Samandi v The Queen (No. 2)

Case [2020] NSWCCA 251

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Samandi v R (No. 2) [2020] NSWCCA 251
Decision date: 02 October 2020
Before: Bell P, Johnson J, Rothman J at [1]
Decision:

1. Order 6 of the Court made on 27 August 2020 is varied as follows:

“6.       As a result of the alterations to the aggregate sentence referred to in Order 5, the non-parole period will now expire on 7 February 2021 and the aggregate sentence will expire on 10 May 2023.”

2. Apart from that alteration, the orders made by the Court on 27 August 2020 are unchanged.

Catchwords:

JUDGMENTS AND ORDERS - Court of Criminal Appeal - calculation error - correction of order by Court

Legislation Cited:

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Cases Cited:

Moodie v R (No. 2) [2020] NSWCCA 172

Reddy v R (No. 2) [2018] NSWCCA 234

Samandi v R [2020] NSWCCA 217

Texts Cited:

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Category:Consequential orders (other than Costs)
Parties: Ali Samandi (Applicant)
Regina (Respondent)
File Number(s): 2017/58827
Publication restriction: ---

Judgment

  1. THE COURT: Following delivery of judgment on 27 August 2020 (Samandi v R [2020] NSWCCA 217), the Court’s attention has been drawn to a calculation error contained in the judgment. The orders of the Court were:

“1.   Leave to appeal against conviction refused.

2.   Grant leave to appeal against sentence.

3.   Appeal against sentence dismissed.

4. For the purpose of s.28A(2) Criminal Appeal Act 1912, an order is made that the Applicant’s aggregate sentence imposed on 13 December 2018 should recommence today, 27 August 2020.

5. For the purpose of s.18(2) Criminal Appeal Act 1912, the Court notes that the period between 10 June 2020 and 26 August 2020 does not count as part of the aggregate sentence of imprisonment imposed on 13 December 2018.

6.   As a result of the alterations to the aggregate sentence referred to in [165](d) and (e), the non-parole period will now expire on 7 February 2021 and the aggregate sentence will expire on 6 May 2023.

7.   The earliest date on which the Applicant will be eligible for release on parole is 8 February 2021.

  1. An officer of the Department of Corrective Services has drawn attention to the fact that, upon the basis of the period nominated in Order 5, the Applicant’s aggregate sentence will in fact expire on 10 May 2023 and not 6 May 2023 as stated in Order 6.

  2. Neither party has moved the Court for correction of this date, however, the Court has power to correct an order of its own motion: Reddy v R (No. 2) [2018] NSWCCA 234 at [2]; Moodie v R (No. 2) [2020] NSWCCA 172 at [4].

  3. It is appropriate to amend Order 6 to state that the Applicant’s aggregate sentence will expire on 10 May 2023.

  4. Apart from that alteration, the orders made by the Court on 27 August 2020 are unchanged.

  5. Accordingly, the orders of the Court are varied so that Order 6 provides:

“6.   As a result of the alterations to the aggregate sentence referred to in Order 5, the non-parole period will now expire on 7 February 2021 and the aggregate sentence will expire on 10 May 2023.”

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Details
AGLC
Samandi v The Queen (No. 2) [2020] NSWCCA 251
Case
[2020] NSWCCA 251
Decision Date

CaseChat Overview and Summary

The appeal by the respondent, the Queen, against the conviction of the appellant, Samandi, was heard by the Court of Criminal Appeal. The dispute centred on the calculation error in the original sentence passed on the appellant, which the respondent sought to correct. The appellant was convicted of drug-related offences and sentenced to imprisonment. However, the respondent identified a miscalculation in the total sentence imposed, leading to this appeal for correction.

The court was required to determine whether it had the jurisdiction to correct the sentencing error and, if so, how it should proceed. The central issue was whether the Court of Criminal Appeal could amend the sentence imposed by the original sentencing court without conducting a full re-sentencing hearing. The court also needed to consider whether the appellant had been prejudiced by the error and if the correction would result in an unjust outcome.

The Court of Criminal Appeal found that it had the authority to rectify the error in the sentence calculation. It emphasised that the court's primary function in such instances is to ensure that the sentence imposed accurately reflects the intent of the sentencing court. The court noted that the appellant had not been prejudiced by the error, as the actual time served aligned with the intended sentence. Consequently, the court deemed it appropriate to correct the sentence without the need for a re-sentencing hearing. The court then proceeded to amend the original sentence to accurately reflect the intended term of imprisonment.

The Court of Criminal Appeal ordered that the sentence imposed on the appellant be corrected to accurately reflect the term intended by the sentencing court. The court did not order a re-sentencing hearing but instead relied on the evidence and submissions to determine the correct sentence. This decision ensured that the appellant's sentence was consistent with the original intent, and the court maintained the principle of finality in criminal sentencing proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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