances of the offending, especially where constituted by further offending ( Sampson v De Haan [2016] ACTSC 327 at [92]).…
R v Carmody
[2016] ACTSC 382 Para 1

…When sentencing Mr Carmody on 16 December 2016, I said in R v Carmody [2016] ACTSC 382 ( R v Carmody (2016) ) at [92]:…
R v NF (No 2)
[2016] ACTSC 227 Para 1

…Regrettably, this appears not to be a unique problem. See R v NF (No 2) [2016] ACTSC 227 at [4]. It is regrettable particularly for such orders have direct and significant effects on offenders. While judicial officers are not immune from errors, clearly neither are officers of the Court registry.…
Boney v The Queen
[2015] NSWCCA 291 Para 1

…While the breach of a Good Behaviour Order does not increase the objective seriousness of an offence ( Boney v The Queen [2015] NSWCCA 291 at [19]), clearly it is an aggravating factor in respect of the overall circumstances of the offending, especially where constituted by further offending ( Sampson v De Haan [201…
Brennand v Hartung (No 3)
[2015] ACTSC 149 Para 1

…ticular judge. While the making of an amendment by another judge often applies where a judge has retired (see, for example, Brennand v Hartung (No 3) [2015] ACTSC 149), the circumstances where that is appropriate are not so limited as I noted in Wickey v The Queen (No 2) [2012] ACTCA 51; 269 FLR 289 at 295; [36]-[3…
Lewis v Chief Executive Department of Justice and Community Safety (No 2)
[2014] ACTSC 196 Para 1

…riodic detention. See Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 198; 280 FLR 118 at 163; [266]-[267].…
Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory
[2013] ACTSC 198 Para 1

…imprisonment by periodic detention. See Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 198; 280 FLR 118 at 163; [266]-[267].…
Auld v The Queen
[2013] ACTCA 21 Para 1

…hich he breached was, of course, an aggravating circumstance of some significance to any sentence I was to impose. See, for example, Auld v The Queen [2013] ACTCA 21 at [9].…
Wickey v The Queen (No 2)
[2012] ACTCA 51 Para 1

…, Brennand v Hartung (No 3) [2015] ACTSC 149), the circumstances where that is appropriate are not so limited as I noted in Wickey v The Queen (No 2) [2012] ACTCA 51; 269 FLR 289 at 295; [36]-[37].…
Elson v Ayton
[2010] ACTSC 70 Para 1

…done with notice to the parties and, if necessary, giving them an opportunity to be heard. I set out the proper approach to be taken in Elson v Ayton [2010] ACTSC 70; 241 FLR 178 at 192-4; [81]-[93]. As noted above (at [20]), I had raised the matter with both parties and there is now consent to the amendment from…
R v Gorman
[2009] ACTSC 7 Para 1

…case setting out the Good Behaviour Order made by Penfold J on 27 July 2012, may only be amended or altered in limited circumstances. See R v Gorman [2009] ACTSC 7. It should, of course, only be done with notice to the parties and, if necessary, giving them an opportunity to be heard. I set out the proper approa…
Jovanovic v The Queen
[1999] FCA 1008 Para 1

…s the record of proceedings made by the Judge’s associate and from which the orders of the Court are ordinarily prepared (see Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580 at 592; [59]), attached a typescript of the orders which make it crystal clear that the Good Behaviour Order was made for a period of 18 mo…

Legislation cited in this decision · 3

Crimes (Sentencing) Act 2005 (ACT)
11, 11(3), 13(2), 78(1)(b) 5 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
6906 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
86 2 mentions (from Para 1)