Regina v Virgona [1999] NSWCCA 136

New South Wales Court of Criminal Appeal CITATION : Regina v Virgona [1999] NSWCCA 136 FILE NUMBER(S) : CCA 60308/98 HEARING DATE(S) : 07.06.99 JUDGMENT DATE : 7 June 1999

PARTIES : Regina v Vincent John Virgona JUDGMENT OF : Grove J at 27; Carruthers AJ at 1-26

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/31/0484 LOWER COURT JUDICIAL OFFICER : Kirkham DCJ

COUNSEL : R.D. Ellis for the Crown. P.D. Rosser QC for the Applicant/ SOLICITORS : C.K. Smith for the Crown. James Fuggle for the Applicant. CATCHWORDS : Criminal Court - sentence appeal against severity; Indecent assault on a male; Homosexual intercourse with a male; Gross indecency towards a male under the age of 18 years; Sexual assault paedophilia; Alleged failure to find special circumstances. ACTS CITED : s 81, 78K, 78Q(1) of Crimes Act 1900 s 5(2) of Sentencing Act 1989 Hampton (CCA unreported 25/6/98) Morrisey (CCA unreported 15/7/94) CASES CITED: McDonald (CCA unreported 12/10/98) GDR (1994) 35 NSWLR 376 Eagles (CCA unreported 16/12/93 MFG (CCA unreported 7/11/97) DECISION : Leave to appeal granted.; Appeal dismissed.

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IN THE COURT OF CRIMINAL APPEAL

60308/98

GROVE J CARRUTHERS AJ

MONDAY 7 JUNE 1999

REGINA v VINCENT JOHN VIRGONA

JUDGMENT

1 CARRUTHERS AJ: Vincent John Virgona seeks leave to appeal against sentences imposed upon him by Kirkham DCJ at the Dubbo District Court on 15 May 1998 when, following pleas of guilty, the applicant was sentenced on the following offences: As to counts 1 and 2 - indecent assault on a male pursuant to s 81 of the Crimes Act 1900 (to which I shall later refer as "the Act"). - This offence carries a maximum penalty of five years penal servitude. As to counts 3, 6 and 7 - homosexual intercourse with a male between the age of ten and eighteen years - pursuant to s 78K of the Act, which carries a maximum penalty of ten years penal servitude, and as to count 5, an act of gross indecency towards a male person under the age of eighteen years - pursuant to s 78Q(1) of the Act, which carries a maximum penalty of imprisonment for two years. 2 These various offences were committed over the period January 1983 to approximately January 1990. 3 On 15 May 1998, the applicant was sentenced as follows: As to counts 3, 6 and 7, to a minimum term of four years and six months penal servitude, to commence on 15 May 1998 and to expire on 14 November 2002. An additional term was imposed of one year and six months to commence on 15 November 2002 and to expire on 14 May 2004. As to counts 1, 2 and 5, the applicant was sentenced to a fixed term of twelve months to commence on 15 May 1998 and to expire on 14 May 1999. 4 It is relevant to note for sentencing purposes that the applicant was presented for trial at the District Court on 16 March 1998 upon an indictment containing eight counts of sexual assault alleged to have been committed upon a male complainant, who was the nephew of the applicant by marriage. 5 On 17 March 1998 the applicant, after the complainant had given probably most but not all of his evidence-in-chief, but, of course, before he was cross-examined, pleaded guilty to six of the counts in the indictment. By consent the jury were discharged without verdict in respect of the remaining two counts of 4 and 8. 6 The complainant was born on 12 December 1974 and the applicant was born on 22 June 1948. I do not think that any purpose would be served by detailing the sexual indignities which the applicant, in a position of trust, inflicted upon his nephew, some twenty-six years his junior. 7 Kirkham DCJ, having recited a summary of facts relied upon by the Crown and admitted by the applicant, said in his remarks on sentence: "From these facts it can be seen that over a period of many years from when the complainant was aged nine, up to a time when he was between 14 and 16 years of age, the accused engaged in a course of reprehensible conduct in self gratification of his rampant paedophilia." 8 His Honour expressed the view that there were no special circumstances. 9 The present application is based essentially upon two grounds. It is said that the effective sentence imposed by his Honour was excessive in consequence of, firstly, inadequate weight having been given to the evidence of rehabilitation and, secondly, the failure of his Honour to find special circumstances justifying the departure from what was referred to as "the statutory ratio" between minimum and additional terms. 10 In sentencing the applicant, his Honour took the view that the offences were in the upper range of seriousness for these type of offences. Secondly, that it was an appropriate case for the application of the principle of totality. His Honour took into account that the applicant sought treatment for his paedophilia at about the time of the commission of the last of the series of offences, that the applicant's history revealed that he himself was the victim of sexual abuse by a family friend between the ages of nine and thirteen years involving similar conduct to that which the applicant admitted performing on the present complainant. 11 For some years the applicant has been in a heterosexual de facto relationship with one Miss Russell, which is of a stable nature; effectively the applicant has no prior criminal record and the applicant was entitled to the benefit of the ultimate pleas of guilty, albeit as they were late this would not attract the same discount as if there had been such pleas ab initio. 12 Specifically, his Honour accepted that there had been some rehabilitation and "hopefully that rehabilitation will continue". 13 Finally, as I have indicated, his Honour said: "There is no submission which I can accept which would attract the consideration of the existence of special circumstances in this matter." 14 In submissions before us, Mr Rosser QC, counsel for the applicant, made the point that the applicant has always denied the charges contained in the fourth and the eighth counts, particularly in relation to the eighth count which alleged sexual assault upon the complainant between 30 June 1993 and 1 September 1993, a date well after that when the applicant sought, of his own motion, counselling. 15 The basis of the submissions before his Honour in mitigation of penalty was that the consequence of that counselling was that the applicant had attained a position of complete rehabilitation. This, Mr Rosser has stressed, is totally inconsistent with any concession by him that he committed a sexual offence against the complainant as late as 1993. Mr Rosser also put to us that in the evidence given before the jury the complainant had not come up to proof on count 4 and had not reached the stage of giving any evidence with regard to count 8. Mr Rosser put to us that it was because mainly (or perhaps entirely) of the justifiable refusal on the part of the applicant to concede the commission of the fourth and the eighth counts that it was appropriate that the applicant plead not guilty to the entire eight counts in the indictment. He also stressed that there was evidence before his Honour that the applicant had been engaging actively in charitable works which emphasised his rehabilitation. 16 With regard to the question of special circumstances, I would just very briefly refer to the recent decisions in this Court relating to special circumstances under s 5(2) of the Sentencing Act 1989. 17 As the Chief Justice has said regarding special circumstances, what is involved, if the Court makes a decision that there are special circumstances, is that this triggers the exercise of the discretion as to whether or not the existence of such circumstances justifies an additional term in excess of one-third of the minimum term. 18 It is quite artificial to approach the matter in a two-stage manner. The only point in making the preliminary finding is if it justifies an additional term in excess of one-third of the minimum term. 19 The Chief Justice said there is in truth only one question: Are there special circumstances which justify a larger additional term than one-third of the minimum term? A finding by the sentencing judge that there were no special circumstances would, therefore, generally involve a finding that there were no such special circumstances as would justify the imposition of an additional term longer than the one-third period. This is a discretionary decision (see Hampton, C.C.A. unreported 25 June 1998). 20 The decision to vary the statutory proportion requires consideration not only of the desirability of increasing the additional term, but also the appropriateness of reducing the minimum term which must, nevertheless, remain such as appropriately reflects the criminality involved (Morrisey, unreported 15 July 1994). The objective criminality of the offence should be reflected not only in the full term but also in the minimum term (McDonald, C.C.A. unreported 12 October 1998). And finally, although it may be open to a sentencing judge in the exercise of his or her discretion to regard certain circumstances as special circumstances, the Judge is not bound to respond to the circumstances by setting an additional term which is in excess of one-third of the minimum term (GDR (1994) 35 NSWLR 376). 21 Applying these principles, this was, in my view, essentially a case in which Kirkham DCJ was entitled to take the view that there were no special circumstances which justified the imposition of an additional term longer than one-third of the minimum period. 22 The objective circumstances were very serious indeed. It has been recognised on many occasions that the legislature expects the Courts to punish sexual assaults on young children severely (see Eagles, C.C.A. unreported 16 December 1993 and MFG, C.C.A. unreported 7 November 1997). 23 Two very significant objective circumstances in the instant case were the period of time over which these offences were committed on a young boy passing from childhood to adolescence then teenage years, together with the breach of trust involved by reason of the family relationship. Reference to the report of the Wood Royal Commission dealing with paedophilia demonstrates the growing public concern about the extent of paedophilia in the community and this Court must not be insensitive to this concern nor, of course, must sentencing judges. 24 I am of the opinion that Kirkham DCJ took the view, and in my respectful view rightly took the view, that the late pleas of guilty in this matter militated against a finding by him that rehabilitation could be looked upon as being complete. He rightly, in my respectful view, took the view, however, that there was some rehabilitation and clearly gave an appropriate discount in that regard. 25 I am of the view, having given careful consideration to the matters that have been raised in the detailed written submissions and the helpful oral submissions of Mr Rosser on behalf of the appellant, that no error has been demonstrated in the sentencing regime imposed by his Honour. Both the minimum terms, which had to reflect the criminality involved, and the additional terms were well within his Honour's sentencing discretion. 26 Accordingly, in the circumstances I would propose that leave to appeal be granted but that the appeal be dismissed. 27 GROVE J: I agree with the orders proposed by Carruthers AJ. The orders of the Court, therefore, will be as he proposed. ********