[2018] NSWCCA 179

Fitzgerald v R (No. 2)

Vary the orders made on 6 August 2018 so that they read: (1) Leave to appeal granted. (2) Appeal dismissed. (3) Time not to count except for 79 days. (4) The sentence will now expire on 16 April 2020 and the non-parole period will expire on 16 May 2019.

Catchwords

SENTENCING – slip rule – applicant bailed after sentence imposed by sentencing judge – incorrect calculation of expiry date by Court after dismissing appeal – sentence corrected

Cases cited

Legislation cited

Criminal Appeal Rules 1952 (NSW)

Judgment

[1]
On 6 August 2018 the Court delivered judgment granting leave to appeal but dismissing the appeal. The applicant had been sentenced to a term of imprisonment by Delaney ADCJ on 19 April 2017. She was subsequently released to bail pending the hearing of her application for leave to appeal.
[2]
The Court was wrongly informed by the Crown that the applicant had spent 49 days in custody prior to being released to bail. In those circumstances the Court indicated in its judgment that the sentence would expire on 16 May 2020 and the non-parole period would expire on 16 June 2019.
[3]
In fact, the applicant had spent 79 days in custody before she was released to bail.
[4]
Rule 50C of the Criminal Appeal Rules 1952 (NSW) relevantly provides:
[5]
The Rule is appropriate in the present case to correct what is a clear clerical mistake or an error arising from an accidental slip arising from the Crown’s submissions.
[6]
Accordingly, the orders made on 6 August 2018 should be varied so that they read as follows:
1. (1)
  Leave to appeal granted.
2. (2)
  Appeal dismissed.
3. (3)
  Time not to count except for 79 days.
4. (4)
  The sentence will now expire on 16 April 2020 and the non-parole period will expire on 16 May 2019.