R v NF (No 2)

[2016] ACTSC 227

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v NF (No 2)

Citation:

[2016] ACTSC 227

Decision Date:

17 August 2016

Before:

Refshauge J

Decision:

1.   The sealed order of the Court recording the sentence imposed on NF be amended by omitting the words “wholly concurrent with” and substituting “cumulative as to one month on” in order 1(i).

Catchwords:

JUDGMENTS AND ORDERS – JURISDICTION, PRACTICE AND PROCEDURE – amendment – sealed court order – accidental slip or omission – slip rule – r 6909 of the Court Procedures Rules 2006 (ACT)

Legislation Cited:

Criminal Code 1995 (Cth)

Court Procedures Rules 2006 (ACT), r 6906

Cases Cited:

Elson v Ayton (2010) 241 FLR 178

R v Gorman [2009] ACTSC 7
R v NF (No 1) [2016] ACTSC 216
Scheele v Watson [2012] ACTSC 196

Parties:

The Queen (Crown)

NF (Defendant)

Representation:

Counsel

Mr T Shepherd (Crown)

Mr J Lawton (Defendant)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Defendant)

File Numbers:

SCC 40 of 2016

SCC 41 of 2016

REFSHAUGE J:

1. On 13 July 2016, I sentenced NF for seventeen offences related to importation of drugs, the distribution of drugs, damaging property, weapons offences and an offence of unlawful possession of stolen property.  See R v NF [2016] ACTSC 216.

1. I imposed a total sentence of four years and one month imprisonment but wholly suspended it immediately with, for the offences against the Criminal Code 1995 (Cth), a recognizance release order for three years and, for the offences against various laws of the Australian Capital Territory, a Good Behaviour Order for three years.

1. As NF was required to sign an undertaking consequent upon those orders, the formal written orders of the Court were prepared immediately in the Registry and NF signed the relevant documents before he was released.

1. Unfortunately, it has come to the attention of the Court that the sealed court order inaccurately described the effect of one of the sentences I imposed.  This, of course, created some difficulties for the administration of the sentences, as there was a discrepancy on the face of the order.

1. As a court order, sealed and entered, it may only be varied in limited circumstances.  See R v Gorman [2009] ACTSC 7. It should, of course, be done with notice to the parties and, if necessary, giving them an opportunity to be heard. I set out the proper approach to be taken in Elson v Ayton (2010) 241 FLR 178 at 192-4; [81]-[93].

1. The Court proceeds under r 6906 of the Court Procedures Rules 2006 (ACT), which requires an order of the Court to effect any amendment of a sealed order. That is to say, it is not permissible for the amendment merely to be made in the Registry because Registry staff see the obvious error and wish to amend it.

1. The integrity of the records of a Court of Record, as is the Supreme Court, are very important.  The denial of liberty of persons relies on those records.  The entitlement of people to take property compulsorily from others relies on those records.

1. That, of course, requires the records to be correct and I am pleased to be able to say that we are generally well served in this jurisdiction, as errors are rare.

1. I said in Scheele v Watson [2012] ACTSC 196 at [31] that judicial officers are human and make mistakes. The same applies to Registry staff.

1. Nevertheless, the process of correction is important and should be done carefully, publically and following proper procedure.  The records of the court, especially records such as court orders, should only be amended in accordance with the law and it should be done with appropriate formality.

1. The error is that I sentenced NF for a charge of possessing a firearm to imprisonment for two months to commence on 13 June 2020, that is to be cumulative to one month on the sentence for the second offence of damaging property.

1. The order that was sealed, however, provides that the sentence is to be wholly concurrent on the earlier sentence, despite correctly stating the commencement date of the sentence.  That error meant that the total sentence was for four years not the four years and one month actually imposed if counting concurrency.

1. It is clear from the transcript and the bench sheet that the sealed order is incorrect and can be corrected under the slip rule.

1. My associate has contacted the lawyers for the Crown and for NF and they have agreed that the correction must be made.  NF’s lawyers will arrange for NF to attend to re-sign the Good Behaviour Order which will also have to be amended and re-signed.

1. Accordingly, I ordered that the sealed orders of the Court be amended to reflect the actual sentence.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 17 August 2016