New South Wales Court of Criminal Appeal CITATION : Regina v Jeanette VAN DAM [2001] NSWCCA 507 FILE NUMBER(S) : CCA 60429/01 HEARING DATE(S) : 12/12/01 JUDGMENT DATE : 12 December 2001 PARTIES : Regina Jeanette VAN DAM (Appellant) JUDGMENT OF : Greg James J; Bell J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/41/0080 LOWER COURT JUDICIAL Morgan DCJ OFFICER : COUNSEL : GE Smith (Crown) H Dhanji (Appellant) SOLICITORS : S E O'Connor DJ Humphreys (Appellant) LEGISLATION CITED : Crimes Act 1900 Crimes Sentencing Procedure Act 1999 CASES CITED: R v S A E (unreported) NSW CCA, 3 April 1997 DECISION : Leave to appeal against the severity of sentence granted; The appeal allowed; The sentence imposed in the District Court quashed and, in lieu thereof, the applicant sentenced to a term of three years imprisonment to date from 25 April 2001; Non-parole period of twelve months to date from 25 April 2001; The applicant to be released to parole at the expiration of the non-parole period on 24 April 2002 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60429/01 GREG JAMES J BELL J 12 December 2001 REGINA v Jeanette VAN DAM Judgment 1 GREG JAMES J: Bell J will give the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant in the District Court at Queanbeyan on 1 June 2001. 3 On 31 May 2001 the applicant adhered to her plea of guilty to one charge of break, enter and steal contrary to s 112(1) of the Crimes Act. On the following day the District Court judge imposed a sentence of three years imprisonment to commence on 31 May 2001 and expire on 30 May 2004. A non-parole period of one year, to commence on 31 May 2001 and expire on 30 May 2002, was specified. 4 No challenge is advanced as to the length of the sentence or the non-parole period. The sole ground taken concerns the commencement date of the sentence. 5 In order to deal with the challenge it is convenient to refer to the chronology set out in the written submissions prepared by the Crown. 6 On 8 April 2000 the applicant was released to probation. Between 6 and 8 October 2000 the applicant committed an offence of being an accessory after the fact to an offence of break, enter and steal ("the first Local Court offence"). On 25 October 2000 the applicant committed an offence of break, enter and steal, the subject of this appeal ("the appeal offence"). Between 13 and 14 November 2000 the applicant committed another break, enter and steal offence ("the second Local Court offence"). On 15 November 2000 the applicant was arrested and refused bail in relation to the first and second Local Court offences. On 7 December 2000 the probation period expired. 7 On 17 January 2001, while in custody bail refused for the first and second Local Court offences, the applicant was charged in relation to the appeal offence. Bail was also refused in relation to the appeal offence. On 21 February 2001 the applicant was released to bail in relation to the appeal offence and the Local Court offences. Between 8 and 9 March 2001 the applicant committed another break, enter and steal offence ("the third Local Court offence"). On 9 March 2001, having breached bail, the applicant was again refused bail in relation to the appeal offence and the Local Court offences. 8 On 26 April 2001 at Queanbeyan Local Court the applicant pleaded guilty to the appeal offence and was committed for sentence. On 31 May 2001 the applicant adhered to her plea of guilty before the District Court judge. On 1 June 2001 the sentencing judge imposed the sentence to which I have earlier referred. On 4 June 2001 the applicant was sentenced to a fixed term of nine months' imprisonment and two fixed terms of six months' imprisonment in relation to the Local Court offences. Those sentences were backdated to commence on 9 March 2001. 9 In the course of the sentence hearing in the District Court the judge enquired whether the applicant had served any period in custody in relation to the appeal offence. To this the representative of the Director of Public Prosecutions is recorded in the transcript as responding: "No, on each occasion she has been in custody it's in relation to other offences. It may well have been - there may have been a formal order refusing bail on this matter but it was as a result of her being in custody on fresh matters." 10 At an early point in the course of her reasons for sentence the judge observed: "It would appear that in respect of this particular matter she has not served any time in custody although she has been in custody relating to other matters." 11 It does not appear that the applicant's legal representative drew to the sentencing judge's attention such pre-sentence custody as was referable, in part at least, to the subject offence. As at 31 May 2001 the applicant had been in custody in the period 17 January to 21 February 2001 as a consequence of being bail refused in relation to the appeal offence and the first and second Local Court offences. Between 9 March and 31 May 2001 she was in custody bail refused in relation to the appeal offence and the first, second and third Local Court offences. 12 In written submissions filed on behalf of the applicant it was contended that at the time of sentence she should have been given the benefit of time spent in custody, from 17 January 2001 to 31 May 2001, less the sixteen days when she was on bail in the period between 22 February and 9 March 2001. This was said to amount to some 119 days' custody. 13 The alternative submission was that the applicant should have received the benefit of the period between 17 January and 21 February 2001, amounting to some thirty-six days custody. 14 In R v S A E (unreported) NSW CCA, 3 April 1997, Gleeson CJ (in a judgment with which Mason P and Dowd J agreed) observed at p 7: "The usual principle is that an allowance is made for pre-sentence custody but only in circumstances where such pre-sentence custody is exclusively referable to the crime for which the offender has been sentenced." 15 Section 47 of the Crimes Sentencing Procedure Act relevantly provides: "(2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (3) In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates." 16 The sentencing judge was not required, by virtue of s 47(3) (or s 24) of the Crimes Sentencing Procedure Act to backdate any sentence that she imposed to take account of the period of pre-sentence custody when the applicant stood bail refused in the relation to the subject offence and the Local Court offences. However, it was open to her to do so. In this respect it appears that she was misled by the statement made in answer to her question by the Crown. There is no suggestion of this being other than an inadvertent misstatement. It is unfortunate that the position was not corrected by the applicant's legal representative. 17 In the event, the Magistrate dealing with the applicant in respect of the Local Court offences on 4 June 2001 backdated the sentences which she imposed to 9 March 2001. 18 In the light of the circumstance that the applicant obtained the benefit of the pre-sentence custody between 9 March and 31 May 2001 when standing for sentence in respect of the Local Court offences, I see no merit to that part of this application which seeks to have the applicant receive credit on any re-sentencing for the same period of custody. 19 I am of the view that Mr Dhanji has made good his challenge that the sentencing judge was led, wrongly, into the belief that no time in custody was, on any view, referable to the subject offence. The true position is that it was open to the judge to have regard to the time spent on remand in structuring the sentence which she was to impose. 20 For this reason I would propose that the applicant be granted leave to appeal against the severity of the sentence. I would allow the appeal to the extent of backdating the applicant's sentence to 25 April 2001, thereby giving her credit for the thirty-six days of custody between 17 January 2001 and her release to bail on 21 February 2001. 21 The orders that I would propose are as follows: 1. Leave to appeal against the severity of sentence be granted. 2. The appeal be allowed. 3. The sentence imposed in the District Court be quashed and, in lieu thereof, the applicant be sentenced to a term of three years' imprisonment to date from 25 April 2001. I would specify a non-parole period of twelve months to date from 25 April 2001 and direct that the applicant be released to parole at the expiration of the non-parole period on 24 April 2002. 22 GREG JAMES J: I agree. The orders will be as proposed by Bell J. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.