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Court of Criminal Appeal 14 February 2005

R v Oliver [No 2]

[2005] NSWCCA 27

Other
CRIMINAL PRACTICE & PROCEDURE

Citation: R v Oliver [No 2] [2005] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 14 February 2005
Judge(s): Sully J; Kirby J

Background

The applicant had been sentenced in the District Court by Patten DCJ on 3 May 2003 following convictions on two counts. He sought leave to appeal against the sentence imposed on Count 1, along with related matters recorded on a Form 1 (a document listing additional offences taken into account at sentencing).

The Court of Criminal Appeal delivered its primary judgment on 4 February 2005, allowing the appeal and resentencing the applicant on Count 1. In doing so, it set a non-parole period running from 15 August 2002 to 14 February 2005, with a head sentence expiring on 14 February 2007.

This second judgment, delivered on 14 February 2005, arose because the original orders failed to adjust the sentence on Count 2 to align with the revised non-parole period. The Court issued amended orders to correct that oversight.

  • Whether the orders made on 4 February 2005 required amendment to ensure the sentence on Count 2 was consistent with the non-parole period imposed on Count 1.

Decision

The Court identified that when it resentenced the applicant on Count 1 and set a non-parole period expiring 14 February 2005, it overlooked that the Count 2 sentence was a fixed term of 3 years running from 15 August 2002 to 14 August 2005. That fixed term extended beyond the non-parole period, creating an inconsistency in the overall sentence structure.

To resolve this, the Court amended the Count 2 fixed term so that it ran concurrently with the non-parole period, from 15 August 2002 to 14 February 2005. The amendment brought the two sentences into alignment without otherwise disturbing the resentencing outcome.

Orders Made

  • Time for filing the Notice Seeking Leave to Appeal extended.
  • Leave to appeal granted.
  • Appeal allowed; sentence imposed on 3 May 2003 quashed.
  • In respect of Count 1 (taking into account Form 1 matters): imprisonment for 4 years 6 months commencing 15 August 2002 and expiring 14 February 2007, with a non-parole period of 2 years 6 months commencing 15 August 2002 and expiring 14 February 2005, at which time the applicant becomes eligible for release on parole.
  • In respect of Count 2: fixed term of imprisonment of 2 years 6 months commencing 15 August 2002 and expiring 14 February 2005.

Key Takeaways

  • The Court of Criminal Appeal issued a second judgment to correct an oversight in its earlier orders, demonstrating that sentencing errors identified shortly after delivery can be addressed by way of amended orders.
  • Where multiple sentences run concurrently, the fixed term on one count should be adjusted to align with the non-parole period established on another count, to avoid unintended inconsistency in the overall sentence structure.
  • The amendment did not alter the substance of the resentencing outcome on Count 1; it confined the correction to the Count 2 fixed term.
  • Procedural matters, such as an extension of time to file a notice seeking leave to appeal, were also formally recorded in the amended orders even where they had been addressed in the earlier judgment.

Legislation and Cases Referenced

Legislation:
- No specific legislation cited in the provided text.

Cases:
- R v Oliver [2005] NSWCCA (primary judgment, delivered 4 February 2005, unreported reference not provided in text).