Edwards v R

[2009] NSWCCA 199

New South Wales
Court of Criminal Appeal

CITATION:	Edwards v R [2009] NSWCCA 199
HEARING DATE(S):	10 July 2009
JUDGMENT DATE:	12 August 2009
JUDGMENT OF:	Allsop P at 1; Kirby J at 2; Johnson J at 3
DECISION:	1. Extension of time to seek leave to appeal against sentence imposed in the Sydney District Court on 6 October 2006 refused. 2. Leave to appeal against sentence imposed in the Sydney District Court on 18 December 2008 refused.
CATCHWORDS:	CRIMINAL LAW - sentence - stealing from the person - suspended sentence of imprisonment and bond in 2006 - applicant breaches bond by commission of further offences - suspended sentence of imprisonment commences in 2008 - applicant seeks extension of time for leave to appeal against 2006 sentence - relevant factors on application for extension of time - merits of application considered - extension of time refused - leave to appeal against 2008 sentence refused
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	R v Young [1999] NSWCCA 275 R v Beattie [2000] NSWCCA 201 R v Graham (2004) 62 NSWLR 252 Giannarelli v Wraith [1988] 165 CLR 543 Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 Dinsdale v The Queen [2000] 202 CLR 321 R v MAK (2006) 167 A Crim R 159 The Queen v De Simoni (1981) 147 CLR 383 R v Delk (1999) 46 NSWLR 340 R v Hua [2002] NSWCCA 384 R v Young [2003] NSWCCA 276 R v Hooper [2004] NSWCCA 10 R v Henry (1999) 46 NSWLR 346 R v Hemsley [2004] NSWCCA 228 R v El Masri [2005] NSWCCA 167 Wise v R [2006] NSWCCA 264 R v Cage [2006] NSWCCA 304 R v Palmer [2005] NSWCCA 349 R v Gent (2005) 162 A Crim R 29 Markarian v The Queen [2005] 228 CLR 357 R v Zamagias [2002] NSWCCA 17 Director of Public Prosecutions v England [1999] 2 VR 258 R v Wilkinson (No. 5) [2009] NSWSC 432 R v Bloomfield (1998) 44 NSWLR 734 R v Finney [2002] NSWCCA 533 Huntingdon v R [2007] NSWCCA 196 Rickard v R [2007] NSWCCA 332 Ta v R [2009] NSWCCA 196
PARTIES:	Lesley Phillis Edwards (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/15615
COUNSEL:	Ms SF Beckett (Applicant) Ms NJ Gouda (Respondent)
SOLICITORS:	Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0216
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Taylor (6 October 2006); his Honour Judge Hosking SC (18 December 2008)
LOWER COURT DATE OF DECISION:	6 October 2006 (his Honour Judge Taylor); 18 December 2008 (his Honour Judge Hosking SC)

2006/15615

ALLSOP P
KIRBY J
JOHNSON J

12 August 2009

Lesley Phillis Edwards v Regina

Judgment

1 ALLSOP P: I agree with Johnson J.

2 KIRBY J: I agree with Johnson J.

: By application filed on 19 May 2009, the Applicant, Lesley Phillis Edwards, seeks an extension of time to apply for leave to appeal against sentence imposed by his Honour Judge Taylor at the Sydney District Court on 6 October 2006. In addition, the Applicant seeks leave to appeal against sentence imposed by his Honour Judge Hosking SC at that Court on 18 December 2008.

The Sentencing Decisions

4 The two sentencing decisions are interrelated. His Honour Judge Taylor sentenced the Applicant to imprisonment for two years with a non-parole period of 15 months following her plea of guilty to a charge of stealing from the person under s.94 Crimes Act 1900, for which the maximum penalty is 14 years’ imprisonment. His Honour suspended the sentence under s.12 Crimes (Sentencing Procedure) Act 1999 upon the Applicant entering into a good behaviour bond for 15 months.

5 The Applicant breached the good behaviour bond by the commission of further offences and a failure to maintain contact with the Probation and Parole Service. She was called up for breach of the bond and, on 18 December 2008, his Honour Judge Hosking SC directed the Applicant to serve the sentence imposed by Judge Taylor, which was backdated to 20 August 2008. The Applicant is eligible for release on parole on 19 November 2009.

Extension of Time

6 The application for extension of time was filed some two years and seven months after sentence was imposed on 6 October 2006. The principal challenge on this application relates to that sentence.

7 The Crown opposes an extension of time to challenge the sentence imposed by his Honour Judge Taylor.

8 The Court has a discretion with respect to extension of time under s.10(1)(b) Criminal Appeal Act 1912. In exercising that discretion, the Court has regard to the prospects of success on the application for leave to appeal itself: R v Young [1999] NSWCCA 275 at [30]ff. The Court will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed, especially if the delay is considerable: R v Beattie [2000] NSWCCA 201 at [17].

9 In R v Graham (2004) 62 NSWLR 252 at 258-259 [29], this Court observed that it was understandable that application for leave to appeal against sentence would be made out of time where the sentencing Court had proceeded originally by way of suspended sentence. It was said that the “full implication of such a sentence might not have come home to such a person until faced with the reality of gaol” and that this was so despite the fact that the sentencing judge, at the time of suspending the sentence, is required to inform the offender of the consequences of a breach. Notwithstanding the delay in giving notice in that case, an extension of time was granted to seek leave to appeal against sentence.

10 I agree that this practical reality exists where sentence is suspended and a bond entered. The offender does not face an immediate custodial sentence. Where conditional liberty is breached thereafter by commission of further offences, or non-compliance with a condition of a bond, imprisonment then results and the offender may then consider whether there is some basis for challenging the original sentence. Recognition of this practical reality, however, does not mean that this Court should freely accept a type of two-stage approach, where an appeal will be accepted readily long after imposition of the original sentence.

11 Nor should this Court encourage a view that an offender’s legal representative may take a minimalist position at the original sentencing hearing, saying no more than is required to obtain a suspended sentence. It is the duty of counsel appearing for an offender at a sentencing hearing to assist the Court by making relevant submissions at that time on issues of fact and law. A sentencing court is entitled to expect assistance from counsel, in discharge of counsel’s duty to the court and the client, with respect to relevant issues, including the facts to be found on sentence, the objective seriousness of the offence, the subjective circumstances of the offender, the capacity of the offence to be dealt with summarily in the Local Court and the length of any sentence of imprisonment which may be imposed but suspended. The public interest is served by counsel discharging his or her duty to the Court and the client: Giannarelli v Wraith [1988] 165 CLR 543 at 555-556.

12 This duty applies equally when counsel urges the Court to proceed by way of suspended sentence and bond. It is not appropriate to approach the original sentencing hearing upon the basis that, if things do not work out and the offender breaches the bond, then arguments may be ventilated, for the first time on appeal to this Court, long after the original sentencing hearing, asserting error on the part of the sentencing Judge. This Court must be careful lest it be thought that a two-staged approach to sentence on the part of offenders and their counsel will be accepted, whereby possible appeal points may be held in reserve, only to be activated if the offender breaches the conditional liberty obtained at the urging of the offender at the original sentencing hearing. The Court’s approach in R v Graham should not be taken as a sign that this Court will readily grant an extension of time to appeal in a case such as this. It will depend upon the merits and justice of the case.

13 The principle of finality of litigation is relevant on an application such as this. Although it may be, as here, that the Crown cannot point to any actual prejudice because of the delay in bringing the application, there is a public interest in avoidance of delay, and the finality of litigation, in the area of sentencing as with litigation generally. In many cases, the prospect of sentence being reopened long after the event may impact adversely upon victims of crime.

14 A further aspect is also relevant. It will usually be the case that an applicant for an extension of time has been sentenced for other offences since the original sentence was suspended. As in this case, further offences may have been committed which constituted breaches of the bond and which led to imposition of the sentence originally suspended. Thus, the application will proceed before this Court in circumstances where, if error is demonstrated, it will be necessary to consider whether some lesser sentence should be fixed when the applicant is already serving another sentence.

15 It has been observed, in another context, that there is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison: Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 at 386-387 [23]. Although the Courts are conscious of the seriousness of a suspended sentence, it has been observed that the public, victims and even offenders may not view a suspended sentence as a true punishment: Dinsdale v The Queen [2000] 202 CLR 321 at 346-347 [80].

16 If this Court is required to resentence an offender in a case such as this where another sentence of imprisonment is being served, it would be necessary to consider issues of accumulation, concurrency and totality. In R v MAK (2006) 167 A Crim R 159 at 164-165 [18], this Court (Spigelman CJ, Whealy and Howie JJ) said:

“A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.”

17 Similar considerations arise in a case where an offender is to be resentenced by this Court for the original offence where sentence had been suspended, but this conditional liberty was breached by commission of further offences for which another sentence of imprisonment is being served. Public confidence in the administration of justice, including confidence in the use of suspended sentences, must be kept squarely in mind if that point is reached by this Court.

18 None of these factors constitute a barrier to this Court intervening where the justice of the case warrants that course. However, in determining whether an extension of time ought be granted, this Court should be alive to factors such as these, as well as the merits of the proposed grounds of appeal.

Facts of Offence

19 The following recital of the facts is drawn from the remarks on sentence of his Honour Judge Taylor of 6 October 2006.

20 At about 6.45 pm on 3 February 2005, the victim (an adult male) was in the ATM room attached to the Commonwealth Bank in Crown Street, Surry Hills, withdrawing the sum of $200.00 from the machine. At this time, the Applicant (then aged 32 years) walked into the ATM room with her three-year old son. After withdrawing $200.00 cash from the machine, the victim turned to leave the room and the Applicant said “Look at my boy, isn’t he beautiful?” When the victim turned to look at the boy, the Applicant grabbed the money from his hand. The Applicant squeezed the victim’s hand whilst doing this, causing him pain. The victim said “That’s my money, you can’t take it” to which the Applicant said “It’s my money”. An altercation developed and the Applicant yelled out “help” to people outside the Bank. The victim and the Applicant walked into the street and the Applicant called out “call the police, call the police”. An off-duty police officer walking along Crown Street saw the Applicant leave the Bank, and he stopped her with police attending shortly thereafter. The Applicant told police that the victim had tried to grab her son. However, police were able to observe CCTV footage from the Bank and observed the victim withdraw the money from the ATM and the subsequent altercation.

The 2006 Sentencing Decision

21 The Applicant pleaded guilty to the charge of stealing from the person in the Local Court on 7 March 2006 and was committed for sentence in the District Court.

22 During the course of sentencing submissions, the Applicant’s legal representative acknowledged that a custodial sentence was appropriate, but asked his Honour to suspend the sentence. The Crown representative accepted that the s.12 option was available, but submitted that stringent conditions were appropriate.

23 His Honour accepted these submissions and imposed the suspended sentence referred to earlier. In his remarks on sentence, his Honour Judge Taylor accepted that the Applicant’s subjective circumstances were “very strong”. As at October 2006, she had seven children (aged from 15 years to 18 months) and she was pregnant again at that time. She had a history of drug abuse and dependence dating back 15 years.

24 His Honour had regard to a pre-sentence report of the Probation and Parole Service and a report from Mr Taylor, psychologist. Both reports referred to the Applicant’s developmental disability, immaturity and limited ability for reflection and impulse control. The author of the pre-sentence report assessed the Applicant as being unsuitable for any community-based sentencing options due to the severity of her drug dependence and unstable emotional state.

25 The Applicant was engaged in the MERIT (Magistrates Early Release Into Treatment) program through the Local Court. His Honour referred to a report from the MERIT program which he described as “encouraging”.

26 The Applicant had a number of prior convictions for dishonesty offences since 1991, including an offence of stealing from the person in 1998. Non-custodial sentences had been imposed for all offences committed before 2005.

27 In the course of his remarks on sentence, his Honour Judge Taylor said (ROS4-5):

“There are some obvious socio legal issues that I have discussed with the offender’s solicitor in court. The s 12 bond is a sentencing option that if there were a further offence then she is very much liable to have it revoked. It has been said many times over a long period of time in this particular court that one of the difficulties with bonds is that they can set people up to fail. I think that the motivation the offender has for rehabilitation, the program that she is already in and additional support from the Probation and Parole Service offer a good prospect of rehabilitation.
She has prior matters but not for some time. There are some personal factors in the reports relating to intelligence and other matters that I am not going to recite in open court.”

28 After imposing sentence, his Honour explained the effect of the suspended sentence and said to the Applicant that her solicitor would speak to her as well about the effect of the sentence (ROS6).

Events Since 6 October 2006

29 Regrettably, subsequent events demonstrate that the Applicant took little advantage of the leniency involved in the suspended sentence. On 8 May 2007, the Applicant was fined in the Local Court for refusing to comply with a direction.

30 On 17 May 2007, his Honour Judge Solomon directed “No action on breach” when the Applicant was reported for the conviction on 8 May 2007.

31 On 5 November 2007, the Honourable Justice Blanch direction “No action on breach” when the Applicant failed to report and maintain contact with the Probation and Parole Service.

32 On 27 December 2007, the Applicant committed offences of larceny and fraudulently obtaining property and failing to appear in accordance with a bail undertaking. On 23 January 2008, she committed a further offence of stealing from the person.

33 On 26 July 2008, the Applicant committed the offence of possession of a prescribed restricted substance.

34 The Applicant has been in continuous custody since 8 August 2008, following her arrest that day on further charges of shoplifting and destroying property.

35 On 20 August 2008, the Applicant was sentenced in the Downing Centre Local Court to five months’ imprisonment for stealing from the person. An appeal against severity of this sentence was dismissed in the Sydney District Court on 7 October 2008.

36 On 23 October 2008, the Applicant was sentenced in the Central Local Court to three months’ imprisonment for shoplifting, and placed on a two-year bond for destroying property and fined for possession of a prescribed restrictive substance. An appeal against severity of these sentences was dismissed in the Sydney District Court on 19 November 2008.

37 On 20 November 2008, the Applicant was called up for breach of the s.12 bond forming part of the suspended sentence. On 18 December 2008, his Honour Judge Hosking SC revoked the bond and directed that the Applicant serve the sentence imposed by his Honour Judge Taylor to commence on 20 August 2008.

38 On 14 January 2009, the Applicant was sentenced in the Downing Centre Local Court to concurrent terms of imprisonment for six months for offences of fraudulent appropriation and failing to appear in accordance with her bail undertaking. These sentences were reduced on appeal to the Sydney District Court on 19 March 2009 to concurrent sentences of four months’ imprisonment with those sentences to expire on 13 May 2009.

Grounds of Appeal

39 For the purpose of determining whether an extension of time ought be granted, I propose to consider the merits of the grounds of appeal advanced with respect to the sentence imposed by his Honour Judge Taylor. The Court was assisted by detailed submissions of Ms Beckett, counsel for the Applicant, and Ms Gouda for the Crown.

40 Ground 1 asserts that his Honour erred by taking into account factual matters that constituted a more serious offence. Complaint is made concerning his Honour’s finding, arising from the Applicant’s squeezing of the victim’s hand, that this “was an offence where violence was offered during the stealing” (ROS2). Complaint is made that this finding was impermissible on sentence for stealing from the person as opposed to robbery, applying the principles in The Queen v De Simoni (1981) 147 CLR 383 at 389. I note that no such argument was advanced before his Honour Judge Taylor, nor was any objection taken to that part of the statement of facts that recorded these actions by the Applicant.

41 I am not persuaded that there is merit in this ground. Both robbery and stealing from a person are offences under s.94 Crimes Act 1900 carrying the same maximum penalty. An offence of stealing from a person usually involves a personal confrontation and the potential for personal conflict and force or fear, particularly if the victim endeavours to stop the theft: R v Delk (1999) 46 NSWLR 340 at 343 [15]. Stealing from the person is a variant of robbery rather than a variant of larceny: R v Delk at 345 [29]. Not every offence of stealing from the person is less serious than robbery, with such an assessment depending upon the particular facts of the case: R v Hua [2002] NSWCCA 384 at [19]. In my view, nothing said in R v Young [2003] NSWCCA 276 or R v Hooper [2004] NSWCCA 10 requires a conclusion that the observation of the sentencing Judge in this case involved a breach of the principles in The Queen v De Simoni.

42 Under the first ground, the Applicant also complains that his Honour was effectively referring to the principle in R v Henry (1999) 46 NSWLR 346 (concerning armed robbery offences) when his Honour said “This offence except in exceptional circumstances carries a custodial penalty” (ROS2). There is no substance in this complaint. His Honour did not refer to R v Henry, nor had that decision been referred to in submissions before him. In my view, his Honour’s comment is unremarkable, especially when an offence of stealing from the person is being dealt with on indictment. There is no substance in the first ground of appeal.

43 Ground 2 asserts that the learned sentencing Judge erred in failing to give proper or sufficient consideration to the Applicant’s mental condition, and to the principles relating to that factor so far as it was relevant to the sentencing discretion.

44 No submission was made to the sentencing Judge by reference to authorities such as R v Hemsley [2004] NSWCCA 228. Substantial weight was given to the Applicant’s subjective case by the sentencing Judge. His Honour was alive to the evidence concerning the Applicant’s mental condition and referred, amongst other things, to the psychological report of Mr Taylor. As mentioned earlier (at [24]), the reports referred to the Applicant’s developmental disability, immaturity and limited ability for reflection and impulse control, together with her history of drug dependence and her unstable emotional state.

45 Ms Beckett submitted that the evidence concerning the Applicant disclosed a lower level of intelligence and a propensity to act spontaneously with poor planning and limited insight. His Honour was alive to these matters at the time of passing sentence. The Applicant informed Mr Taylor that her motive for committing this offence was a desire to obtain money for methadone and to see her children. As mentioned later (at [52]-[53]), there were features of this offence which rendered it objectively serious. It has not been demonstrated that his Honour failed to give proper or sufficient weight to the Applicant’s mental condition in passing sentence. There is no substance in the second ground.

46 Ground 3 asserts that the sentencing Judge erred in failing to take into account that the offence was capable of summary disposal.

47 No submission was advanced in the District Court urging the sentencing Judge to have regard to this factor on sentence. In any event, as decisions of this Court have made clear, there is no fixed rule when such an argument is advanced, nor is this a factor which operates universally to reduce sentence: R v El Masri [2005] NSWCCA 167 at [29]. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31].

48 The Applicant had pleaded guilty in the Local Court and was committed for sentence on 7 March 2006. The Crown had elected to proceed with this offence of stealing from the person on indictment. This was not surprising, having regard to the objective seriousness of the offence and the Applicant’s criminal history, which included a number of dishonesty offences, including a prior conviction for stealing from the person.

49 The Applicant’s s.94 offence cannot be regarded as one which was truly a Local Court offence being prosecuted in the District Court: R v Palmer [2005] NSWCCA 349; R v Gent (2005) 162 A Crim R 29 at 48 [90]. Where the Director of Public Prosecutions has elected to prosecute a matter on indictment, it would require a very clear case of inappropriate prosecution of an offence on indictment for an argument to be available in mitigation resulting from a lost opportunity for summary disposal of that offence: R v Gent at 47 [86]. This is not such a case. There is no substance in the third ground of appeal.

50 Ground 4 asserts that the overall sentence and non-parole period imposed were manifestly excessive. The real question is whether the sentence imposed was manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] 228 CLR 357 at 370-371 [25].

51 It has been observed that a suspended sentence is a significantly more lenient penalty than any other sentence of imprisonment: R v Zamagias [2002] NSWCCA 17 at [32]. No argument was advanced here that his Honour did not apply the stages for determining a suspended sentence referred to in R v Zamagias at [23]ff.

52 The maximum penalty for an offence of stealing from the person is imprisonment for 14 years. A sentence of imprisonment for two years with a non-parole period of 15 months is not, in my view, an unreasonable one for the offence committed by the Applicant. The offence was aggravated by the Applicant’s use of her own child as a decoy to assist the commission of the offence, and the patently false and serious allegation made to police that the victim had tried to grab her son.

53 Ms Beckett submitted that this aspect went more to lack of contrition. I do not agree. I accept that care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61]. In my view, a false allegation made to police against the victim very soon after the commission of the offence itself is capable of constituting an aggravating feature of the crime itself. The Applicant used her three-year old son to facilitate the commission of the offence and then made a false allegation against the victim in an attempt to fend off arrest and prosecution. This was no minor or technical offence of stealing from the person.

54 His Honour accepted that the Applicant’s subjective circumstances were “very strong” . However, the Applicant had a criminal history which did not assist her. Efforts at social intervention had been tried by way of rehabilitation with mixed success.

55 I have regard to Ms Beckett’s submissions by reference to the period of imprisonment before discount in this case, and sentencing statistics for this offence, although caution must be exercised in use of statistical material: R v Bloomfield (1998) 44 NSWLR 734 at 739.

56 The Applicant was extended leniency by way of a suspended sentence, a course taken by the sentencing Judge at the request of the legal representatives of both the Applicant and the Crown.

57 It has not been demonstrated that the sentence of imprisonment imposed by his Honour was unreasonable or plainly unjust so as to be manifestly excessive. There is no merit in the fourth ground of appeal.

58 Ground 3A asserts that the sentencing Judge was not informed of, and therefore erred in failing to take into account, 17 days of pre-sentence custody in setting the appropriate sentence. The period of time relied upon by the Applicant in this respect is the period from 15 November 2005 to 1 December 2005.

59 Counsel for the Applicant submitted that this Court should intervene because of suggested error on the part of the sentencing Judge in failing to give the Applicant the benefit of this period of pre-sentence custody. I do not accept this submission. The Applicant was bail refused in the period 15 November 2005 to 1 December 2005 in relation to a number of offences, only one of which gives rise to the present proceedings. There was no obligation on the part of the sentencing Judge to give the Applicant automatic credit for time spent in custody which was not wholly referable to the offence for which she was to be sentenced: R v Finney [2002] NSWCCA 533 at [48]-[50]; Huntingdon v R [2007] NSWCCA 196 at [26]. There is no merit in Ground 3A.

60 Even if there was some merit in one or more of the grounds of appeal, I am entirely unpersuaded that a lesser sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.

61 In these circumstances, there being no substance in the Applicant’s grounds, I would refuse an extension of time for the purpose of the Applicant seeking leave to appeal with respect to the sentence imposed by his Honour Judge Taylor on 6 October 2006.

Application for Leave to Appeal with Respect to Sentence Imposed on 18 December 2008

62 The Applicant does not require an extension of time to seek leave to appeal from the decision of his Honour Judge Hosking SC on 18 December 2008.

63 There are two grounds of appeal with respect to the sentence imposed on that day. The first ground asserts that his Honour failed to correctly account for 12 days of additional pre-sentence custody so that the sentence ought to have commenced on 8 August 2008, and not 20 August 2008. The Applicant was in custody, bail refused on other matters, from 8 August 2008.

64 In oral argument, Ms Beckett pointed as well to a period of eight days between 17 and 24 September 2007 when the Applicant was in custody, bail refused, as a result of call up for breach of the bond.

65 Ms Beckett acknowledged that his Honour had no power to revisit the term of the sentence and the non-parole period set by his Honour Judge Taylor: Rickard v R [2007] NSWCCA 332 at [18]-[27]. The only complaint raised about this sentence concerns the commencement date.

66 In my view, there is no merit in this ground of appeal. The Applicant was apprehended on 8 August 2008 for offences of shoplifting and destroying property. Her incarceration on 8 August 2008 resulted from her arrest for offences committed that day. There was no obligation on the sentencing Judge to date the sentence from 8 August 2008: R v Finney; Huntingdon v R. With respect to the eight-day period between 17 and 24 September 2007, I am not persuaded that error has been demonstrated by way of the failure to refer to this period or to take it into account. The Applicant had no automatic entitlement to credit for this period.

67 The second ground advanced with respect to the orders of 18 December 2008 repeats the argument advanced as Ground 3A concerning the 17 days of pre-sentence custody in 2005. For reasons already expressed (at [59]), there is no substance in this argument and it ought be rejected.

68 In any event, it should be observed that the combination of custodial orders and sentences affecting the Applicant indicate that his Honour’s decision to backdate the present sentence to 20 August 2008 operated heavily in the Applicant’s favour. As a result of sentences imposed for other matters, the Applicant is to serve a non-parole period of just over six months (14 May 2009 to 19 November 2009) which is solely referable to the present offence. No error has been demonstrated with respect to the order made on 18 December 2008. No lesser sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.

69 Given the view which I have formed concerning the merits of the proposed appeal, I would refuse leave to appeal against the sentence imposed on 18 December 2008: Ta v R [2009] NSWCCA 196 at [36].

Conclusion

70 There may be circumstances where this Court extends time to intervene with respect to an old sentencing decision because of particular features of the case. The present application does not fall into this category.

71 The Applicant was granted conditional liberty by his Honour Judge Taylor, as requested by her lawyer, and she breached that trust in a number of respects thereafter. I have kept in mind the Applicant’s difficult personal circumstances, which have no doubt led to a range of rehabilitative sentencing options being used in her case. The Applicant’s offences have posed challenges for sentencing courts.

72 Nevertheless, in my view, the implementation of the original sentencing order does not give rise to any injustice with respect to this Applicant. Because of sentences imposed upon her for offences committed whilst subject to conditional liberty, only part of the sentence of two years’ imprisonment imposed for a serious offence of stealing from the person will be served as imprisonment solely referable to that offence. The considerations referred to at [15] to [18] above have application to this case.

73 I propose the following orders:

(a) extension of time to seek leave to appeal against sentence imposed in the Sydney District Court on 6 October 2006 refused;

(b) leave to appeal against sentence imposed in the Sydney District Court on 18 December 2008 refused.

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