R v Elphick (No 3)
[2017] ACTSC 302
•18 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Elphick (No 3) |
Citation: | [2017] ACTSC 302 |
Submissions Date: | 10 October 2017 |
DecisionDate: | 18 October 2017 |
Before: | Refshauge J |
Decision: | That paragraph 2 of the order of the Court in The Queen v Todd Elphick (No 2) [2015] ACTSC 23 be amended by: (1) omitting “cumulative as to” and substituting “concurrent as to approximately”; and (2) omitting “1 October” and substituting “21 October” and the same amendments be made to paragraph [97] of the reasons for sentence. |
Catchwords: | PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Amendment – accidental slip or omission – power to amend – slip rule – inherent jurisdiction of the Court – reconsideration of an order – r 6906 of the Court Procedures Rules 2006 (ACT) CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – transferral of sentence to another jurisdiction – amendment of a transferred sentence – Ch 12 of the Crimes (Sentence Administration) Act 2005 (ACT) |
Legislation Cited: | Compensation Court Act 1984 (NSW), s 36(1) Crimes (Interstate Transfer of Community Based Sentences) Act 2004 (NSW), ss 20(1)(a), 24, 24(3), 24(5) Court Procedures Rules 2006 (ACT), r 6906 |
Cases Cited: | Bakewell v The Queen [2009] HCA 24; 238 CLR 287 Brennand v Hartung (No 3) [2015] ACTSC 149 |
Texts Cited: | Associate Professor Tarrant, Amending Final Judgments and Orders (The Federation Press, 2010) |
Parties: | The Queen (Crown) Todd William Elphick (Defendant) |
Representation: | Counsel Mr T Hickey (Crown) Mr R Davies (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | SCC 183 of 2013 |
REFSHAUGE J:
On 16 February 2015, Todd William Elphick was sentenced for four offences to which he had pleaded guilty. These offences were set out in an indictment presented by the Crown and included an offence of threatening to cause damage, by fire, to a vehicle belonging to another person, intending to cause or being reckless about causing another person to fear that the threat to commit the arson would be carried out, an offence of stalking, and two offences of breaching a Domestic Violence Order to which he was subject.
He had earlier been acquitted of two serious offences in respect of which he had been remanded in custody.
I sentenced Mr Elphick to a total term of imprisonment of two years and four months to commence on 10 December 2013. I suspended that sentence on 16 February 2015, the day I imposed it, and made a Good Behaviour Order for two years: The Queen v Todd Elphick (No 2) [2015] ACTSC 23.
I note that, on 25 May 2015, that order was registered under s 20(1)(a) of the Crimes (Interstate Transfer of Community Based Sentences) Act 2004 (NSW). The effect of registration, set out in s 24 of that Act, was that the sentence became a community based sentence in New South Wales and was taken to have been validly imposed by an appropriate court in that jurisdiction. The law of New South Wales then applied to the sentence and any breach of it.
I am not aware of any breach of the sentence. Accordingly, it expired on 15 February 2017. Mr Elphick is, therefore, no longer liable to serve the balance of a few days less than the 14 months imprisonment that was suspended when the sentence was imposed and the Good Behaviour Order made.
The sentence that I imposed on the first count on the indictment was a sentence of 18 months imprisonment to commence on 10 December 2013. I explained that it was “to be cumulative as to five months on the sentence imposed in the Magistrates Court on 1 October 2013.”
That there was a problem was first drawn to my attention some time after 30 June 2017 when a lawyer from the Office of the ACT Director of Public Prosecutions sent an email message to the Court Registry advising that “as we understand it the magistrates court [sic] sentences were imposed on 21/10/13 – not 1/10/13.”
Such an error, which appears to be a clerical error or slip, could be amended were it to appear merely in the reasons for sentence (sometimes referred to as the sentencing remarks). It could then be amended without any particular procedure where it corrects a clerical error in or improves the manner of expression of the reasons without altering the substance: Brennand v Hartung (No 3) [2015] ACTSC 149 at [49]-[51].
Such an error appearing in a formal order of the Court which has passed into the Court’s records, usually by the issuing of a sealed order, can, however, only be amended by a court order made under r 6906 of the Court Procedures Rules 2006 (ACT), known as the slip rule: R v Gorman [2009] ACTSC 7 at [8]-[13]; Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 10) [2016] ACTSC 364 at [5]-[6].
At least since Millard v The Queen (No 2) [2016] ACTCA 41, the words quoted at [6] above, though actually appearing in the order, have been recognised as not strictly part of the order, certainly not an “operative” part of the order, for the specified date of commencement was the operative part of the order and effective whatever the stated or actual cumulation on terms of imprisonment imposed by the Magistrates Court sentence.
Thus, such statements are ordinarily part of the sentencer’s explanation of the sentence to the prisoner but not properly part of the order: R v Forrest (No 4) [2017] ACTSC 200 at [8]. As a result, it would have been amenable to amendment without needing to comply with the requirements of the slip rule: R v Forrest (No 4) at [28].
In this case, the order has been sealed and issued by the Court. That formal order does contain the reference to the cumulation on the sentence imposed in the Magistrates Court. In my view, this would then require any amendment to be made under the slip rule.
The error arose in this way. In The Queen v Todd Elphick (No 2), I considered cumulation, concurrency and totality. I first referred to the fact that these matters were important as there were multiple offences for which Mr Elphick was sentenced. I then continued at [81]:
There is an important matter in respect of totality. Although Mr Elphick has been in custody since 10 July 2013, he was, during that time, sentenced on 1 October 2013 to imprisonment for some traffic offences and a dishonesty offence.
The reference to 1 October 2013 in these remarks was also made in error, but can be corrected without an order. At the time of delivering those remarks, no-one brought the error to my attention.
After detailing the offences, and the fines imposed for some of them, which fines would have been reduced by his period of imprisonment, I continued at [84]-[85]:
84.On the other offences, he was sentenced to five separate sentences of three months imprisonment, partially concurrent and partially cumulative, to constitute a total period of ten months.
85.It was submitted by Mr R Livingston, Counsel for Mr Elphick, that I should make part of the current sentences concurrent with those earlier sentences to take into account the principle of totality. He, therefore, did not submit that I should give credit for the whole of the nineteen months that he had spent in custody, but that I had to take it into account. That included recognition of the principle of totality while accepting that the whole of the period could not be included in the back-dating of the sentence.
There were, so far as I recall, no contrary submissions from the Crown. In any event, I acceded to those submissions and sentenced Mr Elphick accordingly as noted above (at [3]).
The error to which my attention has been drawn is clear from the criminal history of Mr Elphick being Exhibit EE in the proceedings. It shows that Mr Elphick was sentenced by Magistrate Boss in the Magistrates Court on 21 October 2013 for 17 offences. He was fined for nine of those offences and, for the remainder, sentenced to a total period of 10 months imprisonment from 4 July 2013 to 3 May 2014. There is no recorded appearance on or sentence commencing from 1 October 2013 in that criminal record.
While Mr Elphick was in custody at the time I sentenced him, that was because he had been refused bail on the charges laid against him, both those of which he had been subsequently acquitted and those to which he pleaded guilty. I concluded, however, that the principle of totality required me to have regard to the whole period of continuous custody to which he had been subject.
It is clear, therefore, that there has been an error in the sentence I pronounced, though it was not an operative error and it could not have had any effect on the actual sentence Mr Elphick had to serve.
In R v Gorman, I held that an order of this Court in its criminal jurisdiction, such as a sentence, was amenable to amendment under the slip rule.
In that case, I pointed out at [5]:
While that [error] is unlikely to have any actual practical effect since his actual period in custody will end on 15 November 2009, it is important that sentences be accurately expressed so as to ensure that no unforeseen consequences might prejudice the sentenced person, in this case Mr Gorman.
That is, of course, not a principle of law and the approach it expresses can, I suspect, be taken too far, but the sentiment is correct and appropriate.
The pre-condition to amendment under the slip rule is that there be a clerical error or a mistake in the order and that the error or mistake resulted from an accidental slip or omission. Thus, deliberate decisions are not amenable to variation under the slip rule. Similarly, the determination that there is a mistake or error should not be the product of an afterthought. Errors of law are generally not slips or omissions, though, in sentencing, they can be rectified under s 61 of the Crimes (Sentencing) Act 2005 (ACT). This is not such an error.
In this case, there was only one relevant sentencing proceeding in the Magistrates Court, namely on 21 October 2013. As noted, there was no recorded proceeding or sentence involving Mr Elphick on 1 October 2013. I accept that the reference to the wrong date was a clerical error or mistake that resulted from an accidental slip or omission. That justifies intervention.
There are, however, two questions that must be considered briefly before an order can be made.
The first is whether the amendment can be made where the sentence has now completely expired. The second is whether the amendment can be made when the sentence has been registered in New South Wales.
I have been unable to find any authority directly on point on either matter. I shall rely on principle and analogy.
An order does not cease to be an order once any action required by it is completed. It remains a record of the decision of the court, for example, for the purposes of res judicata or autrefois convict. A sentence does not change its status merely because the person subject to it has completed the sentence imposed.
It is said by Associate Professor Tarrant in his useful book, Amending Final Judgments and Orders (The Federation Press, 2010) at 131, however, that “if orders have been acted on it will be difficult to have them amended.” An inspection of the section of that work in which this statement occurs and the cases there cited shows that this is an issue directed at the risk of interference with the rights of third parties or where amendment would work injustice.
That there has been some reliance on an order will not necessarily prevent its amendment under the slip rule. For example, an order can be amended pending appeal: Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 9) [2015] ACTSC 127; 296 FLR 62 at 71-3; [68]-[93]; E v E [1903] P 88. Similarly, that a sentence is being administered, such as where the imprisonment it imposes is being served, will not necessarily prevent the order being amended: R v Calvert [2010] ACTSC 80; Wickey v The Queen (No 2) [2012] ACTCA 51; 269 FLR 289.
Nevertheless, the consequences of the amendment may affect the power of the court to make an amendment. For example, in Heery v Criminal Justice Commission [2000] QCA 511; [2001] 2 Qd R 610 at 623; [41], the Queensland Court of Appeal held that it was “not appropriate that such an omission be retrospectively cured so that an unauthorised act may be converted into an authorised one.”
In Kassab v The Queen [2016] VSCA 327, a sentence imposing a Community Corrections Order was amended even though the offender had completed the period of unpaid community work. There was, however, still a period of supervision to be served.
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 were given an opportunity to be heard and neither objected to the amendment nor submitted that I had no power to make it.
While in R v Carmody (No 2) there was a very real consequence flowing from the unamended and inaccurate order, it had, at the date of amendment, expired.
There is clearly an interest in having orders accurately reflect the decisions intended by the court; that is the purpose of provisions such as the slip rule. It expresses that value inherent in the judicial system.
I consider that it is not a bar to the amendment of the orders under r 6906 of the Court Procedures Rules that the effect of the order has expired, such as here by the completion of the term of the community based sentence without breach for which the offender must yet be punished. The only question may be whether it is necessary to amend an order that has ceased to have any operative effect.
Next, as noted above (at [4]), the sentence has been transferred to and registered in New South Wales. This has been effected by ACT Corrective Services and the Commissioner of Corrective Services of New South Wales. Mr Elphick made the application.
In this Territory, the relevant legislation is the Crimes (Sentence Administration) Act 2005 (ACT). Chapter 12 deals with the transfer of community based sentences. The provisions in the Chapter do not expressly provide for an application to be made by a prisoner who is subject to a community based sentence for a transfer to another jurisdiction, but it seems highly unlikely that such a transfer would be made without the prisoner seeking it in the first place. Certainly, a pre-condition to registration is the consent of the prisoner: s 273(2)(b) of the Crimes (Sentence Administration) Act.
It is not surprising that Mr Elphick made such an application. In The Queen v Todd Elphick (No 2), at [48], [50], I noted that he wished “to start a new life in New South Wales”, where he had “strong family support from both his mother and his stepfather, as well as his maternal grandmother.”
Under s 282 of the Crimes (Sentence Administration) Act, the local authority (a public servant appointed under s 269) may request an interstate authority (that is the equivalent local authority in that State; in this case New South Wales) to register the sentence in that jurisdiction.
As noted above, the sentence that I imposed was, on 25 May 2015, registered in New South Wales under the Crimes (Interstate Transfer of Community Based Sentences) Act, an Act relevantly identical to Ch 12 of the Crimes (Sentence Administration) Act.
What is important is that s 284 of the Crimes (Sentence Administration) Act sets out the effect of such registration. That section provides:
284 Community-based sentence transfer – effect of interstate registration
(1) If the local sentence is registered in the interstate jurisdiction, the following provisions have effect:
(a) the sentence becomes a community-based sentence in force in the interstate jurisdiction, and ceases to be a community-based sentence in force in this jurisdiction;
(b) the offender may be dealt with in the interstate jurisdiction for a breach of the sentence, whether the breach happened before or after the registration of the sentence;
(c) if the sentence is registered in the local register – the sentence ceases to be registered.
(2) If this jurisdiction is the originating jurisdiction for the local sentence, this section does not affect any right of appeal or review (however described) in relation to –
(a) the conviction or finding of guilt on which the sentence was based; or
(b) the imposition of the sentence.
(3) To remove any doubt, this section does not prevent the local sentence from later being registered in this jurisdiction.
In New South Wales, the Crimes (Interstate Transfer of Community Based Sentences) Act makes provision in s 24 as to the effect of registration there. The section provides:
24 Effect of local registration of interstate sentences
(1) If the interstate sentence is registered in this jurisdiction, the following provisions apply:
(a) the sentence becomes a community based sentence in force in this jurisdiction, and ceases to be a community based sentence in force in the interstate jurisdiction,
(b) the sentence is taken to have been validly imposed by the appropriate court of this jurisdiction,
(c) the sentence continues to apply to the offender in accordance with its terms despite anything to the contrary under the law of this jurisdiction,
(d) the offence (the relevant offence) for which the sentence was imposed on the offender is taken to be an offence against the law of this jurisdiction, and not an offence against the law of the originating jurisdiction,
(e) the penalty for the relevant offence is taken to be the relevant penalty for the offence under the law of the originating jurisdiction, and not the penalty for an offence of that kind (if any) under the law of this jurisdiction,
(f) any part of the sentence served in an interstate jurisdiction before its registration is taken to have been served in this jurisdiction.
…
It seems clear that, on registration, the sentence becomes a sentence of the appropriate court in New South Wales and ceases to have any effect in the Territory. It seems to deprive this Court of any power in respect of the sentence. See Bakewell v The Queen [2009] HCA 24; 238 CLR 287 at 293; [9].
I sought submissions of the parties on this issue. It is, of course, inappropriate to amend a sentence or order without giving the parties an opportunity to be heard: Elson v Ayton [2010] ACTSC 70; 241 FLR 178 at 193; [86].
Counsel for Mr Elphick identified, in his submissions, a further error, namely that the cumulation was incorrectly expressed. It had not been identified by the Crown, nor, indeed, by the Sentence Administration authorities of ACT Corrective Services (cf R v Kelly (No 2) [2017] ACTSC 64 at [7], [16]). The sentence imposed in the Magistrates Court on 21 October 2013 totalled 10 months commencing from 4 July 2013 and ending on 3 May 2014. The sentence that I imposed commenced on 10 December 2013; that resulted in a concurrency of approximately five months, not a cumulation of that period which I had expressed, as set out above (at [6]), but a cumulation of approximately 13 months.
It seems highly likely that I intended to refer to the period as being “concurrent”, not “cumulative”. If there is power to amend the sentence, I shall rectify this also.
Counsel for Mr Elphick submitted that the legislation appears to preclude any further involvement of the ACT Courts in the sentence, but, alternatively, if there was power, the order should be amended, though noting that the Magistrates Court’s order had “no significance in the orders made by that court”.
The Crown Prosecutor submitted that the effect of ss 24(3) and (5) of the Crimes (Interstate Transfer of Community Based Sentences) Act was that NSW as the “receiving jurisdiction” had no role “in respect of the corrections (or otherwise) of the original sentence.” It simply implemented it. While that appears to be an accurate construction of the provisions, it does not answer the question posed, which was whether, nevertheless, the ACT retained a power to interfere with and amend the sentence.
Clearly it can do so on appeal; that power is expressly preserved. It can also do so on review and the Crown submitted that what it was seeking was a review, which was also preserved (and, arguably, reserved) to the ACT as the “sending jurisdiction”.
The Crown Prosecutor submitted that the facts here were different from those in Bakewell v The Queen because there were no fresh proceedings by a party but an issue about the correctness of the original sentence.
It is not an entirely easy question as to what meaning to give to the word “review” used in ss 24(3) and (5) of the Crimes (Interstate Transfer of Community Based Sentences) Act and the cognate or complementary provision of s 284(2) of the Crimes (Sentence Administration) Act.
In conjunction with “appeal”, also used in the sections, it might be considered to take some colour from that word.
On the other hand, it is a word of wide import and has no narrow, technical legal meaning. As Burchett J pointed out in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 63, “in an appropriate context, the word ‘review’ should have a quite amorphous meaning …”
Thus, it was said in Ex parte Kane (1882) 21 NBR 370 at 376; [9]:
the legal meaning of “review” is merely an examination of matter apparent upon the face of the proceedings reviewed themselves, and determining whether or not there is any error apparent therein, and exercising the power of correcting such error.
More recently, Clarke JA said in Cockatoo Dockyard Pty Ltd v Atamian (1995) 12 NSWCCR 114 at 124-5, of the availability of a review in s 36(1) of the Compensation Court Act 1984 (NSW):
In that context, I would understand the word “review” to involve an examination or reconsideration of the decision made by the court officer followed by a consequential order of the Court. If the judge who hears the review considers that the decision is correct then no doubt the order will be one of confirmation. If, on the other hand, the decision is fundamentally flawed or is marred by one or more errors, the judge would, according to the circumstances of the case, either vary or discharge the order made and make an appropriate order in place thereof.
Indeed, Meagher JA went further in the same case referring to the principles governing such a review. His Honour summarised at 132, the first one as follows:
1. The statutory power conferred on judges of the Compensation Court to “review” a commissioner’s decision is a most ample power. It is not analogous to, or as restricted as, for example, this Court’s power to hear an appeal. On a “review”, all questions of fact and law are capable of being re-agitated if the judge conducting the “review” wishes it.
It seems to me that review should not be given a technical or narrow meaning. Indeed, the Court in Bakewell v The Queen considered the issue to some extent, contrasting what was there to be done with what it considered was encompassed in a review.
In Bakewell v The Queen, Mr Bakewell had been sentenced in the Supreme Court of the Northern Territory to a mandatory sentence of life imprisonment for which no minimum term was permitted. Subsequent legislation, the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (the Reform Act) retrospectively fixed a non parole period but permitted the Director of Public Prosecutions apply to have to that statutorily fixed non parole period revoked and either fix a longer period or decline to fix any non parole period.
After that legislation came into force, Mr Bakewell was transferred to South Australia to serve his sentence under a similar scheme to that under which Mr Elphick’s community based sentence was transferred. In particular, there were similar provisions to those in ss 24(3) and (5) of the Crimes (Interstate Transfer of Community Based Sentences) Act and s 284(2) of the Crimes (Sentence Administration) Act preserving the jurisdiction of the sentencing jurisdiction in relation to appeal and review in similar terms.
The Director of Public Prosecutions of the Northern Territory then applied to revoke the non parole period that had been statutorily set by the Reform Act. In Bakewell v The Queen at 298-9; [26], the High Court said:
Proceedings of the kind instituted by the Director against the appellant are not proceedings for a “review” of the non-parole period imposed upon the appellant by operation of s 18(a) of the 2003 Reform Act. The Director does not seek any reconsideration or re-examination of the sentence imposed by the sentencing judge or of that sentence as subsequently modified by statute. Rather, what is provided for by s 19 is the institution of a new and separate proceeding for the revocation of what has been fixed by law and a determination of the minimum term according to criteria distinct from, and additional to, the single criterion that engaged the imposition of a non-parole period under s 18(a): that, at the Act’s commencement, the prisoner was serving a life sentence for murder.
In all the above situations, the court which conducts the review is not the court which has made the order or decision the subject of the review. I am not satisfied, however, that such a consideration precludes the application of the description “review” to the court’s determination of a matter under the slip rule.
In any event, while amendment under the slip rule is desirably undertaken by the judge who made the order, it is not required. In R v Cripps; Ex parte Muldoon [1984] 1 QB 686 at 695, Sir John Donaldson MR, delivering the judgment of the Court said:
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.
Further, the power of a court under its inherent jurisdiction to further deal with an order that has not passed into the records of the court is often referred to as a reconsideration: In re Suffield and Watts, Ex parte Brown (1888) 20 QBD 693 at 697. Indeed, when referring to this power, Starke J referred to it in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457 of a power “to rehear or review.”
In principle, the accuracy of the original order is a matter best addressed by the court which made the order. Hence the reference in the legislation to appeals against transferred sentences remaining with the original court. Corrections under the slip rule seem to me to be of the same character.
I am satisfied that, for the purpose of ss 24(3) and (5) of the Crimes (Interstate Transfer of Community Based Sentences) Act and s 284(2) of the Crimes (Sentence Administration) Act, the Court in proceeding to consider an amendment to the order being the sentence subject to those sections to be made under r 6906 of the Court Procedures Rules is conducting a review.
Accordingly, I am satisfied that I have power to make the amendment requested by the Crown and the one identified by defence counsel and I will do so.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 18 October 2017 |
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