FEDERAL COURT OF AUSTRALIA

Jovanovic v The Queen [1999] FCA 1008

CRIMINAL LAW – appeal against sentence – whether sentencing judge functus officio after sentence pronounced and recorded on internal court documents – whether “slip-rule” applicable to allow amendment of sentence – whether sentence initially imposed capable of being revoked.

CRIMINAL LAW – whether appropriate for sentencing judge to decline to impose penalty in respect of certain counts in indictment by reason of conduct being embraced within other counts.

CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether proper credit given for time spent in custody.

Crimes Act 1900 (ACT), s 448

Parole Act 1976 (ACT), s 8

Drugs of Dependence Act 1989 (ACT), s 164(3)

Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women (1949) SR(NSW) 300 at 303 referred to

Bailey v Marinoff (1971) 125 CLR 529 at 539 referred to

Re Swire (1885) 30 ChD 239 referred to

R v Cripps, Ex parte Muldoon  [1984] QB 686 at 695 referred to

R v Michael [1976] 1 QB 414 referred to

R v Saville [1981] 1 QB 12 referred to

S v Recorder of Manchester [1971] AC 481 at 489 referred to

Lawrence v The King [1933] AC 699 at 708-9 referred to

Samsoondar Ramcharan v The Queen [1973] AC 414 referred to

R v Hodgkinson [1954] VLR 140 at 145-6 referred to

R v Billington [1980] VR 625 at 631 applied

R v Cross (Patrick) [1973] 1 QB 937 at 940 referred to

R v Judge Bland; ex parte Director of Public Prosecutions [1987] VR 225not followed

R v Lapa (No 2) (1995) 80 A Crim R 398 at 402, 403, 404 referred to

Griffiths v The Queen (1977) 137 CLR 293 at 301-3 referred to

R v De Zylva (1988) 38 A Crim R 207 referred to

R v Webb (1953) Cr App R 82 at 84-5 referred to

R v Fry (1954) 38 Cr App R 157 at 158 referred to

MIROSLAV JOVANOVIC v THE QUEEN

AG 116 of 1999

WILCOX, MILES and WEINBERG JJ

27 JULY 1999

CANBERRA

On Appeal from the Supreme Court of the Australian

Capital Territory

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The sentences and orders of the Supreme Court are set aside and the appellant is sentenced to imprisonment as follows:

            Count 1 ‑ Four years to commence on 2 July 1998.

            Count 2 ‑ Three years concurrent with the first count.

            Count 3 ‑ Two and a half years cumulative on the first count.

            Count 4 ‑ Two and a half years concurrent with the third count.

            Count 5 ‑ Two and a half years concurrent with the third count.

            Count 6 ‑ Two years cumulative on the third count.

            Count 7 ‑ Two years concurrent with the sixth count.

            Count 8 ‑ Two years concurrent with the sixth count.

            Count 9 ‑ Two years concurrent with the sixth count.

            Count 10 ‑ Two years concurrent with the sixth count.

            Count 11 ‑ Two years concurrent with the sixth count.

            Count 12 ‑ Two years concurrent with the sixth count.

            Count 13 ‑ Two years concurrent with the sixth count.

            Count 14 ‑ Three years concurrent with the sixth count.

3.                  A non-parole period is fixed to expire on 2 January 2004.  In accordance with s 8(4)(a) of the Parole Act (ACT) that period is taken to have commenced on 9 September 1994.

4.                  The proceedings be remitted to the Supreme Court for the execution of the judgment of this Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On Appeal from the Supreme Court of the Australian

Capital Territory

REASONS FOR JUDGMENT

THE COURT:

1                     On 4 November 1998, the appellant, Miroslav Jovanovic, pleaded guilty upon arraignment to an indictment which contained fourteen counts.  A further twenty-one offences of burglary and theft which were taken into account were set out in a schedule under s 448 of the Crimes Act 1900 (ACT).

2                     The appellant was sentenced as follows:

Count No   Offence                                              Sentence Imposed

              1               Possession of heroin for sale              7 years imprisonment

              2               Sale of heroin to another                    no penalty (embraced in Count 1)

              3               Burglary                                            2 years imprisonment (cumulative)

              4               Theft                                                 no penalty (embraced in Count 3)

              5               Demand accompanied by a threat      no penalty (embraced in Count 3)

              6               Burglary                                            2 years imprisonment (concurrent)

              7               Theft                                                 no penalty (embraced in Count 6)

              8               Burglary                                            2 years imprisonment (concurrent)

              9               Theft                                                 no penalty (embraced in Count 8)

              10             Burglary                                            2 years imprisonment (concurrent)

              11             Theft                                                 no penalty (embraced in Count 10)

              12             Burglary                                            2 years imprisonment (concurrent)

              13             Theft                                                 no penalty (embraced in Count 12)

              14             Possession of heroin                          3 years imprisonment (concurrent)

3                     The imposition of sentences in this form resulted in a head sentence of nine years’ imprisonment to date from 2 July 1998.  His Honour also set a non-parole period of six years which he at one point stated would expire on 2 July 2000. That was clearly a slip on his Honour’s part as he plainly intended to say that the non-parole period would expire on 2 July 2004.  Nothing turns upon that slip for, in the very next sentence, his Honour made it clear that the non-parole period was to expire:

“… six years from today, giving credit for the period that he [the appellant] spent in custody to date.”

4                     For reasons which are peculiar to the Australian Capital Territory, and which result from the requirements of s 8 of the Parole Act 1976 (ACT), his Honour directed that the non-parole period be deemed to have commenced on 9 September 1994.  That was the date upon which the appellant had previously been sentenced to a term of imprisonment, from which imprisonment he had been released on parole on 25 June 1997. 

5                     All of the fourteen offences in the indictment, and all of the additional offences taken into account, were committed by the appellant after 25 June 1997, while he was on parole in respect of that earlier sentence of imprisonment.  Parole was revoked on 2 July 1998.

6                     On 25 November 1998, the appellant lodged an appeal against severity of sentence.  Two grounds of appeal were set out in the notice of appeal:

“1.      Whereas the maximum penalty for the offence disclosed in the first count on the indictment is five years imprisonment, his Honour erred as a matter of law in imposing a sentence of seven years imprisonment.

2.         In its totality the sentence imposed was manifestly excessive.”

7                     The maximum sentence which was available in relation to count 1, possession of heroin for sale, having regard to the amount of the drug in question, was a fine of $10,000.00 or imprisonment for five years or both – see s 164(3) Drugs of Dependence Act 1989 (ACT).  The sentence of seven years’ imprisonment which his Honour imposed in relation to that count exceeded the maximum for that offence.  The maximum sentence so provided for was not drawn to his Honour’s attention at or before the imposition of sentence.  We are bound to say that his Honour did not receive the assistance from counsel that he was entitled to expect.  Counsel for the Director of Public Prosecutions in particular should have been in a position to inform his Honour of the maximum sentence on each count as well as to provide precise details of the appellant’s official history. 

8                     After the notice of appeal had been filed his Honour discovered the error.  He caused the appellant to be brought back before him to be re-sentenced.  That occurred on 5 February 1999.  The appellant was legally represented on that occasion, as he had been on 4 November 1998.  Neither counsel raised any objection to the course proposed by his Honour.

9                     His Honour re-sentenced the appellant as follows:

Count No   Offence                                              Sentence Imposed

                 1            Possession of heroin for sale                4 years imprisonment

                 2            Sale of heroin to another                      not expressly mentioned in re-sentencing

                 3            Burglary                                              3 years imprisonment (cumulative)

                 4            Theft                                                   not expressly mentioned in re-sentencing

                 5            Demand accompanied by a threat        not expressly mentioned in re-sentencing

                 6            Burglary                                              2 years imprisonment (cumulative)

                 7            Theft                                                   no penalty (embraced in Count 6)

                 8            Burglary                                              2 years imprisonment (concurrent)

                 9            Theft                                                   no penalty (embraced in Count 8)

                 10          Burglary                                              2 years imprisonment (concurrent)

                 11          Theft                                                   no penalty (embraced in Count 10)

                 12          Burglary                                              2 years imprisonment (concurrent)

                 13          Theft                                                   no penalty (embraced in Count 12)

                 14          Possession of heroin                            3 years imprisonment

                                                                                          (concurrent)

10                  In re-sentencing the appellant, his Honour did not vary the head sentence of nine years’ imprisonment, or the non-parole period of six years.  The head sentence was again fixed to date from 2 July 1998.  The non-parole period was again stated to be fixed to date from 9 September 1994, and to expire on 2 July 2004. 

11                  His Honour achieved the new head sentence of nine years’ imprisonment and the new non-parole period of six years by purporting to “revoke” the sentences of seven years’ imprisonment and two years’ imprisonment which he had imposed on counts 1 and 3 respectively, and by substituting new sentences of four years’ imprisonment and three years’ imprisonment on those counts.  He also varied the sentence of two years’ imprisonment imposed on count 6 by making it cumulative upon, rather than concurrent with, the sentence imposed on the third count.

12                  On 25 February 1999 the appellant lodged what was described as a “supplementary notice of appeal”.  That supplementary notice contained the same two grounds of appeal as had been relied upon in the original notice of appeal of 25 November 1998.  Ground 2 was, however, renumbered as ground 4.  Two new grounds of appeal were included.  These were:

“2.      His Honour’s pronouncement of sentence on 4 November 1998 rendered his Honour functus officio and accordingly his Honour was without jurisdiction in re-sentencing the Appellant on 5 February 1999.

3.                 His Honour erred as a matter of law in relying upon the “slip-rule” (O32 r14) to re-sentence the Appellant on 5 February 1999.”

13                  It should be noted in relation to ground 3, as set out above, that his Honour did not refer, in his re-sentencing remarks on 5 February 1999, to the “slip rule”, or to O 32 r 14.  His Honour did, however, state:

 “The slip having occurred, it is appropriate to re-sentence the accused on all counts.”

14                  Before proceeding further with this judgment, it is necessary to determine which of the two sentences imposed by his Honour is properly the subject of the present appeal.  If either ground 2 or ground 3 of the supplementary notice of appeal succeeds, the sentence which is the subject of the remaining grounds of this appeal must be that which was imposed by his Honour on 4 November 1998, and not that which was imposed on 5 February 1999.  It is appropriate, therefore, to turn first to grounds 2 and 3 of the supplementary notice of appeal.

The general principles of “functus officio”

15                  As a general rule, except by way of appeal, a court has no power to review, rehear, vary or set aside any judgment or order once it is formally recorded.

16                  The underlying principle was elucidated by Jordan CJ in Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women (1949) SR(NSW) 300.  His Honour stated at 303:

“Prior to the Judicature Acts in England, judges in Chancery could re-hear their own decisions and those of their respective predecessors, and such re-hearings were, in effect, appeals from the former hearings; but no such jurisdiction existed at common law, except that a judgment of the court was amendable in the term in which it was made but not afterwards … The Judicature Acts in effect abolished the jurisdiction to re-hear in Chancery … The general rule, as established by the authorities to which reference is made in Ex parte Hassell [(1937) 37 SR 192 at 195] is that “when an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio, and cannot add to, amend, or detract from what he has done”; although in some jurisdictions an adjudication is not regarded as having been finally made until it has been passed and entered … This rule applies to judges exercising judicial authority conferred by statute, unless otherwise provided by statute.  Thus, it applies to District Courts … There is no reason why it should not apply to the adjudications of magistrates made in the exercise of statutory civil jurisdiction.  Whatever may be the position of a magistrate with respect to a warrant for apprehension issued by him in an administrative capacity, there is nothing … which suggests that he has any inherent jurisdiction to review an adjudication, or vary a warrant for execution, made or issued by him in the exercise of a statutory civil jurisdiction, or can make any such review or variance unless authorised to do so by statute …

17                  In Bailey v Marinoff (1971) 125 CLR 529 at 539 Gibbs J, as his Honour then was, observed:

“The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing.”

18                  In civil cases, before a judgment or order has passed into record, the judge who gave the judgment or made the order may reconsider the decision and withdraw, alter, or vary it:  Carroll v Price [1960] VR 651 at 657.  After a judgment or order has been formally entered in the records of the Court or, to use the language which is sometimes invoked, “authenticated”, the judge is said to be functus officio.

19                  This general rule does not apply to an order made ex parte, which may be set aside or varied on the application of any party affected by it. 

20                  Superior courts of record are said to have an inherent (or implied) jurisdiction to amend or vary a judgment or order even after it has been authenticated, or drawn up, passed, and entered, so that it states correctly what the Court decided and intended:  Re Swire (1885) 30 ChD 239 at 243 per Cotton LJ; Bailey v Marinoff (supra) at 539 per Gibbs J; L. Shaddock & Associates Pty Ltd v Parramatta City Council (1982) 151 CLR 590 at 594 per Mason ACJ, Wilson and Deane JJ.  This inherent (or implied) jurisdiction is generally reflected in rules of court.  These include, for example, O 29 r 11 High Court Rules; O 35 r 7 Federal Court Rules; r 36.07 Rules of the Supreme Court of Victoria; Pt 20 r 10 Rules of the Supreme Court of New South Wales and O 32 r 14 ACT Supreme Court Rules. 

21                  Typically such rules provide that the court may at any time correct “a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission”.

22                  In England, the “slip rule” power is contained in O 20 r 11 of the Rules of the Supreme Court, 1965.  The scope of the power was described by Donaldson MR in R v Cripps, Ex parte Muldoon [1984] 1 QB 686 at 695 in the following terms (citations omitted):

“It is surprisingly wide in its scope.  Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge.  But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it.  It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended.  However, it cannot be over-emphasised that the slip rule power can never entitle the trial judge or a court to reconsider a final and regular decision once it has been perfected ...”

23                  “Slip-rule” powers of this type contained in rules of court generally have no application to criminal proceedings – see for example O 1A r 1 of the ACT Supreme Court Rules.

24                  There is, however, a question as to whether or not a superior court of record, such as the Australian Capital Territory Supreme Court, has an inherent (or implied) power when it exercises criminal jurisdiction to vary or amend a conviction once the verdict of the jury has been received, or the plea of guilty accepted.  Assuming that the Court has such a power, does it extend to varying or amending a sentence which has been imposed?  It appears that his Honour assumed in the present case that such a power existed.

The English position

25                  In R v Michael [1976] 1 QB 414 just such a view was taken of the jurisdiction of the Crown Court, as a court of record, to remedy mistakes in its record.  The case involved an application of what might be described as a “slip-rule” in the context of criminal proceedings.  It arose out of a failure on the part of the trial judge to include costs incurred at a committal hearing in an order for costs which was made in favour of an accused who had been acquitted.  It had plainly been the intention of the trial judge to include such costs in the order which he made.  Upon application to that judge to amend that order, as pronounced, the application was granted.

26                  Likewise, in R v Saville [1981] 1 QB 12, the Court of Appeal held that a purported validation of a defective criminal bankruptcy order by Ackner J, sitting as a judge in the Crown Court, was within the inherent jurisdiction of the Crown Court to remedy mistakes in its record.  It was noted, however, that the adjustment required was of a minor nature, and merely enabled an inchoate order to become complete and valid.

27                  These appear to be the only reported English cases which hold that the inherent power of superior courts of record to remedy mistakes applies to criminal proceedings.  There is no reason in principle, however, for this residual power to be confined to civil cases.

28                  In England the position with regard to criminal cases is complicated somewhat by arcane matters of history.  Prior to the Courts Act 1971 (UK) (“the Courts Act”) a judge of a court of quarter sessions, or assizes, had the power to amend any order made by him.  However, that power could only be exercised until the end of the session or term in which the order was made.  With the abolition of courts of quarter sessions and assize, and their replacement by the Crown Court, the old power of amendment disappeared.  That was a necessary consequence of the fact that the Crown Court was empowered to sit in continuous session.  A new power to vary any sentence or order was therefore created by s 11(2) of the Courts Act.  The period within which this power could be exercised was limited to twenty-eight days from the date upon which the sentence or other order was imposed or made. 

29                  The Courts Act was repealed in 1981.  The power was conferred upon the Crown Court once again by s 47 of the Supreme Court Act 1981 (UK).  That section, like its precursor, permits the Crown Court to vary or rescind any sentence imposed or other order made by that Court when dealing with an offender within twenty-eight days of the imposition of that sentence, or the making of that order. 

30                  It seems that there are no limits to the nature or extent of a variation which may be made pursuant to the section.  It has been said, however, that caution must be exercised in its application:  R v Sodhi (1978) 66 Cr App R 260; and R v Reilly [1982] QB 1208.

31                  When the twenty-eight day period provided for in s 47 has expired, the Crown Court may, it would seem, exercise its inherent jurisdiction to rectify insubstantial errors in its record:  R v Saville (supra).

32                  The position at common law regarding summary offences is more straightforward.  Once a defendant has been both convicted and sentenced the court is regarded as being functus officio irrespective of whether the conviction and sentence have been entered in the records of the court – S v Recorder of Manchester [1971] AC 481 at 489 per Lord Reid; R v Essex Justices, Ex parte Final [1963] 2 QB 816 at 820 per Lord Parker CJ.  Before sentence is passed, however, a court may permit a plea of guilty to be withdrawn.  That may be done even if the plea of guilty has been accepted, and a finding of guilt entered.  Cf R v Manchester Justices; Ex parte Lever [1937] 2 KB 96 at 101 per Humphreys J.

The position at common law outside England

33                  In Lawrence v The King [1933] AC 699 the Privy Council on appeal from Nigeria held that once a trial judge has passed sentence upon an accused the court is functus officio.  The trial judge cannot thereafter alter any individual sentence even if it is plainly invalid.  In that case the trial judge had imposed a sentence of three years’ imprisonment upon a count which carried a maximum of two years’ imprisonment.  When his error was drawn to his attention, he purported to vary the sentence upon that count to one year’s imprisonment. Lord Atkin, faced with the submission that the head sentence had not been affected by the trial judge’s variation of the sentence upon the particular count, observed at 708-9:

“The warrant of commitment recites this sentence [viz the sentence of three years’ imprisonment upon the count in question] as being that which the sheriff is directed to carry into execution according to law.  This is the sentence which it was necessary to appeal against.  Their Lordships cannot agree with the appellate Court that it was merely an elaboration of a previous sentence.  It was a new and different sentence passed in circumstances in which the judge had no possible jurisdiction to pass any sentence even if, which is doubtful, in point of time his power to pass sentence at all still continued.”

34                  The later decision of the Privy Council in Samsoondar Ramcharan v The Queen [1973] AC 414, is to the same effect.

35                  In Australia, the approach which has been taken at common law seems to be more complicated.  The general rule is that a sentencing judge may correct a sentence before it has “passed into record”.  The difficulty is that there is no clearly defined or obvious point at which that may be said to have occurred.  As a general rule, orders are not drawn up, entered, or taken out, in criminal cases.

36                  In R v Hodgkinson [1954] VLR 140 the issue before the Victorian Full Court was whether the trial judge had power to discharge the jury without verdict after the jury had announced its verdicts on the counts on the presentment, and the judge had accepted those verdicts.  Barry J who delivered the judgment of the Court observed at 145-6:

“When a jury have agreed upon their verdict and announce that verdict in answer to questions from the Associate or the clerk, as the case may be, a note is made of the verdict by way of written answers to questions printed upon the back of the presentment.  That note also states the judgment of the Court and the sentence …

We do not agree with the obiter dictum of Hood J in R. v. Bourke, [1915] V.L.R. 289, at p. 296, that

The indorsement [on the presentment] by the associate, who is acting for the Judge, is, … the record of the Court.

Stephen (History of the Criminal Law of England (1883), vol. 1, at pp. 309-9), after stating that the only document connected with a trial necessarily put into writing is the indictment, goes on to observe:

Upon this the clerk of assize or other officer of the Court makes certain memoranda, showing the plea of the prisoner and the verdict of the jury.

and he describes how this and the officer’s minute book were used as the foundation of the record if it became necessary “to make up the record” … The entries on the presentment do not constitute the formal record, but are, in our opinion, minutes or memoranda.

In this State a return of prisoners convicted at a particular sittings is made out at the end of each criminal sessions, and it is signed, in the Supreme Court by the trial Judge and his associate, and in General Sessions by the Chairman and the Clerk of the Peace.  This return is made out in triplicate (except in capital cases, where four copies are signed) and it does not seem to rest upon any statutory requirement, but upon administrative practice of very long standing … It does not set out the verdict, however, and is seemingly the local equivalent to the gaol delivery signed by the Judge in England at the end of the assizes.  This document is delivered to the gaoler as recording the sentence of the Court and, until it is signed, but not thereafter, the sentence pronounced can be altered by the Judge, either by increasing or decreasing it, and the entry made accordingly (R. v. Batchelor (1952), 38 Cr. App. R. 64, at p. 69).

There is kept both in the Supreme Court, by the Prothonotary, and in General Sessions, by the Clerk of the Peace, a book known as the Criminal Record Book.  The Supreme Court Criminal Record Book contains columns with headings for the entry of the number of the matter, name of prisoner, offence, Judge, day of trial, verdict, sentence, commutation recommended by Judge, and approval of commutation of Governor in Council.  In General Sessions the entries are made under columns headed number, name of accused, offence, date of trial, plea, verdict, sentence, date of sentence, jury, adjudicating magistrates, remarks.

These books seem to be kept as a matter of administrative convenience.  The particulars for the entries are obtained by the Prothonotary or the Clerk of the Peace, as the case may be, from the memoranda on the back of the presentment and other appropriate sources.  The presentment, when filed, and these books are part of the records of the Court within the meaning of that expression in sec. 80 of the Evidence Act 1928.  It is from these records that certificates of conviction and acquittal contemplated by sec. 80 of the Evidence Act 1928 are prepared, but the entries in these records relating to a particular criminal matter do not constitute “the record” in the sense in which that term was used in former times.  The form of the record at common law is described by Stephen (A History of the Criminal Law of England (1883), vol. 1, at p. 309) and is set out by Blackstone as an appendix in vol. 4 of the Commentaries … When sec. 467 of the Crimes Act 1928 refers to the drawing up of “a formal record”, it contemplates a “record” in the old sense, but at the present time, having regard to the provisions of sec. 80 of the Evidence Act 1928, and of Part V of the Crimes Act 1928, relating to appeals in criminal cases, it is difficult to imagine circumstances in which it would be necessary to “make up the record”.”

37                  In R v Billington [1980] VR 625 the Full Court had to determine whether an application for leave to appeal against conviction, which had been dismissed because the applicant had not been present to prosecute his appeal, could be reinstated.  That depended upon whether the Full Court was functus officio.

38                  In a joint judgment, the Court comprising Young CJ, Kaye and Jenkinson JJ considered whether the order dismissing the application for leave to appeal had passed into record.  Their Honours (at 629) referred to a passage in the judgment of the Criminal Division of the Court of Appeal in R v Cross (Patrick) [1973] 1 QB 937 where Lord Widgery CJ had observed at 940:

“It is well recognised that a court of record has power to alter a judgment or order which it has made within certain limits.  The limits set in general appear to be that the power to alter the judgment ceases when the judgment is, in the words of the civil courts, drawn up. In other words, the general principle seems to be that when once the judgment has been finally recorded, then the inherent power to vary it is lost.  We are satisfied from the arguments put before us, and indeed from our own experience, that that rule has been extensively applied in the criminal courts in the past. It was well recognised that at assizes the assize judge could alter a sentence which he had passed at any time prior to the moment when he signed the gaol delivery and handed it over to the governor of the prison.  That was a function performed by most assize judges as almost their last act before leaving the assize town, and the signing of the gaol delivery was the moment at which any opportunity for second thoughts disappeared.  Similarly, in regard to quarter sessions, once at the end of the sessions the record of the court's decisions had been made up and forwarded to the proper authority, the inherent power to change a sentence disappeared as well.”

39                  After considering fully the position in England, their Honours turned to the position in Victoria.  They stated at 631:

We have ascertained from the Registrar of the County Court that use in that Court of the book formerly known as the Criminal Record Book, which is described in R. v. Hodgkinson, [1954] V.L.R. 140, at pp. 145-6, was discontinued some years ago.  One copy of the return of prisoners now commonly called the quadruplicate, to which reference was made in Hodgkinson’s Case, is filed with the presentment, and it is to those two documents that reference is now had for a record of the proceedings upon that presentment.  None of the other documents kept in the County Court which record the proceedings or some circumstance pertaining to the proceedings (Judge’s notebook, Associate’s notebook, transcript (if any), copy certificate, of the fine imposed by way of sentence, to the Law Officers, copy particulars of warrant of apprehension, and entry in the execution book relating to fines) could in our opinion be regarded as forming part of what is comprehended in r. 35(b) [of the Criminal Appeal Rules] by the expression “the records of the Court of Trial”.  It seems that, there being now no Criminal Record Book kept in the County Court, the presentment, indorsed in accordance with the practice described in Hodgkinson’s Case, would answer, either alone or in conjunction with the quadruplicate, that description in r. 35(b).”  (emphasis added)

40                  Their Honours went on, however, to state that for reasons which are of no present concern it was unnecessary to answer that question.

41                  In R v Judge Bland; ex parte Director of Public Prosecutions [1987] VR 225 Nathan J held that a County Court judge who had imposed a totally invalid sentence was not functus officio notwithstanding the fact that the sentence had been recorded on the presentment, and the triplicate or court record had been signed.  His Honour followed an earlier decision of the Full Court of the Supreme Court of Victoria in R v Brattoli [1971] VR 446 to this effect, and did so in preference to the later decision of the Privy Council in Samsoondar Ramcharan v The Queen (supra).

42                  In our opinion it is likely that, in Victoria at least, having regard to the principles stated in R v Billington (supra), and notwithstanding the views of Nathan J as summarised above, the common law position is that a sentence is regarded as having “passed into record” when it is recorded on the back of the presentment, and possibly in the relevant court document described as the triplicate as well.  Certainly when both of these events have occurred, the sentencing judge is functus officio, save perhaps for a genuine application of the “slip-rule” in the exercise of the court’s inherent (or implied) jurisdiction.

43                  In New South Wales the common law seems to be viewed in the same way. 

44                  In R v Lapa (No 2) (1995) 80 A Crim R 398 the New South Wales Court of Criminal Appeal dealt with an appeal against conviction and sentence.  On 8 August 1994 the Court dismissed the appeal against conviction, but allowed the appeal against sentence.  On 27 October 1994 the appellant’s solicitors wrote to the Registrar complaining that the Court had not determined one of the grounds of appeal against conviction.  The judges who sat on the appeal directed that if an appropriate application was made, the Court would reconvene to hear it.  Clark JA stated at 402:

“It is well established at common law that a court may review, correct or alter its judgment at any time until its order or judgment has been perfected …

The position is different once the judgment or order has been perfected.  Subject to the rules of court and possible exceptions concerning subsidiary
matters, a court has no power to reconsider its decision and the judgment can be reviewed only on appeal.”

45                  His Honour continued at 403:

“In the present case it is common ground that the order had not been perfected when the application for reconsideration was filed.  Nor had it been perfected at the time that the court heard argument on the application.  In accordance with old authority the court had undoubted jurisdiction to entertain the application and to accede to it.  …

The manner of perfection of the order of the Court of Criminal Appeal (ie by the Registrar of the District Court noting it on the indictment) when coupled with the fact that there is no question that the perfected order will affect the rights of third parties or settle questions of status does lead me to question whether the interests of justice are furthered by the maintenance of the rigid distinction drawn by the common law rule as evidenced in authorities such as Bailey [v Marinoff (1971) 125 CLR 529]  in a case such as the present.”  (emphasis added)

46                  His Honour concluded at 404:

“… I am prepared to assume, for present purposes, that the order was perfected when the Registrar of the District Court affixed the order of the Court of Criminal Appeal to the indictment.”  (emphasis added)

47                  The Court of Criminal Appeal concluded that the act of the Registrar of the District Court, in affixing the order dismissing the appeal to the indictment after the Court of Criminal Appeal had embarked upon a consideration of the application to reopen the appeal, was not effective to remove the power of that Court to consider the outstanding point.  Nonetheless, the Court may be taken to have treated the act of affixing the order to the indictment as the passing into record of that order.  

48                  By analogy, the act of a trial judge’s associate (who is relevantly regarded as the clerk of arraigns) in recording upon the indictment the fact of conviction and the sentence imposed may be viewed as the perfecting of those orders of the trial judge.  This view accords with the approach adopted by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 301-3 where his Honour stressed the importance of recording the fact of a conviction, and not merely a verdict, or a plea of guilty, in the context of a possible disposition under s 556A of the Crimes Act 1900 (NSW).

Legislative amendments

49                  The position in both Victoria and New South Wales has been significantly modified by statute.  In Victoria, in 1997, the Sentencing Act 1991 was amended by the introduction of s 104A to grant a statutory power to correct mistakes or other errors arising from an accidental slip or omission by the sentencer in making a sentencing order.  The section is significantly wider than the slip rule, however, since it applies to clerical mistakes, errors arising from an accidental slip or omission, material miscalculation of figures, material mistakes in the description of anyone or anything, defects of form, and failure to deal with a matter that the sentencer would undoubtedly have dealt with if his or her attention had been drawn to it.  The sentencer has two weeks from the date of imposing sentence to make any such correction.  It is not necessary for the correction of the mistake to be undertaken in open court, nor is it necessary for the judge or magistrate proposing to make the correction to hear or invite written submissions from any other party unless it is thought desirable or necessary in the interests of justice to do so.

50                  The statutory power conferred by provisions of this type does not derogate from the existing common law power to correct sentencing slips – see R v De Zylva (1988) 38 A Crim R 207; R v Saxon [1998] 1 VR 503, or from statutory rights of appeal or review in respect of sentence.  However, neither the common law, nor the statutory power to correct a sentencing slip or clerical error, permits a sentencer to vary an order actually intended to be made simply because the sentencing judge has changed his or her mind.

51                  Section 24 of the Criminal Procedure Act 1986 (NSW) relevantly provides:

 “(1)    If a court has, in or in connection with any criminal proceedings (including proceedings on appeal):

(a)               imposed a penalty that is contrary to law, or

(b)               failed to impose a penalty that is required to be imposed by law,

the court (whether or not differently constituted) may reopen the proceedings and, after giving the parties an opportunity of being heard, impose a penalty that is in accordance with the law (and, if necessary, amend any relevant conviction or order).

(2)               The court may reopen the proceedings on its own motion or on the application of a party to the proceedings.

…”

52                  This section has been considered by the New South Wales Court of Appeal in R v Majors (1991) 27 NSWLR 624 at 629; R v Tolmie (1994) 72 A Crim R 416 at 420 and Ho v Director of Public Prosecutions (1995) 37 NSWLR 393 at 402-3.  While not as wide in its terms as s 104A of the Sentencing Act 1997 (Vic), s 24 has been accorded considerable scope by the Court.

53                  There are similar provisions dealing with the correction of sentencing errors in other States.  For example in Queensland there is s 147A of the Justices Act 1886, discussed in R v Williams; ex parte Biggs [1989] 1 Qd R 594 at 597; and Boyd v Sandercock, ex parte Sandercock [1990] 2 Qd R 26 at 28-29.  See also Penalties and Sentences Act 1992 (Qld) discussed in R v Deacon (1993) 65 A Crim R 261 at 262-3. 

The position in the Australian Capital Territory

54                  There is no equivalent legislation in force in the Australian Capital Territory.  That is regrettable, and is a matter which we believe should be drawn to the attention of the relevant authorities.  The question whether the sentences imposed on 4 November 1998 had relevantly passed into record by the time that his Honour sought to re-sentence the appellant on 5 February 1999 must therefore be governed by the principles of the common law as best we can discern them. 

55                  What then is the point at which a sentence may be said to have passed into record in the Australian Capital Territory?  And was the sentence imposed by his Honour on 4 November 1998 able to be “revoked” so that the appellant could be “re-sentenced” on 5 February 1999?

56                  There is a practice in the Australian Capital Territory for a certificate to be prepared by the Deputy Registrar of the Supreme Court which records sentences previously imposed.  It appears that no such certificate had been brought into existence prior to 5 February 1999.  The only certificate which has been provided to the Court is dated 26 February 1999.  It reflects the sentences imposed on 5 February 1999 rather than those imposed on 4 November 1998.

57                  As it happened, the certificate of 26 February 1999 contained an error.  It was replaced by another certificate issued on 23 March 1999 which also related to the sentences imposed on 5 February 1999.  In any event, no certificate had issued prior to 5 February 1999.

58                  The fact that the sentencing judge re-sentenced the appellant before any such certificate was issued does not mean that the sentence which he had imposed on 4 November 1998 had not passed into record.  The authorities to which we have referred which deal with the common law seem to suggest that a sentence passes into record when it is recorded upon the indictment, and possibly upon other court forms as well, by the judge’s associate, acting as a clerk of arraigns.  The issuing by the Deputy Registrar of a certificate of conviction, which may not occur for a very considerable time thereafter, does not, in our view, constitute the moment at which a sentence passes into record.  It does not, therefore, constitute the point at which the sentencing judge becomes functus officio. 

59                  What is significant is that the sentence was pronounced on 4 November 1998.  It was duly recorded on that date on what is known, perhaps colloquially, in the Australian Capital Territory as the “yellow sheet” by the judge’s associate, acting, in effect, as the clerk of arraigns.  These “yellow sheets” are not provided for in the ACT Supreme Court Rules, and appear to serve a function similar to that of the triplicate in Victoria.  The sentence was not, as it happens, recorded on the indictment as well, though it should have been.  It seems that a practice has developed in the Australian Capital Territory whereby the recording on the “yellow sheet” is substituted for the recording on the back of the indictment, a practice which we do not regard as desirable.

60                  In consequence of the orders made by his Honour on that date, as recorded on the “yellow sheet”, the Sheriff of the Australian Capital Territory was able to issue a warrant authorising the removal of the appellant from the Australian Capital Territory to the Goulburn Correctional Centre, in New South Wales.  Such a warrant did issue, and was executed.  Under those circumstances, it would be unreal to hold that the sentence imposed on that date had not relevantly passed into record. 

The slip rule – O 32 r 14 or the inherent or implied jurisdiction of the Court

61                  His Honour did not seek to invoke O 32 r 14 as the basis for re-sentencing the appellant. It would have been wrong for his Honour to have done so.  Order 32 r 14 enables the Court, at any time to “correct a clerical mistake in a judgment or order or an error in a judgment or order arising from an accidental slip or omission”.  This rule allows a judge to amend a formal order which, by accident or omission, does not reflect the actual decision of the judge.  It does not, however, entitle a judge to reconsider a final, regular decision – R v Cripps, Ex parte Muldoon (supra) at 695.  As noted previously, the rule has no application to criminal proceedings.

62                  It may be that when his Honour referred to the original sentence passed in relation to count 1 as a “slip” he intended to invoke not O 32 r 14, but rather the inherent (or implied) jurisdiction of the Court to amend orders in order to give effect to the Court’s true meaning.  If so, his Honour misapprehended the nature and scope of that inherent (or implied) power.

63                  The sentence of seven years’ imprisonment which was imposed upon the appellant in relation to count 1 on 4 November 1998 was erroneous in point of law.  It was not, however, the product of any “slip”.  As his Honour’s remarks on 5 February 1999 acknowledge, he had not mistakenly uttered the word “seven” instead of the word “four”.  He intended to impose a sentence of seven years’ imprisonment.  His words and his intent were correctly recorded.  The error which he made arose from the assumption that the maximum penalty for the offence which was the subject of count 1 was not less than seven years.

64                  Counsel for the respondent submitted that although his Honour had in the course of “re-sentencing” the appellant varied two individual sentences and also the interrelationship between the sentences previously imposed, he had altered neither the head sentence of nine years’ imprisonment, nor the non-parole period of six years.  He submitted that his Honour had not, therefore, altered the substantial or operative part of the sentence.  He had merely corrected a mistake to which his attention should have been drawn on 4 November 1998.  His Honour had been entitled to correct such a mistake.

65                  We are unable to accept this submission.  In re-sentencing the appellant, his Honour purported not only to reduce the sentence upon the first count, but also to increase the sentence upon count 3.  Moreover, his Honour purported to make the sentence on count 6 cumulative upon, rather than concurrent with, the sentences imposed on counts 1 and 3. 

66                  It is true that the head sentence of nine years’ imprisonment and the non-parole period of six years remained the same.  It is also true, in one sense, that the “re-sentencing” of the appellant did not involve any change to the substantial or operative part of the sentence.  However, the sentence imposed in relation to count 3 was increased from two years’ imprisonment to three years’ imprisonment.  It is possible to envisage circumstances where such a change could have profound consequences notwithstanding the fact that in the instant case it is said to be buried within the same head sentence, and the same non-parole period as previously fixed.  The sentence imposed on any given count is, in this sense, “operative”.

67                  The sentence imposed for any given offence cannot simply be adjusted, upwards or downwards, to compensate for some other error made in relation to the fixing of a sentence for another offence.  Absent legislation which empowers a trial judge to amend or vary a sentence imposed in error, and otherwise than by correction of a genuine slip, it is for an appellate court, and not for the sentencing judge, to correct errors of this type.

68                  We are unable to accept any suggestion that the powers to recall sentences within session term, which the common law recognised as being vested in judges of quarter sessions and assizes, can be translated into the criminal sittings of the Australian Capital Territory Supreme Court.  The Supreme Court does not sit in “terms” in the sense in which that expression was used in England prior to the enactment of the Courts Act.  If, contrary to our view, it were to be regarded as doing so, the Court’s “term” had ended on 18 December 1998, the last day of regular Court sittings in its criminal jurisdiction for 1998, long before his Honour’s purported re-sentencing. 

69                  It follows that the sentence which is the subject of this appeal is the sentence imposed by his Honour on 4 November 1998.  His Honour’s purported re-sentencing of the appellant was of no effect.  It is to be regarded as having been set aside by this Court.

The appeal against the sentence imposed on 4 November 1998

70                  It is common ground that his Honour erred in law in imposing a sentence of seven years’ imprisonment in relation to count 1.  That sentence must be set aside.

71                  Having regard to the manner in which his Honour structured the individual sentences which he imposed upon the appellant on 4 November 1998 it is necessary to set aside also each of the individual sentences imposed on counts 3, 6, 8, 10, 12 and 14, and to re-sentence the appellant upon those counts. 

72                  In re-sentencing the appellant, it is clear, in our view, that sentences should also be imposed upon counts 2, 4, 5, 7, 9, 11 and 13.  That is notwithstanding the fact that his Honour directed that there be no penalty in relation to those counts because they were said to be embraced within other counts in the indictment. 

73                  The course taken by his Honour of directing that these offences, to which the appellant had pleaded guilty, and of which he had been convicted, carry no penalty was, in our view, erroneous.  If his Honour thought that the conduct in question in each of those counts was already embraced within other counts on the indictment, it was open to his Honour to have ordered that those counts be stayed as an abuse of the process of the Court. 

74                  What his Honour could not do, in our opinion, was simply to leave those counts without final disposition by way of sentence.  Even a bond without conviction in relation to a particular count has the effect of clearing the indictment of that count – R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria par 7.301.  Directing that an offence carry no penalty leaves unfinished the task of sentencing the offender – R v Webb (1953) 37 Cr App R 82 at 84-5 per Lord Goddard CJ; R v Fry (1954) 38 Cr App R 157 at 158 per Devlin J.

75                  Any overlap between the conduct the subject of those counts upon which his Honour imposed no penalty, and those counts in relation to which the appellant was sentenced should be recognised by appropriate orders as to concurrency.

76                  In re-sentencing the appellant, we have taken into account the views of the learned sentencing judge as to the gravity of the particular offences.  We note that the maximum sentence for the offence of selling heroin (where the quantity is less than the traffickable quantity of two grams) as charged in the second count was the same as for the offence charged on the first count.

77                  The circumstances giving rise to these offences were, on any view, extremely serious.  The fact that they were committed while the appellant was on parole and all but those charged on the first and second counts whilst he was on bail as well are plainly aggravating circumstances.  The appellant’s criminal record can fairly be described as appalling.  Regrettably, it does not inspire confidence as to his prospects of rehabilitation. 

78                  The appellant was born on 19 April 1958. He had a long history of convictions for drug possession and supply, burglary and other offences when he was sentenced in the Australian Capital Territory Supreme Court on 9 September 1994 to five and a half years imprisonment to date from 26 November 1993. He was released on parole on 25 June 1997.

79                  On 7 November 1997, whilst under surveillance, the appellant sold a foil containing powder with a pure heroin content of 147 mg to a woman at the Kingston Railway Station car park. At the time of sale he provided the woman with two syringes, a phial of water and some swabs for the purpose of administering the drug. He was apprehended and during a search of his vehicle police found a quantity of rock heroin with a pure heroin content of 163 mg, 15 foils containing powder with a total pure heroin content of 1495 mg together with numerous other items used for administering the drug.

80                  In consequence of these circumstances, the appellant was charged with the offences on the first and second counts. He remained in custody on those charges until he was released on bail on 12 January 1998.

81                  The remaining offences, including those on the schedule, were committed between 20 March and 16 May 1998 whilst on bail. They consisted in the main of breaking into and stealing from residential premises in numerous suburbs of Canberra. On one occasion the appellant threatened to stab the householder who tried to intervene (the offence on the fifth count). The value of the goods stolen as charged on the indictment was $36,449. The value of those on the schedule was $140,895. Eventually the appellant was again apprehended on 16 May 1998 after being found lying unconscious on a bench at the Ainslie shopping centre in possession of 16 balloons containing a mixture with a pure heroin content of 80 mg. It is clear that all offences were associated with his dependence on drugs of addiction, particularly heroin.

82                  The appellant remained in custody following his further apprehension. On 2 July 1998 his parole was revoked and his custody thereafter continued in pursuance of the earlier unexpired sentence imposed on 9 September 1994. His Honour was told that that sentence was due to expire on 30 May 2000 and we assume that that is still the case. It follows that the sentences imposed by his Honour and ordered to commence from 2 July 1998 were partly concurrent with the earlier unexpired sentence. The time spent in custody from 7 November 1997 to 12 January 1998 and from 16 May 1998 to 2 July 1998 in relation to the offences subject to the appeal amounts to some 113 days.

83                  The convictions for burglary carry maximum sentences of imprisonment for 14 years and for theft ten years. The maximum sentence on the fifth count is imprisonment for ten years. All thefts were associated with the immediately preceding burglaries and it is appropriate to make the sentences for the thefts concurrent with those for the burglaries. It is appropriate also to make the sentence on the fifth count concurrent with those for the associated burglary and theft on the third and fourth counts, adjusting that on the third count for the aggravating factor of the threat.

84                  For the purpose of the head sentence, regard must be had to the totality principle in order to ensure that the overall sentence does not have a crushing effect on the prisoner. That result may be achieved in part by making the sentences on the sixth and remaining counts shorter than they might otherwise have been if they stood alone and by making them concurrent with each other.

85                  Having regard to the fact that the sentence presently being served will not expire until 30 May 2000, we also think it appropriate that the head sentence for the sentences under appeal run partly concurrently with the previous sentence. For that purpose we propose to adopt the commencement date fixed by his Honour, namely 2 July 1998. We acknowledge the somewhat arbitrary selection of that date since it represents the date after which the appellant ceased to be held in custody pending the sentences under appeal and on which the appellant resumed serving the previously imposed unexpired term of imprisonment. However, backdating the head sentence to 2 July 1998 appropriately and sufficiently takes into account the total period spent in custody before that date after the initial arrest on 7 November 1997.

86                  We do not regard the head sentence of imprisonment for nine years with a non‑parole period of six years as being in any way excessive.  Had that ground stood alone we would certainly have dismissed the appeal.

87                  Having regard to all the circumstances, including the time spent in custody for the offences prior to 2 July 1998, the appellant will be sentenced to imprisonment as follows:

            Count 1 ‑ Four years to commence on 2 July 1998.

            Count 2 ‑ Three years concurrent with the first count.

            Count 3 ‑ Two and a half years cumulative on the first count.

            Count 4 ‑ Two and a half years concurrent with the third count.

            Count 5 ‑ Two and a half years concurrent with the third count.

            Count 6 ‑ Two years cumulative on the third count.

            Count 7 ‑ Two years concurrent with the sixth count.

            Count 8 ‑ Two years concurrent with the sixth count.

            Count 9 ‑ Two years concurrent with the sixth count.

            Count 10 ‑ Two years concurrent with the sixth count.

            Count 11 ‑ Two years concurrent with the sixth count.

            Count 12 ‑ Two years concurrent with the sixth count.

            Count 13 ‑ Two years concurrent with the sixth count.

            Count 14 ‑ Three years concurrent with the sixth count.

88                  We fix a non-parole period to expire on 2 January 2004. In accordance with s 8(4)(a) of the Parole Act 1976 (ACT) that period is taken to have commenced on 9 September 1994.

89                  The appeal is allowed, the sentences and orders of the Supreme Court are set aside and the Court makes orders in terms of pars 87 and 88 above.  The result is an effective head sentence of eight and a half years with a non-parole period of five and a half years.  That is six months less in each instance than was fixed by the Supreme Court.  The Court further orders that the proceedings be remitted to the Supreme Court for the execution of the judgment of this Court.

Associate:

Dated:  27 July 1999