[2020] NSWCCA 175

Norford v R (No 2)

(1) The orders pronounced by the Court on 27 May 2020 are set aside and the following orders substituted in lieu thereof. (2) Leave to appeal against sentence granted. (3) Appeal allowed. (4) The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed. (5) In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 31 October 2018 and to expire on 30 July 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 31 July 2020 and expiring on 30 April 2022.

Catchwords

PRACTICE AND PROCEDURE – Amendment of orders – Unintended slip – No point of principle

Cases cited

Akkawi v R (No 2)[2013] NSWCCA 72
Alramadan v R (No 2)[2008] NSWCCA 69
Norford v R[2020] NSWCCA 104

Legislation cited

Crimes Act 1900 (NSW)
Criminal Appeal Rules (NSW)

Judgment

[1]
The Court delivered judgment in this matter on 27 May 2020 and made the following orders: [1]
1. (1)
  Leave to appeal against sentence granted.
2. (2)
  Appeal allowed.
3. (3)
  The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.
4. (4)
  In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 30 November 2018 and to expire on 29 August 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 30 August 2020 and expiring on 29 May 2022.
[2]
On 19 June 2020 the solicitor for the applicant, with the consent of the Crown, wrote to the Registrar of the Court querying whether there was an error in order (4) in terms of the commencement date of the sentence imposed by this Court. The applicant’s solicitor submitted that having regard to the sentence imposed at first instance, and having regard to the reasons for judgment, the commencement date should have been 31 October 2018 and not 30 November 2018. The Crown made no submission to the contrary.
[3]
The applicant was originally sentenced in respect of two separate offences. The first was contrary to s 111(2) of the Crimes Act 1900 (NSW), in respect of which the applicant was sentenced to 18 months imprisonment commencing on 31 October 2018. The second was contrary to s 112(2) of the Crimes Act 1900 (NSW), in respect of which the applicant was sentenced to 2 years and 6 months imprisonment, commencing on 31 October 2018. Accordingly, the sentence imposed for the first offence was wholly subsumed in the sentence imposed for the second.
[4]
The application for leave to appeal against sentence was restricted to the sentence imposed for the second of the two offences. As set out above, this Court quashed that sentence and imposed, in lieu thereof, a non-parole period of 1 year and 9 months imprisonment, with an additional term of 1 year and 9 months imprisonment. It will be evident from the Court’s reasons that there was no intention to commence that sentence one month later than the original sentence imposed at first instance. The commencement date of 30 November 2018 in order (4) is an accidental slip and should have read 31 October 2018. The order as pronounced did not reflect the Court’s intention and the variation which is sought on behalf of the applicant does not alter the Court’s reasons for judgment.
[5]
Rule 50C of the Criminal Appeal Rules (NSW) is in the following terms:
[6]
Noting the terms of r 50C(5), the Court has power to correct an accidental slip of this nature. [2]
[7]
In these circumstances the Court makes the following orders:
1. (1)
  The orders pronounced by the Court on 27 May 2020 are set aside and the following orders substituted in lieu thereof.
2. (2)
  Leave to appeal against sentence granted.
3. (3)
  Appeal allowed.
4. (4)
  The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.
5. (5)
  In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 31 October 2018 and to expire on 30 July 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 31 July 2020 and expiring on 30 April 2022.