New South Wales Court of Criminal Appeal CITATION : R v Di Cola [1999] NSWCCA 195 FILE NUMBER(S) : CCA 60824/98 HEARING DATE(S) : 21 July 1999 JUDGMENT DATE : 21 July 1999 PARTIES : Regina Vincenzo Di Cola (Appellant) JUDGMENT OF : Studdert J at 1; Simpson J at 16 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/2118 LOWER COURT JUDICIAL OFFICER : O'Reilly DCJ COUNSEL : P. Berman (Crown) T.S. Murphy (Appellant) SOLICITORS : S.E. O'Connor (Crown) (Direct access) CATCHWORDS : ACTS CITED : Crimes Act DECISION : Leave to appeal granted; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60824/98 STUDDERT J SIMPSON J Wednesday 21 July 1999 REGINA v VINCENZO DI COLA JUDGMENT 1 STUDDERT J: The applicant, Vincenzo Di Cola, was charged on indictment with an offence of sexual intercourse and with two offences of assault with act of indecency. When the indictment was presented before his Honour Judge O'Reilly of Queen's Counsel the applicant pleaded not guilty to the sexual intercourse charge but guilty to each of the offences of assault with act of indecency. The pleas were accepted in full satisfaction of the indictment and following conviction on the two counts to which the applicant pleaded guilty the judge proceeded to receive evidence and hear submissions on 27 November 1998. On 14 December 1998 the judge passed sentence, imposing concurrent terms of three years imprisonment for each of the two offences. His Honour fixed a minimum term of twelve months and an additional term of two years, having found special circumstances. Accordingly, he directed that the applicant be released on parole on 13 December 1999 when the minimum term expired. 2 The applicant seeks leave to appeal against the sentence imposed. 3 The offences in respect of which the applicant was convicted and for which he was sentenced were offences under s 61M(2) of the Crimes Act. That subsection provided for a maximum penalty of ten years imprisonment for each offence. 4 The applicant was born on 23 June 1942 so that he was fifty-six years old at the time of sentence. He is a married man with three children, two of whom are adults and the third of whom was thirteen at sentence. The applicant had formed a relationship with the victim's mother. His victim was a child born on 29 November 1987 and she was nine years of age at the time of the offences in September 1997. 5 These two offences were committed seven days apart and on each occasion the applicant was babysitting the young child. On the first occasion the child went to bed and the applicant followed her into the bedroom, pulled down her pyjamas and underwear and then moved up and down on top of her. It was not suggested that there was any penile penetration but there was some penile contact with the body of the young girl. The circumstances of the second offence were similar. 6 The applicant was a person of previous good character with no convictions. He did not enjoy the best of health, suffering from diabetes and depression. He did enjoy the support of his wife who gave evidence at the sentencing proceedings and who described him as an excellent husband and an excellent father to his children. Mrs Di Cola said her husband expressed his contrition for what he had done and that to her this seemed like genuine contrition. 7 The applicant himself gave evidence and although the transcript is not clear as to precisely what he said, I record the following questions and answers from p 3 of the transcript of 27 November 1998: "Q. What do you say to the victim about what you did? A. Probably sorry that what I done should never done, was .. (not transcribable).. Q. Have you ever done this sort of thing before? A. No. Q. Will you ever do it again? A. No. CROSS EXAMINATION FORAGE: Q. Mr Di Cola you say now that you're very sorry and you should never have done it, but when you spoke to Mike Barrett, the probation and parole officer, you basically thought that a nine year old child could stop you from doing it, is that correct? A. No I didn't say that. I just said if she just would've talked because I was very close to her, I brought her up from 4 year old, if she just would have talked to me when I was doing that thing to her I would've stopped, I would've died, but she - I don't know what happened, I just don't know. I just - I was under pressure and I use her for my escape and it was wrong. I didn't mean it - I didn't mean to touch the little girl for sexual reason, I just told her that I used her to break the relationship with the mother but it was wrong and-- Q. So you accept responsibility for your actions now, Mr Di Cola? A. Yes, definitely, definitely, yes, I just don't know what happened to me. I ..(not transcribable)..her just as good to my daughters, just brought her up. Q. You realise though it was a breach of trust on your part, you were babysitting Teresa at the time and you should have been taking care of her, is that right? A. Yeah that's correct. Q. You accept that you've breached her trust and her loyalty to you as a father figure? A. Yes." 8 The learned judge in his sentencing remarks expressed his difficulty in accepting the submission that the applicant was contrite. This was because notwithstanding the evidence that the applicant had given and the evidence that his wife had given as to contrition, the applicant had, in the judge's perception, indicated an attitude during the video interview with the police and his Honour was also influenced by the applicant's stance with the probation service. 9 There was in evidence a very extensive ERISP interview and the pre-sentence report placed before the District Court judge was an unfavourable one from the applicant's point of view. In the remarks on sentence his Honour reviewed the applicant's responses to the police questioning and it is fair to summarise the judge's assessment of those responses as being that the applicant was reluctant to acknowledge what he had done to this young girl. I do not propose to set out in the course of these reasons all the questions and answers from the interview which support, to my mind, the judge's assessment, but in my opinion the conclusion that the judge reached about the responses to police questioning was correct. I refer in particular to questions 33, 41, 69, 73, 74, 75, and 78 and the answers to those questions. 10 The Probation and Parole officer made the following statements in the pre-sentence report dated 6 November 1998: "Mr Di Cola showed virtually complete disregard for the physical and emotional consequences of his offending behaviour upon the victim. It is concerning that in addition to the victim's young age, the offender expressed a recognition of her vulnerability due to apparent conflict within the home. Mr Di Cola stated that the girl needed love and attention to compensate for her supposed treatment by her mother. When questioned regarding the victim's testimony of feeling 'angry and sad' during the commission of the offence, Mr Di Cola stated, 'I don't think she was angry or sad…she was awake…if she felt like that then she would have said something'. In emphasising the victim's intelligence, the offender stated that he expected she would have 'stopped him'… Mr Di Cola opposes a substantial degree of both the police facts and the victim's testimony. He denies that his behaviour was sexual in nature and claimed rather that his intention was to 'make it look like sexual assault'. Mr Di Cola's only concession was that he 'used' the victim." 11 In his comprehensive and thoughtful written submissions Mr Murphy of counsel has submitted that the sentencing judge did not give sufficient weight to the evidence of the applicant's contrition, in particular to the sworn evidence of the applicant and his wife to which I have referred. However it seems to me that the difficulties that his Honour had in accepting that evidence of contrition were understandable having regard to the content of the ERISP and having regard to the Probation and Parole Officer's report. His Honour was the tribunal of fact. It is not clear whether his Honour expressly rejected that the applicant was contrite or whether his Honour was not persuaded by the evidence of contrition that the applicant was contrite. In either event, it seems to me the judge's conclusion was an available one to him, he having been the person charged with the assessment of the evidence in point. 12 Mr Murphy submitted that the author of the pre sentence report proceeded upon the basis that the applicant had committed sexual intercourse, and proceeding on this basis it is not surprising that the author wrote a report which was unfavourable. However the author was not cross-examined and to the extent that the judge drew upon the content of the report, it seems to me that he was entitled to regard such content as being objective and based upon statements that were made to the Probation and Parole Officer by the applicant on interview. 13 I am not persuaded by anything that has been put by Mr Murphy that error has been demonstrated in the approach that his Honour took to his sentencing task in this case. Nor am I persuaded that the sentence imposed was outside the appropriate range of his Honour's sentencing discretion. The offences were serious and they involved a breach of trust. This young girl had been committed to the applicant's care. 14 As to the structure of the sentence, his Honour found special circumstances and gave the applicant the benefit of an extended period of supervision in the additional term fixed. This was appropriate in this case. 15 I see no reason for this Court to disturb the sentence that has been imposed. I therefore propose that leave to appeal be granted but that the appeal be dismissed. 16 SIMPSON J: I agree. 17 STUDDERT J: The orders of the Court then will be those that I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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