Citation: R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran (No.2) [2004] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 7 June 2004
Judge(s): Santow JA; James J; Miles AJ
Background
This judgment is a supplementary decision following the Court of Criminal Appeal's primary judgment handed down on 18 March 2004. That earlier judgment concerned Crown appeals against sentences imposed on four respondents in the District Court by Dodd DCJ. The Court of Criminal Appeal allowed the appeals and re-sentenced the respondents.
After the primary judgment was delivered, the solicitor for the respondents contacted the Court's Registrar to flag an apparent inconsistency in the orders made in respect of one respondent, John Nguyen. Specifically, the non-parole period stated in the body of Miles AJ's reasons differed from the non-parole period that appeared in the proposed orders at the conclusion of the same judgment.
The Crown, upon being consulted, agreed that the proposed orders as made did not accurately reflect the intention expressed in the reasons. Both parties were therefore aligned that a correction was necessary.
Legal Issues
- Whether the sentences imposed on John Nguyen by the Court of Criminal Appeal on 18 March 2004 accurately reflected the sentencing intention expressed in the body of the principal judgment
- Whether the Court had statutory power under s 43 of the Crimes (Sentencing Procedure) Act to correct the identified error
Decision
The Court examined the inconsistency and agreed with both parties that the orders as made did not reflect the intention stated in paragraph 59 of Miles AJ's judgment. That paragraph had expressed the view that John Nguyen should serve an effective non-parole period of three years and six months. However, the proposed orders in paragraph 64(iv) produced an aggregate non-parole period of four years and nine months, which was not consistent with that stated intention.
The Court held that s 43 of the Crimes (Sentencing Procedure) Act provided power to correct the error. It noted that the breadth of that corrective power had recently been affirmed by the Court of Appeal in Erceg v The District Court of New South Wales [2003] NSWCA 379. The fix was straightforward: reducing the non-parole period on count 5 from three years and six months to two years and three months brought the total non-parole period into line with what the Court had intended.
Orders Made
- Pursuant to s 43 of the Crimes (Sentencing Procedure) Act, the sentence previously imposed on John Nguyen on count 5 on 18 March 2004 was varied
- John Nguyen was re-sentenced on count 5 to imprisonment for five years commencing 4 November 2002 and expiring 3 November 2007, with a non-parole period of two years and three months commencing 4 November 2002 and expiring 3 February 2005
Key Takeaways
- Under s 43 of the Crimes (Sentencing Procedure) Act, a sentencing court holds a broad power to correct errors where the orders as made do not accurately reflect the court's stated intention in its reasons.
- The Court of Criminal Appeal confirmed that this corrective power extends to its own sentences, not only those of courts below.
- In Erceg v The District Court of New South Wales [2003] NSWCA 379, the Court of Appeal had already emphasised the width of the s 43 correction power, and this decision applied that principle at appellate level.
- An inconsistency between the reasoning in a judgment and the formal orders drawn from it may constitute a correctable error rather than a substantive variation of sentence.
- Both the defence and the Crown agreed on the existence and nature of the error, which facilitated a straightforward correction by adjusting a single non-parole period figure.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
Cases
- R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran [2004] NSWCCA 65 (the primary judgment)
- Erceg v The District Court of New South Wales [2003] NSWCA 379