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17
Court of Criminal Appeal 2 March 2010

WIGGINS, Daniel Peter v R

[2010] NSWCCA 30

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE TAKING INTO ACCOUNT TIME SERVED ERROR BUT NO LESSER SENTENCE WARRANTED.

Citation: WIGGINS, Daniel Peter v R [2010] NSWCCA 30
Court: New South Wales Court of Criminal Appeal
Date: 2 March 2010
Judge(s): McClellan CJ at CL; Howie J; Harrison J

Background

The applicant was convicted by a jury in the District Court of two offences: an aggravated robbery committed on 6 November 2007, and an act of intimidation and assault in early 2008. The robbery involved a violent confrontation with a cyclist, during which the applicant punched and kicked the victim, struck him with a fence paling, and produced a penknife before stealing the victim's bicycle. The later offence occurred near a railway station, when the applicant threatened and punched the same victim in the presence of the victim's family.

The applicant had a criminal record including prior offences involving a knife and violence. At the time of the offending he was subject to four bonds, and his response to supervision was described in the pre-sentence report as unsatisfactory. He was sentenced by McGuire ADCJ in the District Court on 12 December 2008. The sentencing judge did not backdate the sentences to reflect a four-month period of pre-sentence custody the applicant had served.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal, contending that the failure to backdate the sentences constituted an error warranting appellate intervention.

  • Whether the sentencing judge erred by failing to backdate the sentence to reflect the applicant's period of pre-sentence custody.
  • Whether, if error was established, the Court of Criminal Appeal should intervene to reduce the sentence accordingly.

Decision

The Court of Criminal Appeal confirmed the long-standing practice that, where an offender has served pre-sentence custody referable to the offence being sentenced, the preferable course is to backdate the commencement date of the sentence by an equivalent period. This practice, endorsed repeatedly since at least R v McHugh (1985), promotes accuracy in the record, preserves the denunciatory and deterrent value of the sentence as pronounced, and ensures public confidence that pre-sentence custody has been properly accounted for. Departure from the practice is permissible, but reasons must be given.

Howie J, with whom McClellan CJ at CL and Harrison J agreed, found that the sentencing judge did commit an error by not backdating the sentence and by providing no explanation for departing from the established practice. However, the Court declined to intervene. Howie J reasoned that the sentence imposed for the assault offence was already "verging on being manifestly inadequate" and could only be justified on the assumption that it already reflected the four months of pre-sentence custody served. The robbery sentence was found to be entirely appropriate.

Viewed as a whole, the sentences were characterised as lenient. Given the applicant's breach of bonds and poor response to supervision, the Court was unpersuaded that it should effectively reduce the total sentence by a further four months simply to formally correct the backdating error. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal reaffirmed the well-established principle that a sentencing court should backdate a sentence by the period of pre-sentence custody referable to the offence, unless good reasons exist not to do so and those reasons are clearly stated.
  • A failure to backdate, without explanation, constitutes a sentencing error, but that error does not automatically produce a successful appeal.
  • In dismissing the appeal, the Court applied the principle that it will not intervene to correct a sentencing error where intervention would produce a lesser sentence that is not warranted in all the circumstances.
  • Where an overall sentence is already lenient, the Court may decline to further reduce it simply to formalise compliance with the backdating practice.
  • McClellan CJ at CL emphasised that confidence in the sentencing system is best maintained when the commencement date of a sentence clearly and transparently reflects any pre-sentence custody served.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 92(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47(2), 47(3)

Cases:
- R v McHugh (1985) 1 NSWLR 588
- R v Deeble (19 September 1991, unreported)
- R v English [2000] NSWCCA 245
- R v Howard [2001] NSWCCA 309
- R v Phillips [2002] NSWCCA 167
- R v Newman and Simpson [2004] NSWCCA 102; 145 A Crim R 361
- Abdul-Kader v R [2007] NSWCCA 329; 178 A Crim R 281
- White v R [2009] NSWCCA 118
- R v Hall [2005] NSWCCA 217
- Starmer v R [2008] NSWCCA 27