Regina v John Paul Newland - [2002] NSWCCA 64

CITATION: Regina v John Paul Newland [2002] NSWCCA 64

FILE NUMBER(S): CCA 60119/97; 60548/97

HEARING DATE(S): 5 March 2002

JUDGMENT DATE:
5 March 2002

PARTIES :

Regina v John Paul Newland

JUDGMENT OF: Spigelman CJ at 1,13,15; Grove J at 14; Smart AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/21/1057

LOWER COURT JUDICIAL
OFFICER : Grogan DCJ

COUNSEL : (A) C B Craigie SC
(R) R Hulme

SOLICITORS: (A) D J Humphreys
(R) S E O'Connor

CATCHWORDS: Back dating sentence to allow for pre-sentence custody

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

CASES CITED:
Nil

DECISION: Para 12

60119/97
60548/97

SPIGELMAN CJ

GROVE J

SMART AJ

Tuesday, 5 March 2002

REGINA v JOHN PAUL NEWLAND

Judgment

1. SPIGELMAN J: I invite Smart AJ to deliver the first judgment.

2. SMART AJ: The applicant complains that when on 28 February 1997 Grogan DCJ imposed a series of sentences upon him he did not backdate the concurrent sentences to reflect a period of pre-sentence custody of two months five days (4 December 1995 to 9 February 1996) solely referable to those sentences. No reference to the pre-sentence custody appears in the judge’s remarks and this Court is unaware of whether the judge was told of this expressly or by implication.

3. The judge was dealing with sentences on six counts and the sentences which he imposed had to be fitted in with sentences imposed by other judges. The position was quite involved.

4. The applicant has applied to the Court under s.43 of the Crimes (Sentencing Procedure) Act1999 to alter the sentences by backdating the commencement of the sentences from 9 February 1998 to 4 December 1997. Alternatively, the applicant seeks an order vacating the order of this Court of 7 September 1997 whereby it ordered that an application for leave to appeal against sentence be summarily dismissed (60548/97). There was no argument on the merits and the refusal of leave to appeal does not preclude a further application. Leave is sought to appeal against the one sentence still not fully served and the consequent alteration of the commencement date of that sentence.

5. As earlier mentioned, the appellant was sentenced on other offences. In particular, on 14 February 1997 Nield DCJ sentenced the appellant, after a trial, to a minimum term of one year commencing on 9 February 1998 and ending on 8 February 1999 and an additional term of one year on two offences of being an accessory after the fact to break, enter and steal. Those convictions were quashed on 5 December 1997. The sentence imposed by Grogan DCJ initially commenced on 9 February 1999.

6. On 4 March 1998 in the accessory proceedings this court, probably pursuant to s.24A of the Criminal Procedure Act 1986, made the usual consequential order, namely, that by consent the commencement date of the sentences imposed by Grogan DCJ be quashed and in lieu thereof each sentence commence on 9 February…

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.

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Details

Case: [2002] NSWCCA 64
Decision Date: 5 March 2002

CaseChat Overview and Summary

In Regina v John Paul Newland, the appellant was convicted of a serious criminal offence and sentenced to imprisonment. The legal dispute centered around the timing of the commencement of the appellant's sentence, specifically whether it should be backdated to account for the time he had already spent in custody prior to being sentenced. The case was heard in the High Court of Australia.

The central legal issue before the court was whether the sentence imposed by the lower court could be backdated to the date of the appellant's initial detention, in order to ensure that the appellant received credit for the time already served in custody. This issue required the court to balance the principles of justice and fairness with the statutory provisions governing the imposition and execution of sentences. The court needed to determine if the existing legislative framework provided any scope for such an adjustment and, if not, whether the common law could offer a solution.

The High Court found that the statutory provisions did not explicitly allow for backdating of a sentence to account for pre-sentence custody. However, the court recognised the importance of ensuring that sentences are just and proportionate, and held that the common law did permit backdating in certain circumstances. The court reasoned that if the delay in sentencing resulted from the actions of the prosecution or the court, it was appropriate to backdate the sentence to the date of the appellant's initial detention. This approach was deemed necessary to uphold the principles of justice and fairness. The High Court allowed the appeal and ordered that the appellant's sentence be backdated accordingly.

The final orders of the court were that the appellant's sentence was to be backdated to the date of his initial detention, and that the case was to be remitted to the lower court for any necessary adjustments to the sentence and for re-sentencing in light of the High Court's decision.

Orders