Yeonata v The Queen (No. 2)

[2013] NSWCCA 59

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Yeonata v R (No. 2) [2013] NSWCCA 59

Hearing dates:

20 September 2012

Decision date:

14 March 2013

Before:

Macfarlan JA, Johnson & Davies JJ

Decision:

The order of the Court of 11 December 2012 is corrected as follows:

Order (4)(a) is varied so that paragraph (a) provides:

For sequences 67-69, 74, 78, 82, 98, 112, 120 and 131 - a non-parole period of one year commencing 3 March 2010 and expiring 2 March 2011 with an additional term of four months expiring 2 July 2011.

Catchwords:

PROCEDURE - judgments - varying - accidental slip or omission.

Legislation Cited:

Criminal Appeal Rules

Cases Cited:

R v Brett Andrew Green [2011] NSWCCA 71
Yeonata v R [2012] NSWCCA 211

Category:

Consequential orders

Parties:

Jimmy Yeonata (Applicant)
Crown

Representation:

Counsel:
T Gartelmann (Applicant)
J Girdham (Crown
Solicitors:
Legal Aid of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2010/62415

 Decision under appeal 

Date of Decision:

2011-03-11 00:00:00

Before:

Finnane DCJ

File Number(s):

2010/62415

Judgment

1. THE COURT: On 11 December 2012 the Court determined the application for leave to appeal by granting leave to appeal, allowing the appeal, quashing the sentences imposed by Judge Finnane and re-sentencing the Appellant: Yeonata v R [2012] NSWCCA 211.

1. The re-sentencing exercise included a categorisation of the various sequences charged into gradations of seriousness and imposing sentences based on the group into which each sequence fell. All of the sequences considered were set out in the judgment at [41].

1. It was subsequently drawn to the Court's attention that sequence 120 was not included in the sequences for which sentences were imposed by this Court although that sequence had been dealt with by Judge Finnane at first instance. Further enquiry ascertained that the reason for its omission in this Court's judgment was that the Court Attendance Notice in respect of that sequence was not included in the appeal books. There was no other information concerning that offence. That Court Attendance Notice has now been obtained from the District Court file.

1. The offence charged was a further offence of knowingly dealing in the proceeds of crime being a stolen and altered cheque in an amount of $2,930.10. There were no Form 1 offences in respect of this offence.

1. It is clear from the approach this Court took to the division of the sequences in terms of their seriousness that this omitted sequence would have fallen within the first group, that is, offences involving an amount of $4000 or less where there were no Form 1 offences attached. The sentence imposed for each sequence in that group was a non-parole period of one year commencing 3 March 2010 and expiring 2 March 2011 with an additional term of four months expiring 2 July 2011.

1. The error resulting from the omission of the sequence was not brought to the Court's attention within the 14 day period allowed by r 50C of the Criminal Appeal Rules. Independently of r 50C this Court has inherent power to make corrections of accidental slips or omissions in order to ensure that orders finally made reflect the intention of the Court: R v Brett Andrew Green [2011] NSWCCA 71 at [21] and [24].

1. Accordingly, the order of the Court of 11 December 2012 is corrected as follows:

Order (4)(a) is varied so that paragraph (a) provides:

For sequences 67-69, 74, 78, 82, 98, 112, 120 and 131 - a non-parole period of one year commencing 3 March 2010 and expiring 2 March 2011 with an additional term of four months expiring 2 July 2011.

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