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Court of Criminal Appeal 5 March 2002

Regina v John Paul Newland

[2002] NSWCCA 64

Other
BACK DATING SENTENCE TO ALLOW FOR PRE SENTENCE CUSTODY

Citation: Regina v John Paul Newland [2002] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 5 March 2002
Judges: Spigelman CJ, Grove J, Smart AJ

Background

The applicant had been sentenced by Grogan DCJ in the District Court on 28 February 1997 across six counts. When imposing those sentences, the judge did not backdate them to account for a period of pre-sentence custody the applicant had spent in custody from 4 December 1995 to 9 February 1996, a period of approximately two months and five days solely referable to those offences.

The sentencing exercise was complex, as the sentences had to be coordinated with sentences imposed by other judges. In particular, a separate set of sentences imposed by Nield DCJ was subsequently quashed on appeal in December 1997. Following that quashing, this Court made a consent order in March 1998 adjusting the commencement date of Grogan DCJ's sentences, but the issue of pre-sentence custody was not raised before the Court at that time.

The applicant did not inform his solicitors about the overlooked pre-sentence custody until 2001, well after the 1998 consent order. By that point, five of the six sentences had been served, with only the sentence for maliciously wounding with intent remaining active.

  • Whether the Court could make an order under s 43 of the Crimes (Sentencing Procedure) Act 1999 to backdate the commencement of sentences to account for the overlooked pre-sentence custody period.
  • Whether this Court was the appropriate court to grant relief under s 43, or whether any such application should have been made to the District Court.
  • Whether the earlier summary dismissal of the application for leave to appeal against sentence should be vacated, allowing the applicant to pursue a fresh appeal against the remaining sentence.

Decision

The Court declined to make any order in the accessory proceedings (60119/97) under s 43. The Crown raised two difficulties: first, whether s 43 was wide enough in scope to cover the circumstances; and second, whether the Court of Criminal Appeal was the correct court to exercise that power. The Crown's position was that any s 43 application should be directed to the District Court. The Court did not resolve those questions, as the applicant accepted alternative relief.

Instead, the Court vacated the 1997 order summarily dismissing the applicant's earlier application for leave to appeal against sentence. The Court then granted fresh leave to appeal against the sentence for maliciously wounding with intent to do grievous bodily harm, being the only sentence still being served. On that appeal, the Court allowed the appeal, quashed the existing sentence, and re-sentenced the applicant to correct the omission.

The re-sentence preserved the same total term of 12 years imprisonment with an 8-year non-parole period, but moved the commencement date back by approximately two months and five days, from 9 February 1998 to 4 December 1997. This gave effect to the pre-sentence custody that had been overlooked at the original sentencing.

Orders Made

  • No order made in proceedings 60119/97.
  • In proceedings 60548/97:
  • The order of 7 September 1997 summarily dismissing the application for leave to appeal against sentence (maliciously wounding with intent) was vacated.
  • Leave to appeal against the sentence imposed by Grogan DCJ on 27 February 1997 was granted.
  • The appeal was allowed and the original sentence was quashed.
  • In lieu of the quashed sentence, the applicant was sentenced to 12 years imprisonment commencing 4 December 1997, with a non-parole period of 8 years commencing that day and ending 3 December 2005.

Key Takeaways

  • Pre-sentence custody that is solely referable to particular offences must be accounted for when sentencing on those offences; where it is overlooked at first instance, an appellate court may correct the error by re-sentencing.
  • Under s 43 of the Crimes (Sentencing Procedure) Act 1999, questions arise as to both the scope of the provision and the appropriate court to hear such applications. This decision left those questions open rather than resolving them.
  • Where the Crown consents to alternative relief, the Court of Criminal Appeal may vacate an earlier summary dismissal of an application for leave to appeal against sentence, allowing the matter to be reconsidered on its merits.
  • The complexity of coordinating multiple sentences imposed by different judges creates conditions in which pre-sentence custody may be inadvertently omitted, as the Court of Criminal Appeal noted in this decision.
  • Refusing to make orders under s 43 did not preclude the Court from achieving the same practical outcome through the appeal pathway, demonstrating that the two mechanisms can operate in parallel.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Criminal Procedure Act 1986 (NSW), s 24A

Cases cited: None cited.