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Court of Criminal Appeal 20 August 2018

Fitzgerald v R (No. 2)

[2018] NSWCCA 179

Other
SENTENCING SLIP RULE SENTENCE CORRECTED

Citation: Fitzgerald v R (No. 2) [2018] NSWCCA 179
Court: Court of Criminal Appeal, NSW
Date: 20 August 2018
Judges: Hoeben CJ at CL, Price & Davies JJ

Background

The applicant had been sentenced to imprisonment by Delaney ADCJ in the District Court on 19 April 2017. She was subsequently released on bail while her application for leave to appeal was pending before the Court of Criminal Appeal.

On 6 August 2018, the Court granted leave to appeal but dismissed the appeal. In the course of that judgment, the Court calculated the sentence expiry dates based on information provided by the Crown. That information turned out to be wrong.

The Crown had told the Court that the applicant spent 49 days in custody before being released to bail. The actual figure was 79 days. As a result, the expiry dates stated in the original judgment were incorrect and needed to be revised.

  • Whether the Court had power to correct the incorrectly stated sentence expiry dates after the original orders were made
  • Whether rule 50C of the Criminal Appeal Rules 1952 (NSW), often called the "slip rule", applied to the error

Decision

The Court identified the error as a clear clerical mistake arising from an accidental slip, specifically the Crown's submission of an incorrect figure for the number of days the applicant had spent in custody. Rule 50C(5) of the Criminal Appeal Rules 1952 (NSW) preserves the Court's power to correct such mistakes or errors arising from accidental slips, independently of the time limits in the other subrules.

The Court found rule 50C appropriate in the circumstances and exercised its power to vary the orders made on 6 August 2018. Recalculating the sentence on the correct basis of 79 days served in pre-bail custody, the Court updated both the sentence expiry date and the non-parole period expiry date accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Time not to count except for 79 days
  • Sentence expiry date corrected to 16 April 2020
  • Non-parole period expiry date corrected to 16 May 2019

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules 1952 (NSW) provides the Court of Criminal Appeal with power to correct clerical mistakes or errors arising from accidental slips, even where the primary time limits in that rule may not apply.
  • An incorrect figure for days served in custody, provided by the Crown and relied upon by the Court in calculating sentence expiry dates, constitutes the kind of accidental slip that attracts the slip rule.
  • Where the underlying sentence remains undisturbed but expiry dates are stated incorrectly due to a factual error in submissions, the appropriate remedy is correction of those dates rather than any re-exercise of the sentencing discretion.
  • In dismissing the substantive appeal, the Court's orders were otherwise unchanged; the variation was confined to correcting the miscalculated dates flowing from the wrong custody figure.
  • Accuracy in the factual information presented to a court during sentence proceedings, including the number of days an offender has spent in pre-sentence or pre-bail custody, directly determines the calculation of when a sentence and non-parole period will expire.

Legislation and Cases Referenced

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

Cases
- No cases were cited in the judgment.