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Court of Criminal Appeal 4 March 2010

Pulitano v R

[2010] NSWCCA 45

Assault & violenceTraffic & drivingPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE PRE TAKEN INTO ACCOUNT BY REDUCING SENTENCE OR IN DECIDING KIND OF SENTENCE

Citation: Pulitano v R [2010] NSWCCA 45
Court: Court of Criminal Appeal, New South Wales
Date: 4 March 2010
Judge(s): Giles JA, Hulme J, Latham J

Background

The applicant was arrested in December 1998 in connection with offences involving driving a stolen car at police and assaulting and resisting officers. He spent approximately three months and twenty days in custody before being granted bail in April 1999, then absconded before trial. He voluntarily surrendered to police in 2007 and pleaded guilty to three charges arising from the original events.

In May 2008, the District Court sentenced the applicant to eighteen months' imprisonment on each charge, to be served concurrently, but immediately suspended those sentences on condition that he enter into an eighteen-month good behaviour bond. In 2009, he breached the bond conditions by failing to accept supervision and failing to notify the Probation and Parole Service of his change of address.

The sentencing judge revoked the suspension in October 2009, and the applicant began serving the eighteen-month sentence. He then sought leave to appeal, arguing that the sentencing judge had failed to properly account for his pre-sentence custody of around three months and twenty days, either when imposing the suspended sentence in 2008 or when revoking the suspension in 2009.

  • Whether the sentencing judge was required to take the pre-sentence custody into account, and by what mechanism, when a sentence is suspended at the time of imposition.
  • Whether backdating under s 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 is available where a sentence is suspended under s 12(1) of the same Act.
  • Whether the sentencing judge did, in fact, take the pre-sentence custody into account in arriving at the eighteen-month term in May 2008.
  • Whether a sentence expressed in round figures is inconsistent with a finding that pre-sentence custody was taken into account.

Decision

The Court of Criminal Appeal confirmed that a sentencing court must take pre-sentence custody into account under s 24(a) of the Crimes (Sentencing Procedure) Act 1999. Ordinarily, this is achieved by backdating the commencement of the sentence under s 47(2)(a). However, Part 4 of that Act, which includes s 47, does not apply to suspended sentences by operation of s 12(3). Backdating at the time of sentence is therefore simply unavailable when a sentence is suspended. The alternatives are to reduce the term imposed, or to backdate at the point when the suspension is revoked and the sentence takes effect.

The central factual question was whether the sentencing judge had actually taken the pre-sentence custody into account in fixing the eighteen-month term in May 2008. The Court found, on a reading of the remarks on sentence, that he had. The judge expressly noted the period of custody, and his emphatic statements to the applicant that any breach would result in the full eighteen months being served were inconsistent with an intention to backdate at a later stage. Giles JA concluded it was tolerably clear the judge had factored the pre-sentence period into the sentence itself, albeit without making this explicit.

The applicant argued that, because the sentence was expressed in whole months rather than as a precise deduction from a longer term, it was unlikely the pre-sentence custody had genuinely been calculated. The Court rejected this, citing Starmer v R [2008] NSWCCA 27 for the proposition that sentencing is not arithmetic and there is no requirement to sentence only in round figures. A sentencing court may account for pre-sentence custody in a global rather than mathematically precise way.

Because no error was established in the May 2008 sentencing, the Court found no error in the failure to backdate when the suspension was revoked in October 2009. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 12(3) of the Crimes (Sentencing Procedure) Act 1999, Part 4 of that Act does not apply to suspended sentences, meaning backdating under s 47(2)(a) is unavailable at the time a suspended sentence is imposed. Pre-sentence custody must instead be accounted for by reducing the term imposed, or by backdating when the suspension is later revoked.
  • The Court of Criminal Appeal confirmed that, if pre-sentence custody has been taken into account in fixing the length of a suspended sentence, no further backdating is required when that sentence descends upon revocation of the bond.
  • Sentencing is not a mathematical exercise. A sentence expressed in round figures does not, of itself, establish that a sentencing court failed to account for pre-sentence custody.
  • In the absence of explicit reasons, a sentencing court's remarks can still demonstrate that pre-sentence custody was factored in, where the overall context of the sentencing indicates this was the judge's intention.
  • No error was found in the District Court's approach across either sentencing occasion, confirming that the interplay between the suspended sentence provisions and the pre-sentence custody provisions was correctly, if implicitly, navigated.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 12(1), 12(3), 24(a), 47(2)(a), 47(3), 99(1)(c)

Cases:
- R v Deeble (CCA, 19 December 1991, unreported)
- R v Howard [2001] NSWCCA 309
- R v Leete [2001] NSWCCA 337; (2001) 25 A Crim R 37
- R v McHugh [1985] 1 NSWLR 588
- R v Newman and Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
- Starmer v R [2008] NSWCCA 27
- Whyte v The Crown [2009] NSWCCA 18