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Court of Criminal Appeal 16 May 2007

Pekbilimli v Regina

[2007] NSWCCA 101

Theft & property
CRIMINAL LAW SENTENCE BACKDATE OF SENTENCE DISCRETION.

Citation: Pekbilimli v Regina [2007] NSWCCA 101
Court: New South Wales Court of Criminal Appeal
Date: 16 May 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant pleaded guilty in the District Court to breaking and entering a pre-school and stealing $1,468, an offence carrying a maximum of 14 years imprisonment. The offence was committed while he was on parole from an earlier sentence for similar offending. His parole was subsequently revoked, and he was required to serve the balance of that earlier sentence from 28 September 2005.

On 12 May 2006, the District Court sentenced the appellant to 5 years imprisonment with a non-parole period of 2 years 6 months, commencing on the date of sentencing rather than an earlier date. The appellant, who was unrepresented, sought leave to appeal on two grounds: that the sentencing judge should have backdated the sentence, and that no pre-sentence report had been obtained.

A further procedural concern emerged during the appeal. Documents were informally handed up to the sentencing judge before the appellant had been brought into the courtroom on the day of sentencing, and the appellant had also been absent when an earlier adjournment was ordered on 7 April 2006.

  • Whether the sentencing judge erred in declining to backdate the commencement of the sentence to an earlier date, so that it would run concurrently with the revoked parole balance.
  • Whether the absence of a pre-sentence report constituted an error warranting appellate intervention.
  • Whether the procedural irregularities arising from the appellant's absence at certain stages of the sentencing proceedings affected the validity of the sentence.

Decision

Backdating. Hislop J found that backdating the sentence to the date of arrest would have largely, and possibly entirely, subsumed the new sentence within the existing parole balance. That outcome would, in all probability, have resulted in no meaningful punishment for the fresh offending. The sentencing judge had a discretion under the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 to decline to backdate, and that discretion was properly exercised. No error was established.

Pre-sentence report. The court found no statutory obligation to obtain a pre-sentence report on the facts of this case. The appellant had tendered a comprehensive psychologist's report that contained material more favourable than a pre-sentence report was likely to have produced. Full-time custody was the only realistic sentencing option, making any reference in such a report to alternative arrangements irrelevant. This ground also failed.

Procedural irregularities. Hulme J noted that it is a fundamental principle of criminal proceedings that they occur wholly in the presence of the accused, subject to very limited exceptions. His Honour observed that the informal handing up of documents before the appellant arrived on 12 May, and the adjournment ordered in his absence on 7 April, should not have occurred. However, applying section 6(3) of the Criminal Appeal Act 1912, the Court was not satisfied that these departures resulted in any prejudice to the appellant or warranted a different sentence being imposed. The procedural criticisms were recorded, but did not cause the appeal to succeed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court retains a discretion under the Crimes (Sentencing Procedure) Act 1999 to decline to backdate a sentence, and declining to do so is not an error where backdating would effectively eliminate any punishment for the offence in question.
  • No error arises from the absence of a pre-sentence report where no statutory requirement exists, full-time custody is the only realistic option, and favourable material has been placed before the court by other means.
  • The Court of Criminal Appeal confirmed that criminal proceedings must, subject to narrow exceptions, occur wholly in the presence of the accused. Adjourning a matter and informally handing up documents in a prisoner's absence were identified as departures from proper practice that should not have occurred.
  • Under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will only interfere with a sentence if an error is demonstrated and the court forms a positive opinion that a less severe sentence was warranted in law and should have been passed.
  • In dismissing the appeal, the court emphasised that the convenience of court listing arrangements is not generally a sufficient reason to proceed in the absence of a prisoner whose liberty is being affected.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Callaghan v R [2006] NSWCCA 58
- Markarian v R (2005) 215 ALR 213
- R v Andrews (NSWCCA, unreported, 28 April 1993)
- R v Close (1992) 31 NSWLR 743
- R v Cook [1999] NSWCCA 234
- R v Hallocoglu (1991) 29 NSWLR 67
- R v Simpson (2001) 53 NSWLR 704