R v Kelly (No 2)
[2017] ACTSC 64
•31 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kelly (No 2) |
Citation: | [2017] ACTSC 64 |
DecisionDate: | 31 March 2017 |
Before: | Refshauge J |
Decision: | 1. That, at his request, Ian William Kelly be excused from attendance. 2. That order 6 in the sentence made on 22 August 2016 be amended by omitting “19 September 2018” and substituting “19 October 2017”. 3. That in the reasons for sentence, R v Kelly [2016] ACTSC 281, paragraph [77] be amended by omitting in sub-paragraph 5 “cumulative as to two months” and substituting “concurrent as to seven months”. |
Catchwords: | PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Correction of sentence – sentence not contrary to law – order of the Court amended – slip rule – r 6906 of the Court Procedures Rules 2006 (ACT) |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 61 Court Procedures Rules 2006 (ACT), r 6906 |
Cases Cited: | Achurch v The Queen [2014] HCA 10; 253 CLR 141 Arnett v Holloway [1960] VR 22 |
Parties: | The Queen (Crown) Ian William Kelly (Defendant) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr A Doig (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Defendant) | |
File Number: | SCC 103 of 2016 |
REFSHAUGE J:
On 21 January 2016, Ian William Kelly and co-offender, Luke Horne, entered the underground car park to some apartments in Griffith, ACT, as trespassers, and stole from a residential storage cage there certain property valued at approximately $8350.
Investigation of the offences by police led them to identify Mr Kelly as one of the offenders. On 19 April 2016, police arrested Mr Kelly and charged him with aggravated burglary and theft. He was refused bail and remained in custody until he was sentenced.
On 22 August 2016, I sentenced Mr Kelly. I first cancelled a Good Behaviour Order made when a sentence of imprisonment for dishonestly taking someone else’s vehicle without consent had been suspended. I imposed the suspended period of imprisonment.
I then sentenced Mr Kelly to two years and three months imprisonment for the aggravated burglary and 15 months for the theft. I made all the sentences partly concurrent. The sentence and sentencing remarks are set out in R v Kelly [2016] ACTSC 281.
The orders I made were as follows:
1.The Good Behaviour Order made on 23 November 2015 be cancelled.
2.Ian William Kelly be sentenced to nine months imprisonment to commence on 19 April 2016, being the suspended portion of the sentence.
3.Ian William Kelly be convicted of aggravated burglary committed on 21 January 2016.
4.Ian William Kelly be sentenced to two years and three months imprisonment to commence on 19 June 2016.
5.Ian William Kelly be convicted of theft on 21 January 2016.
6.Ian William Kelly be sentenced to 15 months imprisonment to commence on 19 September 2018.
7.A non parole period of 16 months be set to commence on 19 April 2016 and to end on 18 August 2017.
In announcing the orders I gave some explanation. What I said at R v Kelly at [77], is as follows:
77. Mr Kelly, please stand:
1.I am satisfied that you have breached the Good Behaviour Order made on 23 November 2015.
2.I cancel that Order.
3.I impose the sentence that was suspended of nine months to commence on 19 April 2016.
4.I convict you of aggravated burglary committed on 21 January 2016.
5.I sentence you to two years and three months imprisonment to commence on 19 June 2016 that is to be cumulative as to two months on the sentence imposed as a result of the breach of the Good Behaviour Order. Had you not pleaded guilty, I would have sentenced you to three years imprisonment.
6.I convict you of theft on 21 January 2016.
7.I sentence you to 15 months imprisonment to commence on 19 September 2018 that is to be cumulative as to four months on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to 20 months imprisonment.
8.That is a total sentence of two years and nine months.
9.I set a non parole period of 16 months to commence on 19 April 2016 and to end on 18 August 2017.
Recently, my associate was contacted by the Sentencing Administration Section of ACT Corrective Services to query the sentence. The Team Leader of the Section advised:
The benchsheet provided indicates a total sentence of 2 years and 9 months imprisonment.
However based on the sentence start dates provided on the benchsheet Sentence Administration have calculated that the sentences imposed result in a effective term of 3 years and 8 months imprisonment to commence on 19 April 2016 and end on 18 December 2019.
I have reviewed the sentence and my notes I made when preparing for it. Fortunately, I did keep the manuscript note on which I worked out the sentence that I had intended to impose. I have also considered the calculations that I made when preparing the matter for sentence.
The timeline I prepared in the note shows that I intended the following:
· That the suspended period of imprisonment of nine months be imposed;
· That the sentence for the offence of aggravated burglary be for a term of two years and three months; and
· That the sentence for the offence of theft be for a term of imprisonment of 15 months.
I next considered the principles of concurrency and totality. My notes show that the interaction between the sentences was intended to be as follows:
· The sentence for the offence of aggravated burglary to be concurrent as to seven months on the imposed suspended sentence; and
· The sentence for the offence of theft to be cumulative as to four months on the sentence for the offence of aggravated burglary.
This shows the intended total sentence of two years and nine months as mentioned orally when imposing sentence.
All these calculations are generally consistent with the explanation of the sentences I pronounced orally as set out above (at [6]), with two exceptions which I now address.
As to the first, I note that I used an expression when orally pronouncing the sentence as set out above (in sub-paragraph 5 of [67]: see R v Kelly at [77]), that was ambiguous. It clearly meant that two months of the imposed suspended sentence was to be accumulated on the sentence for the offence of aggravated burglary, though the words used may not seem on immediate reading to say that clearly. It is not possible to accumulate two months of a sentence of two years and three months on a sentence of nine months because even complete concurrency would result in a minimum accumulation of one year and six months. The specification of the start date for that sentence, namely 19 June 2016, that is two months after the start date of the imposed sentence, shows that clearly the way it should be read is that two months of the shorter sentence be accumulated with longer sentence to produce, by that, a sentence of two years and five months.
It would have been better to have said that seven months of the imposed sentence was to be concurrent with the sentence for the offence of aggravated burglary. That would have been more accurate, though it may not have made it so clear that that part of the sentence was comprised of two years and three months plus two months.
There was, however, no error in the actual sentence, but an infelicity in the explanation.
The real error to which the Sentence Administration section drew to my attention came in the specification of the start date for the sentence for the offence of theft, which is stated to be 19 September 2018. My notes show that I calculated that by working from the end date of the earlier sentences: first 19 April 2016 to 18 June 2016 (the two months of the nine months), then adding the two years and three months sentence for the offence of aggravated burglary, which took the end date from 19 June 2016 to 18 September 2018. I then added the four months accumulation I intended to apply for the sentence for the offence of theft to bring it to 18 January 2019, i.e. the two years and nine months. That was intended to be the end of the head sentence.
Then, to calculate the start date for that sentence, I calculated backwards from that end date. I first deducted 12 months, that is bring it back to 18 January 2018. I then deducted three months, to give the total 15 months of the sentence. That figure, however, is shown in my notes as 19 September 2018. That is obviously incorrect – it cannot be 2018 for the months prior to 18 January 2018 are all in 2017. Also, three months back from January would be October not September.
Clearly my calculations were in error and should have led me to start that sentence on 19 October 2017.
Correction
The sentence has now passed into the records of the Court. Certainly the yellow bench sheet completed by the associate has been completed. On the authority of Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580 at 592; [59]-[60], the recording of the sentence on that sheet in that way may amount to the recording of the sentence in the records of the Court for the purpose of perfecting the sentence, though in that case, it was regarded as an undesirable approach.
Perhaps because of that comment, but in any event, a formal order, signed by the Deputy Registrar and sealed with the seal of the Court has also been completed and there can be no doubt that that is part of the records of the Court. There is no doubt that this would constitute the perfecting of the order of the Court: Burrell v The Queen [2008] HCA 34; 238 CLR 218 at 224; [18].
Ordinarily, a court which has made a final order cannot amend that order; the court is functus officio: Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2 at [100]; Jovanovic v The Queen at 584; [15]-[19]. A sentence is a final order: David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 422; Nicholls v Director of Public Prosecutions (SA) (1993) 61 SASR 31 at 63; Barbaro v Director of Public Prosecutions (Cth) [2009] VSCA 26; 20 VR 717 at 719-20; [10]; Mischel Holdings Pty Ltd (in liq) v Mischel (in his capacity as executor of the Estate of Mischel) [2013] VSCA 375 at [140].
There are limited exceptions to that rule, now both statutory, although there may still be an inherent jurisdiction to amend an order that has been perfected so that it states correctly what the Court decided, intended or should have ordered: Jovanovic v The Queen at 584-5; [20]; Indigenous Business Australia v Schofield [2017] ACTSC 56 at [17]-[21].
The first of such statutory powers is to be found in r 6906 of the Court Procedures Rules 2006 (ACT), and is commonly known as the slip rule.
The second exception is in s 61 of the Crimes (Sentencing) Act 2005 (ACT), a power to re-open a sentence that was made contrary to law. Interestingly, this power was a result of the decision in Jovanovic v The Queen, though it took some years for that provision finally to be made.
Consideration
The sentence imposed by the orders actually made is not, in my view, amenable to amendment under s 61 of the Crimes (Sentencing) Act. It is not a sentence related order that is contrary to law.
As I pointed out in Beniamini v Storman (No 2) [2017] ACTSC 31 at [10], for a sentence to be varied in this way, it must have been contrary to law, that is, a sentence that cannot in law properly be made. I set out in that decision at [11] some examples that are helpful to an understanding of the issue.
In Achurch v The Queen [2014] HCA 10; 253 CLR 141, the High Court made clear that a sentence was not contrary to law where it was a sentence that was open to be made by the Court in the light of the law which then applied, but was actually reached by a process of reasoning that involved an error of fact or law. This would be too great an intrusion on the principle of the finality of litigation unless the words of the statute clearly and unambiguously required it. Typical examples of sentences contrary to law are sentences that exceed the maximum prescribed penalty, as in Jovanovic v The Queen, or which are imposed where a pre-condition requisite for its imposition is not satisfied. A penalty which is within the statutory maximum but which lies outside the range of penalties that could have been imposed in a reasonable exercise of the sentencing discretion is not contrary to law within the meaning of s 61 of the Crimes (Sentencing) Act.
Accordingly, it must be accepted that the sentence imposed on Mr Kelly was not contrary to law and cannot be addressed under s 61 of the Crimes (Sentencing) Act.
The other option then is the slip rule, that is r 6906 of the Court Procedures Rules. The rule applies but only where there is a clerical mistake or error in a Court order or certificate and which resulted from an accidental slip or omission. See Arnett v Holloway [1960] VR 22 at 24. It does not, therefore, permit simply a court revisiting the correctness of the actual decision as, for example, where the reasoning was in error: Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179; 263 ALR 384 at 390; [23], 391; [25].
In general, the often used test of whether a mistake or omission is accidental is that expressed by Lord Herschell in Hatton v Harris [1892] AC 547 at 558:
If attention had been called to [the fact of the mistake or omission] the correction would at once have been made.
Applying that test here, the answer, in part relying on my notes, but also looking at the total sentence is that, had my attention been drawn to the error at the time, I certainly would have corrected it. It was obvious what I intended and, had my attention been drawn to the error, I would immediately have taken steps to ensure the order was in accordance with my intention.
As to whether the slip rule applies to criminal proceedings, I held in R v Gorman [2009] ACTSC 7, that it does. That was accepted by the Court of Appeal in Millard v The Queen(No 2) [2016] ACTCA 41 at [26].
I am satisfied that I can amend the orders under r 6906 of the Court Procedures Rules and that I ought to do so.
As required, the parties have been consulted. A sentence should not be amended, even under r 6906 of the Court Procedures Rules, without notice to the parties and, except with their express consent, nor otherwise than in open Court: Elson v Ayton [2010] ACTSC 70; 241 FLR 178 at 193; [87]-[88].
Disposition
It is, therefore, appropriate that the order of the Court be amended. The order to be amended is, of course, the order made as set out above (at [5]). Only order 6 need be amended by omitting “19 September 2018” and substituting “19 October 2017”. This will not affect the rest of the order, in particular, the non parole period.
As to the infelicity of expression in my explanation, at sub-paragraph 5 in [6] above, of the relationship between the imposed sentence of imprisonment that has been suspended and the sentence for the offence of aggravated burglary, this really forms part of the reasons for the sentence rather than the order of the court. It is not part of the Court order: Millard v The Queen (No 2) at [11].
Nevertheless, I explained in Brennand v Hartung (No 3) [2015] ACTSC 149 at [29]-[51], that this can also be amended, indeed, arguably without a formal order, prior notice to the parties or reasons.
Nevertheless, it is appropriate that, needing to amend the order, I also order the amendment to sub-paragraphs 5 and 7 of [77] of my reasons in R v Kelly to ensure intelligibility and consistency for any who may care to read the reasons in the future.
Having contacted the parties, I was advised that Mr Kelly consented to the proposed amendments and invited me to make the amendments in chambers. As to the dealing with matters in chambers, see The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13 at [37]-[39].
As noted in Elson v Ayton, I do not consider that an amendment of the actual order should be made in chambers.
On the other hand, it may not be necessary for Mr Kelly to be present. I am aware that attendance at Court for a person in custody can be more than just inconvenient as he or she must attend in court for the delivery of the decision which may take only a few minutes. He or she may then have to wait for much of the day in the Court cells until transport back to the Alexander Maconochie Centre. This deprives him or her of any employment or programs in custody for that day, in addition to the fact that the Court cells can often be a more crowded environment.
Ordinarily, an accused person must be present at his or her trial. That was held in Lawrence v The King [1933] AC 699 at 708 to include “the whole of the proceedings, including sentence”. There were, however, some exceptions explained by Smith J in R v Vernell [1953] VLR 590 at 598-600.
Having considered that approach, I said in Mayen v Ryan (No 2) [2014] ACTSC 33; 282 FLR 435 at 444; [59]:
This approach was followed, though, without the inevitability that Smith J foresaw in actuality about the accused’s presence at sentence in R v Jones (1998) 72 SASR 281 at 295 and in R v Mokbel (2010) 30 VR 115 at 125; 249 FLR 169 at [42]. That is to say, an accused must be present when sentence is imposed unless he or she has waived the right to be there.
Given Mr Kelly’s express request, I consider he has waived the right to be present. Given that the amendments do not affect the non parole period and reduce the stated, but not intended, head sentence, I am prepared to accept the waiver.
I will make the amendments I have decided should be made, but in open court, though in Mr Kelly’s absence. A copy of the order and of these reasons will, however, be provided to Mr Kelly.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 31 March 2017 |
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