Regina v Aiken [2001] NSWCCA 409

New South Wales Court of Criminal Appeal

CITATION : Regina v Aiken [2001] NSWCCA 409 FILE NUMBER(S) : CCA 60436/00 HEARING DATE(S) : Monday 8 October 2001 JUDGMENT DATE : 8 October 2001

PARTIES : Regina v Luke Aiken JUDGMENT OF : Grove J at 1; Howie J at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0215 LOWER COURT JUDICIAL Job DCJ OFFICER :

COUNSEL : P.G. Berman SC (Crown) In person (Applicant) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - SUPPLYING PROHIBITED DRUG (METHYLAMPHETAMINE) - POSSESSION (CANNABIS) TAKEN INTO ACCOUNT - TWO YEARS IMPRISONMENT NON PAROLE PERIOD EIGHTEEN MONTHS - PARTLY CONCURRENT WITH EXTANT SENTENCES - NOT EXCESSIVE - NO CALL FOR FURTHER BACKDATING - NO PARTICULAR POINT OF PRINCIPLE DECISION : APPEAL DISMISSED

IN THE COURT OF CRIMINAL APPEAL 60436/00 GROVE J HOWIE J

Monday 8 October 2001 REGINA v LUKE AIKEN

JUDGMENT

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Job DCJ in the Gosford District Court on 6 July 2000. On that occasion the applicant appeared and was convicted on one count of supplying a prohibited drug, in this instance methylamphetamine, and there was taken into account on a form 1 a charge of possessing cannabis. 2 The applicant was sentenced to two years imprisonment to date from 30 June 2000, and a non parole period of eighteen months was set. The applicant was ordered to be released to parole on 29 December 2001. He appeared for himself in this application. 3 A written submission sent in response to the Registrar's direction stated that the applicant had been advised he was not actually appealing on the severity of the sentence but was seeking a back dating of his sentence to 19 May 2000, which was the date he was taken into custody. 4 As has been pointed out by the Crown, and pointed out to the applicant in the course of the hearing today, the applicant was indeed taken into custody on or about 19 May but he appeared in the Wyong Local Court on 30 June 2000 when, for a number of offences not the subject of the current appeal, he was sentenced to a fixed term of six months to date from 18 May 2000. It might also be observed he re-appeared in the Wyong Local Court on 20 June in respect of other charges and he was sentenced to two months imprisonment to date from 20 May 2000. 5 Accordingly, it may be seen that Job DCJ ordered the current sentence now the subject of challenge to commence on 30 June 2000 when the applicant still had outstanding to be served approximately four and a half months of the longer sentence imposed in the District Court, and approximately five or six weeks of the shorter sentence. To that extent he has already had the benefit of serving sentences concurrently. 6 In my opinion, the applicant's challenge insofar as it is based upon a failure to back date the current sentence to the first occasion on which he was taken into custody is doomed to failure. 7 The applicant has pointed out that one effect of the current sentence is that he will be released shortly after Christmas and it was hoped that he could help and be with his wife and four young children during that time. That circumstance undoubtedly provokes sympathy, but it must be pointed out that these matters were put before the sentencing Judge and he expressed himself to be aware of those circumstances. Indeed, the applicant's de facto wife Kellie Joan Clark gave significant evidence in the sentencing proceedings. 8 It has been pointed out to the applicant that the jurisdiction of this court can only be invoked where error has been demonstrated in the proceedings the subject of challenge by way of appeal. No such error has been demonstrated. In these circumstances I would grant leave to appeal but dismiss the appeal. 9 HOWIE J: I agree. 10 GROVE J: The orders of the Court will be as I have proposed. **********