New South Wales Supreme Court CITATION : REGINA v. CALDERONI [2000] NSWSC 572 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70034/97 HEARING DATE(S) : 7.3.00-9.3.00; 13.3.00-15.3.00; 20.3.00-24.3.00; 27.3.00; 30.3.00; 12.5.00; 16.6.00 JUDGMENT DATE : 16 June 2000 PARTIES : REGINA v. CALDERONI, Fabrizio JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: G. Smith Offender: S. Wilkinson SOLICITORS : Crown: S.E. O'Connor Offender: Russo & Coburn CATCHWORDS : Criminal law - sentencing - robbery in company - invluntary and unintended assistance - remorse - rehabilitation - old offence - principles of sentencing der Crimes (Sentencing Procedure) Act - sentencing options - suspended sentence Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act (Cth) 1914 Sentencing Act 1989 Huang (1995) 78 A. Crim. R. 11 Carroll [2000] NSWSC 410 Bugmy (1990) 169 CLR 525 Petrinovic [1999] NSWSC 1131 CASES CITED : Veen (No. 2) (1997-1998) 164 CLR 465 Jones (1985) 14 A. Crim. R. 364 Todd (1982) 2 NSWLR 517 Mill (1988) 106 CLR 59 Govinden (1999) 106 A. Crim. R. 314 DECISION : Suspended sentence imposed IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70034 of 1997 GREG JAMES, J. FRIDAY 16 JUNE 2000 REGINA v. FABRIZIO CALDERONI SENTENCE 1 HIS HONOUR: Following the offender's trial for murder at which he was acquitted, he was, as a consequence of the evidence he gave on oath at that trial, indicted by ex officio indictment on a charge under s.97 of the Crimes Act 1900 of robbery in company. His acquittal of the murder charge means that he has to be taken for all purposes as not guilty of that crime. 2 In his sentencing, I have regard to the provisions of the Crimes (Sentencing Procedure) Act 1999 (the Act). 3 His admissions made on oath at that trial were admissions that plainly were of assistance to the prosecution and, indeed, amplified and explained otherwise inadequate evidence contained in recorded conversations and some limited evidence given by an indemnified protected witness who was herself involved in the very matters, at least to the extent of being an accessory after the fact. The Crown has submitted, however, that the offender was not being altruistic or, alternatively, that his degree of remorse and contrition for the relevant offence cannot be much assisted by assistance given that way. Indeed the Crown goes so far as to say that the unsuspecting assistance he plainly did give in the recorded conversations and that given by way of his admissions on trial for the more serious offence is not to be regarded as within the concept of assistance to which s.23 of the Act speaks. I do not accept that submission. Clearly the offender afforded assistance whether he wanted or intended to or not. 4 It is also necessary to take into account that it has been conceded in these proceedings that the time during which the offender was in custody should be regarded as referrable to this charge, he having been acquitted of the murder charge, and therefore pursuant to s.24 I should take into account the one month 19 days he spent in custody, although that will have to be done by way of adjustment to the period of sentence since he has been on bail for an extensive period of time following that period in custody. 5 Further, it is clear that except for an application to stay the indictment on a misconceived basis that there was somehow an abuse involved in indicting the offender for that which he had confessed at a trial for another offence, the offender pleaded guilty at the earliest possible opportunity after charging and thus should be entitled to a discount in accordance with s.22 of the Act. 6 I am of the view that he should receive some substantial discount for his plea of guilty bearing in mind that it proceeded upon his own admissions in evidence and that it has saved the community cost and inconvenience considering when and how he was charged with this offence. In itself I am of the view it is not particularly persuasive of remorse or contrition but a recognition of an overwhelming case against him on his own sworn evidence. Nonetheless the other side of that proposition is that that evidence was itself of the most dramatic assistance to the Crown so that the overwhelming case available against him was a case of his own making and he should therefore receive the credit under s.23(2)(b),(c) and (d). I must have regard to that, to the plea and to his conduct subsequent to the offence as well as his conduct during the trial and up to this point so that I might ascertain in accordance with s.23(2)(j) what is the likelihood of the offender will commit further offences after release. 7 It is notable that when having regard to the matters referred to by s.23 I must not impose a lesser penalty so that the penalty imposed would be unreasonably disproportionate to the nature and circumstances of the offence. Authority establishes that the penalty might be disproportionate or indeed unreasonable, but not unreasonably disproportionate (see Queen v Huang 1995 78 A. Crim. R. 111). 8 No such restriction was enacted as qualifying the discount to be given under s.22 or the general power to pass a lesser sentence provided for by s.21. Nonetheless there remains the general obligation to pass a sentence which adequately recognises the objective circumstances of the offence and those circumstances personal to the particular offender which might qualify the otherwise overly grave impact of a sentence merely concerned with the objective criteria on the individual. 9 Turning to more general matters. Since the passing of Act the sentencing regime in this State has changed dramatically. In particular that change reflects the necessity now to impose a total sentence, in the event that a custodial sentence is being imposed, and then to consider the fixing within that total sentence of a period of imprisonment during which an offender is not to be released. 10 Section 44 provides for the new regime. In Regina v. Carroll [2000] NSWSC 410 at paras.43-45, I discussed the new regime and the changes it has brought. It provides for a number of sentencing options including full-time custody. 11 The new regime restores the approach taken prior to the Sentencing Act as to imposing a total sentence and in relation to those matters to be given consideration when imposing a sentence of full-time custody as affecting both head sentence and non-parole period and referred to by the High Court of Australia, in particular, in Regina v. Bugmy (1990) 169 CLR 525. 12 Qualifying the application of those principles, a common law principle that a sentence of full-time custodial imprisonment is to be considered as an option of last resort amongst other sentencing options seems to have developed in recent years perhaps in consequence of s.17A of the Commonwealth Crimes Act 1914 and has now received statutory recognition in the Act. It is accepted by the Crown here that I should have recourse to that principle. 13 Also, the Act has re- introduced into New South Wales the concept of suspended sentences. Since suspension of sentences has not been available for many years, there is little law in this State of modern times concerning when a suspended sentence might properly be passed. 14 The Crown has drawn my attention to South Australian and Victorian provisions and authority as has counsel for the offender but the Crown has submitted the statutory regime in those two States is materially different. Further, the legislation makes provision for community service orders and periodic detention. It is in that context I should turn to the facts on which I proceed to sentence. They were agreed between the parties. 15 The offender met Graeme Brown in Alice Springs about the end of 1986 when he and his then partner, Sandy Hamilton, stayed at a house occupied by Brown and one "Roslyn Rogers ("Ros") also known as "Patricia Adams". He returned to Brisbane in November 1987 and his relationship with Ms. Hamilton ceased in late 1990. The offender started seeing a Karen Skinner. At the beginning of 1991, he and Ms. Skinner went to Long Jetty and stayed with "Ros" for a while before renting a place next door. 16 About June 1991, Brown visited "Ros" a couple of times. The offender saw him about three to four days prior to 11 June 1991 and again on 11 June 1991. 17 At the earlier meeting, Brown told the offender that, 'someone had ripped him off … he wanted it back … and might want me to help". Further, "Ros" had lent him $7,000 and she wanted it back. The offender said he understood Brown to mean that, "I would go along with him, just to see him get his money back - there could be a fight or anything". The offender knew he might have to be involved in violence on someone to get money. If they were going to beat (Brown) up or something, "I probably would have stepped in". Brown mentioned to the offender that a drug dealer was going to buy some drugs, or that is what he had been given to think. Brown had told him he had grass for sale. Brown had arranged for the drug dealer to come to Wyong. The victim, Marneros, apparently came to Wyong to fulfil that role. 18 About 8.00 pm on 11 June 1991, Brown turned up at the offender's residence and about an hour later left with the offender and Skinner in the offender's car. Brown dropped the offender and Skinner off at a street near the railway line at Wyong saying, "wait here, I'll turn up later on with this guy". The offender and Skinner waited in the dark for about two hours. A car they did not recognise came up the road and stopped nearly opposite their position. The offender saw two people in the car. 19 It was not until the occupant on the passenger's side got out of the vehicle, after a lapse of between 30 seconds to a minute, that the offender recognised him as being Brown who called out, "where are youse?". The offender and Skinner approached the vehicle and saw that Brown had opened the driver's door. The offender saw, "what looked to me was the guy was already punched in", "he didn't move, you know, he was unconscious sort of thing". The offender maintained he didn't see Brown hit the man next to him because it was dark, and could not recall seeing any blood on him. 20 Brown told the offender to open the rear passenger's door and said, "there is a bag in the back, grab it". The offender did so and saw Brown and Skinner remove the driver from the front of the vehicle and put him in the boot. The offender denied touching the person. He said he threw the bag to Brown. 21 The offender and Skinner made their own way back to the offender's residence with Brown arriving separately about five to 10 minutes later. "Ros" showed the offender that she had received some money although he did not know how much. 22 The offender maintained that he did not carry a weapon during the robbery. He did not see Brown with any weapon and Skinner did not have a weapon to his knowledge. 23 Evidence given in the trial by the witnesses Garry Thoburn and Bernard Bridge indicates that Marneros had about $50,000 in cash with him just prior to the robbery. George Page, also known as "Fat George", said that he brought somewhere between $4,500 and $6,000 to Wyong to give to Marneros. "Fat George" was of the view that Marneros had other money with him and that it was possible Marneros was doing a drug deal. 24 "Ros" said that Brown gave her $7,000 when he returned to the offender's house but apart from alleging that the offender had said to her, "Brett and I will get $10,000 each", there is no evidence that the offender received anything from Brown. The offender maintained that he neither asked for nor received any money from Brown and this cannot be refuted by the Crown. 25 Those facts establish that the offender was not a prime mover in the scheme to rob but joined in more or less on a casual basis to provide physical support and assistance in a project to rob a drug dealer. His assistance was at the instigation of Brown who, it was accepted in the Crown submissions and by reason of the acquittal verdict in the murder trial was the murderer of the victim drug dealer. It was Brown who devised the criminal scheme. 26 The Crown's concession that it was not possible to establish that this accused received much of, if any, of the proceeds of the robbery is understandable and explicable in the light of the delay in investigation since whatever be the explanation for it this is a matter that was really not investigated until 1996 and not even then exhaustively investigated until recently. 27 The offender's role appears to have been to help out as ordered and to assist in stealing money. He, certainly on the Crown case at the murder trial, realised the deceased was dead at some time before getting back to the premises at the Central Coast, where they met up afterwards, however, bearing in mind his evidence and bearing in mind the verdict it is not possible for me to be satisfied beyond reasonable doubt that he became aware that the dealer was dead at any point earlier than the morning following the death. It is certainly not open to me to conclude that he was aware he was robbing a dead body or disposing of a dead body. He is not charged with any offence relating to the perversion of the course of justice, the assisting of Brown after the event or the concealing of the crime. Sentences passed upon the others involved yield little of assistance. These sentences were for offences entirely different to this offence. 28 The offender was born on 9 April 1968. He was 23 at the time of this offence. He has worked in the underpinning business and as a bobcat driver for a family friend for a considerable time and has enjoyed in the years since the commission of his crime an industrious and working character. The only other matters recorded against him are shoplifting and traffic offences, for which he has received small fines. They are of no real relevance. The Crown concedes that the offender's prior record may be disregarded for the purpose of sentencing in respect of this charge. 29 His particular personal circumstances were set out unchallenged in submissions provided by his counsel, in statements of Mr. Monteverde and Mr. Pezzimenti, which were Exhibits 1 and 2 respectively, and in paragraphs two to seven of his counsel's written submissions. 30 There can be no doubt that since the commission of the offence, the offender has spent many years in a state of suspense during which time he has evidenced his rehabilitation and the matters set out in the two statements to which I have referred and in those paragraphs of his counsel's submissions make clear how far that rehabilitation has gone. 31 In the Probation and Parole Service report is some reference to an unsuitability for community service in Queensland due to his failure to work under a Queensland community service order. Nothing can be found in his record which might suggest he had been subject to a Queensland community service order. I disregard that reference. I find the reports of limited assistance, because although those reports assessed him as suitable for periodic detention they reject home detention and community service orders in particular not because of other unsuitability notwithstanding he is on a methadone programme but because of his Queensland residence. 32 It is accepted by the Crown that in sentencing I should not discriminate against him because of his residence in Queensland and that would mean that insofar as community service and home detention were concerned, if they were to be available, and if rejected for that reason alone, other options would have to be considered short of imprisonment. I am, however, firmly of the view that they would not, in all the circumstances, have been appropriate in this case. 33 I had earlier mentioned in relation to the plea of guilty and the assistance that I didn't regard the plea in itself as of much value on the question of remorse and contrition. I was, however, dramatically impressed with the offender's remorse and contrition when he gave his evidence during the murder trial and was cross-examined. He had drawn to his attention his own statements that he had not realised were being recorded when he spoke to the indemnified witness. There can be no doubt that a lot of what he said was said in panic seeking to avoid responsibility for the murder of which he was found not guilty, nonetheless it is perfectly clear he regretted his involvement with Brown and the death of the deceased. 34 I am of the view that the high degree of remorse and contrition I find adds great force to what I have held as being his rehabilitation. These evidence well for the future and in particular as indicating a lack of likelihood that he would further offend as is referred to in particular in s.23(2)(j). 35 The Crown submits that the sentence should reflect general and personal deterrent. The custodial sentence which I am minded to impose will specifically be imposed for that reason, that is, that it will contain, notwithstanding the matters of rehabilitation to which I have referred, the extensive period of time since the commission of the offence and the four years or so since the latest investigation of it, real components of general and specific deterrence. 36 In Regina v. Petrinovic [1999] NSWSC 1131, when seeking to ascertain the relevant culpability involved in a murder which resulted from a robbery where the victim was unexpectedly killed, I referred to the principles of proportionality and punishment explained by the High Court in Veen v. The Queen (No. 2) (1997-1998) 164 CLR 465 and in particular the principle that all sentencing has as its ultimate goal the protection of the community. I particularly referred to the necessity when sentencing that offender and his co-accused to have regard to the fact that those who embark upon robberies, robberies being offences of violence, whether as principal or as the principals assistant, must realise that they run the risks of injuring or killing the victims and that such offences are to be regarded for sentencing purposes as offences of great seriousness not just because people are deprived of property but because they are threatened, may be injured and may be killed. Yet, of course, when I come to sentence for robbery it is important that I do not allow the fact that someone was killed to affect the sentence that would otherwise be appropriate. It is in these circumstances appropriate for me to have regard, however, to what the courts have said as to the objective seriousness of such a crime. 37 In the present case, however, reasonable proportionality involves regard to the minor role performed by the offender in the robbery and to the circumstances of his recruitment. I must also in that regard consider appropriately the Crown's concession that there are plainly in this case such circumstances as would warrant, if I am minded to impose a parole period, a variation of the statutory proportion referred to in s.44(1) and (2) of the Act in favour of the offender. Those circumstances would include: the age of the matter; the time during which the offender was kept in suspense; the rehabilitation he has substantially succeeded in achieving; his prospects for the future including the lack of likelihood of further offences, and for those reasons it would be appropriate that he should spend much less time in gaol than would otherwise be the case. But in making what, in my view, was an entirely appropriate concession of those matters the Crown does not go so far as to concede he should not spend time in gaol at all. 38 It appears from the drafting of s.12 of the Act which permits sentence to be suspended and certainly both counsel submit that this is the case, were the sentence to be suspended it would have to be wholly suspended. The Crown submits that this is not an appropriate case for a sentence to be wholly suspended, although it does submit that appropriately the shortest possible sentence should be imposed and in that regard has drawn my attention to what was said in Regina v. Jones (1985) 14 A. Crim. R. 364. 39 Regina v. Todd (1982) 2 NSWLR 517 and Mill v. The Queen (1988 )106 CLR 59 provide authoritative support for the proposition that when a court comes to sentence long after the crime in question it can have regard to the events since the crime and prior to sentence to enable it to determine a sentence which might otherwise be seen as unduly lenient but which accords with the court's sense of what is appropriate for the protection of the community at the time at which sentence is passed. In particular, that means that in such a circumstance, as with a re-determination of life sentence as occurred under the former s.14A of the Sentencing Act (1989), a much better prediction may be made for the future because of the greater information available as to what had happened in the past. 40 It is in that context that the question of maintaining the rehabilitation already demonstrated by the offender for the protection of the community in the future assumes dramatic importance when one considers that to require an offender to serve a sentence of imprisonment in those circumstances might fracture the vulnerable rehabilitation already achieved. The relevant sentencing purposes will be achieved by passing a sentence which denounces the crime but the effect of which is suspended whilesoever rehabilitation continues. 41 The submission that is put by counsel for the offender is that this was an isolated incident, and the whole of the evidence attests to the offender's rehabilitation and prospects for the future. He submits that the infrastructure to maintain that rehabilitation exists and that it should not be set at nought by requiring the offender actually to serve a sentence of imprisonment and this, he says, is a case of exceptional circumstances, citing what was said in Regina v. Govinden (1999) 106 A. Crim. R. 314. The submission is that in the peculiar circumstances of this case where the offender has come forward for sentence so long after these events and where the Crown has been able to proceed because of the offender providing against himself the evidence on which the Crown has indicted him and where there is so clearly rehabilitation, I should in these extraordinary circumstances and in the community interest not put that rehabilitation at risk. That is a submission that I am of the view I should accept. 42 I shall sentence the offender to imprisonment, for a period of two years less the period the offender has served in custody pursuant to s.45(1)(c). I will decline to set a non-parole period since it appears to me that it is appropriate that I should suspend sentence and it appears that in the context of the Act that suspension must be of the whole of the sentence. That suspension will be supported by a good behaviour bond for a term which I consider should be for the whole term of the sentence. The question of any conditions for that bond will need to be considered as well as the form of the appropriate order to be made, giving credit for the two years period in custody and providing for those conditions. 43 I will hear the parties on whether there should be any particular conditions bearing in mind his residence in Queensland other than that he be of good behaviour for the entire term of the suspension and appear for sentence if called upon. (After hearing submissions) 44 On the Crown's concession that, on the findings I have made as to rehabilitation and as to the evidence concerning his not having come forward for any further offence, he having been of good behaviour during the intervening period, that further supervision is not necessary, the only terms that I will impose will be that he be of good behaviour for the duration of the good behaviour bond and that he notify the Director of Public Prosecutions of any change in address. I will direct that he be released from custody upon entering into that bond. 45 Noting the concurrence of both counsel to this effect, sentence will expire on 26 April 2002 which, whether precisely arithmetically accurate or not, should be taken as taking into account the periods the offender has informed me he has spent in custody and the periods he has spent in court in custody. 46 Fabrizio Calderoni, for the crime of robbery in company to which you have pleaded guilty and for which you have been convicted I sentence you to imprisonment until 26 April 2002. I suspend the execution of the whole of that sentence and direct you be released from custody on condition that you enter into a good behaviour bond for the whole term of that sentence upon conditions that you be, for the entire term of the bond, of good behaviour and notify the New South Wales Director of Public Prosecutions of any change in your address. 47 In the event that you breach that bond you may be returned to New South Wales and dealt with for it. Section 99 of the Act provides that the good behaviour bond might be revoked and in that case you may be returned to custody in respect of the sentence passed upon you which custody may be full-time or by way of periodic detention or home detention. 48 I am required to explain that to you by reason of s.96 of the Act. 49 In the event that you do not enter into the good behaviour bond you will go into custody and serve that sentence. 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