R v Carrion

[2002] NSWCCA 21

Reported Decision: (2002) 128 A Crim R 29

New South Wales

Court of Criminal Appeal

CITATION:	R v Carrion [2002] NSWCCA 21
FILE NUMBER(S):	CCA 60648/99
HEARING DATE(S):	4/2/02
JUDGMENT DATE:	5 March 2002
PARTIES :	Regina Roy Carrion
JUDGMENT OF:	Wood CJ at CL at 1; Sully J at 56; Dowd J at 57

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	60648/99
LOWER COURT JUDICIAL OFFICER :	Court of Criminal Appeal

COUNSEL :	R A Hulme (Crown) J S Stratton (Respondent)
SOLICITORS:	S E O'Connor (Crown) T A Murphy (Respondent)
CATCHWORDS:	CRIMINAL LAW - Crown appeal - slip rule - jurisdiction to vary orders to ammend custodial sentence date - respondent not arrested until 14 months after judgment - correction of windfall to respondent created by failure to appear at sentencing.
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999; s 254(1) Crimes (Sentencing Procedure) Act 1999; s 43, 47, 48, 70 Criminal Appeal Act 1912; s 14A, 18(2) Criminal Appeal Rules Criminal Procedure Act 1986; s 24 High Court Rules Periodic Detention of Prisoners Act; s.33 Sentencing Act 1991 (Victoria); s 8, 104A Supreme Court Rules
CASES CITED:	Adam & Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1 WLR 445 Bailey v Marinoff (1971) 125 CLR 529 Carroll v Price [1960] VR 651 Connelly v. Director of Public Prosecutions (1964) AC 1254 Grierson v The King (1938) 60 CLR 431 In re Court (1871) 2 QSCR 171 In re Earl of Inchcape [1942] Ch 394 In re Harrison's Share [1955] Ch 260. In re Suffield and Watts, Ex parte Brown (1888) 20 QBD 693, 697 In re Swire (1885) 30 Ch D 239 Pittalis v Sherefettin [1986] QB 868 Postiglione v The Queen (1997) 189 CLR 295 Preston Banking Co v William Allsup & Sons [1895] 1 Ch 14 Regina v Allen (1994) 1 Qd R 526 Regina v Billington [1980] VR 625 Regina v Cripps [1984] 1 QB 686 Regina v Cross [1973] QB 937 Regina v Daniel (1977) 1 QB 364 Regina v De Zylva (1988) 38 A Crim R 207 Regina v Jovanovic (1999) 106 A Crim R 548 Regina v Lapa (No. 2) (1995) 80 A Crim R 398 Regina v Malvaso (1989) 41 A Crim R 99 Regina v Nunan [1999] NSWCCA 117 Regina v Ponfield (1999) NSWCCA 422 Regina v Saxon [1998] 1 VR 503 Regina v Stephens (1990) 48 A Crim R 323 Robinson v The Queen (No 2) (1991) 65 ALJR 644 Shaddock & Associates Pty Limited v Parramatta City Council (1982) 151 CLR 590 Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 265 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 Whan v McConaghy (1984) 153 CLR 631 Wilson v. Attorney-General (1938) NZLR 496
DECISION:	Crown appeal allowed. Sentences imposed below quashed. Respondent resentenced to imprisonment for 3 years on each count (to be served concurrently) ,to commence 15 July 2001 and to expire 14 July 2004. A non parole period of 2 years and 3 months for each count, to commence 15 July 2001 and to expire on 14 October 2003 is set. Respondent to be released to parole on 15 October 2003.

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60648/99

WOOD CJ AT CL
SULLY J
DOWD J

Tuesday 5 March 2002
REGINA v ROY CARRION

On 26 May 2000, the court delivered judgement in relation to a Crown appeal against sentence, in which it was announced that the appeal was allowed, the periodic detention sentence below was quashed, and that the respondent was sentenced to 3 years full time imprisonment, with a non-parole period of 2 years and three months. On the day upon which the judgement was handed down, the respondent was not present and in his absence, a warrant for his apprehension was issued. This warrant was executed some 14 months later and the respondent was returned to custody. In the meantime, the orders that the court had announced were not perfected so that the District Court was not notified of them and the indictment was not endorsed. When the matter came back before the court, the Crown asked it to amend the date of commencement of the sentence to the date on which the respondent was returned to custody. The Crown asserted that the court has the power to perfect the clear intention that it earlier expressed, and this should be achieved by varying the commencement date. The crown submitted that this power has been exercised in the past (for example R v Ponfield [1999] NSWCCA 442) , that this power arises by reason of the court’s inherent jurisdiction to amend orders to accord with its intention, as expressed in the Slip Rule , and that the power additionally arose in this case as the judgement had not been perfected.

Held: (amending the date for commencement):

Exercise of the power in the past
Although the Court had varied its order in Ponfield , this was done by consent, and thus the question of power had not been considered.

Source of the courts power
The Court has an implied or inherent power to vary an order so as to give effect to the Court’s true intention. It is not necessary to answer the question of whether or not the Slip Rule applies in criminal cases.

Postiglione v. The Queen (1997) 189 CLR 295; Regina v. Allen [1994] 1Qd R 526; L. Shaddock & Associates Pty Ltd v. Parramatta City Council (1982) 151 CLR 590 cited. R v. Cripps [1984] 1 QB 686 considered; Jovanovic v. R (1999) 106 A Crim R 548 explained;

Whether the judgement had been perfected
The order pronounced on 26 May 2000 was provisional, and was intended to come into effect only when the warrant was executed. Further, the formalities required for a sentencing order to pass in to record are found in r51, 52 and 53 of the Criminal Appeals Rules (NSW): It is the duty of the proper officer of the district court upon receipt from the registrar of the Court of Appeal of notification of the orders made to formally enter the particulars. For the District Court, the record of the proceedings is the indictment itself. The steps required to place the order on the record in this case had not been taken, and the Court had power to reopen the matter.

Regina v. Lapa (No. 2) (1995) 80 A Crim R 398 distinguished; Regina v. Stephens (1990) 48 A crim R 323 applied.

Whether the respondent can claim, as a matter of law, to have been serving a sentence between May 2000 and July 2001
The respondent, as a matter of law was not taken to have been serving the substituted sentence or the original order for periodic detention even though he was not in custody. The original order for periodic detention remained on foot. Sections 82 and 89 of the Crimes (Administration of Sentence) Act 1999 however meant that the term of the sentence had been extended during the period when the respondent had been at large and had not been reporting for periodic detention.

Whan v. McConaghy (1984) 153 CLR 631 distinguished.

Orders: (Sentencing order varied, and date for commencement amended)
1. Crown appeal allowed;
2. Respondent sentenced to imprisonment for 3 years on each count, to be served concurrently, commencing on 15 July 2001 and expiring on 14 July 2004. Non-parole period of 2 years 3 months set for each count;
3. Respondent be released to parole on 15 Oct 2003.

60648/99

WOOD CJ AT CL
SULLY J
DOWD J

Tuesday 5 March 2002
REGINA v ROY CARRION

Judgment

1 THE COURT: On 12 May 2000, this Court heard an appeal by the Crown against the leniency of a sentence of periodic detention for 3 years, to date from 2 October 1999, which was imposed upon the Respondent by his Honour Judge Woods QC, in the Sydney District Court.

2 By its judgment dated 26 May 2000, the Court decided that the Crown appeal should be allowed, that the sentences imposed in the Court below should be quashed, and that in lieu thereof the Respondent should be sentenced on each of the 2 counts in question, to 3 years full time imprisonment, to commence on 23 May 2000, and to be served concurrently. It also decided that a non parole period of 2 years and 3 months to commence also on 23 May 2000 should be set, as a consequence of which the Respondent would be released to parole on 22 August 2002.

3 On the day upon which Grove J handed down the judgment of the Court, the Respondent was not present, as was permissible under s 14A of the Criminal Appeal Act 1912. In his absence however, his Honour directed that a warrant for his apprehension be issued.

4 That warrant was expressed as a “Bench warrant to apprehend a Respondent who has failed to appear before the Court of Criminal Appeal”. It was executed on 18 July 2001, as a result of which the Respondent was returned into custody.

5 On 4 October 2000 the Parole Board revoked the periodic detention order made by his Honour Judge Woods. However it rescinded the revocation order on 15 August 2001 when the circumstances of the Crown appeal came to its notice.

6 The matter next came before this Court on 6 August 2001, when an issue was raised as to whether it had power to re-open the matter and to amend the date for the commencement of the substituted sentences to the date on which the Respondent had been returned into custody. Several further submissions have been provided, including submissions dealing with an additional point which was raised by the Court, as presently constituted, during the hearing which was refixed for 4 February 2002.

7 In its submissions, the Crown has asserted that the Court does have the power to perfect the clear intention which it had earlier expressed, namely that the Respondent serve a term of 2 years and 3 months in full time custody, and that he thereafter be released to parole for the balance of the proposed term of 3 years. This, it submits, should be achieved by varying the commencement date of the new sentences to 15 July 2001 (preserving the backdate of 3 days previously allowed).

8 This power it submitted:

(a) has been exercised in the past: for example R v Ponfield [1999] NSWCCA 422;

(b) arises by reason of the inherent jurisdiction which the Court has to amend orders or judgments to accord with its intention, as expressed in the “ slip rule” , and so as to ensure that the Respondent does not receive an unjustified windfall by reason of the fact that he failed to appear on the day appointed for delivery of the judgment, and was not arrested until a date 14 months or so later; and

(c) arose, in this case, additionally by reason of the fact that the judgment of 26 May 2000 has not been perfected, there being evidence before the Court that no steps have been taken since that date, pursuant to the Criminal Appeal Rules , to notify the Court of trial, of its determination (Rule 51), with the consequence that no relevant entry has been made on the indictment, or on the District Court file or its computer records relating to the proceedings (Rule 53).

9 In reply, the Respondent has submitted that the Court has no such power to amend its order, with the consequence that the new sentences must be taken to have been running, and to have been served, albeit the Respondent was at large, during the period from 23 May 2000 to 18 July 2001. If this proposition is correct, then the Respondent would be released to parole on 22 August 2002, having served only 13 months of the intended non parole period of 27 months.

10 In support of that proposition, the Respondent submits that:

(a) the judgment, in its terms took effect on the day on which it was handed down; and that

(b) the slip rule does not apply to criminal proceedings.

11 In this regard reliance was placed on s 48 of the Crimes (Sentencing Procedure) Act 1999 which requires the Court to specify the date on which a sentence commences; and on s 47 of the Act which states, subject to s 70 (periodic detention), and subject to an order made under sub section (2) fixing some other date, that a sentence of imprisonment commences “on the day on which sentence was imposed”.

12 The direction of Grove J, made on 26 May 2000, that “the Respondent should be taken into custody to serve the sentence now imposed”, it was submitted, meant that the substituted sentence should be taken to have commenced from that day. Additionally, it was pointed out that s 47(2) of the Crimes (Sentencing Procedure) Act permits the Court to direct that a sentence commence after the date on which it is imposed, only where it is imposed wholly or partially by way of accumulation upon any other sentence of imprisonment.

13 It is true that in Ponfield the Court varied its order, so as to alter the commencement date of the term of imprisonment imposed, thereby reflecting the circumstance that the Respondent had not turned himself in after the Court had made its order, and was only taken into custody when arrested on other charges. It was similarly a Crown appeal against leniency. However it appears that this was done by consent, and as a consequence the question of power was not in issue.

14 There have been a number of decisions in which consideration has been given to the question whether the Court has, in the exercise of its criminal jurisdiction, the ability to correct orders so as to reflect its intention, either under the slip rule or by virtue of some inherent power, or otherwise.

15 In Postiglione v The Queen (1997) 189 CLR 295 at 319, Gummow J made reference to the possibility that a notification of the determination by the Court of Criminal Appeal, of an application for leave to appeal against a sentence, which had incorrectly recorded the orders which had been made, could be corrected under the slip rule. Although the Respondent submitted that his Honour had in mind the High Court Rules, clearly the Court would have had no power, under its slip rule, to correct orders or notifications made by the Supreme Court. His Honour could only have had in consideration the possibility of correction being effected by the latter court.

16 In Regina v Allen [1994] 1 Qd R 526, the Queensland Court of Criminal Appeal, by a majority, held that it had inherent jurisdiction to vary the order which it had originally made, so as to allow the appellant to argue a ground of appeal based upon a recent decision of the High Court (Robinson v The Queen (No 2) (1991) 65 ALJR 644) which had not been considered during the trial or appeal.

17 This was done, notwithstanding the fact that the order of the Court on appeal had been perfected, although its reasons had not been handed down. Dowsett J commented:

“ whether the slip rule applies to proceedings on the criminal side in this Court or not does not matter. If it does not, then the inherent jurisdiction is available. ”

18 That inherent jurisdiction was seen to lie in the fact that “the interests of justice required” the Court’s intervention, applying the decision in R v Daniel (1977) 1 QB 364. There, the English Court of Appeal had permitted an appeal to be reopened where, by reason of an administrative error, it has been heard without the participation of the legal representatives of the appellant. This was allowed even though its order had been perfected.

19 Earlier in Regina v De Zylva (1988) 38 A Crim R 207, the Victorian Court of Criminal Appeal corrected an internal inconsistency in an order which it had handed down following its determination of a sentence appeal. The court said (at 208):

“ It has been held on many occasions that a court may recall an order before it has passed into record: see Billington [1980] VR 625; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29. We have accordingly inquired of the appropriate court officers and have been informed that the judgment of the court has passed into record in that it has been entered in the records of the trial court in accordance with r 35(b) of the Criminal Appeal Rules 1956.
We should not therefore recall the order which we pronounced or vacate it. But any court has an inherent jurisdiction to correct any judgment or order which owing to error does not give effect to what the court intended to do. It is a power which is essential to ensure that justice is done. It is not possible pursuant to the power to vary an order which the court intended to make but an error in an order can be corrected so as to do justice and to give effect to the court’s intention.
This case is a clear case for the exercise of the power. The operative part of the order does not give effect to the court’s intention and the failure was due to error.
Since we cannot recall the order which has passed into record, the appropriate course is for us to make a supplemental order. ”

20 The slip rule, which is formalised in an express rule of the Supreme Court of New South Wales applicable to its civil jurisdiction (Supreme Court Rules Part 20 r 10), has been said to reflect an inherent jurisdiction of a Court to correct, at any time, a clerical mistake, or an error arising from an accidental slip or omission in a minute of a judgment or order.

21 In L.Shaddock & Associates Pty Limited v Parramatta City Council (1982) 151 CLR 590 the High Court considered a situation in which, following its allowance of an appeal, and the perfecting of the orders made, it was discovered that, through inadvertence, the Court had not been asked to make an order for the payment of interest which had accrued from the date of the original judgment until the date of the decision of the High Court.

22 It was held, notwithstanding the fact that the issue had not been raised before them, and notwithstanding the fact that orders had been perfected, the slip rule permitted the Court to go behind the order and deal with the outstanding question. It was said (at 594) by the Court, in this respect:

“ Order 29, r.11 is in the traditional form of a slip rule. 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). 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; Chessum & Sons v Gordon; In re Inchape (Earl); Coppins v Helmers & Brambles Constructions Pty Ltd; Tak Ming Co Ltd v Yee Sang Metal Supplies Co. This is so, regardless of whether the order has been drawn up, passed and entered (see Milson v Carter; Fritz v Hobson). ” (References Omitted).

23 In Regina v Cripps [1984] 1 QB 686, the Court of Appeal observed (at 695):

“ It is well settled that any judge is fully entitled to reconsider and vary any decision at any time before the order embodying or based upon that decision has been perfected (In re Suffield and Watts, Ex parte Brown (1888) 20 QBD 693, 697, per Fry LJ), although in some circumstances he may be under an obligation to give the parties a further opportunity to be heard. At that stage no slip rule power is needed. However, once the order has been perfected, the trial judge is functus officio and, in his capacity as the trial judge, has no further power to reconsider or vary his decision whether under the authority of the slip rule or otherwise. The slip rule power is not a power granted to the trial judge as such. It is one of the powers of the court, exercisable by a judge of the court who may or may not be the judge who was in fact the trial judge .

In the case of the High Court, the slip rule power is contained in RSC, Ord 20, r 11:

…

It is surprisingly wide in its scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge: Preston Banking Co v William Allsup & Sons [1895] 1 Ch 1414. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it: In re Earl of Inchcape [1942] Ch 394, approved by the Judicial Committee of the Privy Council in Tak Ming Co v Yee Sang Metal Supplies Co [1973] 1 WLR 300, 304. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended: Adam & Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1 WLR 445. However, it cannot be over-emphasised that the slip rule power can never entitle the trial judge or a court to reconsider a final and regular decision once it has been perfected, even if it has been obtained by fraud: per Lord Halsbury in Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141, 143. We say ‘final’ decision, because different considerations apply in the case of orders which are provisional because, for example, they were obtained ex parte and we say ‘regular’ because again different considerations arise where the order may be said to be irregular for any of a variety of reasons.”

24 The Respondent places particular reliance upon the decision by the Full Federal Court in Jovanovic v The Queen (1999) 106 A Crim R 548 in contending that there was no jurisdiction under either the slip rule, or the inherent power of the Court, to now vary the sentencing order. Jovanovic was a case where the sentencing judge initially imposed a sentence, in relation to the first count in an indictment containing 14 counts, which exceeded the maximum sentence available for the offence to which it applied. The overall sentence imposed, by reason of an accumulation of the sentence for count 3, was one of imprisonment for 9 years, with a non parole period of 6 years. After an appeal was lodged, the Sentencing Judge discovered the error, and then purported to vary the sentencing order by revoking the sentences for counts 1 and 3, by resentencing in respect of them, by directing that the new sentence for count 3 be cumulative upon that for count 1, and by directing that the sentence for count 6, which had previously been directed to be served concurrently, now be served cumulatively upon that for count 3. The net result was the same as that previously imposed, namely a head sentence of 9 years with a non parole period of 6 years. No reference was made to the slip rule (O 32 r 14) although his Honour did say:

“ The slip having occurred, it is appropriate to resentence the accused on all counts .”

25 It was held on appeal that the sentencing judge had no jurisdiction to revoke any of the sentences, or to impose a substitute sentence, because the sentence first imposed had passed into the Court record, that is, it had been perfected in accordance with the law and practice of the Australian Capital Territory.

26 The Court (Wilcox, Miles and Weinberg JJ) noted (at p 551):

“ As a general rule, except by way of appeal, a court has no power to review, alter, vary or set aside any judgment or order one it is finally recorded.”

They went on to say (at 552):

“ In civil cases, before a judgment or order has passed into record, the judge who gave the judgment or made the order may reconsider the decision and withdraw, alter, or vary it: Carroll v Price [1960] VR 651 at 657. After a judgment or order has been formally entered in the records of the court or, to use the language which is sometimes invoked, ‘authenticated’, the judge is said to be functus officio.
This general rule does not apply to an order made ex parte, which may be set aside or varied on the application of any party affected by it.
Superior courts of record are said to have an inherent (or implied) jurisdiction to amend or vary a judgment or order even after it has been authenticated, or drawn up, passed, and entered, so that it states correctly what the court decided and intended: Re Swire (1885) 30 Ch D 239 at 243 per Cotton LJ; Bailey v Marinoff at 539 per Gibbs J; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594 per Mason ACJ, Wilson and Deane JJ. This inherent (or implied) jurisdiction is generally reflected in rules of court. ”

27 Reference was made to the passage in Cripps; Ex parte Muldoon above noted, after which their Honours made the observation upon which the Respondent has seized:

“ ‘Slip-rule’ powers of this type contained in rules of court generally have no application to criminal proceedings. ” (See also a similar observation at p 560).

28 They then went on to consider whether a superior Court of record has, or does not have, an inherent power when it exercises criminal jurisdiction to vary or amend a conviction after the verdict of the jury has been accepted, and if so, whether it extends to varying or amending a sentence which has been imposed. After a review of some of the authorities in England and elsewhere their Honours said (at 554):

“In Australia, the approach which has been taken at common law seems to be more complicated. The general rule is that a sentencing judge may correct a sentence before it has ‘passed into record’. The difficulty is that there is no clearly defined or obvious point at which that may be said to have occurred. As a general rule, orders are not drawn up, entered, or taken out, in criminal cases.”

29 Their Honours made reference to the practice in Victoria and in the Australian Capital Territory concerning the administrative steps following the reception of a verdict or plea of guilty and the passing of sentence, before observing (at 557):

“ In our opinion it is likely that in Victoria at least,.. the common law position is that a sentence is regarded as having ‘passed into record’ when it is recorded on the back of the presentment, and possibly in the relevant court document described as the triplicate as well. Certainly when both of these events have occurred, the sentencing judge is functus officio, save perhaps for a genuine application of the ‘slip-rule’ in the exercise of the court’s inherent (or implied) jurisdiction.
In New South Wales the common law seems to be viewed in the same way .”

30 Their Honours next gave consideration to way in which the matter had been dealt with by statute, noting the existence of an express power both in Victoria (s 104A of the Sentencing Act 1991) and in New South Wales (s 24 of the Criminal Procedure Act 1986 – now replaced by s 43 of the Crimes (Sentencing Procedure) Act 1999) to reopen proceedings where the Court has imposed a penalty that is contrary to law, or has failed to impose a penalty, that is required by law. Their existence, it was accepted (at 558):

“ … does not derogate from the existing common law power to correct sentencing slips – see De Zylva (1988) 38 A Crim R 207; Saxon [1998] 1 VR 503, or from statutory rights of appeal or review in respect of sentence. However, neither the common law, nor the statutory power to correct a sentencing slip or clerical error, permits a sentencer to vary an order actually intended to be made simply because the sentencing judge has changed his or her mind.”

31 In the particular circumstances of that case it was held that the recording of the sentences on the “yellow sheets” used for that purpose in the ACT, followed by the issue of a warrant for the removal of the applicant to the Goulburn Correctional Centre meant that they had passed into record.

32 While it is true that their Honours expressed the view that the “slip rule” did not apply to criminal cases, they did not question the existence of the implied or inherent power to vary an order which did not reflect the words spoken or the intent of the sentencing judge, so as to give effect to the Court’s true intention (see pages 560-561), or the power to intervene when the sentencing order has not been perfected.

33 Properly considered, the decision does not make good the point for which the Respondent contends, namely that the Court has no power to vary the order announced by Grove J on 26 May 2001 by substituting for the commencement date of 23 May 2000, the date 15 July 2001. The better view, on the authorities reviewed, is that it did have an inherent power to do so, whether or not the order had been perfected.

34 It is not however necessary to finally decided that question, since the case is one where the orders proposed and announced on 26 May 2001 have not been perfected. In that regard, leaving aside the formalities required for a sentencing order to pass into record, I am additionally of the view that Grove J intended the order pronounced to be provisional and to come into effect only when the warrant, which he directed should issue, was executed.

35 That the Court has power to amend or vary an order which has not been perfected, and even to reopen an appeal in those circumstances, is well established upon the authorities mentioned so far, as well as by the decisions of this Court in Regina v Lapa (No. 2) (1995) 80 A Crim R 398, Regina v Saxon (1998) 101 A Crim R 71, and Regina v Reid [1996] NSWCCA 21. See also the observations of Dawson and Gaudron JJ at 300, of McHugh J at 315 and of Gummow J at 327 in Postiglione v The Queen (1997) 189 CLR 295.

36 In Regina v Lapa (No. 2), application was made to the Court of Criminal Appeal to reopen an appeal against conviction, which had earlier been dismissed, in order that the Court might deal with one of the original grounds of appeal that had not been considered by it. At the time of the application, the order of the Court dismissing the appeal had not been perfected, although that was attended to subsequently. At the reconvened hearing, the ground of appeal which had not been dealt with, was considered upon its merits, but was found not to have been made good.

37 In the course of his reasons concerning whether or not the appeal should be reopened, Clarke JA, with whom Handley JA and Sully J agreed, said (at 402):

“ It is well established at common law that a court may review, correct or alter its judgment at any time until its order or judgment has been perfected: Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 265; Re Suffield & Watts; Ex parte Brown [1888] 20 QBD 693 at 697; Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940)63 CLR 382 at 457; Pittalis v Sherefettin [1986] QB 868 at 879; Re Harrison’s Share [1955] Ch 260.
The position is different once the judgment or order has been perfected. Subject to the rules of court and possible exceptions concerning subsidiary matters, a court has no power to reconsider its decision and the judgment can be reviewed only on appeal: Bailey v Marinoff (1971) 125 CLR 529. Since Bailey there have been a number of decisions in the High Court bearing on the question of the court’s power to review its own decision and the circumstances in which it may alter an order made but none of those cases has overruled Bailey or the common law rule that once the judgment has been perfected a court has no power, subject to any relevant rules, to alter its judgment in a substantial respect.”

His Honour continued (at 403):

“In the present case it is common ground that the order had not been perfected when the application for reconsideration was filed. Nor had it been perfected at the time that the court heard argument on the application. In accordance with the old authority the court had undoubted jurisdiction to entertain the application and to accede to it. The action which was taken after the Crown had spoken to the Registrar of the District court may, however, have perfected the order. There was no argument on this point but I will assume, against the appellant, that it did so.
The manner of perfection of the order of the Court of Criminal Appeal (ie by the Registrar of the District Court noting it on the indictment) when coupled with the fact that there is no question that the perfected order will affect the rights of third parties or settle questions of status does lead me to question whether the interests of justice are furthered by the maintenance of the rigid distinction drawn by the common law rule as evidenced in authorities such as Bailey in a case such as the present. I do not doubt that the principle of finality is of first importance. What I do question is whether it should operate so as to close off automatically any reconsideration of a judgment after it has been perfected, at least where questions of status and the rights of third parties are not concerned. To take the instant case as an example – Why should the rights of the parties be so dramatically affected by the administrative actions of a court officer?
Where an application for consideration of a judgment is made before the judgment is perfected a court accords great weight to the principle of finality and, primarily for this reason, it is only in rare cases that it does accede to the application. A similar approach in cases where a judgment has been perfected would, in my opinion, more readily meet broad considerations of justice than the present rule does.
In each case the principle of finality would be of primary importance but the court would be able to exercise a judicial discretion having carried out a balancing exercise. Where questions of status or the rights of third parties are involved these stand as additional and important reasons why a court should not re-open its judgment once it had been perfected.
It is not, however, necessary to take that question further in these proceedings…”

38 In the particular circumstances of that case where the order had not been perfected at the time of the application for reconsideration of the appeal, but had been subsequently perfected, his Honour said, (at 405):

“ For my part there are two considerations which lead me to conclude that, accepting that the power of the court to vary a judgment cannot be enlivened, absent any relevant rule, after the judgment has been perfected it does have power to remedy an oversight where application is made before that has occurred, notwithstanding that the judgment is perfected while the court is considering the matter. The fundamental consideration which should determine whether a court of criminal appeal should reconsider its judgment is whether the failure to do so might lead to a miscarriage of justice. To put it another way, the application should be determined upon the interests of justice, giving full weight to the principle of finality. The second consideration is the basic practical one to which reference was made by the High Court in Jones and Pantorno. That is, that the Court of Criminal Appeal should deal with all grounds of appeal upon which argument was proffered before the case is sent to the High Court for consideration of a leave application.
In the present circumstances there can be no doubt that the overwhelming interests of justice favour the granting of the application. Indeed, both parties invited the court to embark upon a consideration of the outstanding point if it were open to the court to do so.
For these reasons I am not prepared to accept, in the state of authorities, that the administrative act of the Registrar of the District Court in affixing the order of this Court to the indictment after the court had embarked upon the consideration of an application to reopen was effective to remove a power which until that moment the court undoubtedly enjoyed. In my opinion the court should proceed to consider the outstanding point and to give an ultimate judgment reflecting its views on that point.”

39 Lapa (No 2) was considered by the court in Saxon, where following dismissal of an appeal against conviction, an application was made to the Court for it to entertain a further appeal based upon what was asserted to be fresh evidence which had recently come to light. In this instance, the order of the Court dismissing the appeal had been perfected before the further application was made. The Court held, applying Grierson v The King (1938) 60 CLR 431 that, in the circumstances of the case, it lacked jurisdiction to reopen the appeal.

40 In Regina v Stephens (1990) 48 A Crim R 323, Allen J said, in relation to the way in which orders of the Court of Criminal Appeal were perfected (at 327):

“ In accordance with the requirements of those rules (r 51,52 and 53 of the Criminal Appeal Rules (NSW)) it was the duty of the proper officer of the District Court upon receipt from the Registrar of the Court of Appeal of notification of the orders made on 19 December 1983 formally to enter the particulars. There are no other provisions of the Criminal Appeal Rules for the recording of the decision of the Court of Criminal Appeal. What, however, constitutes the record of the District Court in relation to trials upon indictment? By long practice the record is the indictment itself. It is upon the indictment that the orders are noted… Nevertheless, the rules recognise the practice of the noting of judicial orders on the indictment. The indictment is the ‘record’ of the proceedings: Billington [1980] VR 625; Cross [1973] QB 937; (1973) 57 Cr App R 660.”

I see no reason to adopt any different view, nor has any argument been developed to the contrary of these observations.

41 The evidence led in this case shows that the steps required to place the order on record, that is to perfect it, have not been taken. It is accordingly open for the Court to reconsider the matter, and subject to the consideration next mentioned, to vary the commencement date of the sentence so as to give effect to its intention.

42 Next, of relevance for the position which now arises, is the decision of the High Court in Whan v McConaghy (1984) 153 CLR 631. That was a case where the applicant had been sentenced in the Local Court. Upon appeal to the District Court, the fine imposed below was quashed and, in lieu, a sentence of periodic detention was imposed. The applicant was granted bail pending an appeal to the Court of Criminal Appeal. He did not attend for periodic detention pending the hearing of the appeal, but no order was made staying the execution of the sentence during that period. The appeal to the Court of Criminal Appeal was later conceded to be incompetent and dismissed. A subsequent appeal to the Court of Appeal was also dismissed. The Court of Appeal, however, by majority, purported to vary the sentence which had been imposed, so that the time spent on bail would not be counted as part of his sentence.

43 It was not a Court which possessed the statutory power possessed by the Court of Criminal Appeal (s18(3) Criminal Appeal Act) to vary a sentence so as to take account of the period spent on bail. Mason, Murphy, Wilson and Deane JJ, in refusing special leave to appeal to the High Court, said at 635-6:

“A sentence of imprisonment, like any other court order, must operate in accordance with its terms as interpreted in the context of any statutory provisions pursuant to which it is imposed or framed. If the sentence does not itself direct that the term of imprisonment which the offender is ordered to serve be a period commencing on a particular day or if overriding statutory provisions do not have that effect, the term of imprisonment will ordinarily commence when the offender is taken into custody and begins to serve it. The framing of the sentence or the effect of overriding statutory provision can however, intentionally or inadvertently, be such that the imprisonment to which an offender is sentenced is imprisonment during a period which is identified by reference to a nominated specific commencing date. In such a case, if the offender fails to serve the term of imprisonment imposed, he may be guilty of some further offence (see, e.g., Periodic Detention of Prisoners Act , s.33 ). In the absence of statutory provision or valid court order to the contrary however, the term or period during which the offender is sentenced to be imprisoned will commence on the designated day.

On our reading of the Periodic Detention of Prisoners Act , the specification of a commencing date does not itself form part of the sentence. The commencing date must however be identified by the sentencing court in order that the procedures of that Act may be applied to the sentence of imprisonment. Section 8 of the Periodic Detention of Prisoners Act expressly provides that the sentence "shall commence" on the date specified in the order imposing the sentence. There is nothing in the Act which qualifies that clear provision. That being so, its effect is that the period or term of imprisonment which the person sentenced is required to serve is the period or term commencing on that designated date.

The fact that the applicant did not actually commence to serve the
sentence of imprisonment did not, in itself, prevent the term of the sentence from commencing to run. In that regard, it is to be recalled that not even escape from custody had the effect, at common law, of preventing a term of imprisonment from continuing to run (In re Court (1871) 2 QSCR 171; Wilson v. Attorney-General (1938) NZLR 496).”

44 Brennan J said at 642-643:

“The grant of bail in the present case effectively cancelled the sentence and allowed the applicant to "escape from punishment and laugh at justice". Although that consequence was unintended, it does not follow that the Court of Appeal had inherent jurisdiction to impose a sentence to make up for the sentence avoided. The limits of the inherent jurisdiction are determined primarily by reference to the purposes served by its exercise, the chief among
them being control of the court's procedure, suppression of abuses of its process, preventing attempts to thwart its process, and ensuring fairness in its proceedings (see Connelly v. Director of Public Prosecutions (1964) AC 1254, at pp 1301, 1347). The authorities are helpfully reviewed by Mr Mason Q.C. and by Master Jacob in their respective articles on the inherent jurisdiction: Australian Law Journal, vol.57 (1983), 449 and Current Legal Problems, vol.23 (1970), 23. The inherent jurisdiction is not closely circumscribed, but it does not extend to sentencing a convicted person to a term of imprisonment in addition to, or in substitution for, a term of imprisonment which was not served because the court had bailed the prisoner during the term. If the processes of the Court were abused by the seeking of bail, the suppression of the abuse lay in refusing bail or, perhaps, in revoking the bail once granted. If the seeking of bail in the present case were an abuse, it was not to be remedied by imposing what is in truth a new sentence. The Court of Appeal had no jurisdiction, either inherent or statutory, to make the order under appeal.”

45 Whan v McConachy was applied by this Court in Regina v Nunan [1999] NSWCCA 117. That was a case where the applicant had initially been granted bail upon an assumption, which later proved to be incorrect, that she had filed an application for leave to appeal to the Court of Criminal Appeal, from a sentence of imprisonment for 10 weeks. By the time that the case came before the Court, following the grant of an extension of time to file the appeal, the 10 weeks contemplated by the sentence had expired by effluxion of time, although the sentence had not in fact been served.

46 The applicant argued that in those circumstances, there was no need to address the application and that there was no basis for her to be taken into custody. Spigelman CJ, with whom James and Bell JJ agreed, said:

“In my view the absence of an appeal to this Court prevents the statutory description within s 18(2) [of the Criminal Appeal Act] being satisfied on the facts of this case, for the same reasons that the High Court in Whan v McConaughy concluded in that case, with respect to the Periodic Detention of Prisoners Act there under consideration. In my opinion, s 8 of the Sentencing Act is to the same effect. Time continued to run under the sentences originally imposed by her Honour. Section 18(2) was, as I have indicated above, the only provision which could have had a relevant consequence. On its proper construction, in my view, it did not have that consequence.”

47 The question which therefore arises is whether, similarly to these cases, the Respondent can claim that during the period between 26 May 2000 and 18 July 2001, he is to be taken, as a matter of law, to have been serving either the substituted sentence, or the original order for periodic detention, even though he was not in custody, and upon that basis to have that period taken into account – either by leaving the order announced on 26 May 2000 intact, or by setting that period off any amended sentence.

48 The present case is not one of unlawful absence to which either s 40 or s 254(1) of the Crimes (Administration of Sentences) Act 1999 would apply – each of which would have to be taken into account in determining how much of the sentence the inmate should be taken to have served during that period of absence. Nor is it a case where the original order had been stayed or where the Respondent was on bail pending the final determination of the appeal, to which s 18(2) of the Criminal Appeal Act would have applied, so as to exclude the time on bail as being part of the sentence.

49 It is, however, a case where, in the absence of the order of the Court of Criminal Appeal having been perfected, the original sentence of periodic detention remained on foot. Although at one time the Parole Board made an order revoking it, that order was itself revoked with the consequence, it may be assumed, that the original order was left in force.

50 This requires that reference be made to the Crimes (Administration of Sentence) Act 1999 and in particular to sections 82 and 89, which provide respectively:

“ 82 Duration of periodic detention order
(1) Unless sooner revoked, an offender’s periodic detention order expires:
(a) at the end of the term of the sentence to which it relates, or
(b) when the offender is released on parole,
whichever occurs first.
(2) Any detention period or part of a detention period during which an offender is in custody (whether in relation to the offence concerned or otherwise and whether as an inmate of a correctional centre or otherwise) is taken to have been served by the offender in accordance with this Part.
(3) Nothing in this section affects the operation of section 89.
..
89 Failure to report or reporting late extends term of sentence
(1) The sentence to be served by an offender who fails to report for one or more detention periods (whether or not leave of absence is granted) is, by this subsection, extended by one week for each detention period for which the offender fails to report.
(2) The sentence to be served by an offender who reports late for one or more detention periods (otherwise than where leave of absence is granted) is, by this subsection, extended by one week for each detention period for which the offender reports late.
(3) The sentence to be served by an offender:
(a) who reports late for one or more detention periods, and
(b) who is granted leave of absence subject to a requirement that an equivalent period of time to that for which leave is granted is to be served as part of an additional detention period, is, by this subsection, extended by one week for each additional detention period necessary to accommodate the total period of time directed to be served by all such directions given in relation to that sentence.
(4) The sentence to be served by an offender who fails to report, or who reports late, for one or more detention periods (otherwise than where leave of absence is granted) is, by this subsection, further extended by one week for each detention period for which the offender fails to report or reports late.
(5) An offender’s sentence may not be extended by subsection (4) by more than 6 weeks.
(6) Any extension by subsection (4) of an offender’s sentence is in addition to any extension by subsection (1), (2) or (3) of that sentence with respect to the same failure to report or lateness in reporting.
(7) In this section, a reference to the extension of an offender’s sentence is a reference to:
(a) the extension of the term of the sentence, and
(b) if the relevant failure to report or reporting late occurs during a non-parole period of the sentence, the extension of the non-parole period of the sentence.
(8) If an offender has failed to report for a detention period but during that detention period is taken into custody (whether in relation to the offence concerned or otherwise and whether as an inmate of a correctional centre or otherwise), the offender is for the purposes of this section taken to have reported late for that detention period without leave of absence.”

51 It is common ground that the applicant did not report after 26 May 2000, and remained at large notwithstanding the warrant, until his arrest in July 2001. I see no reason why such conduct should not be regarded as a failure to report.

52 It follows, in my view that, during the period between 26 May 2000 and at least 18 July 2001 (and possibly until the order of this Court is perfected - by reason of ss (8)), the sentence of periodic detention should be regarded as having been extended by one week for each of the detention periods, in respect of which such failure occurred.

53 The present case is, upon this basis, distinguishable from Whan. If the sentence of periodic detention was now to be served, it would be extended at least by an equivalent period to that for which the Respondent was at large, together with any penalty extension arising under s 89(4) of the Act. I would not, however, be minded to reflect that last mentioned consideration, or to direct that the sentence commence any later than 15 July 2001, when the order of the Court is corrected.

54 In all of these circumstances, and in order to achieve the result which the Court intended on 26 May 2000, I am of the view that it should now intervene and vary the sentencing order proposed by Grove J on 26 May 2000. In lieu the following orders should be made:

1. Crown appeal allowed;

2. Sentences imposed below be quashed;

3. In lieu thereof the Respondent be sentenced, on each count, to imprisonment for 3 years, each to be served concurrently, to commence on 15 July 2001, and to expire on 14 July 2004;

4. A non parole period be set, for each count, of 2 years and 3 months to commence on 15 July 2001 and to expire on 14 October 2003;

5. Respondent to be released to parole on 15 October 2003.

55 I would add that it would now be sensible for there to be an amendment to the Criminal Appeal Act to address the several circumstances, now identified, where an offender has been deemed to have been serving a sentence of imprisonment during a period when he or she was in fact at large. There can be no justification for any offender receiving an unintended windfall in having that period counted against the sentence.

56 SULLY J: I agree with Wood CJ at CL

57 DOWD J: I have read the judgment of Wood CJ at CL in draft form. I agree with the proposed orders and with his Honour’s reasons.

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