Citation: MACKENZIE v R (No 2) [2012] NSWCCA 122
Court: Court of Criminal Appeal, New South Wales
Date: 6 June 2012
Judge(s): RS Hulme J; Adams J
Background
The appellant had been sentenced on four separate offences, each recorded under a distinct Court Attendance Notice (CAN 1 to CAN 4). The offences included assault occasioning actual bodily harm, reckless wounding, and two counts of intimidation-related offences. An earlier appeal resulted in a judgment delivered by the Court of Criminal Appeal on 25 February 2011: Mackenzie v R [2011] NSWCCA 21.
In that earlier judgment, the Court re-sentenced the appellant on CANs 1 and 3 and varied the sentences on CANs 2 and 4. However, the appellant's solicitors identified an apparent error in the orders as made: the sentences for CAN 3 (reckless wounding) and CAN 4 (intimidation) appeared to have been transposed in the orders, despite the judgment's stated intention.
The solicitors wrote to the Court on 25 February 2011 (the letter was received on 1 March 2011), seeking correction under Rule 50C of the Criminal Appeal Rules 1952, within the prescribed 14-day window. Because the judge who delivered the original reasons, Giles JA, had since retired, the remaining two members of the bench, RS Hulme J and Adams J, dealt with the correction application.
Legal Issues
- Whether an administrative transposition of sentences in the orders of the Court of Criminal Appeal constituted a correctable error
- Whether the orders as made in the 2011 judgment accurately reflected the intended re-sentencing, given that one of the affected sentences (CAN 4) had been characterised in the reasons as "not open to be varied"
- Whether the correction could be made by the remaining members of the bench in the absence of the judge who authored the original reasons
Decision
The Court confirmed that an error had occurred. In the 2011 orders, the sentences for CAN 3 and CAN 4 had been transposed: CAN 4 (intimidation, a sentence not appealed and described in the reasons as not open to variation) had effectively been increased from a fixed term of 12 months to a term of 2 years including a non-parole period of 8 months. This was inconsistent with both the stated reasoning and the stated intention of the original judgment.
RS Hulme J noted that Giles JA had explicitly remarked at paragraph 42 of the original reasons that the sentences on CANs 2 and 4 were "not open to be varied." The orders as made contradicted that conclusion by imposing a longer and more complex sentence on CAN 4, while placing what was intended for CAN 4 on CAN 3 instead.
The Court set aside the orders made on 25 February 2011 in respect of CANs 3 and 4, and re-imposed them in their corrected form. The overall aggregate sentence and non-parole period remained unaffected by the transposition and its correction, as the applicant's solicitors had themselves acknowledged. Adams J agreed with the orders proposed by RS Hulme J.
Orders Made
- The orders in respect of CAN 3 and CAN 4 made on 25 February 2011 were set aside
- CAN 4 (intimidation): imprisonment for a fixed term of 1 year, commencing 28 August 2010 and expiring 27 August 2011
- CAN 3 (reckless wounding): imprisonment for a non-parole period of 8 months commencing 28 June 2011 and expiring 27 February 2012, with a balance of term of 1 year and 4 months commencing 28 February 2012 and expiring 27 June 2013
Key Takeaways
- The Court of Criminal Appeal confirmed that a clerical transposition of sentences within court orders constitutes a correctable error, even where the aggregate sentence is unaffected
- Under Rule 50C of the Criminal Appeal Rules 1952, a request to correct a judgment must be made within 14 days of delivery; the applicant's solicitors met that deadline in this case
- Where the judge who authored the original reasons has since retired, the remaining members of the bench retain the capacity to deal with a correction application
- A sentence expressly described in the court's reasons as "not open to be varied" cannot be enlarged by the orders made in the same judgment; where such an enlargement appears in the orders, it is properly characterised as error
- Correction of transposed sentences does not amount to a substantive variation of the overall sentencing outcome where the aggregate term and non-parole period remain identical
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 7(1A)
- Criminal Appeal Rules 1952 (NSW), Rule 50C
Cases:
- Mackenzie v R [2011] NSWCCA 21