Regina v Sorensen

[1999] NSWCCA 79

CITATION:	Regina v Sorensen [1999] NSWCCA 79
FILE NUMBER(S):	CCA 60422/98
HEARING DATE(S):	12/4/99
JUDGMENT DATE:	12 April 1999
PARTIES :	Regina Michael Christian Sorensen
JUDGMENT OF:	Grove J at 10; Kirby J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/1038; 96/21/1242
LOWER COURT JUDICIAL OFFICER:	O'Reilly DCJ

COUNSEL:	P Ingram (Cr) In Person (App)
SOLICITORS:	R Gray (Cr) -----
CATCHWORDS:	CRIMINAL LAW; Practice and Procedure; Sentence Appeal
DECISION:	Appeal Dismissed

IN THE COURT OF

CRIMINAL APPEAL

60422/98
GROVE J
KIRBY J

Monday 12 April 1999

REGINA v Michael Christian SORENSEN

JUDGMENT

1 KIRBY J: This is a matter in which the applicant has appeared in person. He seeks leave to appeal against the sentence imposed by his Honour Judge O'Reilly QC on 28 July 1998.
2 The chronology is somewhat complicated. The applicant was charged with three offences. The first indictment concerned an offence of receiving. There was also a Form 1 offence of being conveyed in a stolen vehicle. The second and third indictments concerned charges of armed robbery. Both the second and third offences occurred in similar circumstances. The applicant attempted, successfully in each case, to hold up a video store. Each video store was operated by a woman, and a knife was used as the weapon to threaten the person running the business. The offences occurred between April and September 1996. The applicant was, at various stages, arrested and given bail in respect of these various offences. Ultimately he spent a considerable period, some nine months and one week, in custody awaiting trial.
3 When the matter came before O'Reilly DCJ on 28 July 1998, the applicant was in custody in respect of unrelated offences. He had been sentenced in the Local Court in January of that year on various charges. His sentence was not due to expire until 11 October 1998.
4 His Honour ultimately imposed a four year term, which was to consist of a fixed term of three years with an additional term of one year.
5 No complaint is made by the applicant in respect of the severity of the sentence. Nor could there be in the circumstances. The one grievance that the applicant has sought to ventilate in this hearing concerns whether or not his Honour gave him credit for the nine months and one week.
6 His Honour, when sentencing the applicant, recognised that the applicant was entitled to credit in respect of the period awaiting trial. He said so more than once. Ultimately, his Honour determined that he would structure the sentence by selecting as the commencement date, the date upon which the applicant went into full time custody for the unrelated offences, namely, 11 December 1997. The sentence he was serving, as I have mentioned, was not due to expire until 11 October 1998, some ten and a half months or so away.
7 It appears, on my reading of his Honour's remarks, that by back dating the sentence to 11 December 1997, his Honour has taken account of the nine months and one week credit to which the applicant was entitled, and rounded off that figure to the benefit of the applicant.
8 No doubt his Honour could have expressed the sentence in a different way. He might have chosen to select as the commencement date the expiration of the various terms which the applicant was then serving, namely, 11 October 1998, and thereafter discounted the sentence which he thought appropriate by nine months and one week. However, as I say, it appears to me that the way in which his Honour approached the matter was ultimately to the benefit of the applicant. I therefore see no error in that approach.
9 I would, therefore, refuse leave to appeal and propose that the appeal be dismissed.
10 GROVE J: Yes I agree. The order of the Court will be as proposed by Kirby J.
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