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District Court 9 October 2009

R v Tony PULITANO

[2009] NSWDC 366

Public order & justice offences
CRIMINAL LAW SENTENCE ABSCONDING BREACH OF BOND

Citation: R v Tony Pulitano [2009] NSWDC 366
Court: District Court of New South Wales
Date: 9 October 2009
Judge(s): Berman SC DCJ

Background

The offender had been sentenced by the same judge in May 2008 for serious offences committed almost ten years earlier, a decade's delay caused by the offender having previously absconded. At that sentencing, the judge imposed a term of imprisonment but suspended it under section 12 of the Crimes (Sentencing Procedure) Act 1999, commonly described as a "section 12 bond." A key condition of the bond required the offender to accept supervision by the relevant probation and parole authority.

For a period, compliance was satisfactory. The offender relocated from Victoria to New South Wales and transferred his supervision accordingly. The Probation and Parole Service in New South Wales had even formed an intention to seek early termination of supervision due to good progress.

That progress unravelled after the offender began treatment for hepatitis C in September 2008. He experienced serious side effects, including depression, suicidal ideation, and a return to heroin use. His wife left him and returned to Melbourne, and the offender followed without notifying the Probation and Parole Service or complying with his bond conditions. He also failed to appear in the Waverley Local Court for a separate matter. He returned to New South Wales in July 2009 and was arrested, remaining in custody from 27 July 2009.

  • Whether there were "good reasons" under section 98 of the Crimes (Sentencing Procedure) Act 1999 to excuse the breach of the suspended sentence bond, rather than revoking the suspension and imposing the original term of imprisonment.
  • Whether there were "special circumstances" justifying a shorter non-parole period relative to the total sentence.

Decision

Berman SC DCJ rejected the submission that good reasons existed to excuse the breach. The judge had explicitly warned the offender at the 2008 sentencing, in direct and plain terms, that any breach would result in imprisonment for eighteen months. The offender had confirmed he understood. The judge found his evidence at the breach hearing claiming unfamiliarity with the consequences of a section 12 sentence entirely incredible.

The judge observed that suspended sentences under section 12 represent a lenient outcome, applied only in cases where the sentencing court has already concluded that imprisonment is warranted. He noted that community acceptance of such sentences depends on courts taking breaches seriously, and that it would be a rare case where an offender in the offender's circumstances could demonstrate good reasons to excuse non-compliance.

The health and personal circumstances offered in mitigation, including the effects of Interferon treatment and the departure of the offender's wife, were acknowledged. However, the judge found these factors insufficient to satisfy the "good reasons" threshold. The offender carried a history of failing to meet court-ordered obligations, and the suspended sentence had been specifically designed to promote both personal deterrence and rehabilitation.

On the question of special circumstances, the Crown did not oppose the finding and the judge accepted it. The offender was forty-seven years old and there were signs he was finally moving away from habitual offending and drug use. Supervision by the Probation and Parole Service was seen as enhancing his rehabilitation prospects, supporting a non-parole period equal to half the total sentence rather than the standard two-thirds minimum.

Orders Made

  • The order suspending execution of the sentence of imprisonment is revoked.
  • The offender is sentenced to imprisonment for eighteen months.
  • The non-parole period is nine months, commencing 27 July 2009 and expiring 26 April 2010.
  • The offender is to be released to parole on 26 April 2010 on condition that he accept supervision by the Probation and Parole Service.

Key Takeaways

  • A suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 is an exercise of leniency, as imprisonment has already been found necessary; revocation upon breach is the default consequence, not an exception.
  • The "good reasons" threshold under section 98 of the Crimes (Sentencing Procedure) Act 1999 is a high one. Personal and health difficulties, including serious side effects from medical treatment and relationship breakdown, did not suffice where the offender had a clear history of non-compliance with court orders.
  • Courts will look to the clarity of any prior warning given to the offender when assessing breach proceedings. Here, the judge's explicit and unambiguous warning at the original sentencing weighed heavily against any claim of misunderstanding.
  • Sustained community acceptance of suspended sentences depends, in the District Court's view, on courts treating breaches with appropriate seriousness and not readily excusing them.
  • Special circumstances were established on the basis of the offender's age, apparent shift away from habitual offending, and the rehabilitative value of ongoing parole supervision, resulting in a non-parole period of half the total sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 12 (suspended sentences) and 98 (good reasons to excuse breach of bond)

Cases cited: None cited in the judgment.