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Court of Criminal Appeal 16 December 2016

Majid v R (No. 2)

[2016] NSWCCA 311

Other
CRIMINAL LAW SENTENCE ERROR IN FIXING BALANCE OF TERM SENTENCE ADJUSTED UNDER RULE 50C

Citation: [2016] NSWCCA 311
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2016
Judges: Payne JA, Price J, Davies J

Background

The appellant had been convicted on two counts and sentenced accordingly. His sentence on Count 2 had a history stretching back to an earlier Court of Criminal Appeal decision in 2010, which had adjusted the balance of term so that the sentence expired on 12 February 2022.

On 9 December 2016, the Court again resentenced the appellant following a successful appeal: Majid v R [2016] NSWCCA 289. In doing so, the Court intended to adjust the balance of term on Count 2 to reflect a finding of special circumstances, without increasing the overall sentence.

When resentencing on 9 December 2016, however, the Court mistakenly proceeded on the basis that the existing balance of term expired on 12 October 2022, rather than the corrected expiry date of 12 February 2022 established by the 2010 decision. This resulted in a sentence longer than intended.

  • Whether the sentence imposed on Count 2 on 9 December 2016 contained a slip or error that failed to reflect the Court's actual intention
  • Whether the sentence should be corrected under rule 50C of the Criminal Appeal Rules 1952 (NSW)

Decision

The Court accepted that an error had occurred when resentencing on 9 December 2016. The Court had mistakenly treated the pre-existing balance of term on Count 2 as expiring on 12 October 2022, overlooking that the 2010 Court of Criminal Appeal decision had already reduced that balance of term, bringing the expiry date forward to 12 February 2022.

The Court's stated intention had been to adjust the balance of term for special circumstances without extending the overall sentence. Because the error caused the sentence imposed to exceed that intention, correction under the slip rule was appropriate.

The Court amended the sentence on Count 2 accordingly, substituting an additional term of three years and ten months so that the sentence correctly expired on 12 February 2022, consistent with both the Court's intention and the sentence as it had stood since 2010.

Orders Made

  • Count 2 sentence amended: non-parole period of eight years commencing 13 April 2010 and expiring 12 April 2018, with an additional term of three years and ten months expiring 12 February 2022.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules 1952 (NSW) provides a mechanism for a court to correct a sentencing slip where the order made does not reflect the court's actual intention at the time of sentencing.
  • Where a court on resentencing proceeds on an incorrect factual premise about the duration of an existing sentence, and that error causes the new sentence to exceed the court's stated intention, correction under the slip rule is available.
  • The Court of Criminal Appeal confirmed that a prior adjustment to a sentence by an earlier appellate decision forms part of the sentence as it stands, and any subsequent resentencing must be calculated from that adjusted position.
  • In applying the slip rule, the focus is on whether the order as made departed from what the court actually intended, not merely whether the outcome was unfavourable to the appellant.
  • Careful attention to the full sentencing history, including any prior appellate adjustments, is necessary when a court resentences an offender whose sentence has been the subject of earlier appellate intervention.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules 1952 (NSW), r 50C

Cases:
- Majid v R [2010] NSWCCA 121
- Majid v R [2016] NSWCCA 289