R v GREEN AND QUINN

JUDGMENT 1ALLSOP P : A number of important issues of this Court's power arose on the arguments put before the Court. 2I do not propose to deal with those questions of power in the circumstances where I can deal with the matter by reference to discretion. By taking this course, I should not be taken, one way or the other, to have expressed any view or doubt about the existence of power, its source or scope. The power arises either under the Criminal Appeal Rules , Rule 50C or the "slip rule" as an implied power of the Court. If there is no power, then no occasion for the exercise of any discretion and its consideration would arise. Given that I would not exercise the discretion to change the orders made and sentences passed and imposed on 17 December 2010, it is sufficient if I explain my reasons for that and to identify the order that I would make. 3I have read the reasons in draft of McCallum J. I agree with them. Any power of correction, if it exists, should not be exercised here. Apart from the fact that Mr Green and Mr Quinn have not received the sentences agreed upon by the majority as reflected in [143] of their reasons, no public purpose or interest in the administration of justice is required to be vindicated by the exercise of power. Sentences were imposed on 17 December 2010 which fully vindicate all the reasons of the majority (other than [143]). Two manifestly inadequately sentences were increased to a level that was and is adequate. Minds might differ as to whether heavier sentences were warranted, but they are not needed to vindicate the public interest. 4Set against this are the personal circumstances of Mr Green and Mr Quinn and the effect of them of being sentenced for a third time. There is a species of jeopardy in being sentenced for a third time, especially after a mistake of the Court on the second occasion. The affidavit material makes clear that their progress in prison has been real. There is also force in the submission that to sentence them now to the same sentence that would have been imposed on 17 December 2010 had there been no mistake is to impose a somewhat harsher sentence in all the circumstances. Apart from any question of power, that consideration powerfully weighs against any exercise of the discretion. 5In my view, in circumstances where the sentences imposed on 17 December 2010 were otherwise lacking internal error, and are sentences that justly vindicate the reasons of the majority (other than [143]), no power of variation, change or correction should be exercised, if in the circumstances it exists. 6I should say that I am far from persuaded that the Crown made an application under Rule 50C. However, like the other questions of power, I do not have to decide that. 7The order that I would make is as follows: To the extent that the Crown has made an application under Rule 50C, dismiss the application and otherwise decline to vary or correct the orders of the Court and the sentences imposed on 17 December 2010. 8McCLELLAN CJ at CL, RS HULME J, LATHAM J : These proceeding were appeals by the Crown against sentences imposed by Boulton ADCJ on 14 August 2009. Those sentences were:- In the case of Mr Green - imprisonment for period of 4 years including a non-parole period of 2 years, both such periods commencing on 17 May 2009. In the case of Mr Quinn - imprisonment for a period of 6 years including a non-parole period of 3 years, both such periods commencing on 30 April 2008. 9On 17 December 2010 pursuant to s 22A of the Criminal Appeal Act 1912, Giles JA delivered the judgment of the Court. By majority, the Court allowed the Crown appeals, quashed the sentences imposed by Boulton ADCJ and sentenced:- (1) The Respondent Brett Andrew Green to imprisonment for a non-parole period of 3 years commencing on 17 May 2009 together with a further term of 2 years commencing on 17 May 2012. (2) The Respondent Shane Darrin Quinn to imprisonment for a non-parole period of 5 years commencing on 30 April 2008 together with a further term of 3 years commencing on 30 April 2013. 10Orders of the Court are taken to be entered when recorded in the Court's computerised record system - Criminal Appeal Rules, rule 50B(2). The above orders were so recorded on 17 December 2010. 11Also on 17 December 2010, the reasons of the members of the Court who had sat on the appeal were published. Orders as set forth above were proposed by Hulme J in [144] of the Court's Reasons and set forth on the coversheet of those Reasons. 12Paragraph [143] in the Reasons was in the following terms:- 143 The offences on Mr Quinn's Form 1 are of little significance in the case. Taking account of all of the matters to which I have referred, Mr Quinn should be re-sentenced by this Court to imprisonment for a total term of 9 years. Having regard to his lesser role (and probable reward), Mr Green should be sentenced to imprisonment for 6 years. There was no challenge to Boulton ADCJ's finding of special circumstances and I would impose on Mr Quinn a non-parole period of 6 years and on Mr Green a non-parole period of 4 years. 13McClellan CJ at CL published his own Reasons dealing with some of the issues which Hulme J had addressed and which are of no present relevance. At [35] his Honour said: "I otherwise agree with most of Hulme J's Reasons..." and in [36] remarked "With respect to the sentences to be imposed I agree with the orders proposed by Hulme J". Latham J's remarks were confined to "I agree with Hulme J and with McClellan CJ at CL". 14The other members of the bench, Allsop P and McCallum J, were in favour of dismissing the Crown appeals. 15The orders which were made in this matter reflected an early draft of what became [143] in the published reasons, which draft did not contain any paragraph corresponding with [144]. Following discussions with McClellan CJ at CL and Latham J, that predecessor to [143] was revised and altered to its final form. As such it expressed the intention and agreement of the three of us. 16Paragraph [144] was drafted in Hulme J's chambers, almost certainly by his Honour. How it came to take the form it did is a matter about which Hulme J has no present recollection, but we infer it must have been prepared from the early draft of what became [143]. The orders set forth on the cover sheet of the judgment published on 17 December 2010 were copied from [144] in the course of the final compilation of the judgment. 17Thus those orders did not reflect the intention of any of us which remained as recorded in [143]. 18After members of the Court became aware that the orders made on 17 December did not accord with what we had intended, on 16 February 2011 the legal advisers for the parties were advised that the Court was contemplating changes in the orders so that they reflected that intention. On a number of grounds objection was made to that course and the matter listed for argument, and the receipt of evidence, on 11 March last. 19On that day the Court reserved its decision although advising the Respondents that the result of the reconsideration of the matter would not involve an increase in their sentences. 20Among the objections raised at that time was that this Court had no inherent or implied power to alter orders made, and that if such power had ever existed, it was replaced when rule 50C of the Criminal Appeal Rules was introduced in 2007. That rule provides:- (1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order. (2) If an application for the setting aside for variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under sub-rule (1), as if the order had not been entered. (3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered. (4) The Court may not extend the time limited by sub-rule (2) or (3). (5) Nothing in this rule affects any other power of the Court to set aside or vary an order. 21Although this Court is a statutory one, there is a wealth of authority that leads to the conclusion that courts generally, including this Court, have power, whether that power be called implied or, as has sometimes occurred, "inherent", to make corrections of accidental slips or omissions in order to ensure that orders finally made reflect the intention of the Court. That authority includes In re Swire (1885) 30 Ch D 239; Milson v Carter (1893) AC 638; R v Michael (1976) QB 414; L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; 151 CLR 590 at 594-595; De Zylva (1988) 38 A Crim R 207; R v Carrion [2002] NSWCCA 21; 128 A Crim R 29 at 31-36 [14]-[33]; R v A.N. (No 2) [2006] NSWCCA 218; 66 NSWLR 523 at 529-530 at [37]-[42]; and Burrell v The Queen [2008] HCA 34; 238 CLR 218 at 224-225 [21]. See also R v Jones and Hili (No 2) [2010] NSWCCA 195 at [12], [26], [41]. 22When regard is had to the rationale for the power, and its limitations, there is no logic in confining it to courts that have their origin in the common law. In any event, R v Carrion and R v A.N .(No 2) were cases in this Court and In re Swire and R v Michael were cases where the courts whose powers were the subject of consideration were other courts created by statute. The terms in which the High Court referred to a court's "power to correct the record so that it truly represents what a court pronounced or intended to pronounce" in Burrell v The Queen at [21], and the context in which that remark was made - an appeal from this Court raising the Court's power to revisit a decision previously made - provides further, and in our view compelling, authority for the view that this Court has such a power. 23Rule 50C was introduced by the Criminal Appeal Rules (Amendment No 1), No 445 of 2007 and came into operation in September 2007. It followed the decision of this Court in R v Burrell [2007] NSWCCA 79; 175 A Crim R 21 where the Court had had occasion to consider its power to revisit a decision made on an erroneous view of the facts. The Court held that in the circumstances of that case it did have such power but the circumstances and authorities referred to made obvious the advantage of putting the matter beyond doubt by the creation of a Rule. (In fact this Court's decision as to existence of the power was overruled in 2008 in Burrell v The Queen .) 24It was argued that the effect of rule 50C was to bring within the restrictive terms of sub-rules (2) and (3) matters that otherwise would have fallen within the slip rule. Counsel's only reason for so concluding was "because of the absolutely critical nature of finality". The reason is unpersuasive, particularly in light of the terms of sub-rule (5). The power to correct mistakes falling within what is generally described as the "slip" rule exists independently of rule 50C which imposes limits on when the Court can "set aside or vary" an order. It is not necessary for present purposes to determine the precise ambit of the words "set aside or vary" in rule 50C. It is arguable that changes within the slip rule come within the words "set aside or vary" as they appear within sub-rule (5). 25In In Re Swire , at p 247, Bowen LJ said that the power to correct orders so as to carry out the intention of the court when the order was made "is a power which has been exercised for hundreds of years by the Common Law Courts". It is quite unreasonable to suppose that, by language that does not advert to the precise topic, rule 50C was intended to limit a power of such longstanding usefulness so it applied only to cases where application was made within 14 days. 26Arguing to similar effect is the fact that, while not frequent, it is not uncommon that the dates of the commencement of sentences, particularly when an offender has attracted a number, have been wrongly stated, or perhaps mis-typed. It cannot be thought that, if by inadvertent error a sentence of 11 years rather than 1 or 10 years was imposed, this Court could not rectify the situation and the offender would be obliged to serve the longer term or apply to the High Court for special leave on a matter which, while undoubtedly important to the particular offender, would have no conceivable general public interest. 27Thus, quite independently of whether any application was made under rule 50C, the Court has power to correct the sentences imposed on 17 December last so that they reflect the intention expressed in [143] of the Reasons of that date. That said, we are also of the view that Application was made by the Crown within the period stipulated by rule 50C(2). On 21 December 2010 the Director of Public Prosecutions faxed a letter addressed to the Registrar. The letter was headed: Re: R v Green and Quinn [2010] NSWCCA 313 CCA No. 2009.2591004; 2009/4254007 DPP Cases No: 200815643, 200816186 Application to vary pursuant to the Criminal Appeal Rules, Rule 50C 28The letter proceeded to draw attention to the inconsistency between the orders recorded on the cover sheet and in [144] of the published Judgment on the one hand and the terms of [143] on the other and concluded:- "Could you please bring this matter to the attention of the Court? If you have any queries, please telephone me on ..." 29This letter cannot be found in the Court records and did not come to the attention of any member of the Court until well into this year. However, the Court has been provided by the Crown with facsimile transmission advices indicating that on 21 December 2010 transmission to the fax numbers of the Court of Criminal Appeal and Legal Aid, the legal representatives of Mr Green, in fact occurred. The Registrar also acknowledged an email from the Crown of the same date adverting to the letter. 30Although it certainly could have been more fully expressed, we regard the only proper construction of the letter of 21 December 2010 as an application for the setting aside or variation of the Court's order made on 17 December 2010. In light of the transmission record we are also of the view that, as a matter of probability, the letter was received and thus application within the terms of rule 50C(2) in fact made. 31On 22 December 2010 Ms Witmer of Legal Aid who was representing Mr Green wrote to the Registrar acknowledging receipt of the Crown letter of 21 December and asking that if any change to the orders made was contemplated, she wished to make submissions on the matter. However, the evidence indicates that no copy of the letter of 21 December was sent to Mr Quinn or his legal representatives prior to the second half of February of this year. While we accept that the extent of this notification, or lack of it, to the Respondent's legal representatives may have a bearing on what the Court should now do, it does not lead us to the view that Application was not made by the letter of 21 December. 32It may well be also that s 43 of the Crimes (Sentencing Procedure) Act provides the Court with power to vary the orders made on 17 December - see Ho v DPP (1995) 37 NSWLR 393 at 401 et seq. which dealt with a predecessor to that section. However, it is unnecessary for us to pursue this aspect. 33On behalf of the Respondents, it was also argued that this Court could not or should not revisit its earlier order because the original decision was made by members of this Court, and there were reasons similar to bias which made it inappropriate for the same judges to consider whether some mistake had been made by the Court. The submission is inherently inconsistent with the way in which the power to correct accidental slips or errors has been exercised by courts for centuries - see, for example, In re Swire and particularly the opening remarks of Bowen LJ, at p 247. It carries with it the implication that such errors cannot be corrected or that some other member of the court should undertake the task, presumably based on information, tested or untested, supplied by the persons who constituted the original tribunal as to what occurred or what he or she intended. Either implication is untenable even putting aside a judge's incompetency to give evidence in proceedings in which he or she sat - see Evidence Act 1995 (NSW), s 16. 34We turn then to the question of whether the Court should exercise its power to correct the orders made on 17 December so they accord with the intention of the majority of the judges who sat on the appeal. A number of reasons were advanced as to why the Court should not. 35One was that the orders that were made were made in consequence of a Crown appeal, it being pointed out that the Respondents were sentenced on 14 August 2009, that the appeal was heard on 30 July 2010 and judgment delivered on 17 December, 16 months after the original sentence. It may be accepted that that is an unusually long time for the determination of a Crown appeal although it should also be recognised that the hearing was fixed for 4 March 2010 but then adjourned at the request of counsel for the Respondents. 36It was submitted that the Respondents had acted in reliance on the Court's orders in lodging in the High Court Applications for Special Leave against those orders. That type of reliance does not provide any reason why the Court should refrain from correcting the orders made nor to have resulted in any material prejudice to the Respondents. We do not regard the possible need to amend the Special Leave application or summary of arguments in support to reflect altered orders as material prejudice, particularly when, as we have no doubt, the full text of the reasons of this Court will also have been or will be included with the material provided to the High Court. 37One matter that it is also appropriate to bear in mind is that the published reasons of the Court displayed the inconsistency between the terms of the orders and the views expressed in [143]. That was noticed by at least one of Mr Green's legal advisers on 17 December who informed him that there was some error in the judgment in relation to re-sentence but that would not affect an application to the High Court. A copy of the judgment was sent to Mr Green on that day. 38Although there is no other evidence Mr Green did not become aware soon after 17 December of the inconsistency between [143] and [144], he has deposed that it was a few days before 2 February 2011 that for the first time he became aware of a possibility that his sentence would be increased. A letter advising him of that possibility was sent by his legal advisers on that day. Mr Green was not cross-examined. 39Mr Quinn was advised of the result of the appeal on 17 December. His counsel conceded that Mr Quinn received a copy of the Court's judgment before Christmas. He thus had the opportunity of seeing the discrepancy between [143] on the one hand and [144] and the orders made on the other although there is no evidence that that was pointed out to him or whether he became conscious of it. An affidavit from his present solicitor Ms Havryliv repeats an assertion by Mr Quinn to the effect that sometime in February 2011 he was informed by his legal representative, that the court may want to adjust his sentence again and that he may be re-sentenced to a non-parole period of 6 years with a further term of 3 years. Ms Havryliv also gave evidence that neither Mr Quinn nor any legal representative of his received a copy of the Crown's letter of 21 December until 22 February 2011. 40Evidence was adduced from Mr Green that in May 2010, i.e. after he had completed half of his non-parole period and was no more than 12 months prior to the expiration of that period under the sentence originally imposed, he became eligible for, and was subsequently given, day leave and later fortnightly week-end leave. In September last his spouse became pregnant and he was anticipating being able to help her after May 2011. The sentence imposed on 17 December last intruded on these arrangements and hopes and the leave was stopped. Although the prison authorities have indicated that they are prepared to reinstate these arrangements if no further increase in Mr Green's sentence occurs, they have indicated that if there is a further increase, that reinstatement will not occur until 12 months prior to the extended non-parole period. Thus, as the Executive Director of Inmate Classification, Case Management and External Leave Programs wrote in a letter provided by the Crown, the correction of the orders presently in force to reflect those intended will have a significant impact on Mr Green's current circumstances in custody. 41Because Mr Quinn is serving a longer sentence (and non-parole period) than Mr Green, the impact on the circumstances of his imprisonment of an increase in these periods is not the same as that suffered by Mr Green. However he has enrolled in training courses and the correction of the Court's orders would result in at least the postponement of these. Such correction would also be calculated to result in the postponement of his eligibility for day release albeit the discretion that exists in the prison authorities is such as to not make automatic such day release in any particular case. 42Both respondents adduced evidence to the effect that they have found the uncertainty associated with the prospect of a further increase in their sentences difficult to cope with. 43It is not difficult to accept that, once incarcerated, prisoners are likely to look forward to any amelioration of their situation, particularly as that amelioration approaches, and that the possibility of a further increase in their sentences in consequence of the Court's error will mean that they have been subjected to greater strain than is generally attendant upon Crown appeals. Given that on the day Mr Green was informed of the orders made on 17 December he was also informed that there was some error in the judgment in relation to re-sentence and soon thereafter had the opportunity of becoming aware of the Court's views as expressed in paragraph 143, there is a deal to be said for the view that this possibility of additional strain in his case should not be given much weight. One might readily infer that his state of mind was one of hoping, rather than expecting, that his sentence would not be changed and his state of uncertainty was no greater than it had been while awaiting the result of the Crown appeal. However, the Crown chose not to challenge Mr Green's assertion that it was not until early February that he became aware of the possibility that his sentence would be increased, and it seems to us that therefore the Court must accept his statement in this regard. 44In the case of Mr Quinn, although possession of a copy of the Court's reasons within a week of hearing of his increased sentence might have led him to doubt that the sentence imposed on 17 December would not be changed, we do not believe that conclusion can positively be drawn. In these circumstances, the Court should approach the exercise of its discretion whether to correct the sentences upon the basis that for some time, of the order of 1 1/2 to 2 months, the Respondents believed that the sentences imposed on 17 December were the highest they would receive. There is clearly much to be said for the view that, if in the future the Crown takes the view that a sentence imposed should be varied to a higher level, the Crown should, in addition to notifying an offender's legal advisers, also ensure that notice of the suggested error is given to an offender and seek to have the matter dealt with earlier than has in fact occurred in this case. Of course, we are not unconscious of the fact that the Christmas vacation has been a contributing factor here. 45To the matters to which we have referred, one must add the fact that, as McCallum J has pointed out, a number of the purposes served by Crown appeals have been achieved without any further increase in the Respondent's sentences. 46In the result, we share the view that the Court should not correct its error. Accordingly, we agree with the order proposed by Allsop P. 47McCALLUM J: I have had the benefit of reading in draft what has been said in the first ten paragraphs of the judgment of McClellan CJ at CL and R. S. Hulme and Latham JJ as to the circumstances in which it came about that there was an anomaly between paragraphs [143] and [144] in the Court's original judgment. The matters explained by their Honours reveal that the orders of the Court made on 17 December 2010 did not reflect the agreement and intention of the majority. The intention was that the orders proposed at [144] of the judgment (which became the orders of the Court) should reflect the higher sentences identified at [143]. 48The agreement of the Chief Judge at Common Law with "the orders proposed by Hulme J" in the original judgment (at [36]) and the agreement of Latham J (at [145]) must be considered in that context. I do not accept that their Honours intended to agree with the orders in fact made, as at one point contended on behalf of the respondents. Nor do I accept that consideration of this question involves the undesirable prospect contemplated in Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [19]. Accordingly, in my view, it is appropriate to determine the issue raised by the Crown on the premise that the orders entered did not reflect the agreement and intention of the majority. 49As noted on behalf of the respondents, the orders of the Court are taken to have been entered when they were recorded in the Court's computerized record system: Rule 50B(2) of the Criminal Appeal Rules. The orders in the present appeal were recorded in the relevant system on the day on which they were made, 17 December 2010. 50The Court has power under Rule 50C of the Criminal Appeal Rules to set aside or vary its orders as if they had not been entered, but its power to do so is expressly constrained by time limits. The power under Rule 50C(2) is predicated upon there having been " an application for the setting aside or variation of an order " made within 14 days after the orders were entered. The power under Rule 50C(3) to set aside or vary the order of the Court's own motion may only be exercised within 14 days after the orders were entered. The Court is prohibited from extending either of those times: Rule 50C(4). 51In the present case, although the Crown evidently identified the anomaly between [143] and [144] of the judgment within days of the date on which the orders were entered, and promptly brought that issue to the attention of the Court, in my view there was no "application" under Rule 50C(2). I do not think the letter from the Office of the Director of Public Prosecutions dated 21 December 2010 to the Registrar of the Court of Criminal Appeal can properly be regarded as such an application. I do not consider it appropriate for the Crown to bring an application of that kind merely by writing to the Registrar, without filing any process or affidavit in the Registry. The concession afforded to a self-represented prisoner in Kauwenberghs v R [2009] NSWCCA 201 at [5] does not persuade me otherwise. 52Even if it were an acceptable course to make such an application in that way, I would regard it to be an essential feature of an "application" within the meaning of the Rules that there be some articulation that relief is sought or a complaint made which at least inferentially is the subject of a request for relief. The Director's letter sought only to have the matter brought to the attention of the Court. It did not identify any relief sought by the Crown in the terms of Rule 50C. 53The Crown's written submissions assert that the reason no particular variation of the orders was sought was that, at the time the letter was written, it was not known (to the Crown) whether the error was in the figures identified in [143] or in the orders proposed in [144]. However, the Crown acknowledges that if the error had been in [143], no variation of the orders within the terms of Rule 50C would have been required. Accordingly, if the letter sought to invoke Rule 50C at all, it was on the premise that it was the orders, and not the contents of [143], that were wrong. For those reasons, I do not think any application under Rule 50C was made within 14 days. 54A separate question raised in submissions is whether, apart from the Criminal Appeal Rules, this Court has power after its orders have been entered to correct an error arising from an accidental slip or omission or where the order made does not reflect the intention of the Court (cf Rule 36.17 of the Uniform Civil Procedure Rules; and compare Order 35 Rule 7(2)(e) of the Federal Court Rules). 55The Crown contended in its written submissions that the Court clearly has inherent power to correct a slip, citing R v Jones and Hili (No 2) [2010] NSWCCA 195 at [12] and [26] per Rothman J, McClellan CJ at CL agreeing. The issue determined in that case was the power of this Court, after entry of judgment, to amend its reasons for judgment. It is doubtful whether the decision stands as authority for the proposition that this Court has inherent power outside Rule 50C to correct an error of the kind involved in the present case. 56In his oral submissions, the Crown accepted that any power outside rule 50C might more properly be described not as an inherent power but in the language of the judgment of the High Court in Burrell at [21]. There, the Court referred to "the power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order", with a footnote reference to L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA; 151 CLR 590 at 594-595. Implicitly, the High Court might be taken to have acknowledged the existence of a power in this Court, independently of any rule, to correct an order so as to bring it into accordance with the intention of the Court. The respondents disputed that proposition, contending that the only power this Court has in the case of inadvertent disconformity between the intention of the Court and the orders made is that contained in Rule 50C. 57I do not think it is necessary in the present case to resolve the question of power. If the Court has power to vary the sentences imposed on 17 December 2010, whether on the basis that the power under Rule 50C(2) has been enlivened or otherwise, the power is discretionary. I would not exercise my discretion to vary or correct the orders in the circumstances of the present case. 58The evidence adduced on behalf of the respondents on the present question establishes at least the following matters. First, each was informed of the orders of the Court on the day on which the Court's judgment was published, 17 December 2010. 59In a telephone call made to Mr Green that day, it was noted that there was "some error in the judgment in relation to re-sentence". However, it appears all he was told in that respect was that it would not affect his application to the High Court. Mr Green's solicitor received a copy of the letter from the Director of Public Prosecutions to the Registrar dated 21 December 2010, probably on about the day it was sent. However, Mr Green personally did not become aware of the possibility that his sentence would be increased again until late January or early February 2011. 60It is common ground that the letter from the Director of Public Prosecutions was not sent to Mr Quinn's representative on 21 December 2010. Mr Quinn himself received a copy of the judgment before Christmas, but was not made aware of the prospect that his sentence might be increased for a second time until some time in February 2011. 61After being informed of the orders of the Court, each respondent instructed his legal representative to lodge an application to the High Court for special leave to appeal against those orders. In the meantime, each has been counseled within the prison system as to the impact of the new sentence imposed and his entitlements to apply for leave and parole in accordance with that sentence. 62As at the date of this Court's judgment, Mr Green had been approved for participation in an external leave program offered by Corrective Services and had been participating in that program, spending weekends with his wife and children. His wife has fallen pregnant during that time. He has been informed that, if the sentence imposed on 17 December 2010 stands, he will be given approval to continue his program. If he is re-sentenced in accordance with [143] of the judgment, his participation in the program will have to be terminated. 63Each respondent also gave evidence (which was not challenged) as to his understandable despair upon being informed almost two months after publication of the Court's judgment that the new sentences imposed entailed error and might be increased so as to correct the error. 64In those circumstances, it is plain in my view that the correction of the sentences at this point would result in sentences of greater severity in their impact on the respondents than if the correct orders had been pronounced on 17 December 2010. 65Being in dissent as to the determination of the appeal, it was not necessary for me in the original judgment to articulate what would have been a proper sentence. I should indicate, however, that the view recorded at [23] of the joint judgment published by the President and me in respect of " the sentences proposed by Hulme J " was held both in respect of the lower sentences proposed in his Honour's earlier draft (reproduced in error at [144] of the final judgment) and in respect of the higher sentences ultimately agreed upon by the majority (identified at [143] of the final judgment). 66It might be thought that an offender ought not ordinarily enjoy the benefit of less severity (or greater leniency), not intended by the Court, as a result of an accidental slip or omission. In the unusual circumstances of the present case, however, additional considerations must be brought to bear. Whilst I accept that the sentences intended to be imposed by the majority were those identified at [143] of the judgment, in my view the sentences reflected in the orders in fact made were within the permissible range. On that premise, the choice is between appropriate sentences imposed through inadvertence and the higher sentences intended to be imposed, which also plainly fall within the proper range. 67The President and I expressed the view at [11] of our original reasons that the broader public purpose of a Crown appeal may be served by the Court's indicating that the sentence under appeal should not be regarded as a proper comparator for the purpose of future sentencing, whilst nonetheless declining to intervene in the individual sentence in an appropriate case. The same considerations lead me to the view that the Court need not necessarily exercise its power to correct the error in the present case, even though the orders entered do not give effect to the intention of the Court. 68It may readily be seen that the question whether the error should be corrected in the present case gives rise to competing and conflicting considerations as to the interests of justice. Whilst I acknowledge the existence of competing considerations, the following matters persuade me that the Court should not exercise its power to amend the error in the present case. 69A primary consideration is the nature of the proceedings and of the orders sought to be varied. In a Crown appeal under s 5D of the Criminal Appeal Act , the Court has a discretionary power to "vary the sentence and impose such sentence as to the said Court may seem proper". Any sentence imposed if the appeal is allowed has the effect of passing sentence on an offender for a second time. It must be recognized that to accede to the Crown's position in the present case would require the Court to pass sentence for a third time. In my view, the considerations underlying the principle of finality strongly militate against acceding to any qualification to that principle so as to correct a slip in such a case. 70A separate consideration is that the public interest in achieving consistency in sentencing discussed in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [70] per Howie J is served by the fact that the sentences thought fit by the majority have been identified in the original judgment at [143]. Further, the less severe sentences imposed by the orders that have been entered, although imposed through inadvertence, are nonetheless within the proper range. The public interest in the administration of justice is not harmed by permitting those sentences to stand. 71Finally, I do not think this Court should ignore the impact of the error, and the likely impact of its correction, on the respondents. In Storey & Keers v Johnstone (1987) 9 NSWLR 446, McHugh JA acknowledged at 453E-G that the Court might decline to correct a slip where intervening events would render it inexpedient or inequitable to do so. That consideration is all the more compelling in the present case due to the compounding effect of the correction in question on the impact of a successful Crown appeal. 72In case I am wrong in my conclusion that no application has been made under Rule 50C, I would dismiss the application for those reasons. Further, assuming there is power outside that rule to correct orders of this Court (which it is not necessary for me to decide), I would exercise my discretion not to correct the orders made 17 December 2010 or the sentences imposed upon the respondents on that date. 73Accordingly, I agree with the order proposed by Allsop P.