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2
Court of Criminal Appeal 30 March 2011

Buadromo v R (No 2)

[2011] NSWCCA 55

Other
CRIMINAL LAW PROCEDURE SENTENCE APPEAL SLIP RULE CONCESSION BY THE CROWN INTERESTS OF JUSTICE IN THIS CASE

Citation: Buadromo v R (No 2) [2011] NSWCCA 55
Court: Court of Criminal Appeal, NSW
Date: 30 March 2011
Judges: McClellan CJ at CL, Simpson J, Buddin J

Background

The applicant had originally been sentenced in the District Court on multiple counts, including attempted armed robbery (Count 5) and carjacking (Count 6). In 2007, the Court of Criminal Appeal heard his application for leave to appeal against those sentences and upheld his argument that the accumulation of sentences had distorted the sentencing judge's finding of special circumstances under s 44(3) of the Crimes (Sentencing Procedure) Act 1999.

To give proper effect to that special circumstances finding, the Court in 2007 reduced the non-parole period on Count 5. The clear intention was that the applicant would become eligible for parole on 16 June 2011. However, the Court did not make any corresponding adjustment to the sentence on Count 6, which retained a non-parole period expiring on 16 December 2011.

The error came to light in early 2011 when the Department of Corrective Services' records showed a parole eligibility date of 16 December 2011. The applicant's Legal Aid solicitor contacted the Court's registry, and the Crown accepted that the 2007 orders did not reflect the Court's actual intention.

  • Whether Rule 50C of the Criminal Appeal Rules was available to correct the 2007 orders.
  • Whether the slip rule empowered the Court to amend orders already delivered and entered, more than four years after the fact.
  • Whether the Court could and should amend its 2007 orders to reflect what had always been intended.

Decision

Simpson J (with whom McClellan CJ at CL and Buddin J agreed) found that Rule 50C was not available. The rule, introduced on 7 September 2007 and therefore post-dating the original judgment, was of uncertain retrospective application. In any event, the original order had been entered and the 14-day time limit in sub-rules (2) and (3) had long passed, with sub-rule (4) expressly prohibiting any extension of that period.

Simpson J also expressed doubt about whether the slip rule strictly applied in the circumstances, acknowledging that the question of its extent was simultaneously under consideration by another bench of the Court in R v Green and Quinn [2010] NSWCCA 313.

Despite that doubt, her Honour was prepared to act on the Crown's concession. The Crown had expressly stated it did not object to an amendment in order to achieve a just outcome, and Simpson J considered the interests of justice in this specific case warranted correcting the oversight. Her Honour was clear that the course taken should not be treated as a precedent.

Orders Made

  • The orders made on 27 February 2007 amended by the addition of the following:
  • The sentence imposed in respect of Count 6 quashed.
  • The applicant re-sentenced on Count 6 to imprisonment with a non-parole period of 2 years and 6 months commencing 17 December 2008 and expiring 16 June 2011, with a balance of term of 1 year and 3 months expiring 16 September 2012.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules operates strictly: once an order is entered and the 14-day window has closed, the rule cannot be used to set aside or vary the order, and the Court has no power to extend that time limit.
  • The availability of the slip rule to correct Court of Criminal Appeal orders after delivery remained an open and unresolved question at the time of this decision, with the matter under active consideration in separate proceedings.
  • Simpson J's decision to amend the orders was expressly grounded in the Crown's concession and the interests of justice on the particular facts, not in a settled legal principle permitting such correction.
  • The Court stated explicitly that this outcome could not be used as a precedent, underscoring the narrow and case-specific nature of the amendment.
  • Where sentencing courts or appellate courts intend to give effect to a special circumstances finding under s 44(3) of the Crimes (Sentencing Procedure) Act 1999, all relevant sentences in an accumulated structure require attention to ensure the intention is actually reflected in the orders made.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(3)
- Criminal Appeal Rules (NSW), Rule 50C

Cases:
- Buadromo v R [2007] NSWCCA 43
- R v Green and Quinn [2010] NSWCCA 313