AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 22 December 1999

R v DITFORT

[1999] NSWCCA 442

Theft & property

Citation: R v Ditfort [1999] NSWCCA 442
Court: NSW Court of Criminal Appeal
Date: 22 December 1999
Judge(s): Simpson J; Smart AJ

Background

The appellant pleaded guilty in the District Court to a charge of break and enter with intent to commit a felony in circumstances of aggravation, under s 113(2) of the Crimes Act 1900. The offence was committed on 12 April 1998 at a shopping arcade in Toongabbie, where the appellant and two co-offenders used weapons to smash a window and enter a store. The co-offenders took money; the appellant took cigarettes. All three were arrested shortly after.

The sentencing judge imposed a minimum term of two years penal servitude and an additional term of eighteen months, commencing on the day of sentencing, 16 October 1998. The judge found special circumstances justifying departure from the statutory ratio, citing the appellant's Aboriginal background, deprived upbringing, and need for rehabilitation. The judge did not address whether the sentence should be backdated, and gave no reasons for not doing so.

The appellant, who appeared in person, sought leave to appeal against the sentence. His primary complaint was that the sentence should have been backdated to the commencement of his pre-sentence custody, given that he had been in gaol solely in connection with the subject offence since his arrest.

  • Whether the sentencing judge erred by failing to backdate the sentence to the date of the appellant's first pre-sentence custody referable to the offence
  • Whether the judge was required to give reasons for not backdating
  • Whether the complication of a potential parole revocation affected the backdating analysis
  • Whether the sentence was otherwise infected by error, including on grounds of parity with co-offenders and failure to account for the appellant's early plea and cooperation

Decision

The Court of Criminal Appeal found that the sentencing judge had not addressed the backdating question at all. Applying the principle established in R v Deeble, the Court confirmed that a sentence should ordinarily be backdated to the commencement of pre-sentence custody where that custody is referable only to the offence being sentenced. If a judge declines to backdate, clear reasons must be given.

At the time of sentencing, the appellant's parole order had not yet been revoked, meaning his custody from arrest was solely referable to the subject offence. The Court acknowledged the complication that revocation appeared likely, but held the judge could not proceed on the assumption the parole order would be revoked. The Court also noted that the six-month period from arrest to sentencing was substantial given the strength of the appellant's recorded admissions, and that a more expeditious process would have produced an earlier commencement date.

The Court found error in the sentencing process and proceeded to re-sentence. It held that the overall length of the sentence was not open to challenge, and that the finding of special circumstances was correct. However, the appropriate remedy was to backdate the minimum term to 12 July 1998, the date from which the pre-sentence custody in relation to this offence was properly referable. The parity ground and remaining grounds were dismissed as lacking substance.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed; the commencing and finishing dates of the sentences imposed were set aside
  • Minimum term of 2 years penal servitude to commence 12 July 1998 and expire 11 July 2000
  • Additional term of 18 months to commence 12 July 2000 and expire 11 January 2002

Key Takeaways

  • Under the principle confirmed in R v Deeble, a sentence should ordinarily be backdated to the first day of pre-sentence custody where that custody is referable solely to the offence being sentenced.
  • A sentencing court that declines to backdate is required to give clear reasons for that decision; silence on the issue constitutes error.
  • Where a parole order had not yet been revoked at the time of sentencing, the pre-sentence custody was held to be referable only to the new offence, even if revocation was anticipated.
  • The Court of Criminal Appeal confirmed that subsequent events, such as the later revocation of a parole order, cannot retrospectively validate a flawed sentencing process.
  • In re-sentencing, the Court preserved both the total length of the sentence and the finding of special circumstances, limiting its intervention to correcting the commencement date.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 113(2)
- Sentencing Act 1989 (NSW), ss 5, 9(3), 35

Cases:
- R v Deeble, unreported, 19 September 1991, Badgery-Parker J (NSW Court of Criminal Appeal)