Regina v Walsh [2004] NSWCCA 428

New South Wales Court of Criminal Appeal

CITATION : Regina v Walsh [2004] NSWCCA 428 HEARING DATE(S) : 25/11/2004 JUDGMENT DATE : 25 November 2004

JUDGMENT OF : Howie J at 1 DECISION : Application for leave to appeal is granted. Sentences imposed by Judge Orchiston are backdated and sentences imposed by the District Court are adjusted accordingly.

CATCHWORDS : Criminal Law - Sentencing - Failure to take into account pre-sentence custody - sentences backdated accordingly LEGISLATION CITED : Drug Court Act Crimes (Sentencing Procedure) Act 1999 - s 59 PARTIES : Regina v Christopher Walsh FILE NUMBER(S) : CCA 2004/2363 COUNSEL : D. Arnott - Crown H. Dhanji - Applicant SOLICITORS : S. Kavanagh - Crown S. O'Connor - Applicant

LOWER COURT Drug Court JURISDICTION : LOWER COURT 2003/0106 FILE NUMBER(S) : LOWER COURT Orchiston DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2363

HOWIE J

THURSDAY 25 NOVEMBER 2004 REGINA v CHRISTOPHER WALSH Judgment 1 HIS HONOUR: This is an application for leave to appeal against sentences imposed upon the applicant in the Drug Court by Judge Orchiston on 29 April 2004. There is no complaint as to the length of the sentences imposed by her Honour. Rather, the complaint is that her Honour failed to backdate the sentences to take into account pre-sentence custody served by the applicant amounting to some four months and two days. 2 Unfortunately the matter is somewhat complicated as many of these Drug Court matters are, not the least because of the unusual appeal provisions that attend upon sentences in the Drug Court, depending upon the nature of the offences, and how they might have been dealt with had they not been determined in the Drug Court. 3 I have been greatly assisted in this matter to cut through the somewhat complicated mathematical exercise that has been required by both the submissions of Mr Dhanji, who appears for the applicant, and the Crown Prosecutor, who have eventually come to an agreement as to how the apparent error occurring in the sentencing by Judge Orchiston might be rectified. 4 Notwithstanding that the parties in effect are in agreement as to, firstly, the nature of the error that occurred, and how it might be rectified, I have myself been satisfied that the concessions are appropriate and I ought to determine the matter in the way I intend to do, and therefore can give what I feel are relatively short reasons. 5 The applicant first went into custody on 3 April 2003 for offences of break, enter and steal, goods in custody, stealing a motor vehicle and drive whilst disqualified. Those offences occurred between February and April 2003. The matter was first before Judge Milson in the Drug Court, and he determined upon a sentencing regime designed to no doubt assist the applicant in overcoming his addiction to drugs, which presumably brought him before the Court in relation to these offences. His Honour took a somewhat imaginative view as to how the sentences might be structured, but there was no complaint by the Crown as to the orders made. 6 The sentences imposed by Judge Milson were as follows: firstly, in relation to the offence of drive whilst disqualified, a sentence of two years; in relation to the offence of stealing a motor vehicle, a sentence of twelve months imprisonment; in relation to the offence of goods in custody, six months imprisonment; in relation to two offences of break, enter and steal, two years imprisonment; and in respect of a third offence of that kind, twelve months imprisonment. 7 Judge Milson indicated in determining those sentences that he had taken into account the period served by the applicant in custody for those offences. Judge Milson also indicated that, had he been minded to impose some other sentencing order than the one he had chosen, he would have made the sentence for the break, enter and steal offence committed on 1 April cumulative upon the sentences for the other offences. 8 His Honour imposed the sentences he did and ordered that they be suspended upon the applicant entering into the Drug Court program. Unfortunately, the applicant did not succeed on that program and very shortly after his release, that is on 15 August 2003, found himself returned to custody, having committed further offences whilst on the program. Those offences were as follows: an offence of stealing a motor vehicle, an offence of drive whilst disqualified, and an offence of larceny of some compact discs from the vehicle, the subject of the third charge. All of those offences were committed on 15 August 2003, the date upon which the applicant found himself back in custody. 9 On 28 April 2004 the applicant came before Judge Orchiston and she imposed sentences as follows, and these are sentences imposed in respect of the offences initially dealt with by Judge Milson: firstly, in respect of the drive whilst disqualified, twenty-two months, with a non-parole period of thirteen months, that sentence and non-parole period to commence from 15 August 2003; in respect of the steal motor vehicle offence, ten months fixed term, to date from 15 August 2003; the offence of goods in custody, five months by way of fixed term, that sentence to date from 15 August 2003; the break, enter and steal offence, twenty-two months with a non-parole period of thirteen months, again, the sentence to date from 15 August 2003; break, enter and steal, a sentence of ten months, with a non-parole period of six months, that sentence to date from 15 September 2004; and, finally, for the third offence of break, enter and steal, a sentence of twenty-two months, with a non-parole period of thirteen months, also to date from 15 August 2003. 10 The applicant was also sentenced in respect of the offences for which he found himself back in custody, those committed on 15 August 2003. Those sentences need not long trouble the Court because they were the subject of an appeal to the District Court in accordance with the provisions in the Drug Court Act. Those matters were dealt with in the District Court on 9 August 2004. 11 In respect of those offences the following sentences were imposed: in respect of the offence of drive whilst disqualified, a sentence of eighteen months, with a non-parole period of nine months, to date from 15 March 2005; the offence of steal a motor vehicle, nine months fixed term sentence to date from the same date, 15 March 2005; in respect of the larceny of the compact discs, a sentence of nine months by way of fixed term also to date from 15 March 2005. It should be apparent that the sentences imposed in the District Court were made cumulative upon the sentences imposed by Judge Orchiston. 12 When Judge Milson sentenced the applicant he purported to take into account the period served by the applicant prior to being dealt with by his Honour, being a period of four months and two days. It has been put to me by Mr Dhanji, who is most probably correct, that the sentence actually imposed by his Honour tend to suggest that, notwithstanding he had indicated that he had taken that period into account, he had not done so, because the sentences imposed were the maximum that could be imposed in the jurisdiction that was being exercised by Judge Milson being the jurisdiction of the Local Court. 13 The limit of that jurisdiction is to impose sentences of not more than two years for any one offence, or three years by way of accumulation. However, Judge Orchiston, acting upon the assumption that Judge Milson had taken into account the period in custody, imposed the sentences that I have already indicated. 14 The submission made on behalf of the applicant is that her Honour was led into error, presumably by taking his Honour Judge Milson's statement at face value, and that, in effect, her sentences indicate that had she taken into account the period of four months and two days that the applicant had served in custody, the sentences imposed upon him exceeded the maximum penalties available for those offences. 15 The Crown accepts in effect the argument put forward by Mr Dhanji, and it seems to me it must be correct. The way her Honour ought to have dealt with the time served in the most simple way, and the most accepted way of showing to a defendant that the period has been taken into account, is to backdate the sentences to a period equivalent to that served in pre-sentence custody. A court is able to make that order notwithstanding that the applicant was not in fact in custody for that period, and it has been common practice in this Court and the District Court generally, to impose sentences commencing on a day on which the applicant was not actually in custody, but in order to make it plain that the Court has reduced the sentence by way of taking into account pre-sentence custody. 16 It seems to me that I ought simply to backdate the sentences imposed by Judge Orchiston to a period four months and two days prior to the date of the sentence, and in that way to overcome the error that has been disclosed by the sentence her Honour actually imposed. 17 Therefore, the application for leave to appeal is granted. The sentences imposed by Judge Orchiston in respect of the offences of drive whilst disqualified, steal motor vehicle, goods in custody and two offences of break, enter and steal, which were ordered to commenced on 15 August 2003 are to commence on 13 April 2003. In respect of the offence of break, enter and steal, which was to commence on 15 August 2003, that sentence is to commence on 13 May 2004. The effect of those sentences is that the applicant is to be released to parole insofar as the sentences of Judge Orchiston are concerned on 12 November 2004. However, the applicant in fact is not eligible to be released on that date because of the sentences that were imposed upon him in the District Court. 18 Because I have varied the dates on which the sentences imposed by Judge Orchiston are to commence, and therefore have varied the date upon which the non-parole periods are to conclude, there will have to be some adjustment made to the sentences imposed in the District Court on appeal, in respect of the other matters dealt with by Judge Orchiston. I have power under section 59 of the Crimes (Sentencing Procedure) Act 1999 to vary those sentences, because I have varied the earlier sentences on which those later sentences relied. 19 Therefore, in respect of the offences in the District Court in respect of drive whilst disqualified, that sentence is varied so the non-parole period is to commence on 13 November 2004. The non-parole period in that case will expire on 12 August 2005. In respect of stealing a motor vehicle, the sentence of a fixed term of nine months is to commence from 13 November 2004 and therefore will expire on 12 August 2005. In respect of the larceny of the compact discs, the fixed term of nine months is to also commence on 13 November 2004 and to expire on 12 August 2005. **********