Forde v The Queen

[1999] WASCA 243

FORDE -v- R [1999] WASCA 243

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 243
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:128/1999	Heard:	3 NOVEMBER 1999
Coram:	PIDGEON J WALLWORK J ANDERSON J	Delivered:	3/11/99
No of pages:	4	Judgment Part:	1 of 1
Result:	Leave to appeal refused
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Parties:	PAUL CHRISTOPHER FORDE THE QUEEN
Catchwords:	Criminal law and procedure Sentencing Backdating of sentence A Judge on murder count was unable to backdate the sentence because of a backdating of an earlier sentence Order sought to overcome this situation Held no power to make the order sought Turns on own facts
Legislation:	Nil
Case References:	Nil Ratcliff v R, unreported; CCA SCt of WA; Library No 980651; 3 November 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : FORDE -v- R [1999] WASCA 243 CORAM : PIDGEON J

WALLWORK J
ANDERSON J

HEARD : 3 NOVEMBER 1999 DELIVERED : 3 NOVEMBER 1999 FILE NO/S : CCA 128 of 1999 BETWEEN : PAUL CHRISTOPHER FORDE

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Backdating of sentence - A Judge on murder count was unable to backdate the sentence because of a backdating of an earlier sentence - Order sought to overcome this situation - Held no power to make the order sought - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

(Page 2)

Representation:

Counsel:

Applicant : Mr A E Monisse
Respondent : Mr L P Rayney

Solicitors:

Applicant : Kott Gunning
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):
Nil

Case(s) also cited:

Ratcliff v R, unreported; CCA SCt of WA; Library No 980651; 3 November 1998

(Page 3)

1 PIDGEON J : There is before the Court an application for leave to appeal arising in the following circumstances. The applicant appeared before his Honour Judge Fenbury on 2 June 1999 on some District Court offences for which he received a total sentence of 2 years imprisonment, being two cumulative terms of 1 year, and there is no complaint against the length of those terms.

2 It was anticipated at the time that he intended to plead guilty in the Supreme Court and to be sentenced on a charge of murder and the learned sentencing Judge, Judge Fenbury, reached the view that the sentences he was imposing should in effect run concurrently with the murder term. In the belief that the best way to achieve that was to backdate the sentence from the time the applicant was first in custody, he did backdate it to 31 January 1998. That was felt to be the best means to give effect to what his intentions were. It was thought to be the most favourable situation for the prisoner.

3 When it came to sentencing for murder before Templeman J on 15 June, it was found that Templeman J could not backdate his sentence by reason of the backdating that had already taken place. So the effect was that the time spent in custody was simply not available to be credited to the count for murder. The orders that the appellant seeks to overcome this situation are:

"I seek orders upon the hearing of my appeal that the custodial sentence imposed by his Honour Judge Fenbury commence on or after 15 June 1999 and that the custodial sentence imposed by Templeman J commence on 31 January 1998."

4 We in this Court must resolve the question on the basis that we simply have not power to make the orders sought. There is no power for Judge Fenbury to have imposed his sentence to operate at a future time and there would be no power for us to substitute such a sentence and there would be no power for us to interfere with the sentence of Templeman J. On this particular appeal even if we could review Templeman J's sentence we still could not backdate it by reason of the earlier backdating. We must resolve the appeal on that basis, that there is no power to make the order.

5 One of the ways sought originally was that had the difficulty been appreciated at the time, Judge Fenbury could have been asked to postpone his sentencing. Whether or not he would have done so, we do not know, but that was one possible way out of it. As I see it, this application must

(Page 4)

be refused on the basis that we have no power to make the order sought and we would not comment further on the submissions made. One of the submissions was that Templeman J did have the matter in mind when he fixed the minimum term.

6 WALLWORK J : I agree with the learned Presiding Judge that we do not have the power to interfere with the time at which Templeman J ordered the sentence to commence as requested in paragraph 7 of the appeal notice which asked that we order that the custodial sentence imposed by his Honour Templeman J commence on 31 January 1998. Because we have not got the power to do that, in my view this application should be refused.

7 ANDERSON J : I also agree that the Court does not have the power to make the order sought in ground 7 in the grounds of appeal and I agree that the application must be refused.