Pekbilimli v Regina

[2007] NSWCCA 101

New South Wales
Court of Criminal Appeal

CITATION:	Pekbilimli v Regina [2007] NSWCCA 101
HEARING DATE(S):	12 March 2007
JUDGMENT DATE:	16 May 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 2; Hislop J at 8
DECISION:	(1) Leave to appeal granted; (2) Appeal dismissed.
CATCHWORDS:	Criminal law - Sentence - Backdate of sentence - Discretion.
LEGISLATION CITED:	Crimes Act - s 112(1) Crimes (Sentencing Procedure) Act 1999 - ss 24, 47 Criminal Appeal Act 1912 - s 6(3)
CASES CITED:	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 Simpson (2001) 53 NSWLR 704
PARTIES:	Applicant - Umit Pekbilimli Respondent - Regina
FILE NUMBER(S):	CCA 2007/9
COUNSEL:	Applicant - in person Respondent - Mr P. Ingram
SOLICITORS:	Applicant - in person Respondent - Director of Public Prosecutions (New South Wales)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/1058
LOWER COURT JUDICIAL OFFICER:	Solomon DCJ
LOWER COURT DATE OF DECISION:	12 May 2006

- 1 -

2007/9

McCLELLAN CJ at CL
HULME J
HISLOP J

16 May 2007

Umit PEKBILIMLI v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hislop J.

2 HULME J: I agree with the orders proposed by Hislop J and with his Honour’s reasons. I wish however to add the following.

3 According to the submissions of the Crown in the appeal,

“50. The transcript available to the Respondent of the sentence proceedings of the Applicant discloses that the proceedings were apparently listed for hearing before Judge McGuire (sic) in the District Court on 7 April 2006. The legal representative then appearing for the Applicant had to appear before another Judge (Judge Woods) on another matter at 2.00pm. Judge McGuire indicated that he could not become part-heard in the sentence proceedings of the Applicant. Thus, these circumstances combined to preclude the matter proceeding on that occasion. Accordingly, and in the absence of the Applicant, the sentence proceedings were adjourned to 12 May 2006.
51. While it would have been desirable for the Applicant to be present in Court for those proceedings, nothing occurred that has adversely affected the sentence ultimately imposed.
52. The transcript of the sentence proceedings on 12 May 2006 indicates that the Applicant was not present in Court when the matter was first mentioned before the learned sentencing Judge. As the Applicant was in custody at the time, it would appear that there was some delay in either his arrival at Court or in him being brought up to the Court by Corrective Services staff.
53. That transcript also discloses that in the period before the arrival of the Applicant, the matter was mentioned before the learned sentencing Judge who invited both the Crown and Defence to informally hand up the documents that were later to be tendered formally and relied on by the parties.
54. Both parties handed up their documents, the Crown indicated to the Court that the Applicant was serving a balance of parole sentence (sic), drew attention to section 47 of the Crimes (Sentencing Procedure) Act 1999 and submitted that it would be within the discretion of the Judge to commence the present sentence from the date of imposition.
55. His Honour apparently perused the documents handed up, then returned them to the parties and adjourning the proceedings to await the arrival of the Applicant (POS 12/5/06 p. 1.18-2.18).
56. Once the Applicant was before the court, the sentence proceedings commenced. The Crown tendered its case on sentence (POS 12/5/06, p. 2.44) and the Defence tendered the report of Mr Taylor (POS 12/5/06 p. 2.57). The Defence made submissions on sentence (POS 12/5/06, p. 3.10-5.20) as did the Crown (POS 12/5/06 p.5. 38-6.25). All these steps occurred in the presence of the Applicant. The learned sentencing Judge then delivered some remarks on sentence and imposed the sentence. At the conclusion of the remarks, his Honour apparently addressed the Applicant directly – ROS 4.4.
57. Apart from the issue concerning the commencement date of the present sentence, there was nothing said or done in the absence of the Applicant on 12 May 2006 that was not replicated in his presence by the Court and/or the legal representative of either party.”

4 The transcript of proceedings on 7 April 2006 was not before this Court. The transcript of proceedings on 12 May was and the Crown’s summary of the events that occurred accurately summarises what appears on that transcript.

5 It is a fundamental principle of criminal proceedings that, subject to very limited exceptions, those proceedings should occur wholly in the presence of the Accused – see R v Hallocoglu (1991) 29 NSWLR 67 and the cases there cited. Although the departure from this principle on 12 May may have been small, it should not have occurred. Although the Applicant complained of matters having occurred in his absence, he appeared for himself and the Court has not had the benefit of argument on the topic. In these circumstances, I would not go so far as to hold that the mere handing up of documents intended to be relied on, and which were formally tendered in an offender’s presence later, breached the principle, but providing to his Honour relevant information not provided later clearly did.

6 I also deprecate what occurred on 7 April. Persons are entitled to be in court when their cases are being dealt with even if that dealing is only to adjourn the case and the convenience or exigencies of court lists are not generally a sufficient reason to justify departure from this entitlement. Particularly is this so when the persons are prisoners whose rights to liberty are being affected. After all, the effect of the adjournment in the circumstances of 7 April was to impose a further curial order requiring the Applicant to be kept in custody. Of course, the entitlement may be waived, but there is nothing to suggest that that was what occurred on 7 April.

7 What effect the departure from proper practice might have in other circumstances was also not the subject of debate. I am satisfied that in the circumstances of this case, and particularly in light of the provisions of s6(3) of the Criminal Appeal Act, which directs the Court to dismiss an appeal against sentence unless it is of the opinion that some other sentence should have been passed, the departure does not lead to the Applicant’s appeal succeeding.

HISLOP J

Introduction

8 The applicant pleaded guilty to a charge that on 10 July 2005 he did break and enter a pre-school and did commit a serious indictable offence therein, namely, did steal a sum of money contrary to the Crimes Act s 112(1). The maximum penalty for this offence is 14 years imprisonment.

9 The circumstances of the offence were described by the sentencing judge as follows:

The offender broke into the pre-school area of the Holy Trinity Church at Beacon Hill by forcing a lock. Once inside the premises he jemmied two internal locked doors. The offender then located and stole the sum of $1,468 which had been collected that day at a church service.

10 On 12 May 2006 the applicant was sentenced for that offence in the District Court to imprisonment for a non-parole period of 2 years and 6 months commencing on 12 May 2006 and expiring on 11 November 2008 with a total term of 5 years to date from 12 May 2006 and expire on 11 May 2011.

11 In sentencing the applicant the Court took into account on a Form 1 an offence of break, enter and steal $1,884.10 between 24 and 25 September 2005.

12 The applicant, who was unrepresented on this application, has sought leave to appeal against sentence. His grounds of appeal, filed on 27 November 2006, were “My backdate was not granted and I had no presentence report”. At the hearing of the application, the applicant pressed the submission that the sentencing Judge erred in not backdating the commencement of the sentence. He said:

I would just like a backdate. Can I get a backdating of my sentence, that’s all I was after … I’m just after my backdating
Ground 1 – “Backdate not granted”

13 On 18 March 2004 the applicant was sentenced to imprisonment for 6 years from 25 July 2002 with a non-parole period of 2 years and 6 months to expire on 24 January 2005 in respect of offences involving break, enter and steal. He was released to parole in respect of that sentence on 24 January 2005. The subject offence was committed whilst the applicant was on parole.

14 The applicant was arrested in respect of the subject offence on 28 September 2005. Bail was refused.

15 On 21 October 2005 the applicant’s parole was revoked and he was ordered to serve the balance of term to commence on 28 September 2005 and expire on 3 October 2008.

16 The non-parole period imposed for the subject offence was made concurrent with the period of imprisonment to be served in consequence of the breach of parole save for the period between 3 October 2008 and 11 November 2008.

17 The Crimes (Sentencing Procedure) Act 1999 (the Act) s 47 provides:

(1) A sentence of imprisonment commences:
(a) subject … to any direction under subsection (2), on the day on which the sentence is imposed…

(2) A court may direct that a sentence of imprisonment:
(a) is taken to have commenced on a day occurring before the day on which the sentence is imposed,…

(3) In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates.

18 Section 24 of the Act provides:

In sentencing an offender, the court must take into account:
(a) any time for which the offender has been held in custody in relation to the offence …

19 Other than in exceptional circumstances, if an offender has been held in custody from the date of arrest to the date of sentence solely in relation to the offence for which he is being sentenced, the Court will backdate the sentence so that it commences upon the date the applicant went into custody referrable to that offence – R v Close (1992) 31 NSWLR 743 at 748, R v Cook [1999] NSWCCA 234 at [39].

20 However, in this case, the applicant was not in custody from the date of arrest to the date of sentence solely in relation to the offence on 10 July 2005. He was in custody during that period due to both the revocation of his parole for the offences for which he was sentenced on 18 March 2004 and the subject offence on 10 July 2005. As Hunt CJ at CL (as he then was) said in R v Andrews (NSWCCA unreported 28 April 1993):

The parole is revoked because, by reason of the further offence committed, it has been demonstrated that the applicant was unable to adapt to normal lawful community life and therefore is no longer entitled to parole in relation to the earlier offence.

21 In Callaghan v R [2006] NSWCCA 58 this Court per Simpson J (James and Hall JJ agreeing), held a sentencing judge has a discretion to backdate to some point (not necessarily to the date of revocation of the parole) even where the period in custody is not wholly the result of the offence for which the applicant is being sentenced.

22 Such a discretion is a wide one. In Markarian v R (2005) 215 ALR 213 at [27] the High Court confirmed:

Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

23 The subject offence was a significant one. It was committed in circumstances where imprisonment for previous similar offences had had no effect, where the offence was committed in breach of parole and where it was, as his Honour observed, an offence which was both serious and odious. To back date the subject sentence from the date of its imposition would, depending on the extent of the backdate, have resulted in the non-parole period of the subject sentence being entirely, or almost entirely, subsumed by the balance of the parole sentence. This, in all probability, would result in the applicant receiving no actual punishment for the subject offence.

24 In the circumstances the sentencing Judge chose not to backdate the sentence. In my opinion this course was open to him in the proper exercise of his sentencing discretion. In my opinion no error by the sentencing judge has been demonstrated and this ground of appeal fails.

Ground 2 – No pre-sentence report

25 No pre-sentence report was before the sentencing judge. No pre-sentence report was requested by the parties or the court. There is no statutory requirement that such a report be provided in a case of this nature. The applicant obtained a report from the psychologist Dr Taylor. That report was before the sentencing Judge. It was comprehensive and contained material favourable to the applicant, more so than a pre-sentence report was likely to have done. The pre-sentence report may have referred to alternative sentencing options but this would have been irrelevant, there being no realistic sentencing option other than full time custody. In my opinion no useful purpose would have been served by obtaining a pre-sentence report. This ground of appeal fails.

26 The applicant in an undated hand written document headed “Grounds of Appeal” had asserted his legal representation was “very bad” and that he was not in the courtroom when matters relating to his case were discussed. No details of these matters were provided by the applicant and they were not pursued by him at the hearing of the application. The facts available to the court do not suggest that, if there were any deficiencies in either regard, they resulted in any prejudice to the applicant.

Conclusion

27 This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act 1912. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79].

28 In my opinion error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

29 I propose the following orders:

(1) Leave to appeal granted.

(2) Appeal dismissed.
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