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Court of Criminal Appeal 22 April 2016

R v Mulligan (No 2)

[2016] NSWCCA 64

Public order & justice offences
PRACTICE AND PROCEDURE SLIP RULE

Citation: R v Mulligan (No 2) [2016] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 22 April 2016
Judge(s): Leeming JA; Johnson J; Harrison J

Background

The respondent had been sentenced in the District Court on 30 October 2015 to a suspended sentence. The Crown appealed, and the matter was heard on 14 March 2016. The respondent did not attend the hearing and was not required to do so under the terms of his suspended sentence, as he was working on the far north coast of New South Wales.

When the Court of Criminal Appeal delivered judgment on 1 April 2016, the respondent again did not appear, despite having been directed to attend personally. A solicitor appeared on his behalf and explained he had only recently learned the judgment was to be delivered. The Court allowed the Crown appeal, quashed the suspended sentence, and imposed a custodial sentence of 18 months with a non-parole period of 12 months, commencing on 1 April 2016. It also issued an arrest warrant.

The difficulty that arose was that the sentence was expressed as commencing on 1 April 2016, even though the respondent was not in custody and had not been arrested. This raised the question of whether the sentence was running in his absence, which was plainly not the Court's intention.

  • Whether the sentence, expressed as commencing on 1 April 2016, could be running while the respondent remained at large and not in custody.
  • Whether s 254 of the Crimes (Administration of Sentences) Act 1999 (NSW), which extends sentences during periods of unlawful absence, applied in circumstances where a suspended sentence had been replaced by a custodial sentence.
  • Whether the Court could correct its orders under the slip rule, notwithstanding that the orders had already been entered.
  • Whether s 14A of the Criminal Appeal Act 1912 (NSW) permitted the Court to defer specifying a commencement date for a sentence imposed in a respondent's absence.

Decision

The Court identified a potential oversight in the orders made on 1 April 2016. The sentence had been expressed as commencing on that date, but the respondent was not in custody and the warrant had not yet been executed. The Court reasoned that s 254 of the Crimes (Administration of Sentences) Act 1999, which extends a sentence for periods of unlawful absence, most likely did not apply here, because the respondent had not escaped from lawful custody or failed to return after revocation of an order. There was therefore at least an arguable case that the sentence was simply running in his absence, contrary to the Court's intention.

The Court held that this represented an accidental slip: the orders failed to ensure the sentence would not commence until the respondent appeared before the Court for sentencing. The slip did not alter the substance of the decision, which was always for the respondent to serve a full-time custodial sentence of 18 months with a 12-month non-parole period.

Relying on Burrell v The Queen and R v Jones; R v Hili (No 2), the Court confirmed that the slip rule permits correction of entered orders in these circumstances. It also invoked s 14A(2) of the Criminal Appeal Act 1912, which expressly contemplates a Crown appeal where a sentence of full-time detention is imposed in a respondent's absence, allowing the court to decline to specify a commencement date until the respondent appears. Order 3 was amended accordingly.

The warrant issued on 1 April 2016 was revoked and reissued to reflect the amended orders, requiring the respondent to be brought before the Court rather than taken directly to Long Bay Correctional Centre.

Orders Made

  • Order 3 from 1 April 2016 was amended and replaced by:
  • Order 3A: The respondent is sentenced to 18 months imprisonment with a non-parole period of 12 months.
  • Order 3B: Pursuant to s 14A of the Criminal Appeal Act 1912 (NSW), the commencement date of the sentence is deferred until the respondent appears before the Court for sentencing.
  • The arrest warrant issued on 1 April 2016 was revoked and reissued to require the respondent to be brought before the Court.
  • Order 4 from 1 April 2016 (issuing the arrest warrant) was not varied.

Key Takeaways

  • Under s 14A(2) of the Criminal Appeal Act 1912 (NSW), when a court imposes full-time detention on a Crown appeal in a respondent's absence, it may decline to specify a commencement date until the respondent appears before the court for sentencing.
  • The slip rule permits correction of entered orders where an accidental omission does not alter the substance of the decision, as confirmed by the High Court in Burrell v The Queen and the Court of Criminal Appeal in R v Jones; R v Hili (No 2).
  • Section 254 of the Crimes (Administration of Sentences) Act 1999, which extends a sentence during periods of unlawful absence, most likely does not apply where a person is at large following the replacement of a suspended sentence with a custodial sentence, because no escape from lawful custody or failure to return from an order has occurred. The Court flagged this as at least arguable rather than settled.
  • A sentence expressed as commencing on the date of judgment carries a risk of running while the offender remains at large, if a deferred commencement mechanism is not employed.
  • The Court of Criminal Appeal has power under s 14A(4) of the Criminal Appeal Act 1912 to issue a warrant for the arrest of a Crown appeal respondent and to require that person to be brought before the court for sentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 40, 254
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
- Criminal Appeal Act 1912 (NSW), s 14A

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