Buadromo v The Queen (No 2)

[2011] NSWCCA 55

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Buadromo v R (No 2) [2011] NSWCCA 55

Hearing dates:

On the papers

Decision date:

30 March 2011

Before:

McClellan CJ at CL at 1
Simpson J at 2
Buddin J at 17

Decision:

Orders made on 27 February 2007 amended by the addition of the following:

(iv) the sentence imposed in respect of Count 6 quashed;

(v) in respect of Count 6, the applicant re-sentenced to imprisonment with a non-parole period of 2 years and 6 months commencing on 17 December 2008 and expiring on 16 June 2011, with a balance of term of 1 year and 3 months, expiring on 16 September 2012.

Catchwords:

CRIMINAL LAW - procedure - sentence appeal - power of the Court to correct judgment after delivery - orders do not reflect intention of the Court - Rule 50C Criminal Appeal Rules not available - slip rule - concession by the Crown - interests of justice in this case - orders amended

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Rules

Cases Cited:

Buadromo v R [2007] NSWCCA 43
R v Green and Quinn [2010] NSWCCA 313

Category:

Consequential orders

Parties:

Baba Buadromo (Applicant)
Regina (Respondent)

Representation:

Counsel:
P Johnson (Applicant)
N Noman (Respondent)
Solicitors:
S E O'Connor (Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s):

2006/2156

 Decision under appeal 

Date of Decision:

2006-01-24 00:00:00

Before:

Blackmore DCJ

File Number(s):

04/11/1422

Judgment

1. McCLELLAN CJ at CL : I agree with Simpson J.

1. SIMPSON J : On 27 February 2007 this Court delivered judgment in an application by the present applicant for leave to appeal against sentences imposed upon him on 24 January 2006: Buadromo v R [2007] NSWCCA 43.

1. The applicant had pleaded guilty to six counts on an indictment. Blackmore DCJ sentenced the applicant sequentially, partially accumulating each successive sentence upon the earlier sentences. He expressly found, pursuant to s 44(3) of the Crimes (Sentencing Procedure) Act 1999, that special circumstances existed justifying departure from the statutory ratio between the non-parole period and the head sentence. As it happened, while variation was made in respect of the individual sentences, as a result of the accumulation the overall sentence did not reflect any real variation.

1. Two sentences are involved in the present application. Count 5 was an offence of attempted armed robbery, in respect of which the applicant was sentenced to a term of imprisonment of 5 years and 3 months made up of a non-parole period of 2 years and 3 months and a balance of term of 3 years, commencing on 17 December 2009. The non-parole period expired on 16 March 2012.

1. Count 6 was an offence of carjacking, in respect of which the applicant was sentenced to a term of imprisonment of 4 years and 3 months made up of a non-parole period of 3 years and a balance of term of 1 year and 3 months, commencing on 17 December 2008. The non-parole period expired on 16 December 2011.

1. In his application for leave to appeal the applicant made no complaint about the severity of any individual sentence, but contended, first, that the accumulation resulted in an excessively lengthy overall term; and, second, that the accumulation distorted the application of s 44, and deprived him of the benefit of that finding.

1. This Court upheld the latter contention, and, in order to give effect to the finding of special circumstances, reduced the non-parole period imposed in respect of Count 5, so that it expired on 16 June 2011. It did not interfere with the head sentence. Nor did it interfere with any other sentence, notably the sentence imposed in respect of Count 6.

1. The clear intention of this Court was that that applicant would be eligible for release on parole on 16 June 2011.

1. There the matter rested until, on 31 January 2011, a solicitor of the Legal Aid Commission corresponded with the registrar of the Court of Criminal Appeal. This followed the discovery by the applicant that the Department of Corrective Services' records showed his parole eligibility date as 16 December 2011, and not as the applicant had reasonably been led to believe, 16 June 2011. The departmental record is, of course, correct. The solicitor pointed out that the intention of this Court had not been achieved, because the sentence imposed in respect of Count 6 remained as originally imposed, with a non-parole period expiring on 16 December 2011, contrary to what was intended.

1. Clearly, this was an oversight on the part of this Court, and ought to be corrected. The Crown accepts this. In a letter dated 18 March 2011, the solicitor for Public Prosecutions wrote:

"There is no objection to the decision being amended in chambers pursuant to the 'slip rule'."

It went on, however, to point out that there may be some doubt, not yet resolved, about the power of the Court to correct a judgment after delivery: R v Green and Quinn [2010] NSWCCA 313, and proceedings in that matter thereafter.

1. Rule 50C of the Criminal Appeal Rules provides:

" 50C Power to set aside or vary order

(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.

(2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.

(3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.

(4) The Court may not extend the time limited by subrule (2) or (3).

(5) Nothing in this rule affects any other power of the Court to set aside or vary an order."

1. Rule 50C was introduced into the Criminal Appeal Rules with effect from 7 September 2007, post-dating delivery of judgment in this matter. It is not clear to me, and it has not been argued, that it has retrospective effect. In any event, it is plain that the original order has been entered and sub-s (4) precludes any extension of the 14 day time limit provided by sub-s (2) and sub-s (3).

1. Rule 50C is therefore not available to the applicant.

1. As I have pointed out, the Crown recognises that the extent of the slip rule is under present consideration of another bench of this Court.

1. In my opinion, it is questionable whether the slip rule applies. However, in the circumstances of this case, I would be prepared to act upon the concession, very fairly made in order to achieve a just outcome, of the Crown. For that reason, the course I am about to propose should not, and cannot, be used as a precedent.

1. I propose that the orders made on 27 February 2007 be amended by the addition of the following:

(iv)   the sentence imposed in respect of Count 6 quashed;

(v)   in respect of Count 6, the applicant re-sentenced to imprisonment with a non-parole period of 2 years and 6 months commencing on 17 December 2008 and expiring on 16 June 2011, with a balance of term of 1 year and 3 months, expiring on 16 September 2012.

1. BUDDIN J : I agree with Simpson J.

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