R v DITFORT [1999] NSWCCA 442

New South Wales Court of Criminal Appeal 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.

- 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