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Supreme Court 20 October 2017

R v Fuller (No 2)

[2017] NSWSC 1351

Homicide
CRIMINAL LAW SENTENCE IMPOSED S 44 AND S 43 OPERATION OF S 43 OF THE ACT PRACTICE AND PROCEDURE MISCALCULATION

Citation: R v Fuller (No 2) [2017] NSWSC 1351
Court: Supreme Court of New South Wales
Date: 20 October 2017
Judge: Rothman J

Background

In June 2016, the Supreme Court sentenced the offender, who had pleaded guilty to murder, to a head sentence of 24 years and 6 months imprisonment, with a non-parole period of 17 years. No finding of special circumstances was made, meaning the statutory ratio under the Crimes (Sentencing Procedure) Act 1999 was to apply without variation.

The difficulty emerged when both the Crown and senior counsel for the offender identified that the non-parole period had been calculated using a 70:30 ratio rather than the correct 75:25 ratio required by section 44(2) of the Act. Under the correct ratio, three-quarters of a 24-year-and-6-month head sentence yields a non-parole period of approximately 18 years and 4 months, not 17 years.

The parties agreed on the correction that should be made. The dispute, such as it was, concerned the legal mechanism by which the already-entered sentence could be corrected: whether section 43 of the Act applied, or whether the Court needed to rely on its inherent power to correct slips in judgments.

  • Whether the originally imposed sentence was contrary to law by reason of the miscalculated non-parole period under section 44(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether section 43 of the Act authorised the Court to correct the sentence
  • Whether the Supreme Court's inherent "slip rule" power, as a superior court of record, independently authorised correction of the entered sentence
  • Whether both mechanisms could apply simultaneously in the same case

Decision

Rothman J confirmed that the original sentence was wrong in law. Section 44(2) of the Act requires the balance of term not to exceed one-third of the non-parole period (which arithmetically equals one-quarter of the head sentence) unless special circumstances are found. The balance of term as originally imposed was 7 years and 6 months, exceeding the permissible maximum of 6 years and 1.5 months. The error arose purely from applying a 70:30 split rather than the required 75:25.

On the question of section 43, his Honour accepted the offender's submission. While a narrow construction of that section is appropriate, a sentence imposed contrary to section 44(2) involves more than a mere error of law. Absent a special circumstances finding, such a sentence is "contrary to law" within the meaning engaged by section 43. The section therefore authorised correction.

On the slip rule, his Honour held that a superior court of record retains an inherent (or implied) power to correct entries in its record where the slip has resulted in an order that does not reflect the court's obvious intention. The record here, including the express rejection of special circumstances, plainly demonstrated that the 17-year non-parole period did not reflect the sentencing court's intention.

Crucially, his Honour held that both mechanisms were available concurrently. A sentence contrary to law may be reached by a computational slip, and in such cases both section 43 and the slip rule may independently justify correction. The Court expressed no view on whether the same analysis applies to courts or tribunals other than superior courts of record.

Orders Made

  • Original Order 3 (issued 14 June 2016) was deleted and substituted with a non-parole period of 18 years and 4 months imprisonment commencing 4 March 2015 and concluding 3 July 2033, with a balance of term of 6 years and 2 months concluding 3 September 2039.

Key Takeaways

  • Under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, absent a special circumstances finding, the balance of term must not exceed one-third of the non-parole period. Arithmetically, this means the non-parole period must equal at least three-quarters of the head sentence.
  • A sentence that breaches section 44(2) without a special circumstances finding is "contrary to law" within section 43 of the Act, even if the breach arose from a simple arithmetic error rather than a deliberate judicial choice.
  • The Supreme Court, as a superior court of record, retains an inherent power under the slip rule to correct an entered judgment where the record demonstrates the order does not reflect the court's obvious intention.
  • Both section 43 of the Act and the slip rule may be available simultaneously where a computational error produces a sentence that is contrary to law. The two correction mechanisms are not mutually exclusive.
  • His Honour declined to comment on whether the slip rule analysis extends to courts or tribunals other than superior courts of record, noting such a comment was unnecessary and undesirable on the facts before the Court.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 44
- Supreme Court Act 1970 (NSW), s 69(4)

Cases
- Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
- Achurch v R (No 2) (2013) 84 NSWLR 328; [2013] NSWCCA 117
- Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9
- DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
- Farah Construction Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- R v Fuller [2016] NSWSC 815
- R v Jones; R v Hili (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195
- SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
- Wise v R [2006] NSWCCA 264