Citation: Betka v R; Ghazaoui v R; Hawchar v R (No 2) [2020] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 6 August 2020
Judge(s): Fullerton J; Wilson J; Ierace J
Background
This decision is a short procedural judgment arising from a sentence appeal heard the previous day. On 5 August 2020, the Court of Criminal Appeal disposed of leave applications by three applicants who had been sentenced in the District Court. As part of that disposition, the Court quashed the sentence imposed on one applicant and substituted a fresh sentence.
The day after the orders were made, the Court was alerted to an error in the substituted sentence. On reviewing the matter, the Court independently identified a second error, also arithmetic in nature, which had not been raised by either party.
Legal Issues
- Whether the Court of Criminal Appeal could correct arithmetic errors in its own orders without an application from the parties
- Whether it was in the interests of justice to exercise that power in the circumstances
Decision
The Court identified two errors in the substituted sentence it had made the previous day: an incorrect expiry date for the non-parole period, and an incorrect commencement date for the sentence overall. Both errors were arithmetic in nature rather than reflecting any substantive judicial decision about the appropriate sentence.
Rule 50C(3) of the Criminal Appeal Rules (NSW) confers power on the Court to correct errors in its orders of its own motion, without needing an application from the parties. The Court was satisfied this power applied to the arithmetic errors identified.
The Court resolved to exercise the power without hearing from the parties. It was satisfied that doing so was in the interests of justice, given the purely mathematical nature of the corrections required.
Orders Made
- The commencement date for the applicant's sentence was amended to read "17 December 2017" (correcting the original order which stated 19 December 2017).
- The expiry date for the non-parole period was amended to read "16 June 2021" (correcting the original order which stated 18 December 2021).
Key Takeaways
- Rule 50C(3) of the Criminal Appeal Rules (NSW) empowers the Court of Criminal Appeal to correct errors in its own orders on its own motion, without any application from the parties.
- Where errors are arithmetic in nature, the Court may act swiftly to correct them, provided it is satisfied that doing so is in the interests of justice.
- Neither party needed to bring the error to the Court's attention for the correction power to be enlivened: the Court can act on its own independent identification of an error.
- The slip rule mechanism operates separately from any substantive appellate review; it addresses clerical or mathematical mistakes rather than revisiting the merits of a sentence.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Rules (NSW), r 50C(3)
Cases:
- Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191 (the primary sentence appeal decision from 5 August 2020)