R v Palmer

[2023] ACTCA 24

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

R v Palmer

Citation: 

[2023] ACTCA 24

Hearing Date: 

5 June 2023

Decision Date: 

5 June 2023

Before:

Mossop J

Decision: 

See [29]

Catchwords: 

PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – Amendment to orders of the Court of Appeal pursuant to r 6906 – where orders of the court erroneously recorded on bench sheet – inconsistency between orders recorded in published judgment and orders recorded on bench sheet – narrative text from judgment erroneously recorded as redundant and inaccurate orders on bench sheet – bench sheet was subsequently amended without explanation – orders made to amend the documents recording terms of orders so as to reflect the orders that were pronounced and the intention of the court

Legislation Cited: 

Court Procedures Rules 2006 (ACT), r 6906

Cases Cited: 

Monaghan v Australian Capital Territory(No 2) [2016] ACTSC 352

Wickey v The Queen (No 2) [2012] ACTCA 51

Parties: 

The Queen ( Appellant)

Paul Arthur Palmer ( Respondent)

Representation: 

Counsel

E Roff ( Appellant)

J Cooper ( Respondent)

Solicitors

Director of Public Prosecutions ( Appellant)

Aboriginal Legal Service NSW/ACT ( Respondent)

File Number:

ACTCA 9 of 2019

Decision under appeal:

Court/Tribunal:           Supreme Court of the ACT

Before:   Elkaim J

Date of Decision:       7 February 2019

Case Title:                 R v Nicholas; R v Palmer

Citation: [2019] ACTSC 16

MOSSOP J:

Introduction

1․Accurate recording of court orders is fundamental to the administration of justice. The accurate documentation of the orders made by a judge in court is a necessary first step towards the perfection of those orders. An obvious example of the importance of the accurate recording of the orders of the court is where those orders record sentences of imprisonment. Warrants authorising the imprisonment of a person must be drawn up in order to implement the sentence imposed by orders of the court. The accurate recording of those orders is therefore fundamental to the implementation of the sentence imposed and thereby of fundamental importance to the liberty of the affected person.

2․When making and documenting orders of the court it must be borne in mind that those orders will often be required to be implemented by persons who only have before them the terms of the orders. They will not necessarily be aware of the reasons for the orders or background information in relation to the dispute that resulted in the making of those orders. As a consequence, in drafting and documenting orders it is important to ensure that they may be read and understood on their own terms without necessarily requiring background knowledge as to the circumstances of their making or an examination of the reasons that they were made. Once again, an example which illustrates this is a sentence of imprisonment. Sentences of imprisonment are administered by the executive. Arms of the executive such as the Sentence Administration Board rely on the terms of the sentence of imprisonment in order to make decisions about the custody of the sentenced person. The terms of the sentence must be coherently drafted and accurately recorded in order that they may be faithfully implemented.

3․The currently applicable system for the documentation of orders of the Supreme Court is through the preparation of bench sheets. One of the fundamental tasks of a judge’s associate is to accurately record the orders made by the judge or by the court of which the judge is a part. This is done by the preparation of bench sheets. These record, amongst other things, the identity of the judge, the time date and location of the making of the orders and the terms of that order. It is from these bench sheets that entries are made in the electronic case management system of the court and from which, in criminal cases, warrants of imprisonment and other instruments necessary to implement the orders of the court are drawn up. In civil cases bench sheets form the basis upon which a registrar assesses the terms of a draft order filed and decides whether it should be entered. As illustrated by the facts underlying the decision in Monaghan v Australian Capital Territory(No 2) [2016] ACTSC 352, inadequate performance by associates of their duties to accurately document the court’s orders can have significant consequences for individuals and give rise to claims against the Territory.

4․These reasons relate to a sentence of imprisonment imposed as a result of orders made by the Court of Appeal which were inadequately documented on bench sheets on the relevant file. For reasons which will appear, it is necessary to make orders to correct the documents recording the terms of those orders so that they reflect the orders that were pronounced and the intention of the court.

How the problem arose

5․On 5 December 2019 the Court of Appeal comprising Murrell CJ, Rangiah J and myself published a judgment which included a resentence of Mr Palmer. The relevant paragraphs of the reasons were as follows:

137. Mr Palmer is resentenced as follows.

(a)Count 1: Aggravated burglary on 16 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 February 2018 to 8 August 2021. 

(b)Count 2: Aggravated burglary on 16 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 June 2018 to 8 December 2021. 

(c)Count 4: Aggravated burglary on 16 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 October 2018 to 8 April 2022. 

(d)Count 6: Aggravated burglary on 21 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 June 2019 to 8 December 2022.

(e)Count 8: Aggravated burglary on 21 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 October 2019 to 8 April 2023. 

(f)Count 10: Aggravated burglary on 23 July 2017—four years’ imprisonment (reduced from four years and six months’ imprisonment), from 9 June 2020 to 8 June 2024. 

(g)Count 12: Aggravated burglary on 25 July 2017—four years’ imprisonment (reduced from four years and six months’ imprisonment), from 9 February 2021 to 8 February 2025. 

(h)Count 18 (taking into account the additional offences): Aggravated robbery on 9 August 2017—five years and 10 months’ imprisonment (reduced from six years and six months’ imprisonment), from 9 October 2021 to 8 August 2027.

138. The starting date reflects the fact that the respondent was arrested on 9 August 2017 and his parole was cancelled thereafter.  The period of imprisonment relevant to an assessment of the appropriate date for consideration of release is from 9 August 2017 to 8 August 2027, a period of 10 years. 

139. We fix a nonparole period of six years (60 per cent of the total term).  The respondent is eligible for release to parole on 8 August 2023.

6․As can be seen, although the sentences on the individual counts are articulated in the form of orders, paragraphs [138] and [139] are not in the form of orders, although the fixing of a non-parole period required an order to be made. As will emerge, it is desirable that the ultimate disposition by a court in its reasons is formulated in the form of orders so that it is clear to those responsible for preparing bench sheets and perfecting the orders precisely what has been ordered.

7․The cover page for the published reasons provides:

Decision: Appeal allowed. Respondents resentenced. See [133]-[137].

8․Once again, this form of expression gives rise to ambiguities or inconsistencies. Paragraphs [133]-[136] of the reasons related to Mr Nicholas, the other respondent. The only other paragraphs referred to in the reference on the cover page is [137] which includes the sentences imposed on Mr Palmer but does not include [139] which relates to the non-parole period. Once again, it is desirable that the decision recorded on the cover page of a published judgment records the actual orders made or includes an accurate reference to the paragraphs in the decision where the actual orders made are fully and explicitly set out. The end result must be that the actual orders made are recorded somewhere in the published judgment and not merely a narrative description of the orders intended to be made.

9․What was said in relation to Mr Palmer in court by Murrell CJ on 5 December 2019 was as follows:

Mr Palmer is resentenced as follows:

[Paragraphs (a) – (h) were read out as they appear in published reasons.]

That means that the total period of imprisonment relating to these resentenced matters is 9 years and six months’ imprisonment.

Having regard to the total period of incarceration, which also addresses other matters, we fix a non-parole date of 8 August 2023.

And I publish the reasons. The Court will adjourn. 

10․There are then three bench sheets which purport to record the orders made. The first is dated 5 December 2019. It accurately records that the Chief Justice sat to hand down the judgment, noted the appearance of the parties and recorded the orders of the court. Those were consistent with paragraphs (a)-(h) of the orders set out in the published reasons, but also included:

i. Total period of imprisonment in relation to these offences: nine years and six months (from 9 August 2017 to 8 August 2027)

j.    The Court fixes a non-parole period of six years, expiring on 8 August 2023

11․As will be apparent, order i was derived from the narrative text in the reasons of the court at [138]. It involved a redundant and inaccurate summary of the sentences. It was redundant because the terms of the individual sentences disclosed the total period required to be served. It was inaccurate because, although it accurately stated the length of the sentence (nine years and six months) it stated dates which would give an overall sentence of 10 years (9 August 2017 to 8 August 2027). These appear to be derived from the text of [138] which appears to have been intended as an explanation of the means of assessing the appropriate length of the non-parole period, rather than a statement of the effect of the sentences imposed. The statement provided an explanation of the court’s rationale for setting a six-year non-parole period ending on 8 August 2023. That period was calculated by reference to the date of Mr Palmer’s arrest on 9 August 2017 even though the first sentence only commenced on 9 February 2018. The period between 9 August 2017 and 9 February 2018 was served pursuant to a previous sentence as a result of the cancellation of his parole order. Nevertheless, it was used for the purposes of calculating an appropriate end date for the non-parole period for the new sentences that were imposed. The explanation in [138] should never have been turned into an order of the court. The relevant order of the court was the fixing of a non-parole period which was derived from what was said at [139] and reflected in the order pronounced in court.

12․These orders were then perfected in the registry by the preparation of documents including the warrant of imprisonment.

13․There were then two further bench sheets, dated 9 December 2019 and 17 January 2020 respectively, which resulted in amendment of the perfected orders. It is necessary to make some general comments about those bench sheets. Each of the bench sheets was in the same terms as the earlier bench sheet except that the orders made were recorded as having been altered and bore a title that the bench sheet was an “Amended Record of Proceedings”. Each bench sheet bore a different date from the date upon which the reasons of the court were originally published. As a consequence, in form, the bench sheets recorded that there was a hearing in Supreme Court courtroom number 3 on 9 December 2019 and 17 January 2020 where Murrell CJ handed down a judgment that included the orders in the amended form and at which all of the people who appeared at the original judgment hand down on 5 December 2019 were present. No such hearings actually occurred. What appears to have occurred is that the orders were amended in chambers, without any appearance by the parties, for reasons which are not disclosed on the bench sheets. In particular, there is no record on the bench sheet of any communication to or from the parties about the amendment to the terms of the orders, nor is there any note on the bench sheet as to the source of power to amend the orders, nor is there any record on the bench sheet of any order made by the court or a judge permitting the amendment of the orders in the manner that occurred. It should be redundant to note that the preparation of bench sheets which are inaccurate and misleading is inconsistent with the proper administration of justice.

14․The amendment made on the bench sheet dated 9 December 2019 was to order i – the redundant and inaccurate order referred to above. It is an order which should never have been recorded as having been made. The reference to 9 August 2017 was amended to 9 February 2017. Why that amendment was made was not explained. It appears to have arisen from a recognition that the dates specified in the original order i, which started and ended in the same month of a year, could not have given rise to a total period of imprisonment of nine years and six months. However, the amendment that was made to the dates of the sentence resulted in the bench sheet recording orders which contained two errors:

(a)the amended start date of the sentence, 9 February 2017, was inconsistent with the actual start date set out in relation to count 1 in order a, namely 9 February 2018; and

(b)as a result of the amendment, the period between 9 February 2017 and 8 August 2027 was not nine years and six months as stated in the balance of order i, but was 10 years and six months.

15․As a consequence, the amendment to the redundant order i built in inconsistencies with the balance of the order and inconsistencies with the sentences pronounced by the court.

16․There was then a further amendment reflected in a bench sheet dated 17 January 2020. This amendment arose from communication with the Sentence Administration Board, whose task it was to administer the orders made by the Court of Appeal. These communications were not referred to anywhere on the bench sheet or otherwise in the file, but only disclosed as a result of an interrogation of the archived email accounts of the relevant associate. Relevantly, the communication from the Sentence Administration Board suggested changes were necessary to the sentence on count 1 in order to make the start date consistent with that stated in the perfected order derived from paragraph i on the bench sheet.

17․Instead of correcting order i so that it was consistent with the sentences that had actually been imposed by the court, the suggested amendment was to alter the start and end dates of the actual sentence on count 1 so as to allow the sentence on count 1 to commence on 9 February 2017 rather than 9 February 2018. This would have the effect of moving the start date of the sentence one year earlier and hence increasing the overall length of the aggregate sentence by one year.

18․As a result of this suggestion, the new bench sheet altered the start and end dates of the sentence on count 1 so that they were no longer inconsistent with the redundant order i. The start date of the sentence on count 1 was amended from 9 February 2018 to 9 February 2017. The end date was amended from 8 August 2021 to 8 August 2020. There remained a degree of concurrency between the sentence on count 1 and count 2 but the alteration of the start date on count 1 increased the aggregate sentence by one year and reduced the extent of concurrency between the sentences on count 1 and count 2.

19․This was a substantial alteration to the sentence of imprisonment. It pushed back the start date of the offender’s sentence by 12 months and thereby extended Mr Palmer’s overall sentence from nine years and six months to 10 years and six months. Because the extension of the sentence was all in the period of backdating, it did not affect the end date of the last sentence. It therefore did not have the effect of increasing the actual period that he was required to serve in custody, so long as the end of his non‑parole period was fixed by reference to the date specified in order j (8 August 2023) rather than the length of time (six years). Nevertheless, it was a substantial amendment to the orders and the records of the court do not provide any explanation for the reasons for that amendment or the legal basis for that amendment.

20․As pointed out above, there is no record on the bench sheet of the reasons for the amendment. It is only by reference to email communications, not present on the court file, that it is possible to know that the amendment resulted from communications from the Sentence Administration Board and that the Sentence Administration Board was simply trying to make sense of an internally inconsistent set of orders so that they could be properly administered.

21․A consequence of the amendment of the start date on count 1, the statement of the length of the overall sentence in paragraph i was rendered inaccurate. Rather than nine years and six months the length of the sentence became 10 years and six months.

22․It is this final inconsistency within the orders that the Sentence Administration Board has recently requested to be corrected. It has requested that the reference to “nine years and six months” in order i be replaced with “ten years and six months”. That amendment would remove the internal inconsistencies within the orders.

23․As can be seen from the history outlined, the imposition of a sentence of 10 years and six months is not what the court ordered on 5 December 2019. Rather, that was a sentence of nine years and six months. The series of changes that were made to the orders arose from the erroneous inclusion of the narrative text at [138] of the court’s reasons as an order of the court (order i) and subsequent attempts to make the orders of the court consistent with the erroneously included order.

How to fix the problem

24․There are two ways to address the current situation. The first way to address the situation would be to make the change requested by the Sentence Administration Board. That could be done if it was assumed that the bench sheet dated 17 January 2020 accurately recorded the orders of the court. The amendment would resolve the internal inconsistency between the statement of the overall length of the sentence and the actual orders imposing the sentences.

25․The second way to address the situation is to not assume the accuracy of the 17 January 2020 bench sheet but instead refer to the published reasons of the court and the orders pronounced on 5 December 2019 as reflecting the court’s intention in relation to the sentence. That would involve undoing not only the amendments made on 9 December 2019 and 17 January 2020 but also the bench sheet reflecting the orders made upon the handing down of the court’s reasons on 5 December 2019. The most minor amendment that could be made so as to regularise matters would be to alter the dates specified in order i so that the start date was 9 February 2018 rather than 9 August 2017. The order would then correspond to the actual start date of the sentence imposed on count 1 and the overall period of the sentence would be accurately stated as nine years and six months. However, having regard to the fact that order i was redundant and not reflected in the published reasons of the court or the orders pronounced on 5 December 2019 it is more appropriate simply to delete it. The end result will be that which was intended by the court, namely a sentence of nine years and six months and a non-parole period resulting in the offender being eligible for release on parole on 8 August 2023.

26․I consider that this amendment falls within the scope of r 6906 of the Court Procedures Rules 2006 (ACT), since, at the very least, the errors in order i resulted from the accidental inclusion of narrative text as an order including incorrect dates. The subsequent amendments all flow from that mistake. The amendment of the orders of the Court of Appeal pursuant to r 6906 may be done by an order of a single judge as it involves a matter of practice and procedure of the Court of Appeal: Wickey v The Queen (No 2) [2012] ACTCA 51.

27․Amendments made pursuant to r 6906 can be on the court’s own initiative: r 6906(2). In the present case, the parties have been notified of the proposed amendments and have indicated today that they do not oppose the making of that amendment.

28․Counsel for the prosecution drew attention to the fact that the orders of the Court of Appeal failed to explicitly state the commencement of the non-parole period and that it was a requirement of the law that the starting date be specified. In the present case, the date of the commencement of the first sentence is the date upon which the non‑parole period commences. Even though it has not been specified in the order which identifies when the non-parole period ends, it is able to be worked out from the orders read as a whole. Given that I am presently acting pursuant to r 6906 I consider it appropriate to limit the amendments made to those which can be clearly seen to be arising from the erroneous documentation of the benchsheet and not go further and fix all problems that might exist with the terms of the order.

29․The order of the Court is:

1.Pursuant to rule 6906 the committal order, warrant of imprisonment and official notice of sentence to imprisonment each dated 17 January 2020 are amended as follows:

(a)Amend order 1 a by deleting “2017” and inserting “2018” and by deleting “2020” and inserting “2021”.

(b)Delete order 2.

(c)Delete order 3 and substitute “The non-parole period ends on 8 August 2023.”

(d)Renumber order 3 as order 2.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 28 June 2023