Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Langbein v Regina (No. 2) [2013] NSWCCA 100 Hearing dates: 9 November 2012 Decision date: 01 May 2013 Before: McClellan JA Fullerton J Campbell J Decision: The orders pronounced on 26th April 2013 are set aside and the Court makes the following orders: 1. Grant leave to appeal. 2. Appeal allowed. 3. Confirm the sentences imposed by the sentencing judge in respect of the offence of driving whilst disqualified including the period of disqualification imposed by his Honour. 4. Otherwise, the sentences imposed by the sentencing judge are quashed and the following sentences are imposed in substitution: (a) In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the C4 Café, the applicant is sentenced to 3 years imprisonment comprising a non-parole period of 2 years and 3 months commencing on 17 February 2011 and expiring on 16 May 2013, with a balance of term of 9 months commencing on 17 May 2013 and expiring on 16 February 2014; (b) In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the Devine Café, the applicant is sentenced to 4 years and 6 months imprisonment comprising a non-parole period of 3 years commencing on 17 May 2011 and expiring on 16 May 2014, with a balance of term of 1 year and 6 months commencing on 17 May 2014 and expiring on 16 November 2015. Catchwords: CRIMINAL LAW - practice and procedure - judgments and orders - slip rule - amendment of error in term of sentence Legislation Cited: Criminal Appeal Rules Cases Cited: Akkawi v R (No 2) [2013] NSWCCA 72 R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143 Category: Principal judgment Parties: Luke Langbein (Applicant) Regina (Respondent) Representation: Counsel: P. Winch (Applicant) S. Dowling (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/14368 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-07-29 00:00:00 Before: Acting Judge Nield File Number(s): 2011/14368 Judgment 1THE COURT: The Court pronounced orders disposing of the appeal and publishing its reasons on 26th April 2013. It has come to our attention that there is an error in the orders pronounced. Order 4 does not accord with the Court's intention as stated at [57] in the joint judgment of Fullerton and Campbell JJ. The error is a merely clerical one, in the nature of a slip. 2Rule 50C(3) of the Criminal Appeal Rules is in the following terms: 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. 3Ordinarily an order is taken to be entered when it is recorded in the Court's computerised record system, typically on the day on which judgment was handed down: Rule 50B(2). These rules were fully discussed by this Court (Simpson, Blanch and Rothman JJ) in Akkawi v R (No. 2) [2013] NSWCCA 72. It is not necessary to go over that ground here. Suffice it to say that the rule amply empowers the Court to correct the "slip" made when the orders were pronounced, and entered, on 26th April 2013: R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143 at [34]. 4The Court echoes the views expressed in Akkawi (No. 2) at [27], whilst it well appreciates the effect that the alteration to the orders pronounced may have on the appellant, nevertheless there was an obvious inconsistency between the clear intention expressed at paragraph [57] of the joint reasons, with which McClellan CJ at CL agreed, and the orders pronounced. As in Akkawi (No 2) the corrected orders still substantially reduce the sentence imposed at first instance. 5The orders pronounced on 26th April 2013 are set aside and the Court makes the following orders: 1. Grant leave to appeal. 2. Appeal allowed. 3. Confirm the sentences imposed by the sentencing judge in respect of the offence of driving whilst disqualified including the period of disqualification imposed by his Honour. 4. Otherwise, the sentences imposed by the sentencing judge are quashed and the following sentences are imposed in substitution: (a)In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the C4 Café, the applicant is sentenced to 3 years imprisonment comprising a non-parole period of 2 years and 3 months commencing on 17 February 2011 and expiring on 16 May 2013, with a balance of term of 9 months commencing on 17 May 2013 and expiring on 16 February 2014; (b)In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the Devine Café, the applicant is sentenced to 4 years and 6 months imprisonment comprising a non-parole period of 3 years commencing on 17 May 2011 and expiring on 16 May 2014, with a balance of term of 1 year and 6 months commencing on 17 May 2014 and expiring on 16 November 2015. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2013