R v DITFORT [1999] NSWCCA 442

R v DITFORT [1999] NSWCCA 442

The sentencing judge erred by failing to consider backdating and the applicant's parole position under s. 35 of the Sentencing Act 1989 when, at the date of sentencing, the parole order had not been revoked and the applicant's custody was solely referable to the offence being sentenced. The subsequent Parole Board revocation could not cure that error. Although the length and proportions of the sentence were not open to challenge, the proper result on resentencing was to set aside the commencing and finishing dates and backdate the sentence to 12 July 1998.

Jurisdiction
Australia
Judgment Date
22 December 1999
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court Following a Plea of Guilty
Outcome
Leave to appeal against sentence granted; appeal allowed; commencing and finishing dates of the sentences imposed set aside and replaced.
Legal Topics
['break and Enter With Intent to Commit a Felony in Circumstances of Aggravation' 'backdating Sentence' 'pre Sentence Custody' 'parole Revocation' 'special Circumstances' 'parity in Sentencing']
['criminal Law' 'sentencing'] ['break and Enter With Intent to Commit a Felony in Circumstances of Aggravation' 'backdating Sentence' 'pre Sentence Custody' 'parole Revocation' 'special Circumstances' 'parity in Sentencing']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court Following a Plea of Guilty

Legal Issues

  1. 1 ['Whether the sentence should have been backdated to reflect pre-sentence custody referable to the subject offence.' "Whether the sentencing judge erred by not considering the applicant's parole position and whether to make an order under s. 35 of the Sentencing Act 1989." 'Whether delay in dealing with the case affected the proper commencing date of the sentence.' 'Whether the sentence was affected by parity with co-offenders or by failure to consider subjective and objective matters.']

Ratio Decidendi

The sentencing judge erred by failing to consider backdating and the applicant's parole position under s. 35 of the Sentencing Act 1989 when, at the date of sentencing, the parole order had not been revoked and the applicant's custody was solely referable to the offence being sentenced. The subsequent Parole Board revocation could not cure that error. Although the length and proportions of the sentence were not open to challenge, the proper result on resentencing was to set aside the commencing and finishing dates and backdate the sentence to 12 July 1998.

Court Disposition

Leave to appeal against sentence granted; appeal allowed; commencing and finishing dates of the sentences imposed set aside and replaced.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal allowed. The commencing and finishing dates of the sentences imposed are set aside.' 'In lieu thereof, the commencing date of the minimum term of 2 years penal servitude is 12 July 1998 and the expiry date 11 July 2000 and the commencing date of the additional...