Goldberg v R (No 2) [2018] NSWCCA 119

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Goldberg v R (No 2) [2018] NSWCCA 119 Hearing dates: On the papers Date of orders: 28 May 2018 Decision date: 08 June 2018 Before: Hoeben CJ at CL; White JA; Fullerton J Decision: 1. Set aside order 3 made on 28 May 2018 and make the following order: Quash the sentence imposed by Blackmore DCJ on 9 March 2017 and, in lieu thereof, impose an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months commencing on 5 November 2015 and expiring on 4 March 2022 with a balance of term of 2 years and 2 months expiring on 4 May 2024. Catchwords: PRACTICE AND PROCEDURE – slip rule – variation of orders Legislation Cited: Criminal Appeal Rules (NSW), s 50C(3) Cases Cited: Goldberg v R [2018] NSWCCA 99 Category: Consequential orders (other than Costs) Parties: John Goldberg (Applicant) The Crown (Respondent) File Number(s): 2016/51338 Decision under appeal Court or tribunal: District Court Date of Decision: 9 March 2017 Before: Blackmore DCJ File Number(s): 2016/51338

Judgment 1. THE COURT: On 28 May 2018, in the disposition of an appeal by the applicant against the severity of his sentence (Goldberg v R [2018] NSWCCA 99), the Court made the following orders: 1. Leave to appeal granted. 2. The appeal is allowed. 3. Quash the sentence imposed by Blackmore DCJ on 9 March 2017 and, in lieu thereof, impose an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months commencing on 5 November 2015 and expiring on 4 March 2022 with a balance of term of 2 years and 1 month expiring on 4 April 2024. 1. On 29 May 2018 the Registrar of the Court of Criminal Appeal alerted the Court (comprised of Hoeben CJ at CL, White JA and Fullerton J) to a potential error in order 3 above in that either the total term should have been appointed as 8 years and 5 months to conform with a balance of term of 2 years and 1 month after specification of a non-parole period of 6 years and 4 months, or on the total term of 8 years and 6 months with a non-parole period of 6 years and 4 months, the balance of term has been wrongly specified as 2 years and 1 month expiring on 4 April 2024, when it should have been specified as 2 years and 2 months, expiring on 4 May 2024. 2. Having regard to [127] of the judgment and the clear intention to impose an aggregate sentence of 8 years and 6 months comprised of a non-parole period of 6 years and 4 months, there is an arithmetical error in the calculation of the balance of term. Instead of appointing the balance of term of 2 years and 2 months, a term of 2 years and 1 month has been specified; an error which has been translated, uncorrected, into the orders of the Court. 3. In exercise of the power in s 50C(3) of the Criminal Appeal Rules (NSW), the Court makes the following orders: 1. Set aside order 3 made on 28 May 2018 and make the following order. Quash the sentence imposed by Blackmore DCJ on 9 March 2017 and, in lieu thereof, impose an aggregate sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months commencing on 5 November 2015 and expiring on 4 March 2022 with a balance of term of 2 years and 2 months expiring on 4 May 2024.