Citation: Salute Brunetta [2001] NSWCCA 331
Court: NSW Court of Criminal Appeal
Date: 29 August 2001
Judge(s): Sully J, Sheller JA, Hulme J
Background
The applicant had pleaded guilty in 1995 to 24 counts of dishonesty in the District Court. Gibson DCJ sentenced her to two years' imprisonment on each count, directing that the sentences be served by way of periodic detention at Silverwater from September 1995 to September 1997.
The applicant's compliance with periodic detention was deeply unsatisfactory. She reported on only 26 of 105 scheduled detention periods and failed to report on 58 occasions. An application was made to cancel the periodic detention order, which came before Nield DCJ in September 1997.
Nield DCJ cancelled the periodic detention order and directed that the remaining 82 weeks be served by full-time imprisonment, apportioned equally between a minimum term of 41 weeks and an additional term of 41 weeks. Despite a warrant being issued, the applicant was not apprehended for approximately three and a half years. She then applied, out of time, for leave to appeal against the sentence imposed by Nield DCJ.
Legal Issues
- Whether the extension of time to apply for leave to appeal should be granted
- Whether Nield DCJ erred in his factual assessment of the periodic detention records when deciding to cancel the order
- Whether Nield DCJ failed to give proper weight to the applicant's medical conditions
- Whether Nield DCJ miscalculated the 82-week period to be served
- Whether the equal apportionment of 82 weeks between minimum and additional terms was within the proper exercise of judicial discretion
Decision
The Court granted the extension of time and leave to appeal, but unanimously dismissed the substantive appeal. Sully J, with Sheller JA and Hulme J agreeing, found no appealable error in Nield DCJ's reasoning or conclusions.
On the factual issues, Sully J found that a fair reading of the materials before Nield DCJ showed no misapprehension of the periodic detention records. The attendance document, which confirmed 58 failures to report, supported the cancellation decision.
Regarding the applicant's medical conditions, Sully J was satisfied that Nield DCJ had medical certificates before him and gave them all proper attention, as the law requires. No error in that aspect of the sentencing exercise was established.
On the calculation and apportionment of the 82-week term, Sully J was wholly unpersuaded that any miscalculation occurred. The equal division between minimum and additional terms was found to be comfortably within the sentencing judge's discretion, reflecting proper sympathy toward the applicant's subjective circumstances.
The Court also used the occasion to address the three-and-a-half-year delay in executing the warrant. Inspector Marcon's affidavit traced the delay to inadequate resources, funding, and the absence of any disciplined ongoing review of outstanding warrant cases. The Court noted the affidavit but observed that a continuing need exists for proper funding and monitoring to ensure court orders are promptly carried into effect.
Orders Made
- Extension of time to apply for leave to appeal: granted
- Leave to appeal: granted
- Substantive appeal: dismissed
Key Takeaways
- No error was established in Nield DCJ's decision to cancel the periodic detention order and substitute full-time imprisonment, where the applicant had failed to report on 58 of 105 scheduled detention periods.
- A sentencing judge's equal apportionment of the remaining term between minimum and additional components was upheld as a proper exercise of discretion where the applicant's subjective features had been taken into account.
- Medical evidence placed before a sentencing judge at a periodic detention cancellation hearing must be properly considered, and the Court of Criminal Appeal confirmed it was satisfied this occurred here.
- In dismissing the appeal, the Court of Criminal Appeal took the opportunity to comment publicly on the systemic failure that allowed a warrant to remain unexecuted for approximately three and a half years, attributing it to inadequate operational resources and the absence of disciplined case monitoring.
- Confirming the inadequacy of the situation, the Court noted that steps described by police had been put in hand to address the problem, while expressly observing that proper funding and oversight of warrant execution remains an ongoing necessity.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text or metadata provided.