Newton, Timothy v The Queen

[2009] NSWDC 161

CITATION:	Newton, Timothy v R [2009] NSWDC 161
JUDGMENT DATE:	8 May 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The appeal is allowed. The sentences are varied to commence on 3 March 2008. In all other respects the orders of the magistrate are confirmed.
CATCHWORDS:	CRIMINAL LAW - Sentence appeal - concurrent sentences - sentences not back dated - unrepresented in Local Court
LEGISLATION CITED:	Crimes Act 1900 s 195(1)(b) Crimes (Appeal and Review Act) 2001 s 20(2) Drug Misuse and Trafficking Act 1985 s 10(1) Weapons Prohibition Act 1988 s 7(1) Firearms Act 1996 s 65(3)
PARTIES:	Timothy Newton R
FILE NUMBER(S):	2008/2115
SOLICITORS:	Legal Aid Commission of NSW (appellant) NSW DPP (respondent)

JUDGMENT

1 Timothy Adam Newton has appealed to this Court from sentences imposed in the Local Court. On 27 November 2008 he was sentenced by a Magistrate at Parramatta Local Court for five offences. He appeals saying that those sentences were too severe.

2 The point argued by Mr Leary who appears for Mr Newton is a fairly straightforward point. Mr Leary argues that the sentences were all dated from one date and failed to take into account a period of pre-sentence custody of about twenty-one days.

BRYAN: Sorry your Honour that should be one month and 21 days.
HIS HONOUR: That explains my note, 1M, yes. I was trying to work out what it is.
HIS HONOUR: One month and twenty-one days. The sentences all dated from 24 April 2008. It is agreed between Mr Leary and Ms Bryan who appears for the respondent Director of Public Prosecutions that if the appeal on that point is upheld the correct date for the sentences to commence would be 3 March 2008.

3 I need to say briefly a little about what happened and about the crimes which were committed for which Mr Newton was sentenced. Three of the crimes were committed on 28 December 2007. There was an offence of possessing a prohibited drug. That is a crime under s 10(1) of the Drug Misuse and Trafficking Act 1985. For that crime Mr Newton was sentenced to six months fixed term to date from 24 April 2008. There is a crime of possessing a prohibited weapon without a permit which is again s 7(1) of the Weapons Prohibition Act 1988. For that crime the magistrate imposed a sentence of three months to date from 24 April 2008. Finally, there was an offence of possessing ammunition without a permit or authority. That is an offence against s 65(3) of the Firearms Act 1996 and for that crime the sentence imposed was six months fixed term imprisonment.

4 On the day that he committed these crimes, 28 December 2007, police noticed Mr Newton was in a car in Surry Hills. They spoke to him, they became suspicious, they found that he had in his possession a lot of money in one-hundred dollar and fifty-dollar bank notes. They searched him and found a small plastic bag containing the drug MDMA acknowledged by Mr Newton to be “just a bit of speed”. They searched his car and found two black-coloured swords made of metal with sharpened edges which Mr Newton said he has for defence and also nine live bullets which he said somebody had given to him.

5 The other two crimes for which he was sentenced on 27 November 2008 were intentionally or recklessly damaging property by fire. That is a crime under s 195(1)(b) of the Crimes Act 1900. For that crime the magistrate sentenced Mr Newton to fifteen months imprisonment with a non-parole period of ten months to date from 24 April 2008. He was convicted of the same crime but regarding different property and received the same sentence. Both of those sentences were concurrent.

6 Once again it is important to note what happened which brought about those charges. The offences arose because of a domestic dispute between Mr Newton and his then girlfriend. The crimes were committed on 8 March 2008. After an argument had occurred at about half-past eight in the evening both Mr Newton and his girlfriend went in different directions but what Mr Newton did was to get all of his girlfriend’s belongings, including clothes, jewellery, photographs and furniture and put it in the driveway of the place where they were living at the time. He put the property very close to the house and the garage of the property and also near a car belonging to the neighbour. Police thought he used some sort of accelerant and lit the fire. The police described the fire as quickly gaining intensity and generating a huge amount of heat. The heat was so much that it damaged the garage and house of the place where Mr Newton was living with his girlfriend and the car parked next door. He was seen standing at about half-past ten that night watching the fire. The car suffered major heat damage to the entire right side of the car as well as to other parts. The garage door of the house where Mr Newton was living was damaged as well as the driveway. The damage to the house and driveway amounted to some $12,000 and the damage to the car to just over $2000. These two offences gave rise to the two charges that I have referred to. Mr Newton pleaded guilty to both charges.

7 As can be seen from my description of the sentences they all dated from the same date. This was the basis of Ms Bryan’s submission that the appeal should be dismissed. Her argument was that receiving concurrent sentences for all five crimes already included a substantial element of leniency. The crimes were committed on two separate occasions, the crimes involving the fire damaged property belonging to two different owners.

8 I think her point is a very good one. Nevertheless I propose to take the unusual step of upholding the appeal for this reason. Mr Newton was apparently unrepresented before the magistrate when he was sentenced for these crimes. It was an oversight on the part of a no doubt busy magistrate whereby the sentences were not backdated to take into account the one month and twenty-one days of custody served by Mr Newton regarding these crimes. In my opinion it is important that any offender clearly sees that their custodial sentence has taken into account any period which they have already spent in custody which is directly attributable to those offences. This is particularly so if that offender was unrepresented at the time.

9 For that reason I propose to allow the appeal and to adjust those sentences accordingly despite the fact that it will make even more lenient the series of sentences which Ms Bryan correctly describes as already lenient.

10 Accordingly the formal orders which I make in determining these appeals against sentence are these. Under s 20(2) of the Crimes (Appeal and Review Act) 2001 I determine these appeals against sentence by varying each of the sentences. The variation is that each of the sentences will commence from 3 March 2008. In all other respects I confirm the orders of the magistrate.

BRYAN: Court pleases.
HIS HONOUR: Now I will probably separately, it’s a separate exercise, impose sentence. So you won your appeal Mr Newton, those sentences have been back-dated to 3 March.
APPELLANT: Thank you your Honour.
HIS HONOUR: Now I’m going to sentence you for the other matters, and once again there will be some talking and I will impose the sentence
FOR SENTENCE SEE SEPARATE TRANSCRIPT

11 All right, I now return to my judgment in the appeal. I varied the magistrate’s sentences to commence them on 3 March 2008. As a result of that variation the sentences are adjusted as follows. For each of the offences of damaging property by fire Mr Newton is sentenced to fifteen months imprisonment. I fix a non-parole period in each case of ten months to commence on 3 March 2008 and to expire on 2 January 2009. The balance of the term is five months to commence on 3 January 2009 and to expire on 2 June 2009. For each of the offences of possessing a prohibited drug and possessing ammunition Mr Newton is sentenced to six months imprisonment to commence on 3 March 2008 and to expire on 2 September 2008. For the offence of possessing a prohibited weapon Mr Newton is sentenced to three months imprisonment to commence on 3 March 2008 and to expire on 2 June 2008.

HIS HONOUR: So Mr Newton to explain that to you. Your sentences for all of those charges from the magistrate are backdated to 3 March 2008, do you understand that?

APPELLANT: Yeah.

HIS HONOUR: Three of them have expired for the drug, the ammunition and the weapons. They have all expired, the six months expired on 2 September last year and the three month ones on 2 June last year: they’re finished. And your non-parole period for the two fire damage ones have expired, they expired on 2 January this year. But you’re still serving the balance of parole for the two fire ones and your sentence for the two fire offences finishes on 2 June 2009, the other two 15 months sentences. So you got 15 months for the fire offences, they start at 3 March 2008 and so they expire on 2 June 2009.

APPELLANT: Yeah.

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