Pulitano v R - [2010] NSWCCA 45

New South Wales
Court of Criminal Appeal

CITATION: Pulitano v R [2010] NSWCCA 45

HEARING DATE(S): 4 March 2010

JUDGMENT DATE:
4 March 2010

JUDGMENT OF: Giles JA at 1; Hulme J at 24; Latham J at 25

EX TEMPORE JUDGMENT DATE: 4 March 2010

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal against sentence - pre-sentence custody taken into account by backdating or reducing sentence - could not backdate as sentence suspended - taken into account by reducing sentence - or in deciding kind of sentence - sentencing in round figures not mandatory.

CASES CITED: R v Deeble (CCA, 19 December 1991, unreported);
R v Howard [2001] NSWCCA 309
R v Leete [2001] NSWCCA 337;
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.

PARTIES: Tony Pulitano - Applicant
The Crown - Respondent

FILE NUMBER(S): CCA CCA 2007/15155

COUNSEL: B Rigg - Applicant
N J Gouda - Respondent

SOLICITORS: S O'Connor (Legal Aid Commission) - Applicant
S Kavanagh (Solicitor for Public Prosecutions) - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2007/11/0697

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 2 May 2008 and 9 October 2009

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/15155
DC 2007/11/0697

GILES JA
R S HULME J
LATHAM J

Tony PULITANO v R

JUDGMENT

1 GILES JA

: In 1999 the applicant was committed for trial on charges arising from events on 1 December 1998, in which he drove a stolen car at police who were attempting to detain it and its occupants. He was in custody from his arrest on 16 December 1998 until granted bail on 7 April 1999.

2 The applicant absconded prior to trial. In 2007 he voluntarily handed himself in to the police. He thereafter pleaded guilty to three charges arising from the events of 1 December 1998, although perhaps not precisely those on which he had been committed for trial. They were driving a stolen car; assaulting police officers with intent to prevent the apprehension of himself and two other persons; and resisting police officers in executing their duty.

3 On 2 May 2008 Berman DCJ sentenced the applicant to imprisonment for eighteen months for each of the offences, implicitly as concurrent sentences, but suspended the sentences on condition of entry into a good behaviour bond for eighteen months. His Honour did not specify non-parole periods.

4 Thereafter the applicant breached the conditions of the bond, in that he failed to accept the supervision of the Probation and Parole Service and failed to notify that Service of his change of address. He was taken into custody on 27 July 2009, and in due course came before Berman DCJ.

5 On 9 October 2009 Berman DCJ revoked the order suspending the sentences. It may be that the correct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pulitano v R

Details

AGLC: Pulitano v The Queen [2010] NSWCCA 45
Case: [2010] NSWCCA 45
Decision Date: 4 March 2010

CaseChat Overview and Summary

In the case of Pulitano v R, the appellant was convicted of several offences and sentenced to imprisonment, with the sentence to be suspended for a period of time. The appellant appealed against the sentence, arguing that the pre-sentence custody should have been taken into account by backdating or reducing the sentence. The court of appeal considered whether the trial judge had erred in not backdating the sentence and whether the pre-sentence custody should have been taken into account in deciding the kind of sentence to be imposed.
The court of appeal held that the trial judge was not required to backdate the sentence as it was suspended, but the pre-sentence custody could be taken into account in deciding the kind of sentence to be imposed. The court held that the trial judge had considered the pre-sentence custody in deciding the kind of sentence and had not erred in not backdating the sentence. The court also held that sentencing in round figures was not mandatory and that the sentence imposed was not manifestly excessive.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence was upheld. The court noted that the trial judge had considered the pre-sentence custody in deciding the kind of sentence and that the sentence imposed was not manifestly excessive. The court held that the trial judge had not erred in not backdating the sentence as it was suspended, and that sentencing in round figures was not mandatory.

Orders