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 lengthy criminal record and had been released on parole following an earlier sentence only nine days before the commission of this offence. In a comprehensive psychological report Ms Anita Duffy recorded the applicant’s earlier history. He began to drink alcohol in his early teens, to use marijuana at seventeen, and heroin in about 1988, when he was twenty-three. This followed two significant dislocating events, the death of his mother and the termination of a relationship with a girlfriend. All the applicant’s offences have been drug related. He has attempted rehabilitation and a methadone programme. He has suffered from depression. His de facto wife has terminated their relationship. Ms Duffy related that the applicant now is strongly motivated to change his behaviour and that the time is opportune for him to commence a rehabilitation programme.

5    The judge accepted Ms Duffy’s view but correctly identified the applicant’s previous lengthy record and the fact that the offence was committed whilst on parole as factors militating against significant leniency.

6    The applicant was on parole serving the balance of sentences imposed at the Penrith District Court on 27 October 1995 and Campbelltown District Court on 19 June 1997, mainly the latter. The details given to the judge were skimpy. The parole orders were not tendered before the judge. However, he did have the report of 16 October 1998 of a Probation Officer of the Probation and Parole Service which recorded:

“The NSW Parole Board have been informed of the offender’s recent offence which contravenes his current Parole Order. If a remand period is granted this Service will provide the Parole Board with reports in relation to the offender’s progress while participating in The Glen Programme for rehabilitation. Consideration to the revocation of his Parole Order would be deferred until the present matters are dealt with”.

7    By his notice of appeal of 22 October 1998 received in the Registry on 5 November 1998 the applicant raised a number of grounds:

“Sentence manifestly unreasonable
Backdate not received
Sentencing Judge applied wrong principles of law when imposing
sentence

Sentencing Judge did not take into account both subjective and
objective facts when determining the sentence”

8    By letter of 7 October 1999 the appellant advised that he relied on the following reasons in support his appeal:

“(1) My sentence was not backdated from 16/10/98 to 12/4/98. Neither was any reason given as to why this was not granted. I refer to Butterworths Unreported Judgements REGINA v MURRAY RICHARD DEEBLE BC 910 1554 page 2 paragraph 3.
(2) The sentencing Judge did not take fully into account my early plea and that I fully co-operated with the Police.
(3) My co-accused were sentenced approx 2 month after I was sentenced and received a much lower sentence than I did. Both of them received a minimum of 9 month with a larger amount of charges than I had.
(4) On page 2 paragraph 25, 30, page 3 paragraph 5, 10 and 15 of the transcript of proceeding the sentencing Judge clearly stated from the Police records that both my co-accused were actively involved in the break in according to the Police surveillance. If I were involved in the actual breaking into of the premises the notes of the Police surveillance would have mentioned my name along with the others who were actually involved with the break in. The Judge mentioned on page 5 paragraph 25 that all three were actively involved in the break and enter even though on page 2 and 3 it states clearly that only the co-accused were involved with the actual break and enter.”

9    The applicant lodged a further written submission in which he complained that it was apparent from the judge’s reasons that he had never turned his mind to the question of backdating the sentence which he imposed. The judge’s remarks contain no discussion as to the date on which the sentence should commence. The applicant further complained that the judge neither backdated his sentence to the day when he was first taken into custody for the subject offence nor stated why he was not doing so. There is substance in these complaints.

10    The decision of this Court in R v. Deeble, unreported, 19 September 1991 per Badgery- Parker J establishes that usually, and unless there is good reason to the contrary, a sentence should be backdated to the commencement of the pre-sentence custody where that custody is referable only to the offence in respect of which the sentence is being passed. Further, if the judge does not backdate the sentence he should clearly state his reasons for not doing so. Backdating does not usually arise where the custody is to do with some other offence unrelated to the offence for which the offender is before the court. Special consideration has to be given to backdating where portion of the pre-sentence custody relates to some other offence and portion to the offence being dealt with and also where the pre-sentence custody relates to several offences and there are not discrete periods relating to each offence. Credit is given for any pre-sentence custody in a fair way.

11    At the date of sentencing, the parole order had not been revoked so that the custody of the applicant was solely referable to the offence for which he was being sentenced. In the normal course, that would lead to the sentence being backdated to the day he was first taken into custody. In the present case where there was a probability that the parole order would be revoked it was unsatisfactory to have to date the sentence from the date on which he went into custody. However, the judge could not proceed on the basis that the parole order would be revoked. If that did not happen or it was determined, for example, that the applicant should only serve 3 months it would be unsatisfactory and unfair to date the sentence from the date of its imposition.

12    The solution to the dilemma lies in the judge considering under s. 35 of the Sentencing Act 1989 whether he should make an order revoking the parole order or directing that the parole order be taken to have been revoked as from 12 April 1998. If he directed that the parole order be revoked as from that day it would be in order for the sentence to begin on the date of its imposition. If the judge thought that the parole order should not be revoked or that the applicant should only serve a portion of his parole period in custody he would backdate the sentence accordingly. As the selection of the commencing date affects the liberty of the subject, the parole position should not be left to conjecture or even educated assessments of what may happen.

13    The judge did not consider whether he should make an order under s. 35. It is difficult, if not impossible to select the correct commencing date for a sentence where the offender has not been dealt with by the Parole Board or the judge does not deal with the question of the revocation of parole.

14    The Parole Board at its meeting of 27 October 1998 revoked the Parole Order and directed that under the Sentencing Act 1989, 12 April 1998 was to be treated as the date of revocation. The applicant was notified that the Parole Board would reconsider the revocation of his parole on 30 November 1998 and that it would give particular consideration to the following aspects of his parole:

“Due to breach of conditions 1 - Penrith District Court, 16 October 1998 and (3) (a) Penrith District Court 16 October 1998.”

The Board reconsidered the revocation of the applicant’s parole at its meeting on 30 November 1998 and affirmed its earlier revocation.

15    The applicant has established error in the sentencing process. The subsequent revocation and its backdating cannot be relied upon to justify the correctness of the sentencing process which concluded on 16 October 1998. As at that day the parole order was still in force and the applicant had been in gaol solely in connection with the subject offence.

16    The next complaint is that the judge had not taken into account the delay in dealing with his case which led to a later starting point for his sentence and a longer period in prison. It is to be noted that the applicant was initially brought before the Local Court on 13 April 1998 having made extensive admissions in his recorded interview with the police on 12 April 1998. The committal proceedings took place on 18 June 1998. The applicant pleaded guilty on indictment on 31 July 1998. The sentencing hearing was fixed for 16 October 1998. It was obvious from the terms of the recorded interview that there would have to be a plea of guilty. If the court had been able to deal with the applicant more expeditiously the sentence would have commenced from an earlier date. The process from arrest to sentence took 6 months. This is a substantial time given the terms of the record of interview.

17    The parity ground of appeal has no substance. Some of the other grounds in the documents have been covered earlier. The remainder have no substance.

18    Error having been demonstrated it falls to this Court to re-sentence the applicant and it must do so as at the present time. The parole order has now been revoked. The procedural flaws were unfortunate. On the other hand the offence was serious and the applicant had a poor record. The length of the sentences imposed is not open to challenge. However, in the whole of the circumstances the correct result is to backdate the sentence to 12 July 1998. The judge was correct in holding that there were special circumstances and in the proportions he fixed.

19    These orders are made:

1. Leave to appeal against sentence granted.

2. Appeal allowed. The commencing and finishing dates of the sentences imposed are set aside.
3. In lieu thereof, the commencing date of the minimum term 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 lengthy criminal record and had been released on parole following an earlier sentence only nine days before the commission of this offence. In a comprehensive psychological report Ms Anita Duffy recorded the applicant’s earlier history. He began to drink alcohol in his early teens, to use marijuana at seventeen, and heroin in about 1988, when he was twenty-three. This followed two significant dislocating events, the death of his mother and the termination of a relationship with a girlfriend. All the applicant’s offences have been drug related. He has attempted rehabilitation and a methadone programme. He has suffered from depression. His de facto wife has terminated their relationship. Ms Duffy related that the applicant now is strongly motivated to change his behaviour and that the time is opportune for him to commence a rehabilitation programme.

5    The judge accepted Ms Duffy’s view but correctly identified the applicant’s previous lengthy record and the fact that the offence was committed whilst on parole as factors militating against significant leniency.

6    The applicant was on parole serving the balance of sentences imposed at the Penrith District Court on 27 October 1995 and Campbelltown District Court on 19 June 1997, mainly the latter. The details given to the judge were skimpy. The parole orders were not tendered before the judge. However, he did have the report of 16 October 1998 of a Probation Officer of the Probation and Parole Service which recorded:

“The NSW Parole Board have been informed of the offender’s recent offence which contravenes his current Parole Order. If a remand period is granted this Service will provide the Parole Board with reports in relation to the offender’s progress while participating in The Glen Programme for rehabilitation. Consideration to the revocation of his Parole Order would be deferred until the present matters are dealt with”.

7    By his notice of appeal of 22 October 1998 received in the Registry on 5 November 1998 the applicant raised a number of grounds:

“Sentence manifestly unreasonable
Backdate not received
Sentencing Judge applied wrong principles of law when imposing
sentence

Sentencing Judge did not take into account both subjective and
objective facts when determining the sentence”

8    By letter of 7 October 1999 the appellant advised that he relied on the following reasons in support his appeal:

“(1) My sentence was not backdated from 16/10/98 to 12/4/98. Neither was any reason given as to why this was not granted. I refer to Butterworths Unreported Judgements REGINA v MURRAY RICHARD DEEBLE BC 910 1554 page 2 paragraph 3.
(2) The sentencing Judge did not take fully into account my early plea and that I fully co-operated with the Police.
(3) My co-accused were sentenced approx 2 month after I was sentenced and received a much lower sentence than I did. Both of them received a minimum of 9 month with a larger amount of charges than I had.
(4) On page 2 paragraph 25, 30, page 3 paragraph 5, 10 and 15 of the transcript of proceeding the sentencing Judge clearly stated from the Police records that both my co-accused were actively involved in the break in according to the Police surveillance. If I were involved in the actual breaking into of the premises the notes of the Police surveillance would have mentioned my name along with the others who were actually involved with the break in. The Judge mentioned on page 5 paragraph 25 that all three were actively involved in the break and enter even though on page 2 and 3 it states clearly that only the co-accused were involved with the actual break and enter.”

9    The applicant lodged a further written submission in which he complained that it was apparent from the judge’s reasons that he had never turned his mind to the question of backdating the sentence which he imposed. The judge’s remarks contain no discussion as to the date on which the sentence should commence. The applicant further complained that the judge neither backdated his sentence to the day when he was first taken into custody for the subject offence nor stated why he was not doing so. There is substance in these complaints.

10    The decision of this Court in R v. Deeble, unreported, 19 September 1991 per Badgery- Parker J establishes that usually, and unless there is good reason to the contrary, a sentence should be backdated to the commencement of the pre-sentence custody where that custody is referable only to the offence in respect of which the sentence is being passed. Further, if the judge does not backdate the sentence he should clearly state his reasons for not doing so. Backdating does not usually arise where the custody is to do with some other offence unrelated to the offence for which the offender is before the court. Special consideration has to be given to backdating where portion of the pre-sentence custody relates to some other offence and portion to the offence being dealt with and also where the pre-sentence custody relates to several offences and there are not discrete periods relating to each offence. Credit is given for any pre-sentence custody in a fair way.

11    At the date of sentencing, the parole order had not been revoked so that the custody of the applicant was solely referable to the offence for which he was being sentenced. In the normal course, that would lead to the sentence being backdated to the day he was first taken into custody. In the present case where there was a probability that the parole order would be revoked it was unsatisfactory to have to date the sentence from the date on which he went into custody. However, the judge could not proceed on the basis that the parole order would be revoked. If that did not happen or it was determined, for example, that the applicant should only serve 3 months it would be unsatisfactory and unfair to date the sentence from the date of its imposition.

12    The solution to the dilemma lies in the judge considering under s. 35 of the Sentencing Act 1989 whether he should make an order revoking the parole order or directing that the parole order be taken to have been revoked as from 12 April 1998. If he directed that the parole order be revoked as from that day it would be in order for the sentence to begin on the date of its imposition. If the judge thought that the parole order should not be revoked or that the applicant should only serve a portion of his parole period in custody he would backdate the sentence accordingly. As the selection of the commencing date affects the liberty of the subject, the parole position should not be left to conjecture or even educated assessments of what may happen.

13    The judge did not consider whether he should make an order under s. 35. It is difficult, if not impossible to select the correct commencing date for a sentence where the offender has not been dealt with by the Parole Board or the judge does not deal with the question of the revocation of parole.

14    The Parole Board at its meeting of 27 October 1998 revoked the Parole Order and directed that under the Sentencing Act 1989, 12 April 1998 was to be treated as the date of revocation. The applicant was notified that the Parole Board would reconsider the revocation of his parole on 30 November 1998 and that it would give particular consideration to the following aspects of his parole:

“Due to breach of conditions 1 - Penrith District Court, 16 October 1998 and (3) (a) Penrith District Court 16 October 1998.”

The Board reconsidered the revocation of the applicant’s parole at its meeting on 30 November 1998 and affirmed its earlier revocation.

15    The applicant has established error in the sentencing process. The subsequent revocation and its backdating cannot be relied upon to justify the correctness of the sentencing process which concluded on 16 October 1998. As at that day the parole order was still in force and the applicant had been in gaol solely in connection with the subject offence.

16    The next complaint is that the judge had not taken into account the delay in dealing with his case which led to a later starting point for his sentence and a longer period in prison. It is to be noted that the applicant was initially brought before the Local Court on 13 April 1998 having made extensive admissions in his recorded interview with the police on 12 April 1998. The committal proceedings took place on 18 June 1998. The applicant pleaded guilty on indictment on 31 July 1998. The sentencing hearing was fixed for 16 October 1998. It was obvious from the terms of the recorded interview that there would have to be a plea of guilty. If the court had been able to deal with the applicant more expeditiously the sentence would have commenced from an earlier date. The process from arrest to sentence took 6 months. This is a substantial time given the terms of the record of interview.

17    The parity ground of appeal has no substance. Some of the other grounds in the documents have been covered earlier. The remainder have no substance.

18    Error having been demonstrated it falls to this Court to re-sentence the applicant and it must do so as at the present time. The parole order has now been revoked. The procedural flaws were unfortunate. On the other hand the offence was serious and the applicant had a poor record. The length of the sentences imposed is not open to challenge. However, in the whole of the circumstances the correct result is to backdate the sentence to 12 July 1998. The judge was correct in holding that there were special circumstances and in the proportions he fixed.

19    These orders are made:

1. Leave to appeal against sentence granted.

2. Appeal allowed. The commencing and finishing dates of the sentences imposed are set aside.
3. In lieu thereof, the commencing date of the minimum term 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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