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.

Crimes Act - s 112(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 24, 47 Criminal Appeal Act 1912 - s 6(3)

Callaghan v R [2006] NSWCCA 58 Markarian v R (2005) 215 ALR 213 CASES CITED: 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 - IN THE COURT OF CRIMINAL APPEAL 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.