Sigalla v R (No 2) [2021] NSWCCA 151

Sigalla v R (No 2) [2021] NSWCCA 151

Leave was refused because the applicant identified no arguable material slip, oversight, or misapprehension within r 50C. Ground 4 was not overlooked because senior counsel had confined it to ground 1A, which failed. The remaining conviction complaints and the Crimes Act, s 16A(2)(e) sentence complaint were impermissible attempts to reargue the appeal on grounds not previously advanced. The Court's treatment of resentencing was consistent with Kentwell and Turnbull, and even if wrong would be appealable error rather than a r 50C slip, oversight, or misapprehension.

Jurisdiction
Australia
Judgment Date
07 July 2021
Procedural Posture
Application for Leave to Make an Application Under (nsw) Criminal Appeal Rules 1952, R 50 C to Set Aside or Vary Orders in a Criminal Appeal / On the Papers; Post Appeal Application to Re Open Conviction and Sentence Appeal Orders
Outcome
Leave to make an application under (NSW) Criminal Appeal Rules 1952, r 50C, refused.
Legal Topics
['application for Leave to Re Open Appeal' 'power to Set Aside or Vary Orders' 'functus Officio' 'failure to Consider Ground of Appeal' 'misapprehension of Fact or Law' 'claim of Right and Dishonesty' 're Exercise of Sentencing Discretion' 'kentwell Error']
['criminal Law' 'criminal Procedure' 'sentencing' 'corporations Offences'] ['application for Leave to Re Open Appeal' 'power to Set Aside or Vary Orders' 'functus Officio' 'failure to Consider Ground of Appeal' 'misapprehension of Fact or Law' 'claim of Right and Dishonesty' 're Exercise of Sentencing Discretion' 'kentwell Error']

Case Brief

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Procedural Posture

Application for Leave to Make an Application Under (nsw) Criminal Appeal Rules 1952, R 50 C to Set Aside or Vary Orders in a Criminal Appeal / On the Papers; Post Appeal Application to Re Open Conviction and Sentence Appeal Orders

Legal Issues

  1. 1 ['Whether leave should be granted under (NSW) Criminal Appeal Rules 1952, r 50C(1A) to apply to set aside or vary orders dismissing the conviction appeal and resentencing the applicant.' 'Whether the Court failed to consider ground 4 of the conviction appeal.' 'Whether alleged failures to comprehend the trial basis, alleged factual misapprehensions, and alleged legal misapprehensions identified any slip, oversight, or misapprehension within r 50C.' 'Whether the sentence appeal should be re-opened because the Court allegedly failed to follow Kentwell v R by re-exercising the sentencing discretion afresh.' 'Whether the Court could resentence the applicant without separately determining whether he was legally entitled to the moneys and shares for the purposes of Crimes Act 1914 (Cth), s 16A(2)(e).' 'Whether the application required an oral hearing or a five-judge bench.']

Ratio Decidendi

Leave was refused because the applicant identified no arguable material slip, oversight, or misapprehension within r 50C. Ground 4 was not overlooked because senior counsel had confined it to ground 1A, which failed. The remaining conviction complaints and the Crimes Act, s 16A(2)(e) sentence complaint were impermissible attempts to reargue the appeal on grounds not previously advanced. The Court's treatment of resentencing was consistent with Kentwell and Turnbull, and even if wrong would be appealable error rather than a r 50C slip, oversight, or misapprehension.

Court Disposition

Leave to make an application under (NSW) Criminal Appeal Rules 1952, r 50C, refused.

Orders

  • ['The applicant be refused leave to make an application under r 50C.']