New South Wales Court of Criminal Appeal 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 Grogan DCJ OFFICER : 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 IN THE COURT OF CRIMINAL APPEAL 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) Act 1999 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 1998. As the order was made by consent, questions of jurisdiction and form would not have arisen. Obviously on 4 March 1998 this Court was not told about the pre-sentence custody. 7. The present application under s.43 is again made in the accessory proceedings (60119/97). 8. The Crown does not consent to an order under s.43. Two problems arise. First, is the scope of s.43 wide enough to embrace what happened: secondly, is this Court the appropriate court to make such orders. The Crown contends that any application under s.43 should be made to the District Court which sentenced the applicant. The Crown does not oppose the alternative relief sought. 9. In those circumstances counsel for the applicant is content that this court grant the alternative relief. 10. It was not until 2001, that is, well after the Court's order of 4 March 1998 that the applicant advised his solicitor, the Legal Aid Commission, that he believed the period spent in custody between 4 December 1995 and 9 February 1996 had not been taken into account. Once the complexity of the situation is appreciated it is easy to see how that period of pre-sentence custody could be overlooked. 11. The applicant has now served five of the six sentences imposed upon him by Grogan DCJ. They were all for fixed terms. The outstanding sentence is one comprising a minimum term of 8 years starting on 9 February 1998, with an additional term of four years for maliciously wounding with intent. 12. I propose the following orders: 1. No order made in proceedings 60119 of 1997. 2. In proceedings 60548 of 1997. (a) vacate the order of 7 September 1997 of this Court summarily dismissing the application for leave to appeal against sentence in respect of the offence of maliciously wounding with intent. (b) Grant leave to appeal against the sentence imposed by Grogan DCJ on 27 February1997 in respect of the offence of maliciously wounding with intent to do grievous bodily harm and comprising a minimum term of 8 years commencing on 9 February 1998 and an additional term of 4 years. (c) Appeal allowed in respect of such sentence, sentence quashed, (d) In lieu of such sentence the applicant is sentenced in respect of the charge of malicious wounding with intent to imprisonment for 12 years commencing on 4 December 1997 with a non-parole period of 8 years commencing that day and ending on 3 December 2005 on which date the applicant will be eligible for parole. 13. SPIGELMAN CJ: I agree. 14. GROVE J: I also agree. 15. SPIGELMAN CJ: The orders are as Smart AJ proposed. ********** 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.