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." The complainant moved away and sat next to Dianne. 17 These were the objective facts upon which the appellant was convicted. The other counts in the indictment involved acts of homosexual intercourse or indecency that allegedly occurred on other occasions. However, the jury acquitted the appellant on these matters or failed to agree on a verdict. Accordingly, they must be put aside in assessing the seriousness of the offence for which the appellant was convicted. 18 The learned primary Judge describes the offence as falling into the middle range of seriousness for its type. He observed that the maximum penalty was seven years imprisonment. 19 His Honour stated that the prisoner was not helped by his past convictions. He had been arrested in January 1990 and later convicted in November 1993 on charges of attempted homosexual intercourse, two counts of act of indecency, and eight counts of inciting acts of gross indecency. (Two boys aged fourteen and fifteen were befriended by the appellant, encouraged to reside with him at his home, and there they were propositioned to commit various sexual acts.) Penalties were imposed which amounted together to a twelve month minimum term with an additional term of twelve months. The appellant was on parole on these charges at the time of the commission of the offence now under consideration. His Honour correctly noted that this was a significant aggravating factor. 20 The appellant is the youngest in a family of seven children that migrated from Italy in 1965. 21 In 1978 he was involved in a serious motor vehicle accident which left him in a coma for three weeks. He was in hospital for two to three months from head injuries. 22 Dr Barrier, a psychologist, noted that the appellant did not recognise his wrongdoing in respect of the earlier matters upon which he was convicted and concluded that he would be unlikely to modify his conduct accordingly in the future. Tests indicated that the appellant was functioning on the borderline retarded range of intelligence. There had been frontal lobe damage in the accident. 23 Other medical evidence was considered by the sentencing judge. Dr Somerville, neurologist, considered that it was more likely that the appellant had a sociopathic personality prior to the accident, which had been perhaps exacerbated by it. 24 Dr Stubbs had been seeing the appellant since 1979 following his head injury. In his most recent report of 5 October 1998, he noted that the appellant's previous tendency to violent aggressive outbursts of temper had passed in recent years, and that he had matured considerably since the birth of his daughter, then aged three and a half. 25 The daughter was in the care of the appellant's eldest brother at the time of sentencing. The latter had given evidence as to the availability of support for the appellant when released from custody, including availability of work of various types. The appellant had purchased a house at Londonderry with the compensation received in respect of the motor vehicle accident. 26 The appellant described himself as bisexual to at least two of the experts who examined him prior to sentencing. 27 The sentencing judge was not persuaded that there existed special circumstances which would require the variation of the relationship between minimum and additional terms. He was strengthened in this view by the absence of any contrition on the part of the appellant. He rejected the submission that this was a crossroads case. His Honour thought that an attempt at rehabilitating the appellant would seem to be a waste of time whilst ever he denied committing the offence. 28 As to deterrence, his Honour noted that it was well settled that sexual offences committed against children must be severely punished. The prisoner had thus far not been deterred from committing offences of a like nature from a previous period of imprisonment. His Honour expressed the view that the sentence to be imposed would hopefully drive home the message to the appellant that the criminal law will deal harshly with people who persistently commit sexual offences upon children. In addition, the penalty had to serve as a general deterrent for other people in the community of like mind. 29 His Honour also took into account the probability that the prisoner would have to serve most or all of his period in prison in protective custody. Allowing for periods in custody referable to the charge on which the appellant had been convicted, his Honour backdated the sentence to commence on 21 July 1998. (Sentencing occurred on 12 November 1998.) A minimum term of three years was imposed, together with an additional term of one year. 30 The appellant does not suggest that the remarks on sentence reveal any error of fact or principle. Rather, the submission is that the sentence was excessive in all of the circumstances, having regard particularly to: ¨ the objective circumstances, ¨ the fact that the appellant had himself been sexually abused as a child, ¨ the fact that the appellant functioned on the borderline retarded range of intelligence and suffered the continuing effects of the 1978 motor vehicle accident, ¨ the risk of further brain injury from prison violence, and ¨ the birth of the appellant's daughter, after the commission of the offence, and the maturing effect that his caring for her over her three years preceding sentence had upon him. 31 It was further submitted that the aggravating fact that the offence was committed on parole was mitigated to some extent because the appellant functioned on the borderline retarded range of intelligence and had elements of a sociopathic personality. 32 The Crown submitted that the sentence was within an appropriate range, albeit that it was towards the top (statistically speaking) according to statistics providing by the Sentencing Information System concerning the relevant offence, where the offender had prior convictions of the same type and had received a custodial sentence. The Crown also reminded the Court of the frequently cited remarks of Gleeson CJ in Engert (1995) 84 A Crim R 67 at 68 where his Honour said: "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2) . Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender." 33 This is undoubtedly a case where individual and general deterrence loom large and where the prospects of rehabilitation are problematic. Nevertheless, the sentence imposed was in my view excessive having regard to the objective circumstances of the particular offence, the only offence on which the appellant stood convicted. It is true that there was the aggravating feature of the age of the complainant, but the range of different aggravating features within the scope of s61M of the Crimes Act makes it dangerous to rely upon undifferentiated statistics. 34 In my view, an appropriate sentence in all of the circumstances was a sentence of three years imprisonment. I consider that special circumstances exist, including extensive family support and the need for a longer than usual period of parole, that make it appropriate to vary the relationship between minimum and additional terms. A longer than usual additional term will allow for the imposition of supervisory mechanisms, while providing an ever constant warning of what will happen should there be re-offending. 35 On the application for leave to appeal against sentence, I would make the following orders: (1) Grant leave to appeal. (2) Set aside the sentence imposed by Kirkham DCJ and in lieu thereof, sentence the appellant to three years imprisonment. There will be a minimum term of fifteen months to commence on 21 July 1998, and to expire on 20 October 1999. There will be an additional term of twenty-one months to commence on 21 October 1999, and to expire on 20 July 2001. The appellant is eligible for release on parole on 20 October 1999. 36 ABADEE J: I agree with the orders proposed by Mason P and with his reasons therefor. 37 SIMPSON J: I agree with the orders proposed by Mason P and with his reasons therefor. * * * * * * * * * 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.