WIGGINS, Daniel Peter v R [2010] NSWCCA 30

New South Wales Court of Criminal Appeal

CITATION: WIGGINS, Daniel Peter v R [2010] NSWCCA 30

HEARING DATE(S): 04/02/2010

JUDGMENT DATE: 2 March 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 3; Harrison J at 21

DECISION: Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence - taking into account time served - sentence should be backdated unless good reasons for not doing so - error but no lesser sentence warranted.

LEGISLATION CITED: Crimes Act 1900 - ss 59, 92(1)

CATEGORY: Principal judgment

R v English [2000] NSWCCA 245 R v Howard [2001] NSWCCA 309 R v Phillips [2002] NSWCCA 167 CASES CITED : R v Newman and Simpson [2004] NSWCCA 102; 145 A Crim R 361 Abdul-Kader v R [2007] NSWCCA 329; 178 A Crim R 281 White v R [2009] NSWCCA 118 R v Hall [2005] NSWCCA [2005] NSWCCA 217 Starmer v R [2008] NSWCCA 27

PARTIES: Daniel Peter Wiggins v Regina

FILE NUMBER(S): CCA 2008/10012

COUNSEL: L Lamprati - Crown A Francis - Applicant

SOLICITORS: S Kavanagh - Crown S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1039

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 12/12/2008

IN THE COURT OF CRIMINAL APPEAL 2008/10012

McCLELLAN CJ AT CL HOWIE J HARRISON J

TUESDAY 2 MARCH 2010 Daniel Peter WIGGINS v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Howie J that this Court should not intervene and the appeal should be dismissed. 2 When an offender has already served a period in custody for the offence for which he is being sentenced he or she will always consider the sentence process to be unjust unless they are assured that the pre-sentence custody is reflected in the sentence. Because sentences are expressed by reference to years and months confidence in the system is best maintained by commencing the sentence at a date when the period of pre-sentence custody can be clearly identified as having been taken into account. Although there will be cases where this is not appropriate they should be infrequent. 3 HOWIE J: This Court has repeatedly stated that the preferable course to adopt, where an offender has served a period of pre-sentence custody, is to backdate the sentence imposed by a period equivalent to the pre-sentence custody. In R v English [2000] NSWCCA 245, Giles JA stated (my underlining):