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Court of Criminal Appeal 8 June 2018

Goldberg v R (No 2)

[2018] NSWCCA 119

Other
PRACTICE AND PROCEDURE SLIP RULE VARIATION OF ORDERS

Citation: Goldberg v R (No 2) [2018] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 8 June 2018
Judge(s): Hoeben CJ at CL; White JA; Fullerton J

Background

This decision is a short procedural judgment arising from an earlier sentencing appeal. On 28 May 2018, the Court of Criminal Appeal allowed the appellant's appeal against the severity of his sentence and substituted a new aggregate sentence of 8 years and 6 months, with a non-parole period of 6 years and 4 months.

The day after those orders were made, the Court's own Registrar identified a potential arithmetical error in the balance of term specified in order 3. A non-parole period of 6 years and 4 months subtracted from a total term of 8 years and 6 months leaves a balance of term of 2 years and 2 months, not the 2 years and 1 month that had been recorded in the orders.

The Court convened to address whether an error had been made and, if so, whether it could be corrected.

  • Whether order 3 made on 28 May 2018 contained an arithmetical error in the balance of term.
  • Whether the Court had power under s 50C(3) of the Criminal Appeal Rules (NSW) to set aside and re-make the affected order to correct that error.

Decision

The Court confirmed that an arithmetical error had been made. The judgment at paragraph 127 had clearly expressed the intention to impose an aggregate sentence of 8 years and 6 months comprising a non-parole period of 6 years and 4 months. The correct balance of term flowing from those figures was 2 years and 2 months, expiring on 4 May 2024.

The error had not been caught before it was translated into the formal orders of the Court. The Court found that this was precisely the kind of mistake that the slip rule, as embodied in s 50C(3) of the Criminal Appeal Rules (NSW), exists to remedy. Exercising that power, the Court set aside order 3 and replaced it with a corrected order reflecting the intended sentence.

Orders Made

  • Order 3 made on 28 May 2018 was set aside.
  • The sentence imposed by Blackmore DCJ on 9 March 2017 was quashed and replaced with an aggregate sentence of imprisonment for 8 years and 6 months, with a non-parole period of 6 years and 4 months commencing on 5 November 2015 and expiring on 4 March 2022, and a balance of term of 2 years and 2 months expiring on 4 May 2024.

Key Takeaways

  • The Court of Criminal Appeal applied the slip rule under s 50C(3) of the Criminal Appeal Rules (NSW) to correct an arithmetical error in its own sentencing orders made just one day earlier.
  • A clear statement of intended sentence in the body of a judgment can be decisive in establishing that an inconsistent order contains an error rather than a deliberate variation.
  • Arithmetical errors in calculating the balance of term (total sentence minus non-parole period) are capable of correction under the slip rule even after formal orders have been perfected.
  • The Registrar's prompt identification of the discrepancy between the judgment's reasoning and the formal order was the mechanism that triggered the correction process.
  • No substantive alteration to the sentence was made: the corrected order simply gave effect to the Court's original and clearly expressed intention.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Rules (NSW), s 50C(3)

Cases
- Goldberg v R [2018] NSWCCA 99 (the primary sentencing appeal from which this correction arose)