R v PL

[2010] NSWCCA 256

New South Wales
Court of Criminal Appeal

CITATION:	Roberts v R [2010] NSWCCA 256 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	5 November 2010
JUDGMENT DATE:	5 November 2010
JUDGMENT OF:	Simpson J at 6, 8; Schmidt J at 7; Howie AJ at 1
EX TEMPORE JUDGMENT DATE:	5 November 2010
DECISION:	1. That the appeal in respect of conviction on the second count on the indictment be allowed and the conviction and sentence quashed. 2. In respect of the first count on the indictment the matter should be remitted to the District Court under s 12 of the Criminal Appeal Act 1912.
LEGISLATION CITED:	Criminal Appeal Act 1912, s12
CATEGORY:	Principal judgment
PARTIES:	Landan Roberts - Applicant Regina - Crown
FILE NUMBER(S):	CCA 2009/8512
COUNSEL:	C Nash - Applicant P Hastings QC - Respondent
SOLICITORS:	Ms V Havryliv, Ford Criminal Lawyers - Applicant Commonwealth Director of Public Prosecutions - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Williams DCJ
LOWER COURT DATE OF DECISION:	9 April 2010

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2009/8512

SIMPSON J
SCHMIDT J
HOWIE AJ

FRIDAY 5 NOVEMBER 2010

LANDAN ROBERTS v REGINA

Judgment (Ex Tempore)

1 HOWIE AJ: In this matter an appeal was lodged in respect of a conviction after the applicant pleaded guilty to two offences in the District Court and had been sentenced. The matter came by way of appeal to this Court against conviction on one offence and an application for leave to appeal against the sentence that was imposed for the other offence.

2 The Commonwealth Crown agrees that the appeal against conviction should be allowed and the conviction should be quashed on one matter. The Commonwealth Crown then sought to have the Court amend the indictment to particularise the offence on which sentence was imposed and then deal with the application for leave to appeal against sentence.

3 The applicant argued that this Court should not go on with the application for leave to appeal against sentence but should return the whole matter back to the District Court. The reason for that submission was that the judge who sentenced the applicant had sentenced two co-offenders in respect of the matter, was fully aware of the whole of the facts and would be best able to deal with all issues arising, including the question of parity.

4 During discussions about what the Court should do, Mr Hastings QC for the Commonwealth Crown agreed that there was at least a question about whether this Court had the power to amend an indictment and, therefore, because of that doubt, the matter should be returned to the District Court.

5 Therefore I propose that we make the following orders:

1. That the appeal in respect of conviction on the second count on the indictment be allowed and the conviction and sentence quashed.

2. In respect of the first count on the indictment the matter should be remitted to the District Court under s 12 of the Criminal Appeal Act 1912.

6 SIMPSON J: I agree.

7 SCHMIDT J: I agree.

: The orders of the Court are as proposed by Howie AJ.

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09/11/2010 - CCA File number corrected to 2009/8512 - Paragraph(s) CCA File number on both Coversheet and on Judgment