R v Arbolino [1999] NSWCCA 249

New South Wales Court of Criminal Appeal CITATION : R v Arbolino [1999] NSWCCA 249 FILE NUMBER(S) : CCA 60476/98 HEARING DATE(S) : 9 August 1999 JUDGMENT DATE : 26 August 1999

The Queen PARTIES : v Michael Bruno Arbolino JUDGMENT OF : Mason P at 1; Abadee J at 36; Simpson J at 37

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/21/0183 LOWER COURT JUDICIAL OFFICER : Kirkham DCJ

COUNSEL : A: S Odgers R: P Berman SOLICITORS : A: TA Murphy, Legal Aid Commission of NSW, Sydney R: CK Smith, Crown Solicitors' Office, Sydney CATCHWORDS : Sentence - Sexual assault in circumstances of aggravation (Crimes Act, s61M) - No question of principle. ACTS CITED : Crimes Act 1900 CASES CITED: Engert (1995) 84 A Crim R 67 DECISION : Leave to appeal granted; Sentence varied.

IN THE COURT OF CRIMINAL APPEAL

CCA 60476/98 MASON P ABADEE J SIMPSON J

Thursday, 26 August 1999

REGINA v Michael Bruno ARBOLINO

JUDGMENT 1 MASON P: The appellant was indicted before his Honour Judge Kirkham at the Sydney District Court on seven charges relating to acts of indecency and sexual assault involving a fourteen year old boy, JM. As to the first count, he was convicted; as to counts 2-6, he was found not guilty (the jury having been directed to find him not guilty as regards count 5); and as to count 7, the jury were unable to reach a verdict. 2 On 12 November 1998 the appellant was sentenced in relation to count 1 to a minimum term of three years imprisonment to commence on 21 July 1998 and expire on 20 July 2001 with an additional term of one year to commence on 21 July 2001 and expire on 20 July 2002. 3 The appellant appealed against his conviction and sought leave to appeal against the sentence. 4 The matter was fixed for hearing on 9 August 1999. 5 When the matter was called on for hearing, counsel for the appellant sought an adjournment based upon the material set out in an affidavit of his instructing solicitor, Ms Witmer. That affidavit was based upon instructions received that day in a conference with the appellant, his counsel Mr Odgers, and the deponent. 6 Ms Witmer swore that the appellant had told her about various matters which should have come out at the trial but which did not. Those matters were specified. The appellant also told Ms Witmer that he believed he had informed his legal representatives at the trial of these matters. 7 The affidavit further established that these omitted matters had not previously been brought to the attention of the lawyers briefed in the current appeal. 8 At the suggestion of the Court, further enquiries were made during the luncheon adjournment. The effect of these enquiries, as relayed by Mr Odgers, cast some doubt upon the appellant's instructions to his lawyers. Nevertheless, there remained serious matters for enquiry which, if established, were likely to become relevant to the appeal. 9 In these circumstances, the Court indicated that it was disposed to grant the adjournment. I should add that there was material indicating that the appellant suffers from a degree of intellectual impairment (see below). Because of this, we were prepared to regard the late application for an adjournment indulgently. 10 It was apparent to all that, if an adjournment were granted, then the matter would be unlikely to be listed before next year unless some other appeal were displaced. In these circumstances, the possibility of addressing the application for leave to appeal against sentence separately and in advance of the appeal against conviction was discussed. The Crown accepted that the Court had power to proceed in this manner. It was also agreed that the disposal of the application for leave to appeal against sentence on the assumption that the conviction stood would place no legal impediment to the later hearing of the conviction appeal. 11 We acceded to the request to entertain the sentence matter independently. 12 The offence on which the appellant stands convicted is that stipulated in s61M(1) of the Crimes Act 1900. The maximum penalty is seven years imprisonment. The section relevantly provides: "61M (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 10 years. … (3) In this section, 'circumstances of aggravation' means circumstances in which: (a) the alleged offender is in the company of another person or persons; or (b) the alleged victim is under the age of 16 years; or (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender; or (d) the alleged victim has a serious physical disability; or (e) the alleged victim has a serious intellectual disability." 13 The following facts were effectively found by the jury's verdict. They represent the material relevant to sentencing. As indicated, the verdict is challenged in the still pending appeal against conviction. 14 Around the beginning of February 1995 the appellant befriended the fourteen year old complainant at the Richmond railway station. The complainant was unhappy at school and at home. He was aged fourteen at the time. He was truanting regularly and he commenced travelling to various places in the company of the appellant and Dianne Griffin, who was described in his Honour's remarks on sentence as "mentally retarded". 15 The appellant was aged thirty-five years. 16 On one of these occasions, while the appellant was sitting near the complainant on a train journey to the city and while Dianne was present, the appellant put his hand down the complainant's pants and played with the boy's penis. In his evidence to the jury, the complainant said that the appellant was touching his penis and rubbing it. The complainant was in his school uniform at the time. When asked whether anything was then said, the complainant said: "I said to him like - because I was looking out the window and I was pointing out stuff - I was saying to him things about building such and such, and that, to try to get him to look and stop, but he didn't. So I just moved over."