New South Wales Court of Criminal Appeal CITATION : Regina v Vincent John Virgona [2004] NSWCCA 415 HEARING DATE(S) : 30/9/04 JUDGMENT DATE : 29 November 2004 JUDGMENT OF : Wood CJ at CL at 1; Hislop J at 2; Smart AJ at 22 DECISION : (1) Leave to appeal granted.; (2) Appeal dismissed as to counts 1 - 5 inclusive.; (3) Appeal dismissed as to the sentences of imprisonment of 4 years commencing on 21 August 2003 in respect of counts six and seven.; (4) The non-parole periods of 3 years in respect of counts six and seven is quashed, and in lieu thereof, there will be non-parole periods of 2 years and 3 months commencing on 21 August 2003. CATCHWORDS : Criminal law - Sentence - Postponement of sentence LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Todd [1982] 2 NSWLR 517 Mill v R (1988) 166 CLR 59 PARTIES : Vincent John Virgona - Applicant Regina - Respondent FILE NUMBER(S) : CCA 2004/1780 CCAP COUNSEL : Mr P Byrne SC with Ms S Kluss - Applicant Mr G Rowling - Crown SOLICITORS : S O'Connor, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0229 FILE NUMBER(S) : LOWER COURT Berman DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2004/1780 CCAP WOOD CJ at CL HISLOP J SMART AJ 29 November 2004 Regina v Vincent John VIRGONA Judgment 1 WOOD CJ at CL: I have read in draft form the judgment of Hislop J. I agree with the orders proposed, and with the reasons of his Honour. 2 HISLOP J: On 21 August 2003 the applicant pleaded guilty before Berman DCJ to an indictment containing seven counts, namely, three counts (counts 1, 4 and 5) of indecent assault contrary to the Crimes Act 1900 s 61E(1), the maximum penalty for which was 4 years imprisonment; two counts (counts 2 and 3) of indecent assault on a person under the age of 16 years and under authority contrary to the Crimes Act 1900 s 61E(1A), for which the maximum penalty was 6 years imprisonment; one count (count 6) of sexual intercourse with a person above the age of 10 years and under the age of 16 years contrary to the Crimes Act 1900 s 66C, for which the maximum penalty was 8 years imprisonment; one count (count 7) of sexual intercourse with a person above the age of 10 years and under the age of 16 years and under authority contrary to the Crimes Act 1900 s 66C(2), for which the maximum penalty was 10 years imprisonment. 3 On 14 November 2003 his Honour sentenced the applicant to imprisonment for a fixed term of 2 years in respect of each of the first five counts, and imprisonment for 4 years in respect of the last two counts, with a non-parole period of 3 years. Each of the sentences was to date from 21 August 2003. 4 Counts 1-5 relate to offences committed by the applicant against a relative "A" during the period 1983 – 1989. A was born on 6 December 1978. 5 As the sentences in respect of the first five counts were subsumed by the sentences on the last two counts, it is unnecessary to record their detail, suffice it to say that, as was conceded in the applicant's written submissions, all of them were very serious offences. 6 The circumstances of the sixth count, in brief, were that the applicant entered A's bed at night, removed A's pants and indecently assaulted him before causing him to commit fellatio upon the applicant. 7 "B" was a relative of the applicant. In September/October 1988, the applicant indecently assaulted her before having penile-vaginal intercourse lasting some five to ten minutes, during which B was unable to speak or scream because of the pain. At the time of the offence, B was 10 years of age. This offence gave rise to the seventh count. 8 During the same period the applicant committed a series of sexual offences against another young relative. On 15 May 1998 the applicant was sentenced by Kirkham DCJ to six years imprisonment with a non-parole period of four and a half years, to expire on 14 November 2002 for those offences. 9 The victim of those offences made statements to police dated 2 and 8 May 1996 which raised the possibility that A and B may also have been sexually molested by the applicant. However it was not until 29 September 1999 that A gave a statement to police, not until 12 November 2001 B made a statement to police, and not until 29 April 2002 that the applicant was charged with the subject offences. 10 The applicant was released to parole on 14 November 2002 after completing the non-parole component of the sentences imposed by Kirkham DCJ. He was returned to prison on 21 August 2003 to serve the balance of that sentence as well as being bail refused in relation to the subject offences. 11 The applicant was born on 22 June 1948. He gave a history that he had been sexually interfered with as a child and that during the period of the offences his mind was full of sexualised thinking about children. 12 In 1988 the applicant, apparently of his own volition, sought treatment for his condition and in 1997 sought counselling with a psychologist who he continued to see on a monthly basis save for the periods when imprisoned. He involved himself in appropriate programs. He is in a relationship with his present partner. His Honour found that, apart from the offences referred to above the applicant was a man of good character. His Honour concluded, "it is universally acknowledged that at present the offender is most unlikely to re-offend" and that the rehabilitation of the applicant had been achieved. 13 His Honour held that if he had been dealing with both the offences to which the offender pleaded guilty on 21 August 2003 and the offences dealt with by Kirkham DCJ at the same time he would have given effect to the principle of totality by partially accumulating the sentences such that the overall effective sentence would have been one of 10 years imprisonment with a seven and a half year non parole period. This was the effect of the sentences which his Honour in fact imposed. 14 The applicant seeks leave to appeal against the sentences on the following grounds: 1. The learned judge failed to have sufficient regard to the impact of the delay, possibly by the individual complainants but certainly by the prosecuting authorities, in bringing the prosecutions against the applicant. 2. The learned trial judge failed to take proper account of the consequences of returning the applicant to custody more than nine months after his release from serving a lengthy sentence of imprisonment for related offences. 15 The applicant submitted that the delay in prosecuting the applicant for the subject offences was not only lengthy, it was unusually lengthy, even for cases of child sexual assault; there did not appear to be any valid explanation for the delay; a significant element of delay on the part of the prosecuting authorities in particular must have caused extreme prejudice to the applicant and should have resulted in a lesser sentence. His Honour had not given the applicant any benefit or consideration for the crushing impact of being returned to prison for a lengthy period after already having enjoyed a substantial period of release on parole following an earlier significant sentence of imprisonment. These submissions were refined in reply and in supplementary written submissions to an assertion that essentially his Honour, when applying the principles of totality, had erred in failing to apply the principles in R v Todd [1982] 2 NSWLR 517. 16 In R v Todd at 519 this Court held: …where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offence, calls for a considerable measure of understanding and flexibility of approach – the passage of time between the offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner. These principles were approved by the High Court in Mill v R (1988) 166 CLR 59). 17 Whilst his Honour did not expressly refer to Todd or Mill in his Remarks on Sentence it does appear that he had those principles generally in mind. He stated that the effects of the applicant's rehabilitation resulted in little need for personal deterrence in the sentence, that he would take into account the delay as a mitigating factor, though as such delays were common when offenders abused children he would be careful not to give too much weight to this circumstance, and this was not a case where the applicant had spent the years between committing the offence and being sentenced in emotional hell, because he believed that he had got away with his sexual abuse of A and B and would never be punished for that. 18 These were bad offences. The sentencing Judge e.g. described the offence upon B as one which suggested a significant level of depravity and callousness. The objective gravity of the offences and the need for general deterrence and retribution is such as to justify the overall sentence imposed by his Honour. Indeed it could be argued the overall sentence was unduly favourable to the applicant in that there was no accumulation of sentences to reflect the fact two separate victims were involved. 19 However I have come to the view that having regard to the principles in Todd insufficient weight was given by his Honour to the passage of time between the offences and the sentence, to the late return to custody and to the progress of the applicant's rehabilitation and that such matters constitute special circumstances which should be reflected in a shorter non-parole period. 20 I would reduce the non-parole periods in respect of counts six and seven to 2 years and 3 months. I would not otherwise disturb the sentences imposed by his Honour. 21 I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed as to counts 1 – 5 inclusive. (3) Appeal dismissed as to the sentences of imprisonment of 4 years commencing on 21 August 2003 in respect of counts six and seven, but allowed in relation to the non-parole periods imposed in respect of those counts. (4) The non-parole periods of 3 years in respect of counts six and seven are quashed. In lieu thereof, non-parole periods of 2 years and 3 months commencing on 21 August 2003 are substituted. 22 SMART AJ: I agree with Hislop J.- ********** Last Modified: 12/09/2004 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.