New South Wales Court of Criminal Appeal CITATION: R v Romano [2005] NSWCCA 313 HEARING DATE(S): 31 August 2005 JUDGMENT DATE: 6 September 2005 JUDGMENT OF: Simpson J at 1; Smart AJ at 47; Patten AJ at 48 DECISION: leave to appeal granted; appeal dismissed CATCHWORDS: appeal against severity of sentence - plea of guilty to charge of intimidation - plea of guilty to charge of assault occasioning actual bodily harm, committed in company - aggravating factors of offences - accumulation of sentences - custodial circumstances - no error shown Crimes Act 1900 s59(2), s562AB LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Part 3 Division 3 s21A Criminal Appeal Act 1912 s6 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Johnson [2004] NSWCCA 76 R v Romano [2004] NSWCCA 380 CASES CITED: R v Shankley [2003] NSWCCA 253 R v Walker [2005] NSWCCA 109 R v Wickham [2004] NSWCCA 193 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Crown - Respondent PARTIES: Adrian Russell Romano - Applicant FILE NUMBER(S): CCA 2005/988 W Dawe QC - Crown COUNSEL: AP Cook - Applicant S Kavanagh - Crown SOLICITORS: SE O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/0131 LOWER COURT JUDICIAL OFFICER: Twigg DCJ IN THE COURT OF CRIMINAL APPEAL 2005/988 SIMPSON J SMART AJ PATTEN AJ Tuesday 6 September 2005 REGINA v Adrian Russell ROMANO Judgment 1 SIMPSON J: On 29 November 2004 the applicant pleaded guilty in the District Court to a charge of intimidation, and a charge of assault occasioning actual bodily harm, committed in company. By s562AB of the Crimes Act 1900 the applicant was liable, on the intimidation charge, to a maximum penalty of imprisonment for five years; and by s59(2) of the Crimes Act, he became liable, in respect of the assault offence, to a maximum prison term of seven years. 2 On 17 December 2004 Judge Twigg sentenced the applicant. On the intimidation charge he imposed a fixed term of imprisonment for 12 months, backdated to commence on 28 December 2003, the date the applicant was taken into custody. On the assault charge, he imposed a non-parole period of 18 months, to commence on 28 December 2004 (that is, wholly cumulative upon the earlier sentence) with a balance of term of six months. 3 The applicant seeks leave to appeal against the asserted severity of these sentences. In doing so, he contends that explicit error infected the sentencing process. I will come to the specific grounds advanced in support of his application shortly. facts 4 Both charges arose out of events that occurred on 27 December 2003. A broad outline of the undisputed background follows. The applicant had previously been in a three-year relationship with the victim of the first offence, Ms Elizabeth Lopez. Together they had a child who was then 17 months old. The relationship had come to an end, and Ms Lopez was living with the victim of the second offence, Mr Christopher Thompson. On the date of the offences, Ms Lopez telephoned the applicant in order to arrange for him to see their daughter. An arrangement was made, in accordance with which Ms Lopez drove, with the daughter, to the Leumeah shops and met the applicant. Together they drove to a nearby park. There the intimidation offence occurred. Since the account given of that event by Ms Lopez was disputed, I will say no more about the precise details at this stage. 5 The applicant made a telephone call, as a result of which he and Ms Lopez were joined in the park by two women, "Bec", and "Kristy", and the applicant's two brothers, Stephen and Anthony. 6 The applicant then ordered Ms Lopez to drive him to her home, a unit at Bankstown. Anthony and Stephen Romano accompanied them. Again, I will refrain from incorporating those of the allegations in the Crown case that were the subject of dispute. I will return in due course to the sentencing judge's resolution of a significant number of disputed facts. 7 The applicant told Ms Lopez to knock on the front door, which she did. It was answered by Mr Thompson. The three men (the applicant and his two brothers) entered the unit and confronted Mr Thompson. Ms Lopez ran off to a nearby unit and telephoned police. One of the three men in the applicant's group was armed with a club lock. It was used to strike Mr Thompson on the leg, causing lacerations. A struggle ensued. Mr Thompson was struck repeatedly with the club lock, and by the men. He picked up a chair and threw it in the direction of the assailants. The applicant struck Mr Thompson a number of times on the legs. 8 Mr Thompson lured the applicant into a bedroom, as a result of which Mr Thompson was able to escape. He went to a neighbour's unit. 9 Mr Thompson was treated at the Bankstown-Lidcombe Hospital. He had suffered a laceration to the right forehead and eyebrow and a painful anterior chest wall. He was given a variety of investigative procedures. The doctor who treated him considered that he would make a full recovery, as, indeed, he appears to have done. 10 It was the Crown case, on the evidence of Ms Lopez, that, in the early stages of the encounter at the park, the applicant placed Ms Lopez in a headlock; took her keys and mobile telephone, which he used to make the telephone call to "Bec"; took the alarm key off the key ring; grabbed Ms Lopez and pulled her to the ground; stomped on Ms Lopez' head with one of his feet; pushed Ms Lopez during the course of an argument; said to her: "Yes, the boys are here. You're gone now."; told Ms Lopez that he would take custody of the child and that Ms Lopez was to go into rehabilitation; told Ms Lopez that he was going to kill Mr Thompson, and that Ms Lopez would have to leave Mr Thompson; took Ms Lopez' bag, from which his brothers removed a wallet and money; located in the bag a spoon (which he believed to be associated with drug use), about which he questioned Ms Lopez; ran at Ms Lopez, causing her to attempt to run away; and grabbed her by the shoulders and pushed her to the ground. 11 In relation to the second offence, it was the Crown case, based upon the statements and evidence of both Ms Lopez and Mr Thompson, that it was the applicant who was armed with the club lock and who used it to assault Mr Thompson; that, en route to the home unit, the applicant said of Mr Thompson: "I will chop one arm off. God, I love my life, I am finally going to get him."; and that while the attack on Mr Thompson was proceeding, the applicant shouted: "Knock him, just knock him." 12 As a result of the dispute as to facts, a relatively lengthy hearing was held, during which Ms Lopez and Mr Thompson, and the applicant, all gave evidence. 13 The sentencing judge was unimpressed by the credibility of Ms Lopez, but accepted Mr Thompson as a truthful witness. Accordingly, he resolved those matters that were in dispute in the following way. He was not satisfied beyond reasonable doubt the applicant placed Ms Lopez in a headlock; nor that he grabbed her and pulled her to the ground; nor that he stomped on her head; nor that he said "I will chop one of his arms off, ... I am finally going to get him". He was, however, satisfied beyond reasonable doubt that he intimidated by pushing her, and that that intimidation included the threat of taking the child (in a belief, which his Honour viewed as mistaken, that Ms Lopez was consuming drugs); that it was the applicant who was armed with the club lock; and that Mr Thompson was repeatedly struck by the applicant and his brothers. 14 The applicant pleaded guilty to each offence. This followed a period of negotiation as to the offences to be included on the indictment. His Honour accepted that, in the circumstances, the pleas were entered at the earliest available opportunity. He allowed a reduction in sentence of 20% by reference to the pleas of guilty. subjective circumstances 15 The sentencing judge did not have the benefit of a pre-sentence report nor of any psychological evidence. However, the applicant's mother gave evidence, as did the applicant himself. From this the following emerged. The applicant was born on 23 September 1981 and was 22 years of age at the time of the offences. He had a significantly disadvantaged background. His mother had separated from his father in 1993, although they continued to occupy the same house until 2000. During the course of the relationship Mr Romano was violent towards his wife, and instances of violence at times occurred in the presence of the applicant and his brothers. Of her former husband, the transcript records that Mrs Romano said: "I don't believe he was a good influence [on the applicant]. He wasn't a very nice man and he was a manipulative, angry, violence (sic) man. I don't – he was a good influence on Adrian, no." 16 Mrs Romano said that, as a child, the applicant "had a few problems" which she attributed to his father's influence; and that, at school, the applicant "mixed with the wrong crowd". She believed that his father influenced the applicant to do things that he should not have done. 17 That Mrs Romano's assessment of the applicant's father was accurate is, perhaps, best gauged by Mr Romano's present position. In September 2003 he was sentenced to a lengthy term of imprisonment following his pleas of guilty to a number of serious charges. These were four charges of causing a child under the age of 13 to participate in acts of child prostitution; four charges of receiving money knowing it was derived from acts of child prostitution; one charge of sexual intercourse with a child under the age of 15 years; three charges of causing a child aged 15 years to participate in acts of child prostitution; three further charges of receiving money knowing that it was derived from acts of child prostitution; and two charges of soliciting a person to cause injury or to kidnap them to prevent them from giving evidence. A variety of additional charges were taken into account pursuant to the provisions of Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). 18 After a successful application for leave to appeal against the sentences then imposed, Mr Romano was sentenced to an overall term of imprisonment of 11 years and three months, with a non-parole period of eight years: see R v Romano [2004] NSWCCA 380. It is from this judgment that I have derived the facts outlined above. The judgment assists in understanding some evidence given in the present case, which was, at times, somewhat cryptic. 19 Reference to that judgment shows that the person solicited to cause injury or to kidnap was the applicant, and that the intended victims of those offences were the two girls the subject of the child prostitution charges. 20 Further, the judgment shows that, immediately following the solicitation by his father, the applicant contacted police and introduced an undercover police officer to his father as willing to undertake the proposed task. In evidence in this case the applicant said that, in order to cooperate with police, he wore a listening device. 21 This is of some significance, because, as the evidence before Twigg DCJ showed, it means that the applicant will serve his sentences in respect of the present offences subject to the restrictions of protective custody. 22 Mrs Romano also gave evidence of the applicant's relationship with his daughter. She said: "Adrian loves Kayla and she is very important to him and he is always very loving." 23 Indeed, the evidence suggests that some parts of the offences, at least, were motivated by the applicant's concern about the care his daughter was receiving from Ms Lopez, and his concern that Ms Lopez was using illicit drugs. 24 The applicant has, it was conceded, a significant criminal history, particularly when regard is had to his relative youth. His criminal conduct began in 1997, when he was 16. In 2000 he was convicted of armed robbery; and in 2002 with 10 counts of causing children to participate in child prostitution. For these offences the applicant was sentenced to an overall term of imprisonment for three years with a non-parole period of 15 months. He had only very recently – 12 days earlier – been released from custody at the time of the present offences. He was, therefore, on parole at the time of these offences. 25 There are many other offences on his record, predominantly concerned with driving, but it is unnecessary, in this context, to detail those. the grounds of the application 26 The grounds of appeal were pleaded as follows: "(1) The learned sentencing judge erred in his consideration of the relevant aggravating features enumerated in s21A(2) Crimes (Sentencing Procedure) Act 1999 ; (2) ... his Honour erred in directing that the sentences be entirely cumulative; (3) The learned sentencing judge failed to take into account the fact that applicant was subject to segregation within the prison system." ground (1): aggravating factors 27 It is necessary to say something about the sentencing remarks. Under the heading "the aggravating or objective seriousness of the offence", Twigg DCJ said: "To my mind these are both serious offences and respectively at the higher range of criminality. Turning particularly to the sub-para (2) of 21A, there was threatened violence. There was some actual violence. The offender has a record of previous convictions, particularly of violence. The offence was committed in company and involved gratuitous cruelty." 28 S21A of the Sentencing Procedure Act, to which his Honour made reference, sets out in subss (2) and (3), respectively, aggravating and mitigating factors required to be taken into account in sentencing. Subs(2) includes at (b), as an aggravating factor, that "the offence involved the actual or threatened use of violence". Subs(2)(e) requires that "the offence was committed in company" is to be taken into account as an aggravating feature, and subs(2)(d) identifies a prior criminal record as an aggravating factor required to be taken into account. However, in a suffix to the sub-section, the following appears: "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence." and subs(4) of s21A provides: "(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so." 29 The use of violence is inherently an element in the offence of assault occasioning actual bodily harm, but it is not necessarily an element in the offence of intimidation, and, on the findings of fact made by his Honour in relation to the allegations of Ms Lopez, it does not appear to have been a significant element in this instance of that offence (although his Honour does appear to have accepted that the applicant engaged in some pushing and shoving). In taking into account the use or threat of actual violence, his Honour did not distinguish between the two charges. If he had found actual violence in relation to the intimidation offence, it would have been legitimate for him to take it into account on that sentencing exercise because violence is not an element of that offence; but it was not legitimate for him to do so in relation to the offence against Mr Thompson. 30 That the offence was committed in company was an element of the second offence; it was therefore illegitimate to take that circumstance into account in determining the sentence to be imposed in relation to that offence. It was not an element of the first offence, and it was therefore not illegitimate to take that circumstance into account in determining the sentence to be imposed in respect of that offence. 31 The combined effect of s21A(2)(d) and s21A(4) has been the subject of some judicial consideration. A prior criminal record is relevant in the sentencing process on the principles stated in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465: see R v Johnson [2004] NSWCCA 76 at [32] – [37]; R v Wickham [2004] NSWCCA 193 at [24]; R v Shankley [2003] NSWCCA 253; R v Walker [2005] NSWCCA 109. 32 In Veen it was decided that a prior criminal history may not be given such weight as to lead to the imposition of a penalty disproportionate to the gravity of the offence for which sentence is being passed; it is relevant where it indicates that retribution, deterrence and protection of society require or permit a more severe penalty than otherwise would be imposed. It is relevant where it: "... illuminates the moral culpability of the offender ... or shows his dangerous propensities or shows the need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 33 I accept that, if it is the case that the sentencing judge took into account any or all of the factors mentioned as aggravating circumstances in such a way as to increase the penalty which otherwise he would have imposed, error is shown. The first question is whether he in fact did so. One complicating feature of the present case is that his Honour was dealing with two offences, one of which incorporated as elements the use of violence and the fact that the offence was committed in company, and the other of which did not. His Honour did not distinguish between them in making his remarks about aggravating circumstances. 34 I am not satisfied that his Honour did, impermissibly, take these circumstances into account. Although the remarks in question appear under a heading which, in part, identifies aggravating circumstances as the issue to which his attention was directed, it also refers to the objective seriousness of the offence(s). The passage opens with the observation that both were serious offences and respectively at the higher range of criminality. That tends to suggest that his Honour's mind was directed, at that early stage, to the objective seriousness of the offences. It was a perfectly correct observation that there was threatened violence, some actual violence, that the offences were committed in company and that the applicant had a record of previous convictions. In oral argument, counsel submitted that if all his Honour was doing, in referring to these matters, was recounting the objective circumstances of the offences, then the remarks were entirely superfluous. I do not accept that. There may have been some element of repetition, but it was legitimate for the sentencing judge to emphasise those matters, even if elements of one of the offences, assisted in the determination of the objective gravity of each offence. 35 If, indeed, contrary to the impression the remarks give, his Honour did take these circumstances into account so as to affect the sentences he would have imposed, he did so only in the most marginal way. No increase appears to be reflected in the sentences ultimately imposed. 36 In written submissions senior counsel for the Crown has pointed out that, somewhat unusually, written submissions by both parties were provided to the sentencing judge. Counsel who appeared for the applicant dealt with each of the offences separately, and made an express, written, concession that aggravating factors relevant to each included the use of actual violence, the use of a weapon, the applicant's record of previous convictions, as well as the applicant's parole status at the time the offence was committed. It may well be, as was submitted, that this misled his Honour into any error that he made. Having regard to the view I take about the impact of what was said by his Honour, it is unnecessary to decide whether the applicant should now be permitted to raise these points. I am satisfied that the observations did not operate in such a way as to increase either sentence imposed. I would reject the first ground of appeal. ground (2): accumulation 37 Twigg DCJ made an express and considered decision to impose wholly cumulative sentences. He said: "(x) To my mind the two matters should be dealt with separately. They are distinct offences dealing with two different victims and at different times. Although they may be related, they are to my mind distinctly separate and should be considered separately by me." 38 Counsel for the applicant contended that his Honour ought, at least, to have given express consideration to "correctness and totality". The passage extracted, although succinct, satisfies me that his Honour's mind was focussed upon the correct question. 39 I have previously observed (R v Hammoud [2000] NSWCCA 540) that questions of accumulation or concurrence are largely discretionary and involve evaluations on which minds may differ. I see no error in the approach taken by the sentencing judge. It was, in my opinion, entirely open to him to make the two sentences cumulative. It may be that some degree of concurrency would also have been permissible, but it would have been necessary, in that case, to keep a firm eye on the question of totality. To have sentenced the applicant to the two individual terms to which he was sentenced, and then to have foreshortened the overall effect of those sentences by any significant degree of concurrency would, in my opinion, have yielded a result that was inadequate to recognise the circumstances of the offences. I would reject this ground of appeal. ground (3): segregation 40 The applicant gave evidence of his custodial circumstances. He appears to have been hesitant to reveal too much. He was asked how he came to be in protection and he answered: "I was a Crown witness in a case in 2002 for a conspiracy to commit a murder. I actually wore a listening device for the police and ..." 41 At this time he was cut off by the sentencing judge who said he did not want the details. In answer to another question, the applicant said: "No, there is actually a notice on the person that is doing the time now for what happened, there's actually a notice on his file to say that me and him can't be together and when he came into custody ..." 42 It seems to me a reasonable inference that this is a clear reference to his participation and cooperation with police in relation to the offences committed by his father. In any event, he went on say to say that he was in "normal protection" and that this involved him being locked in his cell for 21 hours a day, and, on one day a month, "... a complete and utter lockdown". He said that, at Parklea Correctional Centre, where he was then incarcerated, there was a minimum of one "lockdown" a week, which meant confinement to a cell for 24 hours. He said that he had been unable to undertake any courses because he was transferred from Silverwater to Parklea where the course he wished to enrol in was not available. 43 The sentencing judge made no reference to any of this in the remarks on sentence. Indeed, he does not appear to have been given a great deal of information, including any real information about what the applicant had done with respect to his father. That, however, is probably now beside the point. It is well established that, where conditions of protective custody are more onerous than incarceration with the normal prison population, that is a factor relevant to the determination of sentence. What has now to be decided is whether, in omitting express reference to that circumstance in the remarks on sentence, his Honour overlooked it and failed to make any, or any adequate, allowance for the onerous circumstances of custody. The evidence given by the applicant was not challenged at the sentencing proceedings. However, this court has been provided with an affidavit sworn by a solicitor in the Office of the Director of Public Prosecutions, who has made enquiries of the Goulburn Correctional Centre as to the applicant's custody, where, it appears, he is now held, and has been since March of this year. That affidavit was admitted on the usual basis, that is, on the basis that, if the court found error and proceeded to re-sentence, it would be taken into account. It casts some doubt on the present accuracy of the evidence given by the applicant, but does not, as far as I can see, affect the truthfulness or accuracy of his evidence at the time it was given. 44 Reference was also made to the applicant's protective custody status in the written submissions provided to the sentencing judge. Although no reference was made to the nature of the applicant's custodial conditions, I think it is unlikely that his Honour did, in this instance, fail to take that evidence into account. Again, I am partly influenced in this view by reference to the sentences imposed. In my opinion, they are quite lenient sentences and do not suggest that any mitigating factor was overlooked. I would, therefore, reject the third ground of the application. 45 I am not satisfied that the sentencing process was marked by error. But even if there were some technical error, I am not satisfied, in terms of s6, of the Criminal Appeal Act 1912, that any lesser sentence was warranted and ought to have been passed. 46 I propose that leave to appeal be granted, but that the appeal be dismissed. 47 SMART AJ: I agree with Simpson J. 48 PATTEN AJ: I agree with Simpson J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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