R v Ditfort - [1999] NSWCCA 442

CITATION: R v DITFORT [1999] NSWCCA 442

FILE NUMBER(S): CCA 60665/98

HEARING DATE(S): 25 October 1999

JUDGMENT DATE:
22 December 1999

PARTIES :

REGINA v Michael DITFORT

JUDGMENT OF: Simpson J at 1; Smart AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/1208

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL: L Lamprati - Crown
Applicant in person

SOLICITORS: S E O'Connor - Crown

CATCHWORDS:

ACTS CITED: Crimes Act 1900
Sentencing Act 1989

CASES CITED:
R v Deeble, unreported 19 September 1991 per Badgery-Parker J

DECISION: Leave to appeal against sentence granted; Appeal Allowed. Commencing and finishing dates of the sentences imposed are set aside; In lieu thereof, the commencing date of the minimum of 2 years penal servitude is 12 July 1998; and the expiry date 11 July 2000 and the commencing date of the additional term of 18 months is 12 July 2000 and the expiry date 11 January 2002.

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IN THE COURT OF
CRIMINAL APPEAL

60665/98

SIMPSON J
SMART AJ

22 December 1999

REGINA v Michael John DITFORT

JUDGMENT

THE COURT:-

1 The applicant seeks leave to appeal a sentence imposed on him by Delaney DCJ following his plea of guilty to a charge of break and enter with intent to commit a felony in circumstances of aggravation committed on 12 April 1998. The charge was brought under s 113(2) of the Crimes Act 1900 and carries a maximum penalty of penal servitude for fourteen years. The sentence comprised a minimum term of two years and an additional term of eighteen months. The minimum term was to commence on the day sentence was imposed, 16 October 1998. The main issue in this application was the correct commencing date of the sentence. Section 9 (3) of the Sentencing Act 1989 provides that if the further sentence is imposed during the additional term for the previous sentence or during the additional term that last expires, the further sentence must commence on the day it is imposed or on an earlier day specified by the Court.
2    The offence was committed in the company of two co-offenders, one of whom was in possession of a length of timber and the other of whom was in possession of a cricket bat. The co-offenders used these weapons to smash the glass window of a shopping arcade in Toongabbie and to enter a store in the arcade. The two co-offenders removed money from the store. The applicant took a quantity of cigarettes. The three were arrested very shortly afterwards.
3    The judge found that special circumstances within the meaning of s 5 of the Sentencing Act 1989 existed justifying departure from the ratio contained within that section. He identified them as the applicant’s “cultural and Aboriginal background…and his deprived upbringing…and the need for rehabilitation”.
4    There was extensive subjective material placed before the sentencing judge. The applicant was born on 18 October 1965 and was thirty-two years of age at the time of the offence. He had a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ditfort

Details

AGLC: R v Ditfort [1999] NSWCCA 442
Case: [1999] NSWCCA 442
Decision Date: 22 December 1999

CaseChat Overview and Summary

In the case of Regina v Michael John Ditfort, the applicant sought leave to appeal a sentence imposed by Delaney DCJ following his guilty plea to a charge of break and enter with intent to commit a felony in circumstances of aggravation. The primary issue in the appeal was the correct starting date of the sentence. The applicant argued that the sentence should have been backdated to the date of the offence, 12 April 1998, instead of the date of sentencing, 16 October 1998. The Court of Criminal Appeal addressed this issue and found that the sentencing judge did not adequately consider the appropriate starting date for the sentence, which should typically be backdated to the date of pre-sentence custody if it relates solely to the offence for which the sentence is being passed. The judge also failed to address the Parole Board's revocation of the applicant's parole, which occurred after the sentencing hearing.

The Court of Criminal Appeal concluded that the applicant had demonstrated an error in the sentencing process. The procedural flaws, although unfortunate, did not negate the seriousness of the offence and the applicant's poor criminal record. The Court decided to re-sentence the applicant, setting the correct starting date for the sentence to 12 July 1998, the date the applicant was first taken into custody for the offence. The sentences were modified accordingly, with the minimum term of two years penal servitude commencing on 12 July 1998 and ending on 11 July 2000, and the additional term of eighteen months commencing on 12 July 2000 and ending on 11 January 2002.

Orders