R v Donald (No 2)

[2013] NSWCCA 290

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title:	R v Donald (No 2)
Medium Neutral Citation:	[2013] NSWCCA 290
Hearing Date(s):	22 August 2013
Decision Date:	22 November 2013
Before:	Hidden J at [1] Latham J at [2] Adamson J at [7]
Decision:	The orders pronounced on 25 October 2013 are set aside and the Court makes the following orders: 1. The Crown appeal is allowed. 2. The sentence imposed on 26 April 2013 is quashed. 3. In lieu, the respondent is sentenced to 2 years imprisonment, commencing 25 October 2013, to be released on 25 October 2014 upon entering into a recognisance, self in the sum of $2000, to be of good behaviour for a period of 12 months.
Catchwords:	CRIMINAL LAW - practice and procedure - judgments and orders - slip rule - amendment of error in term of sentence.
Legislation Cited:	Crimes Act 1914 (Cth) - ss 16 and 20(1)(a) and (b) Crimes (Sentencing Procedure) Act 1999 - s 43
Cases Cited:	R v Donald [2013] NSWCCA 238
Category:	Principal judgment
Parties:	Regina - Appellant Lawson Donald - Respondent
Representation
- Counsel:	R Bromwich SC/Ms S Buchen Appellant H Dhanji SC - Respondent
- Solicitors:	Commonwealth Director of Public Prosecutions - Appellant Watsons Solicitors and Barristers - Respondent
File Number(s):	2012/267621
Decision Under Appeal
- Before:	Sweeney DCJ
- Date of Decision:	26 April 2013
- Court File Number(s):	2012/267621

JUDGMENT

1. HIDDEN J: I agree with Latham J.

2. LATHAM J: On 25 October 2013, this Court allowed the Crown appeal, quashed the sentence imposed on 26 April 2013 and re sentenced the respondent to 2 years imprisonment to date from 25 October 2013. The respondent's release to a recognisance release order was ordered to take effect on 25 October 2014.

3. The Crown has since brought to the attention of the Court that the combined effect of ss 16 and 20(1)(a) and (b) of the Crimes Act 1914 (Cth) requires the Court to set a sum as security for the purposes of the recognisance release order.

4. Section 20 relevantly provides :-

   (1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
   (a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
   .......................................................................... or
   (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).

5. The Crown's submission must be accepted, since the Court failed to comply with the terms of s 20. Section 43 of the Crimes (Sentencing Procedure) Act 1999 allows the Court to re-open the proceedings, when the Court has failed to impose a penalty that is required by law, in order to correct the error by the amendment of the order. That provision is clearly directed to the circumstances of this case.

6. Accordingly, I propose the following amended orders :-

   (1)The Crown appeal is allowed.

   (2)The sentence imposed on 26 April 2013 is quashed.

   (3)In lieu, the respondent is sentenced to 2 years imprisonment, commencing 25 October 2013, to be released on 25 October 2014 upon entering into a recognisance, self in the sum of $2000.00, to be of good behaviour for a period of 12 months.

7. ADAMSON J: I agree with Latham J.

   **********

Amendments

04 Dec 2013 citation addedspelling error Paragraphs: cover sheet