R v Calvert [2010] ACTSC 80

Supreme Court of the ACT|2010-08-06|Before: Refshauge J, As McHugh JA

1. The parties make submissions on the proposed orders.

1. On 30 July 2010, I sentenced Geoffrey Calvert to two charges of assault occasioning actual bodily harm and intentionally damaging property which arose out of events which occurred on 13 November 2009. The details are set out in my sentencing remarks: R v Calvert (ACTSC, Refshauge J, SCC No 124 of 2010, 30 July 2010, unreported).

2. I formed the view that no other penalty than imprisonment would be a proper sentence, but that, having regard to Mr Calvert's subjective circumstances, a portion of the imprisonment could be served by periodic detention, the first period of which is to commence today, and that the balance to be suspended with a good behaviour order. The total period of imprisonment imposed was 15 months.

I direct that 6 months of that sentence be served by periodic detention to start today and end on 29 March 2011.

4. It is clear that this is in error, for 6 months from 30 July 2010 ends on 29 January 2011, not on 29 March 2011.

5. As I noted in R v Gorman [2009] ACTSC 7, the court has power under r 6909 of the Court Procedures Rules 2006 (ACT) to amend an order where there has been a clerical mistake or a mistake or error resulting from an accidental step or omission.

6. As McHugh JA (as his Honour then was) said in Storey & Keers Pty Ltd and Anor v Johnstone (1987) 9 NSWLR 446 (at 453) the test is "if the matter had been drawn to the court's attention would the correction at once have been made?"

7. There is no doubt that, applying this test, I would have made the correction at once. It is clear that I made a mathematical error.

8. In addition, I specified that the sentence be suspended from the end of the period of periodic detention. Since that latter date has to be changed, so does the date from which the suspension takes effect.

9. I am embarrassed at the error. It is regrettable. I apologise for it.

10. I have requested the attendance of the parties so that I can make the necessary orders. This is the proper course to follow even though it may cause some inconvenience to the parties and particularly Mr Calvert and embarrassment to me. See Elson v Ayton, Saliba and Slavin-Molloy [2010] ACTSC 70 (at [87]).

11. Accordingly, I will set out the orders I propose and invite submissions of the parties to them before finally pronouncing them.

(1) Paragraph 3 of the Imprisonment Order be amended by omitting "29 March 2011" and substituting "29 January 2011";

(2) Paragraph 5 of the Imprisonment Order be amended by omitting "30 March 2011" and substituting "30 January 2011";

(3) Paragraph 3 of the Official Notice of Imprisonment be amended by omitting "29 March 2011" and substituting "29 January 2011";

(4) Paragraph 4 of the Official Notice of Imprisonment be amended by omitting "30 March 2011" and substituting "30 January 2011".

(5) Paragraph 3 of the Good Behaviour Order be amended by omitting "29 March 2011" and substituting "29 January 2011";

(6) Paragraph 4 of the Good Behaviour Order be amended by omitting "30 March 2011" and substituting "30 January 2011";

(7) The Notice of the Good Behaviour Order be amended by omitting paragraph 4 and substituting "The good behaviour order starts on 30 January 2011 and ends on 29 January 2013.

(8) The Registrar be directed to draw up an amended imprisonment order, an amended official notice of imprisonment, an amended good behaviour and an amended official notice of good behaviour order.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: Director of Public Prosecutions ACT

Procedures Rules 2006

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