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Court of Criminal Appeal 13 May 2004

R v Pearson

[2004] NSWCCA 151

Other
NO QUESTION OF PRINCIPLE

Citation: R v Pearson [2004] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 13 May 2004
Judge(s): Sperling J, Kirby J, Bell J

Background

The applicant, David Wayne Pearson, had been sentenced in the District Court by Sides DCJ following convictions on multiple counts. The matter came before the Court of Criminal Appeal on a sentencing appeal, with the Crown represented by the Director of Public Prosecutions and the applicant represented by the Legal Aid Commission of NSW.

The Court had already delivered a judgment on 7 May 2004 (R v Pearson [2004] NSWCCA 129) and made orders on that date. However, a problem with those orders was identified shortly after, prompting this brief supplementary judgment.

  • Whether the orders made on 7 May 2004 correctly reflected that the appeal concerned three concurrent sentences, rather than a single sentence.
  • What corrected orders should be substituted to address that error.

Decision

The Court identified that its orders of 7 May 2004 had failed to recognise that the appeal was brought against three concurrent sentences. The original orders addressed only one sentence, leaving the concurrent terms on Counts 2 and 3 unaccounted for in the re-sentencing orders.

To remedy this, the Court varied its earlier orders by substituting a corrected order (3) that expressly dealt with all three counts. The revised orders imposed sentences on each count individually, all commencing from the same date of 18 November 2002.

Orders Made

  • Count 1 (taking into account offences on Form 1): five years imprisonment commencing 18 November 2002, with a non-parole period of three years commencing 18 November 2002 and expiring 17 November 2005.
  • Counts 2 and 3 (each): three years imprisonment commencing 18 November 2002, with a non-parole period commencing 18 November 2002 and expiring 17 November 2004.
  • The orders of 7 May 2004 were varied by substituting the above for order (3) of that date.

Key Takeaways

  • A sentencing order on appeal must expressly address each count the subject of the appeal, including where sentences run concurrently.
  • Where a court's orders fail to reflect the true scope of the appeal, the Court of Criminal Appeal has the capacity to vary those orders by substituting corrected terms.
  • In varying the earlier orders, the Court confirmed that all three sentences commenced on the same date, preserving their concurrent structure.
  • No new question of principle arose from this decision; it was a correction of an administrative or drafting error in the original appellate orders.

Legislation and Cases Referenced

Cases:
- R v Pearson [2004] NSWCCA 129 (the earlier decision whose orders were varied)

Legislation: No specific legislation was cited in the text of this decision.