R v Mulligan (No 2)

[2016] NSWCCA 64

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Mulligan (No 2) [2016] NSWCCA 64

Hearing dates:

On the papers

Decision date:

22 April 2016

Before:

Leeming JA; Johnson J; Harrison J

Decision:

Vary order 3 made on 1 April 2016 so that it reads as follows:

 

“3A. In lieu thereof sentence David Mulligan to a period of imprisonment of 18 months, with a non-parole period of 12 months.

3B. Pursuant to s 14A of the Criminal Appeal Act 1912 (NSW), defer specifying the commencement date of the sentence until David Mulligan appears before the Court for sentencing.”

Catchwords:

PRACTICE AND PROCEDURE – slip rule – variation of orders and reasons in principal judgment

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW), ss 40, 254
Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
Criminal Appeal Act 1912 (NSW), s 14A

Cases Cited:

Burrell v The Queen [2008] HCA 34; 238 CLR 218
R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143

Category:

Procedural and other rulings

Parties:

Crown (Applicant)
David Mulligan (Respondent)

Representation:

Counsel:
N Adams (Applicant)
P Skinner (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Applicant)
Australian Criminal Law Specialists (Respondent)

File Number(s):

2014/295812

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

30 October 2015

Before:

Maiden DCJ

File Number(s):

2014/295812

Judgment

1. THE COURT: On 1 April 2016, this Court allowed an appeal by the Crown, quashed a suspended sentence imposed by the District Court on 30 October 2015, and imposed a custodial sentence. It has become desirable to correct a potential oversight that occurred at the time judgment was delivered.

2. The background is as follows. The Crown’s appeal had been heard on 14 March 2016. On that occasion, Mr Mulligan was represented by counsel who, very properly, advised that his client had not been obliged under the terms of the suspended sentence imposed at first instance to attend the hearing of the Crown appeal, and that, because he was working on the far north coast of New South Wales, he was not attending in person.

3. The Court reserved its decision. Prior to the delivery of judgment, the Court contacted the parties directing that Mr Mulligan should attend personally when judgment was delivered. He did not do so. However, a solicitor appeared for Mr Mulligan and explained that his client had only recently learned of the delivery of judgment, and had been unable to attend court. The Crown applied for a warrant to issue, and the Court as then constituted acceded to the application.

4. Accordingly, the Court made the following orders:

“1. Appeal allowed.

2. Quash the sentence imposed by Maiden DCJ on 30 October 2015.

3. In lieu thereof sentence David Mulligan to a non-parole term of imprisonment of 12 months commencing on 1 April 2016 expiring on 31 March 2017 and to a balance of term of 6 months expiring on 30 September 2017.

4. Warrant is issued forthwith for the arrest of David Mulligan for failure to appear.”

5. A warrant issued that day. However, so far as is known, Mr Mulligan has not been arrested pursuant to that warrant.

6. It will be seen that the sentence imposed by this Court is for a non-parole term of imprisonment commencing on 1 April 2016 and expiring on 31 March 2017, and a balance of term of 6 months expiring on 30 September 2017.

7. Speaking generally, if a person serving a custodial sentence is unlawfully absent from custody, then by reason of s 254 of the Crimes (Administration of Sentences) Act 1999 (NSW), the sentence is automatically extended by the period for which the person is unlawfully absent from custody. However, it would seem that the better view is that s 254 is presently inapplicable, because Mr Mulligan has not escaped from lawful custody, nor has he failed to return to a correctional centre following the revocation of an intensive correction order, home detention order or parole order (see s 40 of the Act). In short, it is at least arguable that s 254 does not apply in the circumstances where a suspended sentence is set aside and replaced by a custodial sentence.

8. It is regular, and in accordance with s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), for a sentence to state with precision the commencement date of a sentence imposed. However, s 14A(2) of the Criminal Appeal Act 1912 (NSW) contemplates precisely the situation that arose in the present case. It provides as follows:

“If on a Crown appeal the court decides to impose on a respondent, in the absence of the respondent, a sentence of imprisonment by way of full-time detention, and the respondent is not in custody at the time of that decision, the court may decline to specify a commencement date for the sentence until the respondent appears before the court for sentencing.”

9. The intention of order 3 was that Mr Mulligan should be taken into custody and commence serving a custodial sentence with a non-parole period of 12 months from the time judgment was delivered. That did not occur because he did not attend court. When orders 3 and 4 that were made on 1 April 2016 are read together, it is plain that the intention of the Court was for Mr Mulligan to be arrested as soon as may be, and thereupon to serve a custodial sentence with a non-parole period of 12 months. Put differently, there was no intention, on 1 April 2016, for the sentence imposed by this Court to continue to run in the event that Mr Mulligan was not in custody.

10. It is desirable that the position be clear beyond argument. To the extent that the orders made on 1 April 2016 admit of the construction that time continues to run even though Mr Mulligan is not in custody, there has been an accidental slip by failing to ensure that the sentence imposed only commenced upon Mr Mulligan’s appearance before the Court for sentencing. That circumstance is an accidental slip which does not alter the substance of the reasons or the orders made, namely for Mr Mulligan to serve a full-time custodial sentence of 18 months with a non-parole period of 12 months. Accordingly, the orders may be corrected notwithstanding that they have been entered: Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [21]; R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143.

11. The power under s 14A is available to correct that slip. So that there may be no doubt about it, order 3 will be amended so that it reads as follows:

“3A. In lieu thereof sentence David Mulligan to a period of imprisonment of 18 months, with a non-parole period of 12 months.

3B. Pursuant to s 14A of the Criminal Appeal Act 1912 (NSW), defer specifying the commencement date of the sentence until David Mulligan appears before the Court for sentencing.”

12. Finally, the warrant which in fact issued required the arrest of Mr Mulligan and for him to be taken directly to Long Bay Correctional Centre. Section 14A(4) of the Criminal Appeal Act 1912 (NSW) specifically authorises a warrant for the arrest of a respondent to a Crown appeal and for him to be brought before the Court for the purposes of s 14A(2). There is no need to vary order 4 which was made on 1 April 2016. However, the warrant will be reissued so as to reflect the order as amended by this judgment, so as to require Mr Mulligan to be brought to this Court, and the warrant previously issued on 1 April 2016 will be revoked.

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Decision last updated: 22 April 2016