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Court of Criminal Appeal 28 June 2005

R v Cohen

[2005] NSWCCA 230

Other
VARIATION OF ORDERS.

Citation: R v Cohen [2005] NSWCCA 230
Court: New South Wales Court of Criminal Appeal
Date: 28 June 2005
Judge(s): Santow JA; Hidden J; Adams J

Background

The Court of Criminal Appeal had previously delivered judgment in this matter on 12 September 2002, dismissing the appellant's appeal against sentences imposed in the District Court. The original sentencing judge, Andrew ADCJ, had sentenced the appellant on 26 November 2001 across seven counts but recorded the commencement date of the sentences by reference to the date of arrest as "3 May 2001."

That date was incorrect. The appellant had in fact been arrested on 3 May 2000, meaning the sentence commencement date was a full year earlier than recorded. This error went unnoticed during the appeal proceedings, and the Court dismissed the appeal without addressing it.

The Director of Public Prosecutions subsequently applied to reopen the matter to correct the error. The Crown did not oppose the corrected orders being made.

  • Whether the matter could be reopened to correct a sentencing error in the commencement date of the sentences, pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999
  • What the corrected sentence commencement dates and non-parole periods should be once the error was remedied

Decision

The Court reopened the matter under s 43 of the Crimes (Sentencing Procedure) Act 1999, which provides a mechanism for correcting sentencing errors. The error was straightforward: the sentencing judge had recorded the arrest date as 3 May 2001 when it should have been 3 May 2000, causing all sentence commencement dates to be recorded as running from the wrong year.

Because the Crown did not oppose correction, the Court quashed the original sentence and resentenced the appellant with the commencement date corrected to 3 May 2000 across all counts. The structure and lengths of the sentences remained consistent with the original orders, with only the commencement date (and consequently the expiry dates) revised to reflect the correct year.

Orders Made

  • The matter was reopened pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999
  • The sentence imposed by Andrew ADCJ on 26 November 2001 was quashed
  • In lieu thereof, the appellant was resentenced as follows:
  • Counts 1 and 2: concurrent terms of eight years' imprisonment commencing 3 May 2000, with a non-parole period of six years expiring 2 May 2006
  • Counts 3 and 4: concurrent terms of six years' imprisonment commencing 3 May 2000, with a non-parole period of four years and six months expiring 2 November 2004
  • Counts 5 to 7: concurrent terms of two years' imprisonment commencing 3 May 2000 and expiring 2 May 2002

Key Takeaways

  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 provides a mechanism allowing the Court of Criminal Appeal to reopen proceedings and correct a sentencing error even after an appeal has been dismissed.
  • A clerical or factual error in recording the commencement date of a sentence, such as recording the wrong year of arrest, is capable of correction under this provision.
  • The Director of Public Prosecutions has standing to bring an application to reopen proceedings for the purpose of correcting such an error.
  • Where the Crown does not oppose corrected orders, the Court may proceed to quash the original sentence and substitute revised orders reflecting the correct dates.
  • Sentence commencement date errors of this kind, if not identified during the original appeal, can nonetheless be remedied through a subsequent reopening application.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43

Cases:
- No cases were cited in the judgment text.