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Court of Criminal Appeal 13 June 2018

Grabovac v R (No 2)

[2018] NSWCCA 120

Other
PRACTICE AND PROCEDURE SLIP RULE VARIATION OF ORDERS

Citation: Grabovac v R (No 2) [2018] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 13 June 2018
Judge(s): Bathurst CJ; Schmidt J; Hamill J

Background

This decision is a short procedural judgment following the Court of Criminal Appeal's earlier resentencing of the appellant in Grabovac v R [2018] NSWCCA 100, handed down on 28 May 2018. In that earlier decision, the Court imposed a total sentence of 10 years and 6 months, with a non-parole period of 6 years and 9 months, recorded as commencing on 21 June 2016.

Following the delivery of those orders, the parties identified an error. The District Court's sentence had ultimately been ordered to commence on 24 May 2016, after accounting for pre-sentence custody, but the Court of Criminal Appeal's order had incorrectly recorded the commencement date as 21 June 2016.

Both parties agreed that the order contained an error and jointly asked the Court to correct it under the slip rule, a procedural mechanism that allows a court to correct a mistake in its own orders where justice requires it.

  • Whether the Court of Criminal Appeal had power to correct the error in its resentencing order.
  • Whether the circumstances justified the exercise of that power to correct the commencement date of the sentence.

Decision

The Court was satisfied that the order made on 28 May 2018 contained a genuine error: the sentence commencement date had been recorded as 21 June 2016 rather than the correct date of 24 May 2016, which reflected the pre-sentence custody adjustment made in the District Court.

The Court confirmed that it had the power to correct the order and, further, that justice required the correction to be made. Both parties were in agreement, and there was no dispute about the underlying facts or the nature of the error.

The correction moved the sentence commencement date back by approximately four weeks, which in turn brought forward the appellant's first parole eligibility date from 20 March 2023 to 23 February 2023.

Orders Made

  • Order 4 made on 28 May 2018 was set aside.
  • The appellant was resentenced to a total term of imprisonment of 10 years and 6 months, commencing on 24 May 2016, with a non-parole period of 6 years and 9 months, making him first eligible for parole on 23 February 2023.

Key Takeaways

  • The Court of Criminal Appeal confirmed its power to correct an error in its own sentencing orders where the circumstances warrant it and justice demands correction.
  • Where both parties agree that an order contains an error, that agreement supports but does not itself determine the exercise of the slip rule power; the Court must independently be satisfied that an error exists and that correction is warranted.
  • A four-week discrepancy in a sentence commencement date, arising from the failure to account for pre-sentence custody, is a material error capable of correction because it directly affects the date of first parole eligibility.
  • Correction under the slip rule operates by setting aside the original order and substituting a new one, rather than simply amending the existing order.

Legislation and Cases Referenced

Cases:
- Grabovac v R [2018] NSWCCA 100 (the principal resentencing decision to which this correction relates)

Legislation: No specific legislation was cited in the judgment.