Citation: Norford v R (No 2) [2020] NSWCCA 175
Court: Court of Criminal Appeal
Date: 27 July 2020
Judge(s): Simpson AJA, Rothman J, Bellew J
Background
This decision is a short procedural follow-up to the Court of Criminal Appeal's earlier judgment in Norford v R [2020] NSWCCA 104, delivered on 27 May 2020. In that earlier decision, the Court allowed the applicant's appeal against sentence for an offence under s 112(2) of the Crimes Act 1900 (NSW), quashing the District Court sentence and substituting a new one.
The applicant had originally been sentenced in the District Court for two separate offences. The sentence for the first offence, under s 111(2), was 18 months' imprisonment commencing 31 October 2018. The sentence for the second offence, under s 112(2), was 2 years and 6 months' imprisonment, also commencing 31 October 2018, which wholly subsumed the first.
On 19 June 2020, the applicant's solicitor wrote to the Registrar, with the Crown's consent, pointing out that the substituted sentence in the 27 May orders stated a commencement date of 30 November 2018, one month later than the original District Court sentence. The solicitor submitted this was an error and that the correct commencement date should have been 31 October 2018.
Legal Issues
- Whether the Court had power to correct the erroneous commencement date in its substituted sentencing order.
- Whether the incorrect date of 30 November 2018 was an accidental slip that did not reflect the Court's intention.
Decision
The Court accepted that the commencement date of 30 November 2018 in the original order was an accidental slip. There was no intention in the Court's reasons to delay the commencement of the substituted sentence by one month relative to the original sentence imposed at first instance.
The Court identified r 50C(5) of the Criminal Appeal Rules (NSW) as the source of its power to act. That subrule preserves the Court's general power to correct clerical mistakes or errors arising from accidental slips or omissions, independently of the time limits that apply to other applications to set aside or vary orders. The Crown raised no objection, and the correction was made accordingly.
The Court set aside its orders of 27 May 2020 and substituted corrected orders, adjusting the commencement date to 31 October 2018 and consequentially updating the expiry dates for both the non-parole period and the additional term.
Orders Made
- The orders pronounced on 27 May 2020 are set aside and the following orders substituted in their place.
- Leave to appeal against sentence granted.
- Appeal allowed.
- The sentence imposed in the District Court for the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.
- In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months' imprisonment commencing 31 October 2018 and expiring 30 July 2020, with an additional term of 1 year and 9 months' imprisonment commencing 31 July 2020 and expiring 30 April 2022.
Key Takeaways
- Rule 50C(5) of the Criminal Appeal Rules (NSW) preserves the Court of Criminal Appeal's power to correct accidental slips or omissions in its orders, and that power operates independently of the time limits set out in r 50C(2) and (3).
- An incorrect commencement date that was inconsistent with the court's stated reasoning and with the sentence originally imposed at first instance was treated as an accidental slip, not a substantive variation.
- Correcting an accidental slip does not alter the court's reasons for judgment; it brings the order into conformity with the court's actual intention.
- No point of principle arose from this decision; it is a narrow procedural correction confined to its own facts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 111(2), 112(2)
- Criminal Appeal Rules (NSW), r 50C
Cases:
- Norford v R [2020] NSWCCA 104 (the primary judgment)
- Akkawi v R (No 2) [2013] NSWCCA 72
- Alramadan v R (No 2) [2008] NSWCCA 69