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 R v Trindall [2002] NSWCCA 364, 133 A Crim R 119 R v Palu [2002] NSWCCA 381, 134 A Crim R 174 CASES CITED : 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 IN THE COURT OF CRIMINAL APPEAL 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 the jurisdiction of this Court. Facts 5 On the occasion of the offence the victim, a service station attendant, was serving a customer at a fuel pump when he saw the respondent approaching the premises. He observed her to be short and overweight, and he noticed that she was wearing what was described in the statement of facts as a plastic gargoyle-type face mask and that her stomach was protruding from under her shirt. The victim commented to his customer, jokingly, that the respondent looked as if she was about to rob the business. However, as the respondent walked into the store he became concerned and asked the customer to follow him inside. 6 Once inside, the respondent brandished the knife and demanded money. The victim was fearful and held a clipboard to his chest to protect himself. He invited the respondent to take what she wanted. She opened the till and took a number of $10 and $20 notes. She left the store and the victim dialled the emergency number. 7 A second customer, who arrived at the service station as the respondent was leaving, followed her in his car. At one stage her saw her remove her mask and a little later he observed her walk towards a block of flats. Police later attended those flats. The respondent was arrested but she denied any involvement in the offence. However, when the flat she occupied was searched, the knife which she had used was found, together with notes totalling $60. 8 It is not entirely clear how much money was stolen. Particulars of the charge set out in the court attendance notice assert that it was $1,100. However, according to the statement of facts, the till had contained "a cash float totalling $500." I do not consider that anything turns on this in the disposition of the appeal. Subjective case 9 The respondent was 19 years old at the time of the offence and is now 21. Her criminal history comprised entries in the Children's Court: an offence of demanding property with menaces, dealt with in 2004, and related offences of assault occasioning actual bodily harm and resisting an officer in the execution of his duty, dealt with in the following year. These were disposed of by non-custodial orders, and her first experience of prison was upon her arrest for the present offence. She was refused bail at that time and remained in custody for about a month and a half. She was then granted bail in the Supreme Court with conditions which included a nightly curfew and daily reporting to police. 10 His Honour had before him a pre-sentence report, together with a psychiatric report which had been prepared for the respondent's appearance in the Children's Court in 2005. The respondent gave evidence. 11 Her parents separated when she was eleven years old, and she remained with her father. She was the second of three children. Her upbringing was marred by family conflict and violence, by her parents' drug use and by her mother's mental health problems. Her father formed a new relationship, and she also had what the author of the pre-sentence report described as "adjustment issues" relating to her stepmother. Her brother had been imprisoned for theft, an uncle had been sentenced to a lengthy term for homicide and another uncle had committed suicide. 12 Her education was limited, and she left school in her mid teens. She had a learning disability and was placed in "intermediate" classes. Her condition led to her being taunted and derided by other students. The psychiatrist concluded that she had "a mild to moderate intellectual disability." He observed her "limited understanding and vocabulary" during his interview with her. 13 She herself had abused a variety of drugs, including alcohol, since the age of 13. She had been in a couple of relationships with men, which had been bedevilled by drug and alcohol abuse and some violence. 14 The Probation and Parole officer, whose report was prepared at the end of March 2008, summarised her background and its bearing upon the offence in this way: Ms Pulliene is a 20 year old woman with a mild to moderate intellectual disability which, in conjunction with her dysfunctional upbringing, has contributed to her sometimes chaotic lifestyle of periodic abuse of alcohol, ongoing use of illicit drugs, failed domestic relationships, periods of family conflict and some anti-social behaviour. Ms Pulliene's offence occurred at a time when she was involved in substance abuse and a poor domestic relationship. Her offence may also reflect, in part, Ms Pulliene's diminished ability to properly rationalise the impact of her behaviour at this time. 15 By the time of the sentence proceedings on 15 April 2008, things had improved somewhat. While she was in custody she had had some drug and alcohol counselling, but she did not pursue counselling when she was released on bail because she believed she did not need it. However, between her initial appearance before his Honour on 8 April and her second appearance on 15 April she had resumed counselling through the local Area Health Service. She gave evidence that she had moderated her drinking and had recently stopped using cannabis. 16 She had previously enrolled in TAFE literacy courses, but had never finished them. However, again in the week prior to her appearance on 15 April, she had re-enrolled in such a course. Pursuant to her bail conditions, she was living with a woman who was the mother of a friend of hers. This appears to have been a satisfactory arrangement and she had been observing her bail conditions, including the curfew. 17 On 15 April both her mother and her stepmother were present in Court, supporting her. In evidence she expressed remorse for her crime, as she had earlier to the Probation and Parole officer. 18 His Honour addressed some questions to her while she was in the witness box. In the course of those questions he referred to the conflict with the law of her brother and her uncle, observing that she had "a lot of work to do" because she was "on the very edge of becoming a criminal…." He said to her "…what I'm thinking about doing today is to give you an opportunity of proving …that you're not going to go down that road." In the course of giving brief reasons for making the s11 order, his Honour said: It is true that the offender has had the opportunity in the past of some assistance by way of counselling – drug and alcohol particularly – and teaching to read and write, from which she has not benefited. This is perhaps the last opportunity that this young lady is ever going to have to get her life into some kind of order. 19 As I have said, his Honour released the respondent on conditional bail. Those conditions maintained the requirements of residence, curfew and reporting to which she was then subject, but added conditions that she attend TAFE conscientiously and follow the course, that she attend for drug and alcohol counselling and that she comply with any request for urine testing. 20 In addition, his Honour took an unusual course. He decided that he would monitor the respondent's progress during the period of the adjournment. Because he had been dealing with the matter on circuit in Wagga, he directed a telephone conference on 26 June 2008 between the representatives of the Crown and the respondent in Wagga and himself in Sydney. The purpose of the telephone link-up was to receive up to date information about the respondent's accommodation with the woman to whom I have referred and, generally, about her compliance with the conditions which his Honour had imposed. That conference took place and subsequently, through informal communication with his Honour in chambers, 16 October 2008 was set as the date for the resumption of the sentence proceedings. The present appeal, of course, was heard and disposed of before that day. 21 There is no need to examine what took place during that telephone conference. In written submissions filed before the hearing of the appeal, the Crown prosecutor submitted that it was an irregular procedure, because it purported to be part of the sentence hearing but was not conducted in open court and was not officially recorded. In written submissions in response, senior counsel for the respondent argued that it was not a sentence hearing but was an accepted mechanism for a court to exercise management over part-heard matters. 22 In the event, the issue was not pressed at the hearing. The source of this Court's jurisdiction is the s11 order made on 15 April 2008. The telephone conference of 26 June is not a proper subject for appellative review. Nor would this Court wish to comment upon administrative procedures adopted by District Court judges in the disposition of cases before them. As to the use of a telephone link-up, there might be much to be said for resort to electronic communication between the judge and the parties to a proceeding in appropriate circumstances, particularly in a court administering justice in a large number of regional centres. The appeal 23 In the event of the appeal succeeding, the Crown prosecutor did not ask this Court to re-sentence the respondent. The orders sought were that the s11 order be quashed, that the matter be remitted to the sentencing judge so that the sentence proceedings could be resolved as soon as practicable, and that the grant of bail be revoked. 24 Put shortly, the Crown's position was that a s11 order was uncalled for because, as it was put in written submissions, on 15 April "there was sufficient evidence then before the Court to permit appropriate findings to be made of the relevant objective and subjective circumstances." The Crown prosecutor referred to R v Trindall [2002] NSWCCA 364, 133 A Crim R 119, in which Smart AJ, delivering the leading judgment, observed at [64] that an order under s11 "is likely to arise for consideration in a relatively small number of cases," and that "such a remand should not be granted unless there are good reasons for concluding that it is likely to assist the court in determining whether an offender should be sent to jail or in fixing the length of the sentence or the non-parole period." 25 The approach to a s11 order was also considered by Howie J, again delivering the leading judgment, in R v Palu [2002] NSWCCA 381, 134 A Crim R 174. After referring to Trindall, his Honour said: [29] As Smart AJ identified, the discretion conferred upon a sentencing judge by s 11 can be a valuable sentencing tool when used in an appropriate case for the purpose of arriving at a sentence which is just both for the offender and for the community. But the section can only be utilized in a principled way and upon proper material placed before the court otherwise it becomes an instrument of injustice, either by raising false expectations in the mind of the offender as to the sentence which will ultimately be imposed upon him or by becoming the justification for the imposition of a sentence which fails to meet legitimate expectations of the community as to the punishment to be imposed upon the offender. [30] The exercise of the power given under s 11 will inevitably result in delay in the finalisation of the prosecution of the offender. …Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice. … 26 It was also the Crown's position that the effect of the s11 adjournment was merely to stave off the inevitable, that is, the imposition of a custodial sentence. Reference was made to the familiar guideline for sentence for armed robbery to be found in R v Henry [1999] NSWCCA 111, 46 NSWLR 346 at [161] ff. In oral argument, the Crown prosecutor put as a "primary submission" that a full time custodial sentence was required. However, he acknowledged that alternatives to full time custody could not be ruled out because of the features of the present case which distinguished it from the typical case considered in Henry. Quite apart from the respondent's early plea of guilty, her difficult background and her tentative steps towards rehabilitation, her intellectual disability was capable of invoking the approach to the sentence of people suffering mental illness or disability explained in cases such as R v Engert (1995) 84 A Crim R 67 and R v Israil [2002] NSWCCA 255. 27 In my view, this was clearly a case where it was open to the sentencing judge to take the course he did. From the material before his Honour it was apparent that he was dealing with a young woman from a troubled background who had shown signs of rehabilitation but whose prospects of it, at that stage, were far from predictable. To use a hackneyed expression, she could fairly be seen to be "at the crossroads." 28 It was appropriate that her capacity for reform be tested over a reasonably lengthy period before the sentence for her crime was determined, and the delay that this involved was in the interests of justice. Particularly was this so because, in the unusual circumstances of her case, a full time custodial case might not have been inevitable. In Legge v R [2007] NSWCCA 244, a case in which this Court reduced a custodial sentence for armed robbery to a level significantly below the Henry guideline so as to enable the offender's immediate release, Spigelman CJ reminded us at [59] that "a guideline is not a tramline." 29 Accordingly, no error having been shown in his Honour's approach, the Crown appeal could not succeed. 30 FULLERTON J: I also joined in the orders of the court on 18 July 2008 and I also agree that the Crown appeal should be dismissed. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.