R v Tony Pulitano
[2009] NSWDC 366
•9 October 2009
CITATION: R v Tony PULITANO [2009] NSWDC 366 HEARING DATE(S): 25 September 2009; 9 October 2009
JUDGMENT DATE:
9 October 2009JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment for eighteen months. The non-parole period is nine months. It will have commenced on 27 July 2009 and will thus expire on 26 April 2010 on which day the offender is to be released to parole. It is a condition of his release to parole that he accept supervision of the Probation and Parole Service. CATCHWORDS: CRIMINAL LAW - Sentence - Absconding - Breach of bond LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 PARTIES: The Crown
Tony PulitanoFILE NUMBER(S): DC 2007/11/0697 SOLICITORS: Director of Public Prosecutions
Phillip Ryan Solicitors - Offender
SENTENCE
1 HIS HONOUR: Tony Pulitano was dealt with by me in May 2008 for offences that he committed almost ten years before. The offences were serious ones and on 2 May 2008 I set out the circumstances of the offender’s crimes. I also explained that the ten-year gap was due to Mr Pulitano absconding. He was eventually picked up in New South Wales for those matters and appeared before me last year.
2 What brings him before the court today is yet more absconding, if I can call it that. In May 2008 I dealt with Mr Pulitano by putting him on a s 12 bond, that is I imposed a sentence of imprisonment but suspended it. I explained to Mr Pulitano the consequences of a breach of the bond. One of the conditions of the bond was that he was supervised by the Department of Justice in Victoria where he then lived.
3 Things went well for a time. The offender moved from Victoria to New South Wales and transferred his supervision from the Department of Justice in Victoria to the Department of Corrective Services in New South Wales. Things continued to go well in this state and indeed in late 2008 the Probation and Parole Service had formed the intention that they would seek to terminate Mr Pulitano’s supervision.
4 However things went downhill again. Mr Payten suggests that the downhill path that his client then took was related to him undergoing a course of treatment for hepatitis C. The offender commenced that treatment on 9 September 2008 and almost immediately suffered from significant side effects. The possibility of these side effects had been made known to him before he commenced the treatment, but he reported when he was seen a month later, substantial fatigue, depressed mood, suicidal ideation, flu-like symptoms, a lack of motivation and a lack of appetite. He also told the doctor supervising his Interferon treatment that he had begun using heroin again.
5 His wife decided that in order to look after herself, her children and ultimately the offender himself she would leave him and return to Melbourne. She did this and the offender soon followed. When he went back to Melbourne, he did not give any real attention to the need to comply with the conditions of the bond which I imposed upon him. In particular he did not give any real attention to the need that he be supervised by the Probation and Parole Service, I should add also that at the same time was committing a breach of the bond I put him on.
6 By returning to Melbourne, the offender also failed to appear for a matter in Waverly Local Court. Thus the offender has a history of failing to obey court orders. He absconded for his 1998 offences. He did not comply with the conditions of the bond I put him on. He failed to appear despite being required to do so, in Waverly Local Court recently. I should add parenthetically that although the offender is being charged with two other matters, they are defended and so I will not proceed on the basis, of course, that he is guilty of those matters.
7 Mr Pulitano accepts that he has breached the bond. He accepts that he failed to accept the supervision of the Probation and Parole Service and failed to notify them of his change of address. He came back to New South Wales in July this year and was arrested for breaching various warrants a day or two later. He has been in custody since 27 July 2009.
8 When giving evidence today he said he had no familiarity with a s 12 sentence of imprisonment and did not really know what would happen. I reject that completely. When I sentenced Mr Pulitano last year, I said:
- ”Mr Pulitano should be under not misapprehension as to what is likely to happen should he commit a further offence. He will go to gaol. I will be the one who puts him in gaol if he commits any breach of the good behaviour bond which I will short announce.”
9 At the conclusion of my remarks on sentence I spoke to Mr Pulitano directly. I said:
If you commit any offence in the next 18 months or you breach the good behaviour bond in any way in the next 18 months, you will be going to gaol for 18 months. You will get the sentence you should have got in 1998, do you understand?”
10 Mr Pulitano replied, “Yes, your Honour.” In language that I am sure he understood, I said:
“If you commit an offence you will be in gaol. If you don’t commit an offence then you won’t. Okay.”
11 Mr Pulitano can have been under no misapprehension that breaching the bond would lead to him going to gaol, although his thinking may well have been clouded as a result of the Interferon. As I pointed out to Mr Payten in argument, he was a person who had the sword of Damocles hanging over his head. He was also the sort of person who has a history of failing to meet his obligations. Mr Payten asked me to accept that there are good reasons for excusing the bond under s 98 of the Crimes (Sentencing Procedure) Act. I do not accept that that is the case.
12 It must be remembered that a sentence of imprisonment which is then suspended under s 12 of the Crimes (Sentencing Procedure) Act is a sentence of some leniency. A person only gets a s 12 sentence where the judge or magistrate has decided that imprisonment is required. To then suspend the execution of that sentence so that instead of serving time in custody, the offender walks free from court without any punishment being imposed upon him at all is a very lenient outcome.
13 Nevertheless s 12 sentences are valuable outcomes in many cases. Indeed, as is obvious, I considered it an appropriate outcome in the present case. But they can only continue to be valuable outcomes if they retain the support of the community. I am sure many members of the community have trouble with the concept that a sentence of imprisonment has been imposed and then immediately suspended. If courts are too ready to then excuse breaches of s12 bonds, then community acceptance of the outcome is likely to diminish radically. It would be a rare case where an offender such as Mr Pulitano would be in a position to demonstrate good reasons for excusing his breach of the bond. I am not satisfied that there are good reasons in the present case.
14 The intentions behind the s 12 bond that I imposed clearly included personal deterrence. I was also promoting Mr Pulitano’s rehabilitation by reminding him of the sentence that he should have got in 1998 and by telling him that that is the sentence he would get if he breached the bond. In those circumstances I cannot find that there are good reasons for excusing his breach.
15 As a fallback position Mr Payten ask that I take those matter into account in deciding whether or not there are special circumstances. In the present case the Crown does not speak in opposition to such a finding. I am satisfied that there are special circumstances; they relate to the circumstance that the offender does finally seem to be growing out of frequent offending and frequent drug use. He is now forty-seven years of age. And perhaps it is finally occurring to him that he is wasting a lot of his life living as he does.
16 There are prospects of his rehabilitation which are enhanced by him being supervised by the Probation and Parole Service. I therefore make the following order: the order suspending the execution of the sentence of imprisonment is revoked. The offender is sentenced therefore to imprisonment for eighteen months. The non-parole period is nine months. It will have commenced on 27 July 2009 and will thus expire on 26 April 2010 on which day the offender is to be released to parole. It is a condition of his release to parole that he accept supervision of the Probation and Parole Service.
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