Citation: Allen v R (No 2) [2020] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 7 August 2020
Judges: Bell P; Davies J; Button J
Background
The applicant had been charged on two separate indictments relating to reporting offences. He was convicted by a jury on 30 counts under the First Indictment and had pleaded guilty on the first day of trial to two counts under the Second Indictment.
On 22 July 2020, the Court of Criminal Appeal delivered its principal judgment (Allen v R [2020] NSWCCA 173) and resentenced the applicant. The resentencing order was intended to cover the reporting offences across both indictments, consistent with the aggregate sentence originally imposed by the trial judge.
However, as drafted, Order 4 of the 22 July 2020 orders referred only to the counts on the First Indictment. The counts on the Second Indictment, to which the applicant had pleaded guilty, were omitted from the order by mistake.
Legal Issues
- Whether Order 4 of the 22 July 2020 orders accurately reflected the Court's intended resentencing, which was meant to encompass counts from both the First and Second Indictments.
- Whether the Court had power to correct the error in Order 4 of its own motion.
Decision
The Court found that Order 4 as made on 22 July 2020 contained an accidental slip. The resentencing order had been intended to apply to the reporting offences on both indictments, including the two counts on the Second Indictment to which the applicant had pleaded guilty. That intention was not reflected in the order as drawn.
The Court confirmed it holds an implied or inherent power to correct accidental slips and clerical mistakes of this nature, acting of its own motion. The Court relied on R v Green and Quinn [2011] NSWCCA 71 in support of that power.
Exercising that power, the Court varied Order 4 to insert a reference to the First Indictment and to add the two counts from the Second Indictment. The substance of the sentence, an aggregate term of 18 months' imprisonment commencing 15 March 2017 with a non-parole period of 12 months expiring 14 March 2018, remained unchanged.
Orders Made
- Order 4 of the orders made on 22 July 2020 was varied to read: "In respect of counts 2 and 4-25 of the First Indictment and counts 1 and 2 of the Second Indictment, resentence the applicant to an aggregate term of imprisonment for 18 months, which term of imprisonment is taken to have commenced on 15 March 2017 with an aggregate non-parole period of 12 months that expired on 14 March 2018."
Key Takeaways
- The Court of Criminal Appeal confirmed it possesses an implied or inherent power to correct accidental slips and clerical mistakes in its own orders, and may exercise that power of its own motion.
- Where an order fails to reflect the court's actual intention due to a drafting error, the slip rule permits correction without disturbing the substantive decision already made.
- The correction here was limited to making the order accurately reflect what had already been decided: the aggregate sentence figure and dates were unaffected.
- Reliance on R v Green and Quinn [2011] NSWCCA 71 illustrates that this corrective power is an established feature of the Court of Criminal Appeal's jurisdiction in NSW.
- A resentencing order on appeal must clearly identify every count, across all relevant indictments, to which the aggregate sentence applies.
Legislation and Cases Referenced
Cases:
- Allen v R [2020] NSWCCA 173 (the principal appeal judgment)
- R v Green and Quinn [2011] NSWCCA 71
Legislation: No specific legislation was cited in this decision.