R v Fuller

JUDGMENT

HIS HONOUR: On 14 June 2016, the Court as presently constituted, sentenced Owen Junior Fuller ("Mr Fuller"). The Court, in effect, sentenced Mr Fuller to a head sentence of 24 years' and 6 months imprisonment, commencing 4 March 2015 including a non-parole period of 17 years' imprisonment.
Both the Crown and Senior Counsel for Mr Fuller have approached the Court to address an issue in the proceedings. For that purpose the sentencing hearing was re-opened and submission put by each counsel.
Counsel each submit that the Court should correct the sentence imposed as the sentence imposed is contrary to law, in the absence of a finding of special circumstances. It is necessary to set out the history of the matter including the reasons for the error.

Consideration

The issue between the parties at this time is the method by which the Court corrects the sentence imposed. There is no issue as to the correction that should be effected.
Further, counsel for Mr Fuller, understandably, reminds the Court of the effect of not correcting the sentence. The correction "will avoid the need to incur the cost, delay and expense in having to institute an appeal".
The Court, as a superior court of appeal, has certain limited powers to correct judgments after entry. The sentence imposed has been entered.
The Court of Criminal Appeal in R v Jones; R v Hili (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195, after determining that the Court of Criminal Appeal is a superior court of record, commented (Per Rothman J, McClellan CJ at CL agreeing): "[29] Reasons for judgment do not ordinarily form part of the record of the court: Craig, supra; but, for the purpose of the issue of orders in the nature of certiorari, s 69 of the Supreme Court Act now renders reasons for judgment part of the record. [30] At least in part, for that reason, or derived in part from the principles that give rise to that reason, significant restrictions are imposed upon the jurisdiction of a superior court to alter judgments, once entered. [31] As stated in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 436, Dixon J commented: 'The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings.' His Honour was there referring to the effect of the Act. [32] Likewise in the joint judgment of Dawson and Gaudron JJ in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 300, their Honours said: 'If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione's first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to reopen an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected (Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 474 per Mason CJ and Brennan J, 484 per Deane, Toohey and Gaudron JJ.)' The foregoing approach was also adopted or accepted by McHugh J (at 315) and by Gummow J (at 327) in Postiglione, supra. [33] Thus, there are two quite distinct periods, each of which determines the ability to alter judgments or orders. Prior to the judgment being entered, the circumstances in which a court will be persuaded to entertain further argument (and possibly further evidence) are extremely limited. In relation to such earlier period, the High Court, in Elliott & Blessington applied the civil criteria expressed by the Court in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300 which said, at 303: 'What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.' [34] On the other hand, after judgment has been entered there are only three bases upon which a judgment or order may be reopened and amended and they are: (a) the 'slip' rule; (b) the power to amend the rule where the intention of the Court has not manifested in the judgment; and (c) the capacity to allow the opening of orders made in chambers: see Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; DJL, supra, CH Giles & Co v Morris (1972) 1 All ER 1960. [35] In Bailey v Marinoff, supra, Barwick CJ said: 'Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.' (Per Barwick CJ at 530.) In the same judgment, Menzies J said: 'This appeal is not concerned with the power of a court to alter orders in pending litigation. It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court. To recognize the problem is, I think, to solve it. However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end.' (Per Menzies J, Bailey v Marinoff, supra, at 531-532.) . . . [37] In DJL, supra, the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said: '[34] The common law courts, as superior courts of record, had "full power to rehear or review a case until judgment [was] drawn up, passed, and entered". That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation. Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court. An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders. [35] The Court of Chancery had power to reopen and rehear cases which had been tried before it, even after the decree had been entered. The right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction. Sir George Jessel MR so concluded in In re St Nazaire Co . However, that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK). The structure it provided included the Court of Appeal.' (DJL, supra, at 244, [34]-[35].)"
There are other statements to similar effect. Of note is that the correction effected in Hili & Jones, supra, was to the wording of the reasons for judgment; not the terms of the judgment; nor the reasons, as distinct from the wording thereof.
The power confirmed by s 43 of the Act is a power to re-open the sentence hearing relevantly in circumstances where the Court "has imposed a penalty that is contrary to law": s 43(1) of the Act. The power to re-open conferred by s 43 of the Act is to allow the court, relevantly, to "impose a penalty that is in accordance with the law".
The terms of the Act do not allow the correction of the reasons for judgment or the remarks on sentence. Nor does the Act permit the corrections of the determination of any necessary precondition to the imposition of sentence, unless such a determination is part of the sentence imposed.
In the present situation, a sentencing judge could not utilise the provisions of s 43 of the Act to alter the decision on the existence of special circumstances. This would be so, even if there were error of law manifest in the determination. It is unnecessary to venture into the possibility of a simple omission of such a finding, where the intention is otherwise manifest. However, such an issue may be corrected by other means, to which the Court will come.
The subject of the examination by the Court is the sentence (or more accurately, the penalty) and it is the penalty that may be amended under the powers conferred by the provision.
In construing any statutory instrument, the Court is required to give effect to the legislative intention as discerned from the words used; their context; the purpose of the legislation; and the achievement of harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] and [70]. The principles are well-known and need no further repetition: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [14].
Counsel for Mr Fuller relies on the comment of the Court of Criminal Appeal in Wise v R, supra, which is to the following effect: "[14] Further, if the original sentence by Blackmore DCJ were imposed contrary to s.44(1) or s.45(2) of the Crimes (Sentencing Procedure) Act, the provisions of s.43 of that Act would be available to reopen the proceedings and re-sentence according to law: s.43(2)(a). However, Charteris DCJ did not have this power because, as previously stated, the original sentence of Blackmore DCJ purported to give a reason in accordance with the requirements of s.45(2) of the Act. While the reason given was inadequate and not one which would allow a judge not to fix a non-parole period, the sentence was not 'contrary to law' for the purpose of s.43. It was a sentence that suffered from error of law which required correction on appeal, but only on appeal."
The first sentence of the foregoing comment was not necessary for the determination of the Court. Nevertheless, it is, at least, persuasive: Farah Construction Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22.
The common law jurisdiction of a superior court of record does not permit the correction or amendment of a judgment that has been entered merely to correct legal error (even manifest error) unless, by coincidence, the error is one able to be corrected pursuant to the principles recited at [22] above. The purpose of s 43 of the Act is principally "to correct manifest error" in the sentence, when manifested in the record: Achurch v The Queen, supra.
The purpose described by the Court of Criminal Appeal in Achurch v R (No 2) (2013) 84 NSWLR 328; [2013] NSWCCA 117 and summarised above returns the Court to "the record": Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [21], Achurch v R (No 2), supra, at [66]. For the purposes of s 43 of the Act, the record does not extend to the reasons for judgment: cf. s 69(4) of the Supreme Court Act 1970.
This issue was historically examined for the purpose of the issue of writs of certiorari: see Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 at [56] - [59]. Notwithstanding the comment of the High Court in Kirk, supra, at [100], the jurisdiction of the Supreme Court to correct error of law on the face of the record of an inferior court or tribunal was an inherent jurisdiction and inheres in the Court with supervisory or common law appellate jurisdiction: see Kirk, supra, at [57] and [59], citing, with approval, Sawer, "Error of Law on the Face of an Administrative Record", (1956) 3 University of Western Australia Annual Law Review 24 at 34-35 and Darlow v Shuttleworth [1902] 1 KB 721 at 726. See also Marbury v Madison 5 U.S. 137 (1803).
The variations in the application or inapplicability of certiorari derived not from the lack of jurisdiction in the supervisory court, but in the alteration of that which was held to form part of the record. Courts, otherwise denied a record in which to find error, would utilise, for example, the use of the term "for the foregoing reasons", in the preamble to orders issued, as importing into the record the reasons for judgment, allowing those reasons to be utilised for the purpose of disclosing error of the requisite kind.
That casuistry is not relevant for present purposes. Nor are the provisions of s 69(4) of the Supreme Court Act. The "record" is the content of any order or judgment (as distinct from the reasons for judgment). It is impermissible for a court to utilise s 43 of the Act to overcome a difficulty or legal error in the reasons for judgment: Burrell v The Queen, supra.
It is then necessary to examine that which forms part of the record in the sentence hearing. The reasons are not, ordinarily, part of the record. Nor is the transcript of proceedings.
In a superior court of record, the record consists of all judgments issued. That record may or may not have been perfected, but the record consists, at least, of all orders issued.
An order is the Court's adjudication on an issue before it and includes a decision to refuse to make an order. It includes a refusal to adjourn: Maxwell v Keun [1928] 1 KB 645; Haset Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47; Peterborough v Overseers of the Parish of Wilsthorpe (1883) 12 QBD 1.
I dealt with this issue in Kostas & Anor v HIA Insurance Services Pty Ltd trading as Home Owners Warranty & Anor [2007] NSWSC 315 in which I said: "[150] … In that sense, a decision would include every practically operative or determinative adjudication of an issue in the proceedings: see ABT v Bond (1990) 170 CLR 321. An order, similarly, would include a direction or conclusion on matters: Onslow v Inland Revenue Commissioners (1890) 25 QBD 465; Peterborough v Wilsthorpe (1883) 12 QBD 1; and includes interlocutory orders or decisions, respectively: Maxwell v Keun [1928] KB 645; R v Ludeke, ex parte COA (1985) 155 CLR 513 at 526; Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48. [151] In Gas and Fuel Corporation Superannuation Fund v Saunders, supra, the Full Court of the Federal Court of Australia (Per Gummow and Heerey JJ, with whom Davies J agreed in a separate judgment) said: '... [T]he orders pronounced by his Honour . . . were orders which were (subject of course to obtaining leave) properly the subject of an appeal. They were in the nature of procedural directions and thus interlocutory, but orders nonetheless. The practical and legal effect of what his Honour did was, to use his Honour's words, to "order a new trial by another judge of the Court". Judges of this Court, as a matter of routine, give directions (which are a species of order) that cases be placed in a list for trial, or that a trial commence on a specified date or that a trial date already fixed be vacated. For example, an order of a judge directing that a matter be fixed for trial after rejecting a party's contention that it was not ready could be the subject of appeal.' [152] This judgment was summarised by another Full Court of the Federal Court (Per Beaumont, Carr and Branson JJ in Brooks v The Upjohn Company and Others (1998) 85 FCR 469) as follows: 'In Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 59-64 Gummow and Heerey JJ (with whom Davies J agreed) reviewed the authorities. In that case the primary judge, after a lengthy hearing and very shortly before delivering his reserved judgment, acceded to the applicants' request to disqualify himself on the ground of perceived bias. His Honour made orders that the proceeding no longer stand for judgment, that it be placed in the list of cases to be fixed for hearing, and that the costs of the trial (and other costs) be reserved to the judge who would thereafter try the proceedings. The Full Court of this Court held that there was jurisdiction for it to consider whether the primary judge had erred in disqualifying himself. That was because the orders pronounced by his Honour, which we have just summarised, although procedural directions, and thus interlocutory, were "orders nonetheless" (see at 64). They were orders which, subject to obtaining leave, were properly the subject of an appeal. The same can be said of the two sets of orders in this matter. In the present matter, assuming that such a vehicle is necessary to ground an application for leave to appeal, it can be found in the orders made by her Honour on 2 April 1998, which included an order fixing the trial date. Even the costs order made by her Honour on 25 February 1998 when she declined to disqualify herself would suffice.' [153] A decision remains so, even if interlocutory, as does an order. In this case, the finding (to use a neutral word) was an adjudication, which in a practical sense, was operative and determinative of an issue in the proceedings..."
The determination of the Court that there are or there are not special circumstances is an adjudication between the parties on a matter that is required to be determined and, as such, forms part of the record. The determination could (and possibly should) be included in the formal orders on sentencing, in the same way as a judicial officer would or may record a conviction as part of the formal orders. Even when the conviction is not formally placed in the orders, it necessarily forms part of the orders issued (except, of course, where a conviction is deliberately not recorded, in which case that decision forms part of the record).
As such the determination by the Court of the existence of special circumstances is an order of the Court and forms part of the record. It is unnecessary to discuss whether a situation in which a court has overlooked the necessity to determine special circumstances falls into the same category, but I doubt that it would. The provisions of s 43 of the Act allow correction of the sentence; not the record. Thus, the determination of the existence of special circumstance (or otherwise) informs the existence of legal error but, even though part of the record, is incapable of being varied under those provisions.
In the present case, the Court has determined that no special circumstances exist and that there is no need for a shorter non-parole period than would result from an application of the statutory ratio. The sentence imposed did not reflect that intention because of a miscalculation of the ratio.
In my view, as a result of an examination of the record, and only the record, the sentence imposed is contrary to law and remediable under the provisions of s 43 of the Act. The sentence imposed was contrary to law because it was, on an examination of the record itself, without power, in the absence of a finding of special circumstances: Achurch v The Queen, supra.
If the foregoing analysis be incorrect, it does not mean that the Court is without remedy. Because the Court has the powers of a superior court of record, it has available to it, the capacity to correct the judgment for miscalculation under the "slip rule".
As earlier stated, the "slip rule" is often, and above, used to summarise the powers available to correct errors, namely: 1. The slip rule; 2. The power to amend an order where the intention of the Court has not manifested in the judgment; and 3. The capacity to allow the opening of orders made in chambers: see Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49; DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17.
As the Crown has correctly submitted, the error in the sentence imposed is also as a result of an error of computation and may be remedied under both (a) and (b) above. A court may arrive at a sentence that is contrary to law by a "slip", and that, in my view, provides a superior court of record, at least, with the capacity to correct the error by following fundamentally different paths.
A sentence that is contrary to law may be corrected by utilising the powers granted by s 43 of the Act, even though the contravention has been obtained by computational error. Conversely, an order may be corrected by a superior court of record utilising its powers under the "slip rule", even though the slip has resulted in a sentence "contrary to law". In rare cases, such as this, each power is available.
One further matter needs comment. These reasons refer to the "slip rule" being available to a superior court of record. The Court, by implication or otherwise, is passing no comment on the power of other courts or tribunals. Given the circumstances in this case, such a comment would be wholly unnecessary and most undesirable: Burrell v The Queen, supra, at [13].
It is clear that the intention of the Court was not to find special circumstances, nor to have a longer period than the statutory ratio would provide as the period during which Mr Fuller was eligible for parole.
In those circumstances, the following applies: 1. The record (including the determination on the issue of special circumstances) discloses a sentence contrary to law in that a statutory precondition for the imposition of the non-parole period has not been met; 2. The calculation of the sentence ratio at 70:30 instead of 75:25 results from computational error; and 3. The ratio as imposed does not reflect the obvious intention of the Court.
As earlier stated, the parties agree as to the method by which this error should be corrected. Once more I congratulate counsel for the thoroughness and competence of their submissions.
The Court makes the following order: 1. Order (3) issued on 14 June 2016 is deleted and, in lieu thereof, the following varied sentence is imposed and order substituted: "(3) Sentence imposed of a non-parole period of 18 years' and 4 months imprisonment commencing 4 March 2015 and concluding 3 July 2033, with a balance of term of 6 years' and 2 months concluding 3 September 2039."

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