R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran (No.2) [2004] NSWCCA 173

New South Wales Court of Criminal Appeal

CITATION : R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran (No.2) [2004] NSWCCA 173 HEARING DATE(S) : 10 November 2003 JUDGMENT DATE : 7 June 2004

JUDGMENT OF : Santow JA; James J; Miles AJ DECISION : Sentence previously passed on John Nguyen corrected pursuant to s 43 of the Crimes (Sentencing Procedure) Act

PARTIES : R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran (No.2) FILE NUMBER(S) : CCA 60238/03; 60239/03; 60240/03; 60241/03 G I O Rowling (Appellant/Crown) R Hulme SC (Respondent KM) COUNSEL : P Gwozdecky (Respondent Linh Van Nguyen) H Dhanji (Respondent John Nguyen) A P Cook (Respondent John Tran) C K Smith (Appellant/Crown) SOLICITORS : S O'Connor (Respondents KM/John Nguyen) T Voros (Respondent John Tran)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/3393; 02/21/3309; 02/21/3161; 01/21/3092 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60238/03 60239/03 60240/03 60241/03

SANTOW JA JAMES J MILES AJ

7 June 2004 R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran Judgment (No.2) 1 THE COURT : The Court gave judgment in these appeals on 18 March 2004 [NSW CCA 65]. The principal judgment was given by Miles AJ, with whose judgment the other members of the Court Santow JA and James J agreed. The orders proposed by Miles AJ in par 64 of his Honour's judgment became the orders of the Court. 2 After judgment was given, the solicitor for the appellants communicated with the Registrar of the Court of Criminal Appeal, drawing attention to what was submitted was an inconsistency between par 59 of Miles AJ's judgment, in which his Honour expressed the opinion that it would be appropriate that John Nguyen be sentenced to "an effective term of six years and three months with a non-parole period of three years and six months", and par 64(iv) of his Honour's judgment in which his Honour proposed that John Nguyen be sentenced by the Court of Criminal Appeal to sentences totalling six years three months but with non-parole periods totalling, not three years six months, but four years nine months. 3 After the communication from the appellants' solicitors was received by the Registrar, the Registrar, at the request of the Court, communicated with the solicitor for Public Prosecutions, who advised that the Crown agreed that the sentences proposed for John Nguyen in par 64(iv) of Miles AJ's judgment did not accurately reflect the intention stated in par 59 of the judgment. 4 The Court has itself considered the matter and has concluded that the sentences which were proposed in par 64(iv) of the judgment and which became the sentences imposed by the Court do not accurately reflect the intention expressed in par 59 of the judgment. 5 We consider, as was suggested by the solicitor for Public Prosecutions, that the error can be corrected pursuant to s 43 of the Crimes (Sentencing Procedure) Act . The width of the power to correct errors conferred on a sentencing court by s 43 of the Crimes (Sentencing Procedure) Act was emphasised in the recent decision of the Court of Appeal in Erceg v The District Court of New South Wales [2003] NSWCA 379. 6 As suggested by the parties, the error can be corrected by simply changing the non-parole period of the sentence imposed on John Nguyen on count 5 from three years six months to two years three months. Pursuant to s 43 of the Crimes (Sentencing Procedure) Act we order that, in lieu of the sentence imposed on John Nguyen on count 5 on 18 March 2004, John Nguyen be sentenced as follows on count 5:-