Salute Brunetta
[2001] NSWCCA 331
•29 August 2001
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Salute BRUNETTA [2001] NSWCCA 331
FILE NUMBER(S):
60153/01
HEARING DATE(S): 29 August 2001
JUDGMENT DATE: 29/08/2001
PARTIES:
Regina
Salute Brunetta
JUDGMENT OF: Sheller JA Sully J Hulme J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 95/11/0307
LOWER COURT JUDICIAL OFFICER: Gibson DCJ
COUNSEL:
G. Smith - Crown
In person - Applicant
SOLICITORS:
S. E. O'Connor - Crown
In person - Applicant
CATCHWORDS:
LEGISLATION CITED:
DECISION:
Extension of time on application for leave to appeal - granted
Leave to appeal granted
Substantive appeal dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL60153/01
SHELLER JA
SULLY J
HULME J
Wednesday 29 August 2001
Regina v Salute Brunetta
Judgment
SULLY J: Mrs Salute Brunetta applies for leave to appeal against a sentence of imprisonment passed upon her by his Honour Nield DCJ in the District Court consequent upon an order cancelling an antecedent sentence of imprisonment which had been ordered to be served by way of periodic detention.
On 22 September 1995 Mrs Brunetta stood for sentence before his Honour Gibson DCJ in the District Court. She had pleaded guilty before his Honour to some 24 counts of dishonesty charged against her in an indictment. Various other offences were taken into account by his Honour and at the request of Mrs Brunetta. The amounts of money involved were not inconsiderable.
His Honour Gibson DCJ dealt with the applicant by passing upon her a sentence of a fixed term of imprisonment for two years upon each of the counts in the indictment, directing that the sentences be served by way of periodic detention at Silverwater commencing on 29 September 1995 and ending on 28 September 1997.
The applicant did not so report; and although subsequently she did commence service of the periodic detention which Gibson DCJ had ordered, she did so in a way which was thought by the authorities to be in every way unsatisfactory; and in due course an application was made to the District Court to cancel the order of periodic detention.
That application came before his Honour Nield DCJ in September 1997. On 9 September 1997 his Honour gave judgment cancelling, or more precisely indicating that he intended to grant the application to cancel, the periodic detention.
The applicant herself, although represented, was not personally present on 9 September 1997. That being so, his Honour Nield DCJ indicated that he would stand the matter over until 12 September; and that if the applicant was not then in attendance a warrant, for her apprehension would be, without further ado, ordered.
His Honour indicated that he proposed to translate the periodic detention into a sentence of imprisonment for 82 weeks divided equally between a minimum term of 41 weeks and an additional term of 41 weeks.
On 12 September 1997 the applicant's solicitor appeared before his Honour Nield DCJ and applied for an adjournment upon the basis that the applicant wished to inform her family of the fact that she was to be committed to prison. His Honour refused that application for an adjournment, and proceeded thereupon to order that the applicant serve the unexpired period of the periodic detention, namely 82 weeks, by full-time imprisonment. His Honour ordered that a warrant issue for the apprehension and detention of the applicant. His Honour formally fixed the apportionment of the 82 weeks in the way to which I have earlier referred.
What then ensued was that some three and a half years elapsed until eventually the applicant was apprehended and brought into her present custody.
When the present proceedings were first before this Court on Monday of this week the Court indicated to learned counsel representing the Crown that it required some proper information concerning the reasons why it had taken so long for the orders made by his Honour Nield DCJ in September 1997 to be given proper effect. The up-shot of that request by the Court has been the filing of an affidavit sworn by Inspector Peter Marcon. Inspector Marcon is attached to the Operational Information Branch at the Information and Intelligence Centre of the Police Service at Parramatta.
Inspector Marcon gives a detailed chronological account of what, so far as the records available to him disclose, was the course of events between the passing of sentence by Nield DCJ and the apprehension three and a half years or so later of the applicant.
It is a story with which the Court, I presume to say, is not unfamiliar. It is a story of inadequate operational resources, inadequate funding, and a general apparent absence of any disciplined kind of on-going review of cases of the present type in order to ensure that lawful orders of Courts are promptly and properly put into effect.
Inspector Marcon explains in his affidavit that steps, which he describes in all necessary detail, have been put in hand in order, at least to attempt, to avoid repetition in the future of the course of events which I have just now summarised.
All that seems to me can be usefully said about the material in Inspector Marcon's affidavit is that the Court has noted it, but notes also that there is an obvious continuing need for proper funding and for proper monitoring of the prompt and lawful carrying into execution of Court orders, and in particular of Court orders authorising arrests upon warrant. It is not a satisfactory state of affairs in any case for a matter simply to drift along as seems to have been, generally speaking, the case with the applicant's matter, for a time in the order of three and a half years.
When his Honour Nield DCJ came on 9 September 1997 to deal with the application to cancel the periodic detention order, his Honour had before him among other materials a document which passed into evidence as exhibit F. A copy of it is reproduced at pp 103 to 105 inclusive of the appeal papers before this Court.
There are some infelicities in the way in which the document is arranged and expressed; but a little patient dissection seems to me to make it possible to conclude with a proper confidence the details of the history of the applicant's periodic detention.
The document speaks to 105 nominated separate detention periods. It establishes that the applicant reported on 26 occasions only. It establishes that the applicant had approved leave of absence on 15 occasions; that she had been excused from attending on two occasions because of a public holiday; and that she had failed to report on 58 occasions.
The submissions made by Mrs Brunetta, who has appeared for herself, entail, as I have followed them, a submission to the effect that Nield DCJ fell into error in that he misapprehended in some way the nature of the factual material put before him. The short answer to that proposition, it seems to me, on a fair reading of the material before the Judge and of his Honour's remarks, discloses that his Honour did not make any such error of fact as appears to be now contended.
It is clear that the applicant had in September 1997, and I am prepared to accept still has, medical conditions of various kinds, the fine detail of which it is not necessary, as I think, now to examine. It is, I think, sufficient to say that there was before Nield DCJ medical evidence in the way of certificates of one kind and another; and that it seems to me that his Honour paid all proper attention to what those materials said; and took into proper account, in the way the law requires, the details of them.
I do not think that a fair reading of his Honour's remarks on 9 September 1997 discloses any error whether of fact or in law in his Honour's approach to the application then before him to cancel the periodic detention order and to substitute for it a sentence of imprisonment to be served in full-time detention.
Mrs Brunetta complains that his Honour miscalculated the 82 weeks. I have considered the remarks on sentence and the submissions put in that connection; and it is sufficient to say that I am wholly unpersuaded his Honour made any such mistake.
It is complained that his Honour did not fairly apportion the 82 weeks as between minimum term and additional term. It seems to me that his Honour showed every proper sympathy to the applicant's demonstrated subjective features; and that it was wholly within the proper range of his Honour's relevant discretion to apportion the 82 weeks as his Honour did: equally between the 41 weeks minimum term and the 41 weeks additional term.
In the end result, therefore, I am wholly unpersuaded that appealable error has been demonstrated.
The applicant requires an extension of time on which to make her application for leave to appeal. I would grant it. I would grant, also, leave to appeal; but I would thereupon dismiss the substantive appeal.
SHELLER JA: I agree.
HULME J: I also agree.
SHELLER JA: The orders of the Court will be as proposed by Sully J.
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LAST UPDATED: 05/09/2001
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