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Court of Criminal Appeal 12 December 2001

Regina v Jeanette VAN DAM

[2001] NSWCCA 507

Theft & property

Citation: Regina v Jeanette VAN DAM [2001] NSWCCA 507
Court: NSW Court of Criminal Appeal
Date: 12 December 2001
Judges: Greg James J; Bell J

Background

The appellant pleaded guilty in the District Court at Queanbeyan to one charge of break, enter and steal under s 112(1) of the Crimes Act 1900. The sentencing judge imposed three years' imprisonment with a non-parole period of one year, commencing on 31 May 2001. The appellant did not challenge the length of the sentence or the non-parole period.

The sole ground of appeal concerned the commencement date of the sentence. The appellant contended that the sentencing judge had been incorrectly told by the Crown that no period of pre-sentence custody was referable to the offence before the District Court.

In fact, the appellant had spent time in custody on remand while bail was refused in relation to that offence, in addition to other Local Court matters. The question was whether the sentence should have been backdated to account for that custody.

  • Whether the sentencing judge was misled about the extent of pre-sentence custody referable, at least in part, to the appeal offence.
  • Whether s 47 of the Crimes Sentencing Procedure Act 1999 required, or permitted, the sentencing judge to backdate the sentence to account for that pre-sentence custody.
  • Which specific period of pre-sentence custody should properly be credited, given that some of the same custody had already been accounted for when the Magistrate sentenced the appellant on the Local Court offences.

Decision

Bell J (with whom Greg James J agreed) found that the sentencing judge had been misled by an inadvertent misstatement from the Crown. When asked during the hearing whether the appellant had served any custody referable to the appeal offence, the Crown representative indicated she had not. That statement was incorrect: the appellant had been bail refused in relation to the appeal offence during two separate periods before sentence.

The Court accepted that s 47(3) of the Crimes Sentencing Procedure Act 1999 did not compel the sentencing judge to backdate the sentence, but it was open for her to do so. Because she was operating on a false premise, the exercise of that discretion miscarried.

On the question of which period attracted credit, the Court declined to award the full period sought by the appellant. Between 9 March and 31 May 2001, the appellant had been in custody on remand for both the appeal offence and the Local Court matters. The Magistrate had already backdated the Local Court sentences to 9 March 2001, meaning the appellant had already received the benefit of that period. Crediting the same time again on the District Court sentence would amount to double-counting.

The Court allowed credit only for the earlier, distinct period: 17 January 2001 to 21 February 2001 (approximately 36 days), when the appellant was bail refused in part because of the appeal offence. The sentence was backdated by 36 days to commence from 25 April 2001.

Orders Made

  • Leave to appeal against the severity of sentence granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • In lieu thereof, the appellant sentenced to three years' imprisonment commencing 25 April 2001.
  • Non-parole period of twelve months commencing 25 April 2001.
  • Appellant to be released to parole on 24 April 2002.

Key Takeaways

  • Under s 47(3) of the Crimes Sentencing Procedure Act 1999, a sentencing court must take into account time an offender has been held in custody in relation to the offence being sentenced, but is not automatically required to backdate the sentence to reflect that custody.
  • Where a sentencing court proceeds on a materially incorrect factual basis about pre-sentence custody, an appellate court may intervene even where the length of sentence and non-parole period are themselves unchallenged.
  • The general principle, confirmed by reference to R v S A E (NSW CCA, 3 April 1997), is that an allowance for pre-sentence custody is ordinarily made only where that custody is exclusively referable to the offence being sentenced.
  • Where pre-sentence custody is shared across multiple matters and a Magistrate has already backdated Local Court sentences to cover that custody, a defendant cannot receive credit for the same period again in separate District Court proceedings.
  • An inadvertent misstatement by the Crown about pre-sentence custody, uncorrected by defence counsel, can still found a successful severity appeal if it demonstrably affected the sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes Sentencing Procedure Act 1999 (NSW), s 47

Cases:
- R v S A E (unreported, NSW Court of Criminal Appeal, 3 April 1997) (Gleeson CJ, Mason P and Dowd J)