Campbell v R [2018] NSWCCA 17

Campbell v R [2018] NSWCCA 17 · Read the judgment on AustLII

Catchwords: Sentencing – Practice and procedure – mistake in maximum penalty during judgment

Have you ever wondered whether, when a judicial officer makes a mistake while handing down an ex tempore judgment, you should interrupt them to tell them? The Court of Criminal Appeal (‘CCA’) has provided the answer: at least where the misstatement is about the maximum penalty, you should interrupt, or at least try to point it out before the sentence is passed.

The applicant was convicted of some break and enter offences, driving offences, assaulting police, and threatening to use an offensive weapon (when cornered, he engaged in a ‘futile’ attempt to avoid capture by sticking his hand down the front of his pants and claiming he had a gun). Importantly, there were also two offences (one on a Form 1) of taking and driving a stolen conveyance, for which the actual maximum penalty is 5 years. The sentencing judge twice misstated the maximum penalty applicable to that offence as being 15 years – which, if it had been correct, would have been the highest maximum of the offences the offender was facing that day (in reality, the next highest maximum was 14 years).

In the District Court, he was sentenced to imprisonment for 5 years, with a non-parole period of 2 years and 9 months. The court (Campbell J, Latham and Bellew JJ agreeing) upheld the appeal on the basis that the misstatement of the maximum penalty in relation to the offence on indictment was a material error (at [33] – the same could not be said of the offence on indictment, see [36]) and resentenced the offender.

For present purposes the important aspect of the judgment is the observation made by the court about the prevalence of this ground of appeal, and its practical consequences. The court observed that the misstatement by judges of maximum penalties results in enough appeals that legal practitioners appearing on proceedings on sentence should be very astute to correct misstatements when they occur. This should occur immediately, even by interrupting the judge, or otherwise before the proceedings are concluded and preferably before sentence is passed (at [34]).

The judgment offers no advice about how to deal with the ensuing awkwardness.