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. R v Deeble (CCA, 19 December 1991, unreported); R v Howard [2001] NSWCCA 309 R v Leete [2001] NSWCCA 337; CASES CITED : 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 THURSDAY 4 MARCH 2010 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 order should have been revocation of the bonds, with the order suspending their sentences then ceasing to have effect pursuant to s 99(1)(c) of the Crimes (Sentencing Procedure) Act 1999, but no point is taken as to the formulation of the order. His Honour continued - "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..." 6 The applicant seeks leave to appeal against sentence, on the ground that his Honour erred in failing to take into account the pre-sentence custody in December 1988 - April 1999. He does not challenge the revocation of the order suspending the sentences. To the extent that an extension of time is required to apply for leave to appeal against the sentences imposed on 2 May 2008, it should be granted. The error on which the applicant relies is said to be either failure at the time the sentence was imposed on 2 May 2008, or failure at the time the suspension of the sentence ceased to have effect on 9 October 2009. 7 In sentencing an offender the court must take into account any time for which the offender has been held in custody in relation to the offence, (Crimes (Sentencing Procedure) Act (s 24(a)). It was accepted that the pre-sentence custody in the present case was solely referable to the offences for which the applicant was sentenced. A court may direct that a sentence be taken to have commenced on a day before that on which it is imposed (s 47(2)(a)), with a specific requirement that in deciding the day pre-sentence custody be taken into account (s 47(3)). 8 The statutory mandate can be fulfilled by backdating the date on which the sentence is to commence, as provided for in s 47(2)(a), or by reducing the sentence imposed. The former course is generally to be preferred, see R v McHugh [1985] 1 NSWLR 588; R v Deeble (CCA, 19 December 1991, unreported); and R v Newman and Simpson [2004] NSWCCA 102, (2004) 145 ACrimR 361 particularly at [22]-[23]. The latter course can be followed for good reason, see R v Deeble and R v Leete [2001] NSWCCA 337, (2001) 25 ACrimR 37. 9 However, the former course, that is, backdating at the time of sentence, is not available when a sentence is suspended pursuant to s 12(1) of the Crimes (Sentencing Procedure) Act, and by s 12(3) Part 4 of the Act (within which is s 47, which would otherwise dictate a day of commencement of the sentence and allow for backdating) does not apply to a sentence the subject of an order suspending its execution. Thus any pre-sentence custody must either be taken into account by reducing the sentence imposed, in which I include in prescribing the manner in which the sentence is to be served, or by backdating at the time there is revocation of the bond and the sentence descends. 10 It is not necessary to enter into which is the preferable course to adopt. The question for us is whether the first of these courses was in fact adopted by the judge when he sentenced on 2 May 2008. If he did, it is accepted by the applicant that there was no error in failing to backdate on 9 October 2009. Conversely, albeit perhaps with a qualification, it was accepted by the Crown that if he did not there should have been a backdating on 9 October 2009. 11 The remarks on sentence on 2 May 2008 included, in his Honour's account of the circumstances, that the applicant had been arrested on 16 December 1998 and "spent about four months in custody before he was granted bail." The pre-sentence custody was not otherwise mentioned. 12 The remarks on sentence included - "The offences were serious and require a sentence of imprisonment to be imposed. But in the light of the favourable features mentioned in the pre-sentence report prepared by the Victorian authorities, and in light of the fact that I consider that a sentence of less than two years is called for, I propose to suspend the sentence. I consider this is a satisfactory way of dealing with this matter. It properly reflects the rehabilitative efforts that the offender has made. It recognises the seriousness of his conduct and it also enables me to impose upon Mr Pulitano the sentence he should have got had he been dealt with in 1999 in this court, in the event that he fails to comply with conditions of his bond. Mr Pulitano should be under no misapprehensions 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 shortly announce." 13 His Honour pronounced the sentences of eighteen months and their suspension. In addressing the applicant at the close of his remarks, his Honour said - "Mr Pulitano if you'd been dealt with in 1998 or 1999 you would have gone to gaol. You are not going to gaol because of the good efforts you've made to rehabilitate yourself since 2001. But if you commit any offence in the next 18 months or y ou 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? 14 His Honour was conscious of the pre-sentence custody and is unlikely, given the brief sentencing hearing and the fact that he was making his remarks on sentence immediately thereafter, to have forgotten about it. It is tolerably clear, in my opinion, that he meant that the sentences of imprisonment for eighteen months would be served in full, without any backdating by reason of the pre-sentence custody, in the event of breach of the conditions of the bond. He was emphatic that the applicant would go to gaol for eighteen months. That cannot stand with going to gaol, in context meaning going to gaol in the future in the event of breaching the bond, for about fourteen months because at the later time credit would be given for pre-sentence custody. 15 Albeit not explicitly, in my opinion his Honour did take the pre-sentence custody into account in arriving at the sentences of eighteen months. 16 The Crown submitted more widely that his Honour had taken the pre-sentence custody into account in determining the type of sentence, here the leniency of a suspended sentence. The Crown referred in particular to Whyte v The Crown [2009] NSWCCA 18, in which R A Hulme J, with whom Grove and Howie JJ agreed, said of a submission that the sentencing judge had not taken pre-sentence custody into account when arriving at the term of a suspended sentence - "17. The conclusion is inescapable, it seems to me, that the issue of pre-sentence custody was very clearly in her Honour's mind and she gave the applicant credit for it by acceding to the submission that had been made by counsel on his behalf. Counsel invited her Honour to give effect to the pre-sentence custody by imposing a sentence of less than two years duration and by suspending it. This is precisely what her Honour did." 17 In the present case it is not so clear that the judge was urged to have regard to the pre-sentence custody in imposing a suspended sentence. Of more significance, the remarks on sentence are against this wider submission. His Honour stated two matters in the light of which he proposed to suspend the sentence, namely, the favourable features mentioned in the pre-sentence report and his view that a sentence of less than two years was called for. There was at this point no reference to the pre-sentence custody, and I do not think it can be read into the reasons for suspending the sentence. 18 Notwithstanding this, for the reasons I have given it seems to me that the pre-sentence custody was taken into account in arriving at the sentences of eighteen months. 19 The applicant drew attention to the fact that the sentences of eighteen months were expressed in whole months, whereas the pre-sentence custody was a period of three months and twenty days. He submitted that it was unlikely that the judge had reasoned by first arriving at terms of twenty-one months and twenty-two days and then allowing for the pre-sentence custody in order to reach the eighteen months. Reference was made to R v Howard [2001] NSWCCA 309 at [24], where there was noted a submission that a sentence expressed in round terms did not demonstrate the allowance of two periods of pre-sentence custody, although it is not clear that that submission was accepted. 20 The Crown drew attention to Starmer v R [2008] NSWCCA 27, where it was said at [13], (Grove J, McClellan CJ at CL and Simpson J agreeing), that sentencing is not arithmetic and there is no need to sentence only in round figures. Equivalent to that observation, it was not necessary for his Honour to reason in precise figures in arriving at the eighteen months. It was open to his Honour to allow in a more global way for the three months and twenty-two days in coming to the period of eighteen months as the appropriate term for the suspended sentences. This was a valid argument in favour of the applicant, but in my opinion it is not one which outweighs the reasons I have given for my conclusion. 21 In my opinion, therefore, error has not been shown, and it is not necessary further to consider how account might properly be taken of pre-sentence custody in circumstances such as the present. There was no error on 9 October 2009 in failing to backdate by reason of the pre-sentence custody. 22 I therefore propose that leave to appeal be granted but the appeal be dismissed. 23 R S HULME J: I agree. 24 LATHAM J: I also agree. 25 GILES JA: That will be the order of the Court. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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