Citation: Regina v Pulliene [2009] NSWCCA 47
Court: New South Wales Court of Criminal Appeal
Date: 3 March 2009
Judge(s): McClellan CJ at CL, Hidden J, Fullerton J
Background
The respondent, a 19-year-old woman with a mild to moderate intellectual disability and a severely dysfunctional upbringing, pleaded guilty to armed robbery at a service station in Young, New South Wales. She had entered the store wearing a mask, brandished a knife, and taken cash from the till. She was arrested shortly afterward when the knife and stolen money were found at her flat.
The matter came before the District Court at Wagga Wagga in April 2008. Rather than proceed immediately to sentence, the sentencing judge made an order under section 11(1) of the Crimes (Sentencing Procedure) Act 1999, adjourning the proceedings and releasing the respondent on conditional bail so that her prospects of rehabilitation could be assessed over time.
The Crown appealed that order, arguing it was not appropriate in the circumstances and that a full-time custodial sentence was effectively inevitable. The Court of Criminal Appeal dismissed the appeal on the day of hearing and later published its reasons.
Legal Issues
- Whether the sentencing judge's decision to adjourn under section 11(1) of the Crimes (Sentencing Procedure) Act 1999 was an appropriate exercise of discretion in the circumstances.
- Whether the delay caused by the adjournment constituted a miscarriage of justice.
- Whether a full-time custodial sentence was inevitable for this offender, such that a section 11 order served no legitimate purpose.
Decision
The Court of Criminal Appeal unanimously dismissed the Crown appeal. Hidden J, with whom McClellan CJ at CL and Fullerton J agreed, held that the sentencing judge had not erred in making the section 11 order. The respondent presented as a young woman at a genuine crossroads: her background was troubled, her intellectual disability was a material feature of her offending, and she had taken tentative but real steps toward rehabilitation in the short period before sentencing.
On the question of delay, the Court accepted that prolonging sentencing proceedings requires justification, but found that the delay here was warranted. The adjournment served the legitimate purpose of allowing the sentencing court to properly assess whether rehabilitation was achievable before determining the appropriate penalty.
The Court also rejected the Crown's position that a full-time custodial sentence was inevitable. The Crown prosecutor himself conceded in oral argument that alternatives to full-time custody could not be ruled out. The respondent's intellectual disability engaged the sentencing principles applicable to offenders with mental illness or cognitive impairment. Combined with her early guilty plea, her difficult background, and her emerging rehabilitation steps, these features distinguished her case from the typical armed robbery scenario.
Hidden J also cited Legge v R, where Spigelman CJ observed that a guideline is not a tramline, underscoring that the Henry guideline for armed robbery sentencing does not preclude outcomes that depart significantly from the norm when the circumstances justify it.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- A section 11 adjournment of sentencing proceedings is a legitimate tool where an offender stands at a genuine crossroads and their rehabilitation prospects cannot yet be reliably assessed, even for a serious offence such as armed robbery.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that delay caused by a section 11 adjournment will be justified when it is necessary to ensure the sentencing discretion is properly exercised.
- The Henry guideline for armed robbery sentencing does not operate as a fixed outcome. Significant departures from the guideline remain open where the offender's individual circumstances, including intellectual disability, warrant them.
- An offender's intellectual disability is capable of engaging the sentencing principles from R v Engert and R v Israil, which recognise that cognitive impairment can reduce the weight ordinarily given to general deterrence and affect the choice of sentence.
- No error was established in the sentencing judge's approach, and the absence of error was sufficient to defeat the Crown appeal.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 2(1), 11(1)
- Criminal Appeal Act (NSW), s 2(1)
- Crimes Act 1900 (NSW), s 97(1)
Cases:
- R v Henry [1999] NSWCCA 111, 46 NSWLR 346
- R v Engert (1995) 84 A Crim R 67
- R v Israil [2002] NSWCCA 255
- Legge v R [2007] NSWCCA 244
- R v Trindall [2002] NSWCCA 364, 133 A Crim R 119
- R v Palu [2002] NSWCCA 381, 134 A Crim R 174