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Court of Criminal Appeal 27 May 2014

R v Ly (No 2)

[2014] NSWCCA 91

Other
PRACTICE AND PROCEDURE SLIP RULE

Citation: R v Ly (No 2) [2014] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 27 May 2014
Judge(s): Leeming JA; Hall J; Schmidt J

Background

This judgment is a short supplementary decision following the Court of Criminal Appeal's principal judgment in the same matter, delivered on 15 May 2014. In that earlier decision, the Court allowed a Crown appeal against sentence, quashed sentences imposed by the District Court, and re-sentenced the respondent for a federal offence under the Criminal Code 1995 (Cth).

Shortly after delivering those orders, the Court identified three errors in its reasons and orders. None of the errors affected the substance of the decision or the period of imprisonment the respondent was required to serve.

The Court convened to correct those errors using the slip rule, which allows courts to fix accidental mistakes in orders or reasons even after orders have been formally entered.

  • Whether three identified errors in the Court's reasons and orders constituted accidental slips correctable under the slip rule
  • Whether the inclusion of a "special circumstances" finding and balance of term calculation was appropriate for a federal offence
  • Whether Rule 50C of the Criminal Appeal Rules limited the Court's power to make corrections

Decision

The Court identified three discrete errors requiring correction. First, the original orders included a grant of leave to appeal against sentence in favour of the Crown. Under s 5D of the Criminal Appeal Act 1912 (NSW), the Crown does not require leave to appeal, making that order unnecessary. It was deleted and the remaining orders were renumbered.

Second, one order referred to the District Court sentence being imposed "on" 2 November 2012. The correct formulation was that the sentence was imposed "with effect from" that date, and the wording was adjusted accordingly.

Third, the Court had included in its orders and reasons a "balance of term" calculation and a finding of special circumstances, both of which are creatures of NSW State sentencing law under the Crimes (Sentencing Procedure) Act 1999 (NSW). Because the offence was a federal matter, those State law provisions do not apply, as confirmed by the High Court in Hili v The Queen (2010) 242 CLR 520. The references were removed from both the orders and the relevant paragraph of the reasons.

The Court confirmed that all three corrections fell within the slip rule as recognised in Burrell v The Queen (2008) 238 CLR 218 and R v Jones; R v Hili (No 2) [2010] NSWCCA 195. The Court also noted that Rule 50C of the Criminal Appeal Rules did not limit its slip rule powers, and that in any event the 14-day period under r 50C(3) had not yet expired.

Orders Made

  • Appeal allowed.
  • The sentence of imprisonment for the offence under s 400.4(1) of the Criminal Code 1995 (Cth) imposed by the District Court with effect from 2 November 2012 be set aside.
  • The respondent be re-sentenced to a term of imprisonment of 8 years commencing 2 November 2012 and expiring 1 November 2020, with a non-parole period of 4 years 6 months commencing 2 November 2012 and expiring 1 May 2017.

Key Takeaways

  • The slip rule permits a court to correct accidental errors in orders and reasons even after those orders have been formally entered, provided the corrections do not alter the substance of the decision.
  • State sentencing provisions governing the balance of term and special circumstances findings under the Crimes (Sentencing Procedure) Act 1999 (NSW) do not apply when sentencing for federal offences, consistent with the High Court's reasoning in Hili v The Queen (2010) 242 CLR 520.
  • Under s 5D of the Criminal Appeal Act 1912 (NSW), the Crown does not require leave to appeal against sentence, making any such grant of leave otiose.
  • Rule 50C of the Criminal Appeal Rules does not restrict the Court of Criminal Appeal's inherent slip rule powers, though the 14-day window in r 50C(3) remains a relevant procedural consideration.
  • No change to the respondent's actual period of imprisonment resulted from any of the three corrections made in this supplementary judgment.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Appeal Rules (NSW), r 50C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Code 1995 (Cth), s 400.4(1)

Cases
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143