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Court of Criminal Appeal 8 October 2001

Regina v Aiken

[2001] NSWCCA 409

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE PARTLY CONCURRENT WITH EXTANT SENTENCES NOT EXCESSIVE NO CALL FOR FURTHER BACKDATING NO PARTICULAR POINT OF PRINCIPLE

Citation: Regina v Aiken [2001] NSWCCA 409
Court: New South Wales Court of Criminal Appeal
Date: 8 October 2001
Judge(s): Grove J, Howie J

Background

The applicant was convicted in the Gosford District Court of supplying methylamphetamine. A related charge of possessing cannabis was taken into account on a Form 1 (a procedural mechanism allowing additional charges to be considered at sentencing without separate conviction). The sentencing judge imposed two years imprisonment with a non-parole period of eighteen months, commencing 30 June 2000.

The applicant had been taken into custody on approximately 19 May 2000, several weeks before his District Court sentence commenced. During that intervening period, he had been sentenced in the Wyong Local Court on separate matters to a fixed term of six months (from 18 May 2000) and two months imprisonment (from 20 May 2000).

The applicant appeared unrepresented before the Court of Criminal Appeal. His written submissions clarified that he was not challenging the severity of the sentence itself, but rather sought to have it backdated to 19 May 2000, the date he was first taken into custody.

  • Whether the sentencing judge erred by failing to backdate the sentence to the date the applicant was first taken into custody (19 May 2000)
  • Whether the overall sentence of two years with an eighteen-month non-parole period was excessive
  • Whether any identifiable error in the sentencing proceedings warranted appellate intervention

Decision

The Court found that the sentencing judge had already accounted for the applicant's time in custody by ordering the current sentence to commence on 30 June 2000. At that date, the applicant still had approximately four and a half months remaining on the longer Local Court sentence and around five or six weeks on the shorter one. The effect was that the applicant had already received the benefit of some concurrent service.

Grove J held that the backdating argument was "doomed to failure" in light of this factual background. The Local Court sentences were separate matters and the current sentence had been structured to run partly concurrently with them.

The applicant also raised personal and family circumstances, noting that his release shortly after Christmas would allow him to be with his wife and four young children. The Court acknowledged these submissions with sympathy but observed that the sentencing judge had already been made aware of those circumstances, including evidence from the applicant's de facto partner at the original proceedings.

The Court of Criminal Appeal confirmed that its jurisdiction to intervene is limited to cases where error in the original sentencing proceedings is demonstrated. No such error was established, and leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence backdated to a date after first custody does not necessarily constitute error where the sentencing court has already structured the sentence to run partly concurrently with earlier sentences covering that period.
  • The Court of Criminal Appeal confirmed that its appellate jurisdiction in sentence matters is engaged only where error in the original proceedings is demonstrated; sympathy for a prisoner's personal circumstances does not itself establish appellate error.
  • Where an offender is serving multiple sentences from different courts at the time of a new sentence, the relevant question is not simply when custody began, but how the totality of the sentences was structured and whether appropriate concurrency was applied.
  • In dismissing the appeal, the Court found no particular point of principle arising and confirmed the sentence of two years with an eighteen-month non-parole period was not excessive.
  • Family hardship submissions made on appeal carry limited weight where those same circumstances were placed before and considered by the original sentencing court.

Legislation and Cases Referenced

Legislation: No specific legislation was cited in the provided text. (The Form 1 procedure referenced relates to sentencing practice under New South Wales criminal procedure legislation.)

Cases: No cases were cited in the judgment.