New South Wales Court of Criminal Appeal CITATION : Regina v Toritto [1999] NSWCCA 288 FILE NUMBER(S) : CCA 60627/99 HEARING DATE(S) : 13 September 1999 JUDGMENT DATE : 15 September 1999 PARTIES : Regina Franco Toritto JUDGMENT OF : Sully J; Simpson J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0310 LOWER COURT JUDICIAL OFFICER : Gibson DCJ COUNSEL : C. K. Maxwell QC - Crown P. Byrne SC - Appellant SOLICITORS : S. E. O'Connor - Crown Glenn K. Walsh - Appellant CATCHWORDS : Appeal against sentence - no novel question of principle ACTS CITED : Criminal Procedure Act; Sentencing Act; Criminal Appeal Act CASES CITED: - DECISION : Leave to appeal granted.; Appeal dismissed 12 IN THE COURT OF CRIMINAL APPEAL 60627/98 SULLY J SIMPSON J 15 September 1999 REGINA v Franco TORITTO JUDGMENT 1 THE COURT: On 28 April 1998 Mr. Franco Toritto, ["the applicant"], pleaded guilty before a Magistrate to two charges. The first charge was one of robbery, an offence contravening s.94 of the Crimes Act 1900 and attracting, upon conviction, a statutory maximum penalty of penal servitude for 14 years. The second was a charge of assault with intent to rob, also a contravention of s.94 of the Crimes Act, and also attracting, upon conviction, a statutory maximum penalty of penal servitude for 14 years. 2 On 6 August 1998, and before his Honour Judge Gibson QC sitting in the Sydney District Court, the applicant adhered to those pleas of guilty. The applicant asked, additionally, that his Honour take into account five other offences scheduled in accordance with the provisions of the Criminal Procedure Act 1986. These offences were, put shortly: an offence of receiving; an offence of driving a motor vehicle at a time when a driving licence previously held by him had been cancelled; an offence of robbery; and an offence of allowing himself to be carried in a stolen conveyance. 3 The two indictable matters, in respect of both of which the applicant adhered before the sentencing Judge to his earlier pleas of guilty, both occurred on 23 December 1997. The five scheduled offences occurred variously on 22 and 23 December 1997 and 25 January 1998. 4 The applicant was sentenced, on the first of the two indictable matters, to penal servitude for 4 years, apportioned between a minimum term of 3 years and an additional term of 1 year. He was sentenced, in respect of the second of the indictable matters, to a fixed term of penal servitude of 18 months, dated so as to be served concurrently with the other sentence. 5 The facts concerning the first indictable matter in respect of which the applicant adhered to his plea of guilty can be put shortly and as follows, taking them from the relevant Facts Sheet that was part of the material before the learned sentencing Judge: "About 9.55 am 23 December 1997, the victim Vicki LEARY 30 old, was walking on Carlton Crescent Summer Hill when she noticed a small white van parked in the street containing the defendant, Frank TORITTO and co-offender, Thomas GIACALONE. The victim walked past the van and continued walking towards Summer Hill Railway Station. Whilst walking the victim felt someone grab her at the back of her neck. She turned around and saw the defendant TORITTO who grabbed her chain from her neck. The victim screamed and she saw the same vehicle stopped about 20 metres away. The defendant TORITTO ran to this vehicle and got in the front passenger's seat. As a result of this incident the victim has some soreness to her neck. The property taken was one 50 cm gold coloured chain, valued at $30.00. This property was NOT recovered. Victim is seeking compensation for this amount." 6 The facts of the second of the two indictable offences in respect of which the applicant adhered to his earlier plea of guilty, taking them from the same source, are as follows: "About 10 am on 23 December 1997, the victim Helena VREMARIC 62 old was walking in Morris Street Summer Hill when she noticed a panel van pull alongside her and stop in the middle of the road. The co-offender, GIACALONE got out of the passenger's seat of the panel van and ran towards the victim who at the time was carrying a carry-bag in her right hand. The co-offender and the victim then struggled for about ten seconds as the victim would not let go of her bag. The co-offender again tried to take the victim's bag, but was again unsuccessful. The co-offender was seen by a witness to run to motor vehicle number MKC-967, the same vehicle as seen earlier by the victim. This vehicle was driven by the defendant, TORITTO at the time. Nil property was stolen." 7 The motor vehicle registered number MKC-967 was a stolen motor vehicle. The first of the scheduled matters charged the applicant with having knowingly received that stolen vehicle on 22 December 1997. The second of those scheduled matters charged the applicant with having driven the motor vehicle at a time when the driving licence previously held by him had been, to his knowledge, cancelled. The third of the scheduled matters charged the applicant with having driven that same motor vehicle on 23 December 1997, knowing that the vehicle had been taken without the consent of its lawful owner. 8 The fourth of the scheduled matters concerned an incident which is described as follows in the relevant Facts Sheet: "About 6.45 pm on Sunday the 25th January 1998, the victim, Ann CASSIDY, was walking along the footpath of Corunna Road at Stanmore near Percival Road. A male approached her from behind and grabbed her purse from her hand. The victim held on to her purse and turned around to face the male. The victim took hold the male's shirt, but the male broke free and removed the purse from the victim also. The male then ran to a waiting vehicle registered SVJ-309 and got in the front passenger seat before the vehicle left the scene towards Percival Road. On Friday the 30th of January 1998, the defendant, Frank TORITTO, was arrested after being seen by Police in the front passenger seat of vehicle SVJ-309 in Burwood. He was electronically interviewed in relation to the steal from person matter which occurred on the 25th January 1998 and denied involvement. The defendant also declined to participate in an identification parade. He was then charged with other unrelated matters and bail refused. On Sunday the 15th February 1998, the victim Ann CASSIDY attended Marrickville Police Station and viewed photographs, with a photograph of the defendant among these photographs. CASSIDY identified the defendant from these photographs as being the male person who took her purse on the 25th January 1998 without her permission. On Tuesday the 17th February 1998, the defendant was spoken to at the Metropolitan Reception and Remand Centre regarding this matter. He was informed that CASSIDY had identified him through photographs. The defendant then declined to be interviewed again in relation to this matter." 9 The fifth, and final, of the scheduled matters derived from the fact that the motor vehicle registered number SVJ-309 was a stolen motor vehicle; and that the applicant had allowed himself to be carried in that vehicle without the consent of its lawful owner. 10 Concerning the objective gravity of the applicant's conduct, the learned sentencing Judge said, among other things, this: Having said that, I must repeat these are serious offences. I repeat again, women and people in this city are entitled to walk around without fear of being set upon in this way and people that commit these offences must look to going to gaol for considerable periods of time." 11 This Court endorses that assessment of the objective seriousness of the applicant's relevant behaviour. 12 The applicant, as at the date on which he stood for sentence, was aged not quite 39 years. He was single and unemployed. He had a bad criminal record, although none of the matters in it had involved violence to other persons. 13 In connection with the applicant's antecedent criminal history, it is necessary to take more particular note of some matters that were dealt with on 14 November 1996 in the Sutherland Local Court. On that occasion the applicant was dealt with in respect of four matters, being sentenced to varying terms of imprisonment in respect of each such matter. One of those sentences, imposed in respect of a charge of breaking, entering and stealing, was a sentence of imprisonment for a minimum term of 12 months from 14 November 1996 to 13 November 1997, with an additional term of 12 months, commencing on 14 November 1997 and expiring on 13 November 1998. The applicant was in fact released to parole on 13 November 1997, with the result that he was at liberty on parole at the time he committed each of the seven offences to which reference has earlier been made. It is trite that all sentencing Courts take a very serious view of offences committed while the particular offender is at liberty on parole. 14 There was evidence before the learned sentencing Judge to the effect that the applicant had been, for some years, a heroin addict; and that he had committed the instant offences in order to support his heroin addiction. It is trite that such a state of affairs, while it undoubtedly explains the particular offences, cannot and does not excuse them. 15 The appellant was originally arrested on 23 December 1997. He was granted conditional bail. He remained at large pursuant to that conditional bail until his re-arrest on 30 January 1998. Bail was then refused; and the applicant was in continuous custody thereafter and until he actually stood for the passing of sentence, which event occurred on 28 August 1998. On that occasion, the learned sentencing Judge formally revoked the applicant's parole, a course open to his Honour by reason of the provisions in that behalf of s.35(1)(a) of the Sentencing Act 1989. His Honour so revoked the applicant's parole "as from 30 January 1998". 16 The first thing to emerge from an analysis of the foregoing chronology is that the applicant, at the time he committed the two offences of 30 January 1998, was then at liberty not only on parole but also on bail. It is trite that sentencing Courts take a very serious view of offences committed by an offender who is, at the time, at liberty on conditional bail. A fortiori when the further offences are committed at a time when the offender is at liberty both on parole and on bail. 17 The second thing to emerge from an analysis of the foregoing chronology is that for a period of about 7 months, that is to say from 30 January 1998 to 28 August 1998, the applicant was in custody, bail refused, in respect of the matters for which he was sentenced on 28 August 1998; and he was effectively deemed, by the making of a parole revocation order having effect on and after 30 January 1998, to have been in custody between 30 January 1998 and 28 August 1998 in connection with his serving of the unexpired portion of the sentence that had been imposed upon him in the Sutherland Local Court on 14 November 1996. 18 It was submitted for the applicant that the course of events as we have previously described them entailed that the applicant had been sentenced, in effect, to penal servitude for 4 years and 7 months, of which 3 years and 7 months were actually to be served. This entailed, so it was submitted, appellable disproportion between the effective minimum term of 3 years and 7 months and the remaining additional term of 1 year. 19 We do not accept that submission. 20 Had there been no question of revoking parole, then the applicant would undoubtedly have been entitled to some proper consideration in respect of the 7 months spent by him in custody while awaiting sentence on 28 August 1998. This consideration might properly have been given either in the form of a sentence back-dated to 30 January 1998 or in the form of a sentence dated to commence on 28 August 1998 but reduced to take account of the 7 months in fact spent in pre-sentence custody. 21 Given the different circumstances of the applicant's particular case, it cannot be correct to postulate that the applicant should have the full benefit of the 7 months period between 30 January 1998 and 28 August 1998, both in reduction of his liability to serve, upon the revocation of his parole, the unexpired portion of his 1996 sentence; and in connection with the discrete sentences properly to be imposed in respect of the 1997 and 1998 offences. We accept that the sentencing Judge needed to frame the sentences imposed on 28 August 1998 in a way that took account as a relevant "special circumstance" of the kind contemplated in s.5(2) of the Sentencing Act, of the fact that the applicant's custody between 30 January 1998 and 28 August 1998 would have a concurrent connection with both the serving of the unexpired portion of the 1996 sentence, and the serving of sentences in respect of the 1997 and 1998 offences. 22 As will appear presently, the applicant relies, in addition to his other contentions, upon a contention that he has a justified sense of grievance when the sentences imposed upon him are compared with the sentences imposed upon his co-offender Giacalone. If that parity point be set aside for the moment, then the applicant's case comes down to the proposition that the learned sentencing Judge did not apply correctly the relevant law as to the finding of, and the giving of proper effect to, "special circumstances". 23 The remarks on sentence are very brief. They do not contain any extended discussion of the question of "special circumstances". It is, however, the fact that the remarks on sentence, brief though they are, do advert to the need to consider the matter of "special circumstances". It is clear from the remarks on sentence that the learned sentencing Judge felt what might be described as a healthy scepticism about the applicant's prospects for rehabilitation. We say no more on that topic than that we have not been persuaded that it was not open to the learned sentencing Judge to take that view. 24 Nor do we see any reason to conclude that the learned sentencing Judge failed to apply his Honour's mind properly to such evidence as there was concerning other matters personal to the applicant and capable of being regarded, on a proper view, as "special circumstances". Continuing, for the present, to leave to one side the applicant's parity point, we have not been persuaded that an aggregate sentence of 4 years to date from 28 August 1998 is appellably excessive. Nor have we been persuaded that we should interfere with the apportionment ordered by the learned sentencing Judge. The offences in question were, we repeat, serious offences. All of them were committed while the applicant was at liberty on parole; and two of them were committed, as well, at a time when the applicant was, as well, on bail. The learned sentencing Judge was, in our opinion, entitled to take a properly severe view of the applicant's case, due allowance made for any "special circumstances" properly so found. 25 It is necessary, now, to turn to the applicant's parity point. 26 The relevant background can be most easily established by quoting as follows from the relevant remarks on sentence: "The prisoner Giacalone pleaded guilty on the indictment to the following counts: four counts of robbery, one count of stealing from a person, one count of assault with intent to rob, one count of accessory after the fact to robbery, one count of riding in a conveyance taken without the consent of the owner and he also asked for those matters on the schedule to be taken into consideration. The offences occurred between 27 October 1997 and 6 January 1998. He was released on bail after the offences of 27 October and by the time he was arrested for the offence on 6 January had been released on bail four times and had committed further offences each time he was released. The circumstances of those offences appear in the relevant statement of facts tendered and they involve the taking of women's handbags or jewellery, even a car charge, mostly on his own, but the incident on 23 December involved the other prisoner Toritto." 27 The essence of the submissions put for the applicant on the parity point can be best summarised in the form of the following extract from the written submissions put in on the applicant's behalf: "The only reference made by the learned judge in the course of his remarks on sentence in this case to the comparable positions of Mr. Toritto and Mr. Giacolone was that at p.2.3 where his Honour said: "The prisoner (that is the Applicant) does not have the multitude of offences that his co-prisoner (that is Mr. Giacolone) has …" It is somewhat surprising in the light of that observation that the same sentence should be imposed on the respective offenders. Apart from the significant difference in the numbers of offences for which each man was sentenced, there are other distinguishing features of the two cases which would tend to favour the Applicant. He, according to the findings made by the learned judge "assisted the police in every way concerning the matter" (p.2.4) and most importantly "he has pleaded guilty right from the start". (p.2.4) This contrasts with the position for Mr. Giacolone who was committed for trial, that is he did not enter a plea of guilty in the Magistrate's Court (p.2.18, Proceedings on Sentence, 28 August 1998). There is in addition a clear inference available that Mr. Giacolone is the dominant personality between him and this Applicant. There is also evidence to establish that the degree of violence engaged in by Mr. Giacolone in the course of his robbery offences was greater than that demonstrated by the Applicant. Although Mr. Giacolone is younger, this is a case where it is apparent that the younger man led the older man in the commission of the offences which they were involved in together." 28 We have had the opportunity of considering the remarks on sentence in the case of Giacolone. They are somewhat more discursive than the remarks on sentence in the applicant's own case. We think that a fair overall comparison of the two cases demonstrates: first, that the learned sentencing Judge found, in the case of Giacolone, positive evidence, which his Honour was prepared to accept, that the offender, who had a dependent child, had family support and other subjective features warranting a somewhat more optimistic view as to his prospects of rehabilitation than his Honour was prepared to find in the case of the present 29 applicant. We do not see any reason to hold that it was not open to his Honour to take that comparatively more favourable view of the subjective features of the co-offender's case; secondly, the offences committed by the applicant's co-offender were not committed while the co-offender was at liberty on parole. 30 The aggregate sentence imposed upon the co-offender was one of penal servitude for 7 years. As previously noted, the aggregate sentence imposed upon the applicant was one of penal servitude for 4 years. We have not been persuaded that there is any appellable disparity between those two aggregate sentences. 31 That conclusion entails that, if there is to be found an appellable disparity in the sentences imposed upon the co-offender and upon the applicant, it must be found by a comparison of the apportionment of each of the respective sentences. As matters stand, the co-offender will serve 3-1/2 years of a total of 7 years; and the applicant will serve 3 years of a total of 4 years. The only way of ensuring absolute comparability between the two cases would be to re-apportion the applicant's aggregate sentence so that he served a minimum term of 2 years with an additional term of 2 years. Given the gravity of his offences; and given, in particular, that all of them were committed while he was at liberty on parole, we have not been persuaded that such an appellate interference is "warranted in law" in the sense contemplated by s.6(1) of the Criminal Appeal Act. 32 Leave to appeal is granted. The appeal is 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.