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Court of Criminal Appeal 2 December 2011

R v AB (No. 2)

[2011] NSWCCA 256

Fraud & dishonesty
CRIMINAL LAW CROWN APPEAL ORDER MADE UNDER RULE 50C RESPONDENT RESENTENCED

Citation: R v AB (No. 2) [2011] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 2 December 2011
Judges: Bathurst CJ, Hoeben J, Johnson J

Background

In October 2011, the Court of Criminal Appeal allowed a Crown appeal in R v AB [2011] NSWCCA 229, increasing the effective period of imprisonment the respondent was required to serve. The respondent had pleaded guilty in the Local Court on 2 March 2010 and was subsequently committed for sentence to the District Court.

Shortly after the principal judgment, both the Crown and the respondent's counsel identified two errors in the orders made. A letter was sent to the Registrar on behalf of the respondent's counsel, requesting the Court address those errors under Rule 50C of the Criminal Appeal Rules.

The parties filed written submissions in early November 2011. Both agreed that errors had occurred and that remedial orders were warranted.

  • Whether a three-month gap in the calculation of cumulative notional sentences constituted a slip requiring correction.
  • Whether the Court had been entitled to impose an aggregate sentence under s.53A of the Crimes (Sentencing Procedure) Act 1999, given that the respondent had pleaded guilty before that provision commenced on 14 March 2011.
  • Whether there was a further arithmetical error in the total sentence calculation, as separately argued by the respondent.
  • Whether Rule 50C of the Criminal Appeal Rules provided the appropriate mechanism to set aside and remake the earlier orders.

Decision

Johnson J (with whom Bathurst CJ and Hoeben J agreed) accepted that both agreed errors fell within the scope of Rule 50C. That rule permits the Court to set aside or vary an order where a misapprehension of fact or law, not solely attributable to the applicant, materially affected the Court's judgment, provided the application is made within 14 days of the order being entered. Both requirements were satisfied here.

On the aggregate sentencing issue, the Court acknowledged that a critical part of the transitional provisions under the Crimes (Sentencing Procedure) Amendment Act 2010 had not been identified by the parties or the Court at the original hearing. Under Schedule 2, clause 62 of the Crimes (Sentencing Procedure) Act 1999, the aggregate sentencing scheme does not apply where a guilty plea was entered and not withdrawn before 14 March 2011. Because the respondent pleaded guilty on 2 March 2010, the Court had no power to impose an aggregate sentence or a single non-parole period under the aggregate sentencing provisions.

On the calculation gap, the Court accepted there was a three-month period between the expiry of the notional sentence on Count 3 and the commencement of the notional sentence on Count 4, during which the respondent would not have been serving any sentence. This was a clear slip requiring correction. The respondent's separate argument that there was a further arithmetical error beyond these two agreed issues was rejected.

Given that individual sentence lengths were not to be increased (consistent with the Crown's original submission on appeal), the Court reimposed fixed terms on the first three counts and a cumulative sentence with a non-parole period on the fourth count. The overall minimum period of four years and nine months, as determined in the principal judgment, was maintained.

Orders Made

  • All orders made by the Court on 14 October 2011 were set aside under Rule 50C.
  • The Crown appeal was allowed.
  • Sentences imposed in the District Court on 9 March 2011 on the first, second, third, and fourth counts were quashed.
  • Count 1: fixed term of three months, commencing 28 May 2010 and expiring 27 August 2010.
  • Count 2: fixed term of 18 months, commencing 28 June 2010 and expiring 27 December 2011.
  • Count 3: fixed term of two years, commencing 28 November 2011 and expiring 27 November 2013.
  • Count 4: imprisonment for three years commencing 28 October 2013, comprising a non-parole period of one year and four months (expiring 27 February 2015) and a balance of term of one year and eight months (expiring 27 October 2016); special circumstances found.
  • The District Court's sentence for driving whilst disqualified, and the associated disqualification orders, were confirmed.
  • Under s.50 of the Crimes (Sentencing Procedure) Act 1999, the respondent was directed to be released on parole on 28 February 2015.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules is available to set aside or vary appellate orders where a misapprehension of fact or law, not solely attributable to the applicant, materially affected the appellate judgment, provided the application is made within 14 days of the order being entered.
  • The aggregate sentencing provisions introduced by the Crimes (Sentencing Procedure) Amendment Act 2010 contain transitional limits: they cannot apply where a guilty plea was entered and not withdrawn before the scheme's commencement on 14 March 2011.
  • A letter to the Registrar from a party's legal representative can constitute a sufficient application under Rule 50C, as confirmed in R v Green and Quinn [2011] NSWCCA 71.
  • Where both the parties and the Court failed to identify a relevant transitional provision, the resulting error is not solely attributable to either party and falls within the scope of Rule 50C.
  • Correcting a sentencing slip under Rule 50C does not require departing from the Court's underlying sentencing intention; orders are to be remade in a way that gives effect to that intention.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss.44, 44(2A), 45, 50, 53A, and Schedule 2, cl.62
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Criminal Procedure Act 1986 (NSW), s.166
- Criminal Appeal Rules (NSW), Rule 50C

Cases
- R v AB [2011] NSWCCA 229
- R v Green and Quinn [2011] NSWCCA 71
- R v Burrell [2007] NSWCCA 79; 175 A Crim R 21
- Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69
- Kauwenberghs v R (Cth) [2009] NSWCCA 201
- Erceg v District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455
- R v Finnie (No. 2) [2004] NSWCCA 150