R v Ly (No 2)

[2014] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Ly (No 2) [2014] NSWCCA 91

Hearing dates:

On the papers

Decision date:

27 May 2014

Before:

Leeming JA; Hall J; Schmidt J

Decision:

(1) Vary the orders made on 15 May 2014 by deleting order 1, renumbering orders 2, 3 and 4 so that they become 1, 2 and 3, replacing the word "on" by "with effect from" in order 3 (renumbered as order 2), and deleting the words "with a balance of term of 3 years 6 months to expire on 1 November 2020" from order 4 (renumbered as order 3).

(2) Delete the words "and a finding of special circumstances so as to vary the statutory ratio" and "with a balance of term of 3 years 6 months" in [144] of the reasons published on 15 May 2014.

Catchwords:

PRACTICE AND PROCEDURE - slip rule - variation of orders and reasons in principal judgment

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5D
Criminal Appeal Rules (NSW), r 50C
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases Cited:

Burrell v The Queen [2008] HCA 34; 238 CLR 218
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143

Category:

Procedural and other rulings

Parties:

Regina (Appellant)
Christina My Phung Ly (Respondent)

Representation:

Counsel:
R Bromwich SC / P McGuire (Appellant)
P Lange (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Aquila Lawyers (Respondent)

File Number(s):

2010/295928

 Decision under appeal 

Date of Decision:

2013-03-06 00:00:00

Before:

Acting Judge Andrew

File Number(s):

2010/295928

Judgment

1. THE COURT: On 15 May 2014, the Court delivered judgment in this Crown appeal: [2014] NSWCCA 78. It allowed the appeal, quashed the sentences imposed by the District Court of NSW on 6 March 2013, and re-sentenced Ms Ly. This judgment addresses and corrects three matters in the Court's reasons and orders, none of which affects the substantive issue determined in the judgment or the period of imprisonment which Ms Ly must serve.

1. First, order 1 was a grant of leave to appeal against sentence. The Crown, unlike an offender, does not require leave to appeal: Criminal Appeal Act 1912 (NSW), s 5D. Order 1 is otiose and should be removed and the remaining orders renumbered.

1. Secondly, the reference in order 2 to the sentence imposed by the District Court on 2 November 2012 should have been a reference to the sentence imposed with effect from 2 November 2012. The word "on" should be replaced by "with effect from".

1. Thirdly, this Court, no differently from the primary judge, ordered a non-parole period of somewhat more than 50% of the term of imprisonment. This being a federal offence, the provisions under State law that apply to the setting of the balance of the term of a sentence and the making of a special circumstances finding do not apply: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [22]; cf Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2). Accordingly, the words "with a balance of term of 3 years 6 months to expire on 1 November 2020" should be omitted from order 4, and the words "and a finding of special circumstances so as to vary the statutory ratio" and "with a balance of term of 3 years 6 months" should be omitted from [144].

1. As those matters constitute accidental slips which do not alter the substance of the reasons or the orders made, they may be corrected notwithstanding the orders have been entered: Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [21]; R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143. Rule 50C of the Criminal Appeal Rules (NSW) does not limit the Court's powers referred to above, but in any event it may be noted that the period of 14 days prescribed by r 50C(3) has not expired.

1. Accordingly, [144] of the Court's reasons is varied as stated above, and the orders made on 15 May 2014 are varied by deleting order 1, renumbering orders 2, 3 and 4 so that they become 1, 2 and 3, replacing the word "on" by "with effect from" in order 3 (renumbered as order 2) and deleting the words "with a balance of term of 3 years 6 months to expire on 1 November 2020" from order 4 (renumbered as order 3). For clarity, as varied, those orders are:

1. Appeal allowed.

2. The sentence of imprisonment in respect of the offence pursuant to s 400.4(1) of the Criminal Code 1995 (Cth) imposed by the District Court with effect from 2 November 2012 be set aside.

3. The respondent be re-sentenced to a term of imprisonment of 8 years to commence on 2 November 2012 and to expire on 1 November 2020, with a non-parole period of 4 years 6 months to commence with effect from 2 November 2012 and to expire on 1 May 2017.

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