AKKAWI, Mark v R; AKKAWI, Paul v R (No 2) [2013] NSWCCA 72

AKKAWI, Mark v R; AKKAWI, Paul v R (No 2) [2013] NSWCCA 72

The discrepancies between the orders proposed in the reasons for judgment and the coversheet/JusticeLink entry arose from clerical error in translating the agreed draft reasons into the coversheet and entry. The Court's intention was the orders proposed by Simpson J at [100], with the correct calculation of the aggregate head sentence for Mark Akkawi. Because the Crown's r 50C application was made within 14 days, the JusticeLink entry was treated as if it had not been entered; alternatively, the Court had power to amend an entered order where its intention had not manifested in the judgment. The orders were therefore corrected to reflect the Court's true intention.

Jurisdiction
Australia
Judgment Date
08 April 2013
Procedural Posture
Criminal Appeal; Application to Amend or Vary Judgment/orders / Consequential Orders After Notice of Motion Concerning Discrepancy Between Reasons for Judgment, Coversheet and Justice Link Entry
Outcome
Leave to appeal granted; sentences imposed by the District Court set aside; Mark Akkawi and Paul Akkawi re-sentenced in the corrected terms reflecting the Court's intention.
Legal Topics
['appeal Against Sentence' 'power to Set Aside or Vary Orders' 'criminal Appeal Rules R 50 B' 'criminal Appeal Rules R 50 C' 'correction of Entered Orders' 'slip Rule' 'justice Link Entry of Orders']
['criminal Law' 'criminal Procedure' 'sentencing'] ['appeal Against Sentence' 'power to Set Aside or Vary Orders' 'criminal Appeal Rules R 50 B' 'criminal Appeal Rules R 50 C' 'correction of Entered Orders' 'slip Rule' 'justice Link Entry of Orders']

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Procedural Posture

Criminal Appeal; Application to Amend or Vary Judgment/orders / Consequential Orders After Notice of Motion Concerning Discrepancy Between Reasons for Judgment, Coversheet and Justice Link Entry

Legal Issues

  1. 1 ['Whether orders recorded on the coversheet and initially entered on JusticeLink should be confirmed or varied to reflect the orders proposed in the reasons for judgment.' 'What is the effect of an application under Criminal Appeal Rules r 50C made within 14 days after entry of an order on JusticeLink.' 'Whether the Court of Criminal Appeal has power to alter entered orders where the intention of the Court has not manifested in the judgment.' 'Whether the discrepancies between the reasons for judgment, the coversheet and the entered orders resulted from clerical error and should be corrected.']

Ratio Decidendi

The discrepancies between the orders proposed in the reasons for judgment and the coversheet/JusticeLink entry arose from clerical error in translating the agreed draft reasons into the coversheet and entry. The Court's intention was the orders proposed by Simpson J at [100], with the correct calculation of the aggregate head sentence for Mark Akkawi. Because the Crown's r 50C application was made within 14 days, the JusticeLink entry was treated as if it had not been entered; alternatively, the Court had power to amend an entered order where its intention had not manifested in the judgment. The orders were therefore corrected to reflect the Court's true intention.

Court Disposition

Leave to appeal granted; sentences imposed by the District Court set aside; Mark Akkawi and Paul Akkawi re-sentenced in the corrected terms reflecting the Court's intention.

Orders

  • ['Leave to appeal granted.' 'Sentences imposed on Mark Akkawi and Paul Akkawi by the District Court on 3 September 2010 be set aside and the applicants be re-sentenced.' 'Mark Akkawi Count 1: imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period...