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District Court 8 May 2009

Newton, Timothy v R

[2009] NSWDC 161

DrugsTheft & propertyFirearms & weaponsDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL CONCURRENT SENTENCES SENTENCES NOT BACK DATED UNREPRESENTED IN LOCAL COURT

Citation: Newton, Timothy v R [2009] NSWDC 161
Court: District Court of New South Wales
Date: 8 May 2009
Judge(s): Cogswell SC DCJ

Background

The appellant had been sentenced in the Parramatta Local Court on 27 November 2008 for five offences arising from two separate incidents. Three offences occurred on 28 December 2007 and involved possessing a prohibited drug, possessing a prohibited weapon without a permit, and possessing ammunition without authority. The remaining two offences arose from a domestic dispute on 8 March 2008, when the appellant deliberately burned his then-girlfriend's belongings in the driveway of their shared home, causing approximately $14,000 in damage to the property and a neighbouring vehicle.

The magistrate sentenced the appellant to concurrent terms for all five offences, with the most significant being two concurrent sentences of 15 months imprisonment (with a 10-month non-parole period) for the two property damage by fire charges. All five sentences were dated from 24 April 2008.

The appellant appealed to the District Court on the ground that the sentences were too severe, with the central argument being that the magistrate had failed to backdate the sentences to account for approximately one month and 21 days of pre-sentence custody the appellant had already served.

  • Whether the sentencing magistrate erred by failing to backdate the sentences to account for a period of pre-sentence custody directly attributable to the offences.
  • Whether the fact that the sentences were already lenient (all running concurrently despite arising from two separate incidents) precluded the appeal from being upheld.

Decision

The respondent Director of Public Prosecutions argued the appeal should be dismissed because the concurrent sentences already reflected substantial leniency, given the offences were committed on two separate occasions against different property owners. Cogswell SC DCJ accepted that this was a strong point.

Despite that, the Court allowed the appeal. It noted that the appellant had been unrepresented before the magistrate, and that the failure to backdate the sentences appeared to be an oversight rather than a deliberate sentencing choice. The Court emphasised that it is important for an offender to clearly see that any time already spent in custody, directly attributable to the offences, has been accounted for in the sentence imposed. That consideration carries particular weight where the offender was unrepresented.

The Court varied each sentence to commence from 3 March 2008 rather than 24 April 2008, noting openly that this made already lenient sentences even more lenient. In all other respects, the magistrate's orders were confirmed.

Orders Made

  • The appeal is allowed.
  • Each of the five sentences is varied to commence from 3 March 2008 (instead of 24 April 2008).
  • For each offence of damaging property by fire: 15 months imprisonment, with a non-parole period of 10 months commencing 3 March 2008 and expiring 2 January 2009; the balance of term of 5 months to commence 3 January 2009 and expire 2 June 2009.
  • For each of possessing a prohibited drug and possessing ammunition: 6 months imprisonment, commencing 3 March 2008 and expiring 2 September 2008.
  • For possessing a prohibited weapon: 3 months imprisonment, commencing 3 March 2008 and expiring 2 June 2008.
  • In all other respects, the magistrate's orders are confirmed.

Key Takeaways

  • The District Court confirmed that pre-sentence custody directly attributable to the offences being sentenced should be reflected in the commencement date of the sentence, so that an offender can clearly see it has been taken into account.
  • A failure to backdate sentences for pre-sentence custody may constitute an error warranting appellate intervention, even where the overall sentencing approach was otherwise lenient.
  • The appellant being unrepresented in the Local Court was a significant factor in the Court's decision to allow the appeal, lending additional weight to the principle that such oversights should be corrected.
  • Concurrent sentencing for offences arising from two separate incidents and involving different victims was characterised by the Court as a substantial element of leniency, though this did not prevent variation of the commencement date.
  • Under s 20(2) of the Crimes (Appeal and Review Act) 2001, the District Court has the power to vary individual aspects of a sentence while confirming the remainder of the magistrate's orders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 195(1)(b) (intentionally or recklessly damaging property by fire)
- Crimes (Appeal and Review Act) 2001 (NSW) s 20(2) (power of District Court on sentence appeal)
- Drug Misuse and Trafficking Act 1985 (NSW) s 10(1) (possessing a prohibited drug)
- Weapons Prohibition Act 1988 (NSW) s 7(1) (possessing a prohibited weapon without a permit)
- Firearms Act 1996 (NSW) s 65(3) (possessing ammunition without authority)

Cases cited: None identified in the judgment text.