R v Gorman [2009] ACTSC 7 (11 February 2009)

Last Updated: 16 March 2009

R v COLIN GORMAN

[2009] ACTSC 7 (11 February 2009)

JUDGMENTS AND ORDERS – amendment – accidental slip or omission – criminal proceedings – power to amend – r 6909, Court Procedures Rules 2006 (ACT).

Crimes (Sentencing) Act 2005 (ACT), ss 11, 13, 61

Supreme Court Rules 1937 (ACT), o 34 r 14, o 85 r 91

Court Procedures Rules 2006 (ACT), r 6906

Jovanovic v The Queen [1999] FCA 1008; (1999) 92 FCR 580

Milson v Carter [1893] AC 638

Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221, 248 ALR 428

R v Popovski (No 2) [2008] ACTSC 95

Sands & McDougall Pty Ltd (In liq) and Anor v Commissioner of Taxation (No 2) [1999] VSCA 36; [1999] 2 VR 114 at 121

JUDGMENT

No. SCC 319 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 11 February 2009

IN THE SUPREME COURT OF THE )

) No. SCC 319 of 2008

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

COLIN GORMAN

ORDER

Judge: Refshauge J

Date: 11 February 2009

Place: Canberra

THE COURT ORDERS THAT:

1. In the direction made in the sentence of 17 November 2008, that 12 months of the sentence of imprisonment be served by periodic detention, there be substituted for the date of “17 November 2009” as the end of the periodic detention period, the date of “16 November 2009”.

1. On 17 November 2008, I sentenced Mr Colin Gorman for the offence of assault occasioning actual bodily harm.

2. I sentenced him to two years imprisonment. I directed that he was to serve twelve months of that by periodic detention, to commence on that day, 17 November 2008, and to end on 17 November 2009.

3. I suspended the balance of the sentence and ordered him to be released on 17 November 2009 under a good behaviour order (s 13 of the Crimes (Sentencing) Act 2005 (ACT)) with conditions including, inter alia, probation and community service.

4. My attention has been drawn to the fact that the periodic detention period (see s 11 of the Crimes (Sentencing) Act) is expressed inconsistently. The twelve month period ends on 16 November 2009 and not 17 November 2009.

5. While that is unlikely to have any actual practical effect since his actual period in custody will end on 15 November 2009, it is important that sentences be accurately expressed so as to ensure that no unforeseen consequences might prejudice the sentenced person, in this case Mr Gorman.

6. Section 61 of the Crimes (Sentencing) Act permits the reopening of proceedings to correct penalty errors. As sub-section 1 states, its application is somewhat limited. That provision is:

This section applies to a criminal proceeding (including a proceeding on appeal) in which a court has –

(a) made a sentence-related order that is contrary to law; or

(b) failed to make a sentence-related order that is required to be made by law.

7. Made in response to the problems identified in Jovanovic v The Queen [1999] FCA 1008; (1999) 92 FCR 580, it is a most useful provision but it does not seem to me to cover the case.

8. Rule 6906 of the Court Procedures Rules 2006 (ACT) is the enactment of what had been o 32 r 14 (see also o 85 r 91) of the Supreme Court Rules 1937 (ACT), commonly called “the slip rule”. Rule 6906, however, clearly applies to criminal proceedings as well as civil proceedings (see r 6000), a position not nearly as clear under the former Rules.

9. Though the slip rule was rejected as a source of power in Jovanovic v The Queen to rectify the error there made (see at 592-4), the error in that case was an error of law and not “a clerical mistake ... arising from an accidental slip or omission”.

10. Rule 6906 provides:

(1) This rule applies if:

(a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or certificate of the court; and

(b) the mistake or error resulted from an accidental slip or omission.

(2) On application by a party to the proceeding or on its own initiative, the court may at any time correct the mistake or error.

Note: Pt 6.2 (Applications in proceedings) applies to an application for correction of the mistake or error.

(3) Part 2.7 (Amendment) does not apply to a correction made under this rule.

11. This may simply codify what was always the common law, namely that a superior court of record had power to correct errors arising from an accidental slip or omission. As the Privy Council said in Milson v Carter [1893] AC 638 at 640

Their Lordships do not doubt that the Court has power at any time to correct an error in a decree or order arising from a slip or accidental omission, whether there is or is not a general order to that effect. A recent instance of the exercise of this power occurred in the case of Hatton v Harris before the House of Lords [1892] AC 547, where an error arising from an accidental omission was corrected after the lapse of forty years. The House of Lords in that case approved the views expressed by the Court of Appeal in Mellor v Swire (1885) 30 Ch D 239.

12. That such a principle applies in criminal proceedings may be inferred from the comments made by the majority in the High Court on an appeal from a criminal matter in Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221, 248 ALR 428 where their Honours said at [18], [20]-[21]:

[18] The formal recording of the orders of a superior court of record is often referred to as the “perfecting” of that order. Whether a court may re-open a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been “perfected”. This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?

...

[20] Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.

[21] The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order (L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 594-595) provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.

13. See also R v Popovski (No 2) [2008] ACTSC 95 at [4]- [6].

14. I think it is clear that I intended to direct in this case that Mr Gorman serve twelve months of his term of imprisonment by way of periodic detention and not twelve months and one day. There can be no real difference of opinion, no controversy, about what I intended: Sands & McDougall Pty Ltd (In liq) and Anor v Commissioner of Taxation (Cth) (No 2) [1999] VSCA 36; [1999] 2 VR 114 at 121.

15. I am also satisfied that I have the power of my own motion to correct the sentence imposed, to accord with my actual intention.

16. Accordingly, I amend the sentence by rectifying the incorrect date with the correct and intended date.

17. In the direction made in the sentence of 17 November 2008, that 12 months of the sentence of imprisonment be served by periodic detention, there be substituted for the date of “17 November 2009” as the end of the periodic detention period, the date of “16 November 2009”.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 11 February 2009

Counsel for the prosecution: Mr T Hickey

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the defendant: Mr K Archer

Solicitor for the defendant: Ken Cush & Associates

Date of hearing: 17 November 2008

Date of judgment: 11 February 2009