Regina v Pulliene - [2009] NSWCCA 47

New South Wales
Court of Criminal Appeal

CITATION: REGINA v PULLIENE [2009] NSWCCA 47

HEARING DATE(S): 18/07/2008

JUDGMENT DATE:
3 March 2009

JUDGMENT OF: McClellan CJatCL at 1; Hidden J at 2; Fullerton J at 30

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Crown appeal - order under s11 Crimes (Sentencing Procedure) Act 1989 - armed robbery - plea of guilty - respondent a young woman with difficult background and intellectual disability - whether order appropriate to assess her prospects of rehabilitation - whether full time custodial sentence inevitable

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Trindall [2002] NSWCCA 364, 133 A Crim R 119
R v Palu [2002] NSWCCA 381, 134 A Crim R 174
R v Henry [1999] NSWCCA 111, 46 NSWLR 346
R v Engert (1995) 84 A Crim R 67
R v Israil [2002] NSWCCA 255.
Legge v R [2007] NSWCCA 244

PARTIES: Regina (appellant)
Kira Maree PULLIENE (respondent)

FILE NUMBER(S): CCA 2008/3540

COUNSEL: P Ingram (Crown)
A Haesler (respondent)

SOLICITORS: S Kavanagh (ODPP)
S O'Connor (LAC)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/3540

LOWER COURT JUDICIAL OFFICER: Geraghty DCJ

LOWER COURT DATE OF DECISION: 15/04/2008

2008/3540

McCLELLAN CJ at CL
HIDDEN J
FULLERTON J
3 March 2009

Regina v PULLIENE, Kira Maree

Judgment

1 McCLELLAN CJ at CL: On 18 July 2008 I joined in the orders of the court dismissing the Crown appeal. I have read the reasons of Hidden J in draft with which I agree.

2 HIDDEN J: This is a Crown appeal against sentence, which was heard 18 July 2008. The appeal had been brought against an order of a District Court judge, under s11(1) of the Crimes (Sentencing Procedure) Act, adjourning sentence proceedings and releasing the respondent on conditional bail. Such an order is appealable because it falls within the extended definition of “sentence” in s2(1) of the Criminal Appeal Act. The Court dismissed the appeal on the day of hearing, undertaking to give its reasons later. These are my reasons for joining in that decision.

3 In the morning of 28 October 2007 the respondent, a young woman with a dysfunctional background and an intellectual disability, committed an armed robbery at a service station at Young. That is an offence under s97(1) of the Crimes Act, carrying a maximum sentence of imprisonment for 20 years. She pleaded guilty in the Local Court and was committed to the District Court for sentence. The matter came before the District Court at Wagga Wagga on 8 April 2008 and was adjourned to 15 April, when the sentencing judge received a body of evidence. It was on that day that the order under s11 was made.

4 His Honour did not adjourn the proceedings to a specified date, as required by s11(1). However, no point was taken about this before us and it was common ground that his Honour had made a s11 order amenable to…

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 Regina v Pulliene

Details

AGLC: Regina v Pulliene [2009] NSWCCA 47
Case: [2009] NSWCCA 47
Decision Date: 3 March 2009

CaseChat Overview and Summary

The appeal heard by the court involved the Crown against Pulliene, a young woman with a challenging background and an intellectual disability who had pleaded guilty to armed robbery. The Crown was seeking to appeal against an order made by the sentencing court that directed Pulliene to undergo a rehabilitation assessment under section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to determine her prospects of rehabilitation. The Crown argued that Pulliene should be subject to a full-time custodial sentence.

The central legal issue before the court was whether the sentencing court's order for a rehabilitation assessment was appropriate, particularly in light of Pulliene's background and intellectual disability. The court was also required to consider whether a full-time custodial sentence was inevitable in Pulliene's case.

In addressing these issues, the court noted that Pulliene had committed a serious crime and had a history of reoffending. However, the court also recognised that Pulliene had a difficult background and intellectual disability, which may have contributed to her criminal behaviour. The court found that the sentencing court had appropriately exercised its discretion in ordering a rehabilitation assessment, as it was necessary to determine Pulliene's prospects of rehabilitation and to ensure that any sentence imposed was appropriate and proportionate to her circumstances. The court also found that a full-time custodial sentence was not inevitable in Pulliene's case, as there were other sentencing options available that could address her rehabilitation needs and reduce the risk of reoffending.

The appeal was dismissed, and the original sentencing order was upheld. The court emphasised the importance of considering the individual circumstances of each offender when imposing a sentence, and of exploring all available sentencing options to address the underlying causes of criminal behaviour. The court also highlighted the need for greater support and resources to be made available to offenders with intellectual disabilities to help them address their rehabilitation needs and reduce the risk of reoffending.

Orders