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Court of Criminal Appeal 4 September 2001

REGINA v. BUTCHER

[2001] NSWCCA 335

Drugs
SENTENCE AMENDMENT TO NON PAROLE PERIOD.

Citation: [2001] NSWCCA 335
Court: New South Wales Court of Criminal Appeal
Date: 4 September 2001
Judge(s): Greg James J; Smart AJ

Background

The appellant pleaded guilty in the District Court to four charges under the Drugs Misuse & Trafficking Act 1985. Following a sentencing appeal, the Court of Criminal Appeal delivered judgment on 17 May 2001 in Regina v Butcher [2001] NSWCCA 188, allowing the appeal in part and substituting new sentences on two of the four counts.

After that judgment was handed down, both the appellant and the Crown identified two errors in the written reasons. The first was a factual mistake in paragraph two of the judgment, which recorded that the appellant had pleaded guilty to three charges rather than four. The second, and more significant, error appeared in paragraph 68, where the court's language created a misleading impression about the non-parole period on count one.

The parties jointly applied under section 43 of the Crimes (Sentencing Procedure) Act 1999 to have the judgment corrected. This decision records the court's response to that application.

  • Whether the judgment of 17 May 2001 contained factual and drafting errors requiring correction.
  • Whether the court had power under section 43 of the Crimes (Sentencing Procedure) Act 1999 to re-open the judgment and amend the orders.
  • What the corrected paragraph 68 and the corrected formal orders should say.

Decision

The Court accepted that paragraph two of the earlier judgment incorrectly referred to three guilty pleas when there were in fact four. That error was straightforward to fix, and the word "three" was amended to read "four."

The more consequential error appeared in paragraph 68. As originally expressed, that paragraph stated that the court would "deem it inappropriate to impose a non-parole period" on count one because a non-parole period was already being imposed on count four. Both counsel submitted, and the Court agreed, that this language wrongly suggested no non-parole period existed for count one at all. In fact, a non-parole period had already been set under the original sentence, and the court's intention was simply not to vary it, not to leave count one without one entirely.

The court re-opened the judgment under section 43(2)(b) of the Crimes (Sentencing Procedure) Act 1999 and substituted corrected language and formal orders. Smart AJ agreed with the amendments proposed by Greg James J.

Orders Made

  • Leave to appeal granted; appeal allowed on counts one and four; sentences on those counts quashed.
  • In lieu of the sentence on count one: four years imprisonment commencing 21 May 1999, with a non-parole period of two years ending 20 May 2001.
  • In lieu of the sentence on count four: five years imprisonment commencing 21 May 1999, with a non-parole period of three years ending 20 May 2002.
  • Appeal on counts two and three dismissed.
  • Judgment re-opened pursuant to section 43(2)(b) of the Crimes (Sentencing Procedure) Act 1999 and amended accordingly.

Key Takeaways

  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 provides a mechanism for the Court of Criminal Appeal to re-open and correct a judgment where errors have been identified, including on the joint application of both parties.
  • A drafting ambiguity in sentencing reasons, specifically language suggesting no non-parole period had been imposed where one already existed, was sufficient to warrant correction through formal amendment rather than being left to stand.
  • The Court distinguished between a decision not to "impose" a non-parole period (which would mean none exists) and a decision not to "vary" one (which preserves the period already in place). That distinction carries material consequences for the calculation of a prisoner's release date.
  • Where both prosecution and defence identify the same error in a judgment, a joint application under section 43 is a recognised way to resolve the matter without a further contested appeal.
  • In correcting the orders, the Court restated the full formal sentencing structure to ensure all counts were expressly disposed of, removing any residual ambiguity in the earlier orders.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 43 and s 43(2)(b)
- Drugs Misuse & Trafficking Act 1985 (NSW)

Cases:
- Regina v Butcher [2001] NSWCCA 188 (the earlier judgment in the same proceedings, which this decision amends)