Liddington v The State of Western Australia

[2005] WASCA 60 (S)

LIDDINGTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 60 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 60 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CCA:186/2004	Heard:	1 MARCH 2005
Coram:	MALCOLM CJ ROBERTS-SMITH JA MCLURE JA	Delivered:	1/04/05
Supplementary Delivered:	6/05/05
No of pages:	5	Judgment Part:	1 of 1
Result:	Orders recalled Sentence substituted
Category:	C
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Parties:	LESLIE ALPHONSE LIDDINGTON THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Sentence State appeal Correction of sentence Error or omission Section 37(3) of the Sentencing Act 1995 (WA)
Legislation:	Sentencing Act 1995 (WA), s 37(3)
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LIDDINGTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 60 (S) CORAM : MALCOLM CJ

ROBERTS-SMITH JA
MCLURE JA

HEARD : 1 MARCH 2005 DELIVERED : 1 APRIL 2005 SUPPLEMENTARY
DECISION : 6 MAY 2005 FILE NO/S : CCA 186 of 2004 BETWEEN : LESLIE ALPHONSE LIDDINGTON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S : CCA 216 of 2004 BETWEEN : THE STATE OF WESTERN AUSTRALIA

Appellant

AND

LESLIE ALPHONSE LIDDINGTON
Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GROVES DCJ

File No : IND 799 of 2003

Catchwords:

Criminal law - Sentence - State appeal - Correction of sentence - Error or omission - Section 37(3) of the Sentencing Act 1995 (WA)

Legislation:

Sentencing Act 1995 (WA), s 37(3)

Result:

Orders recalled

Sentence substituted

Category: C

Representation:

CCA 186 of 2004

Counsel:

Appellant : Mr M J Bowden
Respondent : Mr B Fiannaca & Ms E Abou-Merhi

Solicitors:

Appellant : Cannon Bowden & Co
Respondent : State Director of Public Prosecutions

(Page 3)

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CCA 216 of 2004

Counsel:

Appellant : Mr B Fiannaca & Ms E Abou-Merhi
Respondent : Mr M J Bowden

Solicitors:

Appellant : State Director of Public Prosecutions
Respondent : Cannon Bowden & Co

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil


(Page 4)

1 JUDGMENT OF THE COURT: On 1 April 2005 this Court upheld an appeal by the State of Western Australia against sentences imposed upon the respondent in the District Court at Perth on 14 December 2004 in respect of four offences of indecent dealing with a child under the age of 13 and one of sexual penetration of a child under the age of 13 years. In the District Court the respondent had been sentenced to 18 months' imprisonment on each of the counts of indecent dealing and 2 years' imprisonment on that of sexual penetration. The sentences were ordered to be served concurrently and the terms of imprisonment were suspended for a period of 2 years.

2 On the appeal being allowed, the Court substituted sentences of 18 months' imprisonment in respect of each of counts 1, 2 and 5; 1 year 8 months' imprisonment on count 3 and 2 years' imprisonment on count 4. The Court ordered that the sentence on count 4 be cumulative upon that in respect of count 3, but that the sentences in respect of the other counts be concurrent. There was an order that the respondent be eligible for parole. The end result of the orders then made were that the respondent was sentenced to an aggregate term of 3 years 8 months' immediate imprisonment.

3 Subsequent to delivery of judgment and the imposition of the new sentences, it was brought to the Court's attention that the respondent had spent 44 days in custody on remand. On 7 April 2005 the respondent's solicitors filed an application seeking correction of sentence pursuant to s 37 of the Sentencing Act 1995 (WA) by an order that the sentence imposed upon the respondent be an aggregate term of 3 years 6 months and 16 days from the date upon which he is taken into custody.

4 The Director of Public Prosecutions quite properly agrees that the time spent in custody should be taken into account and that the sentences imposed on the respondent on 1 April 2005 should appropriately be corrected in the terms sought.

5 Section 37 of the Sentencing Act allows for the correction of a sentence in two circumstances. Under subs 1, a sentencing court is empowered to recall an order imposing a sentence where the sentence has been imposed in a manner which is not in accordance with the Sentencing Act or the written law under which the offence is committed. On recalling the order, the court may impose a sentence that is in accordance with the law. By s 37(3), if a court's order imposing a sentence contains a clerical mistake or an error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order,

(Page 5)

but the court must ensure that all parties and relevant authorities are notified of the correction.

6 The present case is one in which the power arises under s 37(3), there having been an error arising from an accidental omission, that being the omission to allow for time the respondent had already spent in custody in respect of these matters.

7 Although a correction may be made under s 37(3) without recalling the earlier order, that cannot be the course taken here because to achieve the aggregate result sought necessitates alteration of the individual sentences.

8 We would accordingly recall the orders made on 1 April 2005, vacate them and substitute sentences of 18 months' imprisonment in respect of each of counts 1, 2 and 5; one of 1 year 6 months and 16 days in respect of count 3, and 2 years' imprisonment in respect of count 4. We would order that the sentence on count 4 be cumulative upon that in respect of count 3, but that the sentences in respect of the other counts be concurrent. There should be an order that the respondent be eligible for parole. The end result of these orders is that the respondent is sentenced to an aggregate term of 3 years 6 months and 16 days' immediate imprisonment.