Citation: R v Carrion [2002] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 5 March 2002
Judges: Wood CJ at CL, Sully J, Dowd J
Background
The respondent had been sentenced to periodic detention in the District Court. The Crown appealed that sentence as inadequate, and on 26 May 2000 the Court of Criminal Appeal allowed the appeal, substituting a term of three years full-time imprisonment with a non-parole period of two years and three months, to commence on 23 May 2000.
The respondent was not present when judgment was delivered. A bench warrant was issued for his apprehension, but it was not executed until 18 July 2001, approximately 14 months later. During that period, the formal steps required to place the sentencing order on the record had not been completed, and the District Court had not been notified of the orders.
When the matter returned to the Court of Criminal Appeal, the Crown applied to amend the commencement date of the sentence to the date the respondent was actually taken into custody. The respondent resisted, contending that the earlier sentence had already begun to run and that the court lacked power to vary the orders.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction or power to reopen the matter and amend the commencement date of the substituted sentence.
- Whether the "slip rule" (the principle allowing courts to correct orders that do not reflect their true intention) applies in criminal proceedings.
- Whether the original sentencing order had been "perfected" so as to prevent variation.
- Whether the respondent was, as a matter of law, serving either the substituted sentence or the original periodic detention order during the 14 months he was at large.
Decision
The Court held that it possessed an implied or inherent power to vary an order so as to give effect to its true intention. The Court declined to decide definitively whether the slip rule applies in criminal cases, finding it unnecessary to do so, because the implied or inherent power was sufficient to support intervention.
The original order pronounced on 26 May 2000 was found to have been provisional in character, intended to take effect only once the warrant was executed. The formal steps required to pass the order into the court record had not been taken: under the Criminal Appeal Rules, it was the duty of the proper officer of the District Court to formally enter the particulars upon receipt of notification from the Court of Appeal's registrar, and the indictment had not been endorsed. Because the order had not been perfected, the Court retained the power to reopen and amend it.
As to whether the respondent was serving a sentence during the 14 months he was at large, the Court found he was not. He was not serving the substituted full-time sentence because he had not been taken into custody. The original periodic detention order remained on foot, but the respondent had also not been reporting for periodic detention. Under sections 82 and 89 of the Crimes (Administration of Sentences) Act 1999, the periodic detention sentence was extended by one week for each detention period missed, meaning the respondent accumulated no credit for the time he spent at large.
The Court concluded that allowing the respondent to benefit from the 14-month gap would produce an unintended windfall. To give effect to the court's original intention, the commencement date of the sentence was amended to 15 July 2001, the date the respondent was returned to custody. The Court also observed that legislative amendment to the Criminal Appeal Act would be desirable to address situations where an offender is at large during a period that might otherwise be treated as time served.
Orders Made
- Crown appeal allowed.
- Sentences imposed in the court below quashed.
- Respondent sentenced to imprisonment for three years on each count, to be served concurrently, commencing 15 July 2001 and expiring 14 July 2004.
- Non-parole period of two years and three months set for each count, commencing 15 July 2001 and expiring 14 October 2003.
- Respondent to be released to parole on 15 October 2003.
Key Takeaways
- The Court of Criminal Appeal confirmed it holds an implied or inherent power to vary a sentencing order to accord with its true intention, even in criminal proceedings, without needing to resolve whether the slip rule formally applies in that context.
- Where the formal steps required to perfect a sentencing order have not been completed (including notification to the lower court and endorsement of the indictment), the order remains provisional and the Court retains power to reopen and amend it.
- An offender who absconds before a warrant of commitment is executed does not, as a matter of law, begin serving the substituted sentence during the period at large.
- Under sections 82 and 89 of the Crimes (Administration of Sentences) Act 1999, failure to report for periodic detention extends the term of that sentence, meaning an absent offender accumulates no credit for unreported detention periods.
- In dismissing the respondent's windfall argument, the Court noted that time spent unlawfully at large cannot count as time served against a sentence, and suggested Parliament consider legislative amendment to address such gaps more comprehensively.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 82, 89
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 47, 48, 70
- Criminal Appeal Act 1912 (NSW), ss 14A, 18(2)
- Criminal Appeal Rules (NSW), rr 51, 52, 53
- Criminal Procedure Act 1986 (NSW), s 24
Key Cases:
- Postiglione v The Queen (1997) 189 CLR 295
- Whan v McConaghy (1984) 153 CLR 631
- Regina v Jovanovic (1999) 106 A Crim R 548
- Regina v Lapa (No 2) (1995) 80 A Crim R 398
- Regina v Stephens (1990) 48 A Crim R 323
- Regina v Ponfield [1999] NSWCCA 422
- Regina v Allen [1994] 1 Qd R 526
- Shaddock & Associates Pty Ltd v Parramatta City Council (1982) 151 CLR 590
- Regina v Cripps [1984] 1 QB 686
- Smith v NSW Bar Association (No 2) (1992) 176 CLR 256