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Key decisions

  • Campbell v R  [2018] NSWCCA 17
  • Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47
  • Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83

Campbell v R  [2018] NSWCCA 17

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 five 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).

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