Citation: Langbein v Regina (No. 2) [2013] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 1 May 2013
Judge(s): McClellan JA, Fullerton J, Campbell J
Background
The Court of Criminal Appeal had disposed of the underlying appeal and published its reasons on 26 April 2013. Those reasons included a joint judgment by Fullerton and Campbell JJ, with which McClellan CJ at CL agreed, setting out the Court's clear sentencing intention at paragraph [57].
After judgment was handed down, the Court identified that Order 4 as pronounced did not reflect the intention expressed in the joint reasons. The discrepancy was a clerical slip rather than a substantive error of reasoning.
The Court moved of its own motion to correct the error within the 14-day window provided by the Criminal Appeal Rules.
Legal Issues
- Whether the Court had power under r 50C(3) of the Criminal Appeal Rules to set aside and vary the orders as entered, within 14 days, to correct a clerical slip.
- Whether the corrected orders should be substituted for those originally pronounced on 26 April 2013.
Decision
The Court confirmed that r 50C(3) of the Criminal Appeal Rules empowers it to set aside or vary an entered order within 14 days of entry, as if the order had not been entered. An order is ordinarily taken to be entered when recorded in the Court's computerised record system, typically on the day judgment is handed down.
Relying on its earlier decision in Akkawi v R (No. 2) [2013] NSWCCA 72, the Court confirmed that the slip rule plainly authorised correction of the clerical inconsistency between the pronounced orders and the expressed intention in the joint reasons. No further analysis was required beyond what had already been addressed in Akkawi (No. 2).
The Court acknowledged that altering the orders would affect the appellant. However, the inconsistency between the reasons and the orders was obvious, and the corrected orders still substantially reduced the sentence that had been imposed at first instance.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Sentences imposed by the sentencing judge for driving whilst disqualified, including the disqualification period, confirmed.
- All other sentences quashed and the following substituted:
- For the s 112(2) offence at the C4 Café: 3 years imprisonment, with a non-parole period of 2 years and 3 months commencing 17 February 2011 and expiring 16 May 2013, and a balance of term of 9 months expiring 16 February 2014.
- For the s 112(2) offence at the Devine Café: 4 years and 6 months imprisonment, with a non-parole period of 3 years commencing 17 May 2011 and expiring 16 May 2014, and a balance of term of 1 year and 6 months expiring 16 November 2015.
Key Takeaways
- Rule 50C(3) of the Criminal Appeal Rules gives the Court of Criminal Appeal express power to set aside or vary an entered order within 14 days of entry, on its own motion, where a clerical slip has occurred.
- An obvious inconsistency between the court's expressed reasons and the orders as pronounced constitutes a correctable slip, even after those orders have been entered.
- The potential impact on the appellant does not prevent correction under the slip rule where the inconsistency between the reasons and the orders is clear.
- In applying the slip rule, the Court of Criminal Appeal followed the approach it had recently taken in Akkawi v R (No. 2) [2013] NSWCCA 72, confirming a consistent practice for addressing such errors.
- Corrected orders substituted under the slip rule take effect in place of the original orders pronounced, with the underlying appeal outcome remaining otherwise unchanged.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Rules, r 50B(2) and r 50C(3)
- Crimes Act 1900 (NSW), s 112(2)
Cases
- Akkawi v R (No. 2) [2013] NSWCCA 72
- R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143