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District Court 2 October 2018

R v Chi Pan Chow

[2018] NSWDC 339

Drugs
CRIMINAL LAW SENTENCING COMMONWEALTH SENTENCE SENTENCE CORRECTION APPLYING S 19AHA CRIMES ACT 1914 SLIP RULE NOT REQUIRED JUDGE CONCEDES CALCULATION ERROR

Citation: R v Chi Pan Chow [2018] NSWDC 339
Court: District Court of New South Wales
Date: 2 October 2018
Judge: Haesler SC DCJ

Background

The offender was sentenced on 25 January 2018 for importing a commercial quantity of methamphetamine into Australia, contrary to s 307.1(1) of the Criminal Code (Cth). The importation involved 3,170 grams of pure methamphetamine across two consignments in July 2016. Two further offences were taken into account on a schedule.

The offender was sentenced alongside a co-offender, who had been involved in a separate but related importation of a smaller quantity of the same drug. Both sentences were delivered immediately after submissions, partly because family members who had travelled from Hong Kong were present in court and could not remain in the country longer.

The offender later brought a motion contending that the judge had made a mathematical error when calculating his non-parole period, resulting in a ratio of non-parole to total sentence exceeding 60 percent, when the judge had stated in open court an intention to apply a 55 percent ratio, consistent with the ratio applied to the co-offender.

  • Whether a material miscalculation in the fixing of a non-parole period constituted an error of a technical nature amenable to correction under s 19AHA of the Crimes Act 1914 (Cth).
  • Whether the slip rule provided an alternative basis for correction, and whether it was needed.
  • Whether the sentencing judge had, in fact, intended to apply a 55 percent non-parole ratio to both co-offenders in accordance with the parity and proportionality principles.

Decision

The judge accepted that an error had occurred. When calculating the sentence dates on his iPad using the Judicial Commission date calculator, he had inadvertently pressed the 60 percent ratio button instead of the 55 percent button. His sentencing remarks had expressly stated a 55 percent ratio, and the same ratio had been applied to the co-offender, consistent with the requirements of parity and proportionality as established in Green v R (2011) 244 CLR 462, Afu v R [2017] NSWCCA 246, and Lau [2010] NSWCCA 43. The judge was satisfied that what appeared on the sentencing order did not reflect his actual intention.

Section 19AHA of the Crimes Act 1914 (Cth) permits rectification of a sentencing order that reflects an error of a technical nature, with the provision's own explanatory note identifying a "material miscalculation of figures" as an example of such an error. The judge held that the provision applied squarely to the miscalculation and that it was the appropriate mechanism for correction, rendering it unnecessary to also invoke the slip rule.

The judge noted that while the District Court does not possess the inherent jurisdiction of a superior court, it has the powers necessary to the proper exercise of its jurisdiction. He cited Achurch v The Queen (2014) 253 CLR 141 in observing that the slip rule remained available as an alternative where no legislative correction mechanism applied, but s 19AHA was sufficient here. The correction involved a slight rounding down, reflecting that sentencing is not a purely mathematical exercise.

Orders Made

  • The sentence originally imposed was corrected pursuant to s 19AHA of the Crimes Act 1914 (Cth).
  • The head sentence of 11 years imprisonment was confirmed.
  • The non-parole period was reduced to six years (down from six years and nine months).
  • Both the sentence and the non-parole period commence on 6 September 2016.
  • The offender is to be released to parole on 5 September 2022 pursuant to s 19AL of the Crimes Act 1914 (Cth).
  • The total sentence expires on 5 September 2027.

Key Takeaways

  • Section 19AHA of the Crimes Act 1914 (Cth) provides a direct mechanism for correcting a Commonwealth sentencing order that contains a material miscalculation of figures, without any need to invoke the slip rule.
  • A miscalculation in the non-parole period arising from pressing the wrong button on a date calculator constituted an "error of a technical nature" within the meaning of s 19AHA.
  • Where co-offenders are sentenced together, the parity and proportionality principles can extend to the structure of the sentence, including the ratio of the non-parole period to the head sentence, particularly where foreign nationals are involved: Lau [2010] NSWCCA 43.
  • The District Court confirmed that, while it lacks the inherent jurisdiction of a superior court, it retains the powers necessary for the proper exercise of its jurisdiction, including correction of errors via available legislative provisions or, where those are unavailable, the slip rule: Achurch v The Queen (2014) 253 CLR 141.
  • Sentencing is not treated as a strictly mathematical exercise, and slight rounding when applying a percentage ratio to a sentence is permissible.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 307.1(1)
- Crimes Act 1914 (Cth), ss 19AHA, 19AL

Cases
- Achurch v The Queen (2014) 253 CLR 141
- Afu v R [2017] NSWCCA 246
- Green v R (2011) 244 CLR 462
- Lau [2010] NSWCCA 43