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R v Carrion

R v Carrion

Case [2002] NSWCCA 21 5 March 2002

Crown Appeal

Jurisdiction

Correction of Sentence

Criminal Law

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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…

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 Carrion

Details

AGLC: R v Carrion [2002] NSWCCA 21
Case: [2002] NSWCCA 21
Decision Date: 5 March 2002

CaseChat Overview and Summary

In the matter of R v Carrion, the appellant, the Crown, sought to appeal against a decision made by the sentencing judge in relation to a custodial sentence. The respondent, who had not been arrested until 14 months after the initial judgment, argued that the court lacked jurisdiction to vary the orders and amend the date of the custodial sentence. The appeal was heard in the Court of Criminal Appeal. The central issue before the court was whether it had the jurisdiction to vary its orders and amend the date of the custodial sentence for the respondent who had not been arrested until 14 months after the initial judgment. The court needed to determine if it could correct the windfall that had arisen due to the respondent's failure to appear at the sentencing.

The court held that it did indeed have the jurisdiction to vary its orders and amend the date of the custodial sentence for the respondent. The court found that the slip rule applied in this case, allowing the court to correct any errors that may have been made in the original judgment. The court emphasised that the purpose of the slip rule was to ensure that justice was served and that any windfalls created by the respondent's failure to appear at sentencing could be corrected. The court further found that the delay in arresting the respondent did not affect its jurisdiction to vary the orders and amend the date of the custodial sentence. The court held that the delay was not the fault of the respondent, and it was in the interests of justice to correct the windfall that had arisen.

As a result, the appeal was allowed, and the court varied its orders to amend the date of the custodial sentence for the respondent. The court held that it had the jurisdiction to do so, and it was in the interests of justice to correct the windfall that had arisen due to the respondent's failure to appear at sentencing. The court did not find it necessary to make any further orders in relation to the case.

Orders