R v Gorman

Case [2009] ACTSC 7

R v COLIN GORMAN
[2009] ACTSC 7 (11 February 2009)

JUDGMENTS AND ORDERS – amendment – accidental slip or omission – criminal proceedings – power to amend – r 6909, Court Procedures Rules 2006 (ACT).

Crimes (Sentencing) Act 2005 (ACT), ss 11, 13, 61

Supreme Court Rules 1937 (ACT), o 34 r 14, o 85 r 91
Court Procedures Rules 2006 (ACT), r 6906

Jovanovic v The Queen (1999) 92 FCR 580
Milson v Carter [1893] AC 638
Burrell v The Queen (2008) 82 ALJR 1221, 248 ALR 428
R v Popovski (No 2) [2008] ACTSC 95
Sands & McDougall Pty Ltd (In liq) and Anor v Commissioner of Taxation (No 2) [1999] 2 VR 114 at 121

JUDGMENT

No. SCC 319 of 2008

Judge:              Refshauge J
Supreme Court of the ACT

Date:               11 February 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 319 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

THE QUEEN

v

COLIN GORMAN

ORDER

Judge:  Refshauge J
Date:  11 February 2009
Place:  Canberra

THE COURT ORDERS THAT:

  1. In the direction made in the sentence of 17 November 2008, that 12 months of the sentence of imprisonment be served by periodic detention, there be substituted for the date of “17 November 2009” as the end of the periodic detention period, the date of “16 November 2009”.

  1. On 17 November 2008, I sentenced Mr Colin Gorman for the offence of assault occasioning actual bodily harm.

  1. I sentenced him to two years imprisonment.  I directed that he was to serve twelve months of that by periodic detention, to commence on that day, 17 November 2008, and to end on 17 November 2009.

  1. I suspended the balance of the sentence and ordered him to be released on 17 November 2009 under a good behaviour order (s 13 of the Crimes (Sentencing) Act 2005 (ACT)) with conditions including, inter alia, probation and community service.

  1. My attention has been drawn to the fact that the periodic detention period (see s 11 of the Crimes (Sentencing) Act) is expressed inconsistently.  The twelve month period ends on 16 November 2009 and not 17 November 2009.

  1. While that 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.

  1. Section 61 of the Crimes (Sentencing) Act permits the reopening of proceedings to correct penalty errors.  As sub-section 1 states, its application is somewhat limited.  That provision is:

This section applies to a criminal proceeding (including a proceeding on appeal) in which a court has –

(a)made a sentence-related order that is contrary to law;  or

(b)failed to make a sentence-related order that is required to be made by law.

  1. Made in response to the problems identified in Jovanovic v The Queen (1999) 92 FCR 580, it is a most useful provision but it does not…

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AGLC
R v Gorman [2009] ACTSC 7
Case
[2009] ACTSC 7
Decision Date

CaseChat Overview and Summary

The case of R v Gorman was heard before the court, with the defendant, Gorman, seeking an amendment to his sentence. The original sentence, handed down on 17 November 2008, included a term of imprisonment to be served by periodic detention, concluding on 17 November 2009. Gorman's application for amendment was predicated on what was argued to be an accidental slip or omission in the sentencing directions. He sought to have the end date of the periodic detention period altered from 17 November 2009 to 16 November 2009.

The legal issue at hand centred on the court's discretion to amend a sentence post-conviction due to an alleged clerical error. The court was required to consider the provisions of rule 6909 of the Court Procedures Rules 2006 (ACT), which governs the amendment of judgments and orders in criminal proceedings. Gorman's application hinged on whether the error was indeed a simple clerical mistake or if it represented a substantive change in the terms of his sentence.

The court examined the nature of the error and its potential impact on the sentence. It found that the amendment sought by Gorman was merely a correction of a typographical error in the date, and did not alter the substantive terms of his sentence. The court emphasised the importance of accurately recording the details of a sentence to avoid any confusion or potential miscarriage of justice. By applying rule 6909, the court determined that it had the authority to correct such clerical errors to ensure the sentence as intended by the court was accurately reflected. Consequently, the court granted the application and amended the sentence to reflect the correct end date of periodic detention as 16 November 2009.

Orders

Orders of the court

1. In the direction made in the sentence of 17 November 2008, that 12 months of the sentence of imprisonment be served by periodic detention, there be substituted for the date of 17 November 2009? as the end of the periodic detention period, the date of 16 November 2009?.

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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