New South Wales Court of Criminal Appeal CITATION: Darrigo v Regina [2007] NSWCCA 9 HEARING DATE(S): 15 December 2006 JUDGMENT DATE: 5 February 2007 JUDGMENT OF: Hodgson JA at 1; Howie J at 2; Price J at 3 DECISION: (i) Leave to appeal granted; (ii) Appeal allowed, sentence imposed in the District Court quashed; (iii) In lieu thereof the applicant be sentenced to a non-parole period of 4 years and 6 months commencing on 23 March 2005 and expiring on 22 September 2009 and a balance of term of 1 year and 6 months expiring on 22 March 2011. CATCHWORDS: Criminal Law - sentencing - aggravated indecent assault - relevance of prior similar offending - undiscounted starting point of sentence - standard non-parole period - application of s 44 Crimes (Sentencing Procedure) Act Crimes Act 1900 s 61M (2) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A, s 21A (2), s 21 A(2)(d), s 21A (4), s 44, s 44(2), s 54A(2), s 54B Ibbs v The Queen (1987) 163 CLR 447 MLP v R [2006] NSWCCA 271 R v AJP (2004) 150 A Crim R 575 R v Lynn [2004] NSWCCA 222 R v Moffit (1990) 20 NSWLR 114 R v M.A.K, R v M.S.K. [2006] NSWCCA 381 R v McNaughton [2006] NSWCCA 242 CASES CITED: R v Simpson [2001] NSWCCA 534 R v Skaf [2005] NSWCCA 297 R v Sutton [2004] NSWCCA 225 Veen v The Queen (No 2) (1988) 164 CLR 465 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 R v Waqa (No 2) [2005] NSWCCA 33 R v Westerman [2004] NSWCCA 161 PARTIES: Richard John Darrigo (aka Edwards) v Regina FILE NUMBER(S): CCA 2006/1929 COUNSEL: W Dawe QC - Crown Brian Hancock - Applicant SOLICITORS: S Kavanagh - Crown S E O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/61/0089 LOWER COURT JUDICIAL OFFICER: Acting Judge Woods LOWER COURT DATE OF DECISION: 20 September 2005 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Richard John Darrigo (aka Edwards) - 15 - IN THE COURT OF CRIMINAL APPEAL 2006/1929 HODGSON JA HOWIE J PRICE J 5 February 2007 Richard John DARRIGO (aka Edwards) v Regina Judgment 1 HODGSON JA: I agree with Price J. 2 HOWIE J: I agree with the orders proposed by Price J for the reasons given by him. 3 PRICE J: The applicant, Richard John Darrigo, seeks leave to appeal against the severity of the sentence imposed upon him in the District Court at Dubbo by Acting Judge Woods on 20 September 2005. 4 The applicant was charged with a single count of aggravated indecent assault contrary to s 61M (2) of the Crimes Act 1900 (NSW). He entered a plea of guilty to the offence in the Local Court on 8 June 2005 and confirmed his plea in the District Court. The sentencing judge imposed a term of imprisonment of 7 years to date from 23 March 2005 and expire on 22 March 2012 and set a non – parole period of 5 years to date from the commencement of the sentence and to expire on 22 March 2010. 5 An offence contrary to s 61M (2) of the Crimes Act 1900 (NSW) carries a maximum penalty of imprisonment of 10 years. A standard non – parole period has been prescribed (s 54B Crimes (Sentencing Procedure) Act 1999 and table in Division 1A) in respect of the offence of five years imprisonment. The Notice of Appeal 6 The application for leave to appeal identified five grounds, namely: Ground 1 The learned sentencing Judge erred in setting an excessive starting point of the sentence and allowing an inadequate discount for an early plea of guilty and erred in not expressly stating the starting point prior to taking into consideration any discount and in not quantifying the discount for the early plea of guilty. Ground 2 The learned sentencing Judge erred in characterising the case as one where the maximum penalty should be considered and erred in his application of s 54B Crimes (Sentencing Procedure) Act by failing to apply the relevant considerations as stated in R v Way [2004] NSWCCA 131. Ground 3 The learned sentencing Judge erred in his application of s 44 Crimes (Sentencing Procedure) Act by expressly declining to find special circumstances and fixing a period of parole in a strictly sequential way. Ground 4 The learned sentencing Judge erred in his application of s 21A Crimes (Sentencing Procedure) Act by inappropriately taking into account as an aggravating factor the applicant's prior criminal record. Ground 5 The sentence in all the circumstances is manifestly excessive. The facts 7 An agreed statement of facts was placed before the Judge and may be conveniently summarised. On Wednesday 23 March 2005 the complainant then aged four years was in a Salvation Army Shop in Darling Street, Dubbo with her mother. Whilst the complainant was sitting on the floor playing with toys, the applicant entered the shop and appeared to be browsing through clothing items. The complainant was sitting just to the east of where the applicant was browsing. The applicant picked up a doll from a display and walked towards the complainant who was wearing a denim skirt that was cut above knee level and was sitting cross-legged. The applicant placed the doll on the complainant's lap and at the same time placed his other hand under her skirt grabbing her around the vagina/buttock area. The applicant's hand remained in that position until the complainant moved away. The applicant left the store immediately. The complainant complained to her mother who informed staff at the shop. Police were called and the applicant was identified from CCTV footage. When spoken to by police later in the day, the applicant admitted giving the doll to the child, but denied indecently assaulting her. He was charged by police and has been in custody since that time. Subjective circumstances 8 Evidence of the applicant's subjective circumstances was put before the Judge by way of a pre-sentence report, the report of a psychologist Mr Peter Ashkar and the oral evidence of the applicant himself. A psychological report prepared by the Department of Corrective Services was also tendered. 9 The applicant was born on 13 March 1950 and at the time of offending was aged 55 years. He is of Aboriginal descent and originally comes from Bourke. He has three brothers and four sisters. He was raised by both his grandmother and other family members, his parents having separated when he was very young. He experienced a difficult upbringing, with a disrupted family environment and left school early having completed year five or six. He had frequent placements in boys homes between the age of 13 and 16. 10 Evidence was given by the applicant of an incident whereby he was sexually assaulted when aged nine or ten years by a man aged about 30 years, a cousin of his father. The man placed his penis between the applicant's buttocks. 11 The applicant was involved in a de facto relationship for 25 years, the relationship ending in 1994. He and his former partner have four children together (now all adults). At the time of the commission of the offence, the applicant had been working for a pet food manufacturing company for approximately nine months. Save for this employment he had been predominately unemployed with periods of seasonal work in rural industries. Prior criminal history 12 The applicant has a lengthy criminal record as a juvenile and as an adult. The offences mainly consist of acts of dishonesty and driving offences. The applicant was first sentenced to terms of imprisonment when 18 years old for four counts of break, enter and steal. Of particular significance, however, are convictions in 1987 for two counts of commit an act of indecency with a person under the age of 16 years and in 1998 for four counts of indecent assault of a child under the age of ten years. More precisely, the record of convictions tendered to the Judge reveals that the applicant at the Nyngan District Court on 4 June 1987 was sentenced on the first count of commit act of indecency with a person under 16 years to a term of imprisonment for 2 years to date from 1.6.1987 and expire on 31.5.1992 (sic) and on the second count to a term of imprisonment for 3 years to date from 1.6.1987 and expire on 31.5.1990 with a non-parole period of 2 years and 6 months to date from 1.6.1987 and expire on 30.11.1989. 13 At the Cootamundra District Court on the 31 March 1998 the applicant was sentenced on two counts of indecent assault of a child under ten years to imprisonment on each count for 18 months to date from 15.2.1998 and expire on 14.8.1999. He was sentenced on a further two counts to a minimum term of 2 years to date from 15.8.1999 and expire on 14.8.2001 with an additional term of 2 years to date from 15.8.2001 and expire on 14.8.2003. 14 A statement of the facts of the offences for which he was sentenced in 1998 was tendered in the sentencing hearing before his Honour Acting Judge Woods. The offences by the applicant involved the indecent assault in 1994 and 1995 of the applicant's cousin who was then aged about three or four years. 15 It is appropriate to note that at the time of the commission of the present offence, the applicant was subject to a s 9 bond for 12 months with supervision for the offence of mid-range prescribed concentration of alcohol imposed on 18 October 2004. Dealing with the Appeal 16 The first ground of appeal is that his Honour erred in setting too high a starting point and not allowing a sufficient discount for the early plea of guilty. The applicant further contends that the sentencing judge erred in not quantifying in percentage terms any discount for the early plea of guilty, nor did he indicate he was allowing any discount for the plea nor a starting point for the total sentence. 17 It is clear from the Judge's remarks that he took the plea of guilty into account. His Honour, however, did not expressly refer to the fact that a discount was given for the plea nor did he quantify the value for it nor specify the starting point of the undiscounted sentence. 18 This Court continues to encourage sentencing judges to make the process of giving credit for pleas of guilty transparent: R v Thomson and Houlton (2000) 49 NSWLR 383 at [162], R v Lynn [2004] NSWCCA 222 at [14], R v Sutton [2004] NSWCCA 225 [at 16] and [17]. As was said by Dunford J in R v Waqa (No 2) [2005] NSWCCA 33 at [13]: "13 The important consideration is to make the process of giving credit for pleas of guilty, assistance to the authorities etc, transparent: R v Thomson (2000) 49 NSWLR 383 at [162]. This is best achieved, in my opinion, by the judge specifying a notional starting point before specifying the discount or discounts allowed, otherwise the offender may get the impression that although a percentage discount has been specified, no such discount has been in fact been (sic) allowed : R v Mako [2004] NSWCC[A] 90 at [21], R v Lynn [2004] NSWCCA 222 at [13], R v Sutton [2004] NSWCCA 225 at [16] – [17]." 19 The failure of the Judge in the present case to quantify the discount does not by itself constitute an error: R v Simpson [2001] NSWCCA 534 at [82 and 83]. His Honour made allowance for the plea and I am not persuaded that he did not give appropriate weight to it. 20 The plea, the Judge acknowledged, was entered in the Local Court (on 8 June 2005) and was confirmed in the District Court. The plea, entered at an early stage had significant utilitarian value avoiding the need for a committal hearing and for a trial. The plea properly attracts a discount in the upper range of that considered in R v Thompson and Houlton (supra). 21 Applying to the head sentence of 7 years in this case, a discount for the plea of 25%, the notional starting point of the undiscounted sentence is 9 years and 4 months. 22 The notional starting point of the undiscounted sentence when a discount for the plea of 20% is applied is 8 years and 9 months. 23 The notional starting points of the sentence imposed by his Honour, giving appropriate weight to the plea, would accordingly either have been 9 years and 4 months or 8 years and 9 months. 24 The applicant contends that either of these starting points is excessive, the maximum penalty for the offence being 10 years imprisonment. Similar issues are raised in the second and fourth grounds of appeal to which I will now refer. 25 The second ground of appeal is that his Honour erred in characterising the case as one where the maximum penalty should be considered and erred in his application of s 54B Crimes (Sentencing Procedure) Act by failing to apply the relevant considerations as stated in R v Way [2004] NSWCCA 131. The applicant contends in short that the present case is not a "worst case" and his Honour did no more than refer to the prior record as a basis for having to consider the maximum. 26 The fourth ground of appeal is that his Honour erred in his application of s 21A Crimes (Sentencing Procedure) Act by taking into account as an aggravating factor the prior criminal record of the applicant. The applicant contends that whilst his Honour might appropriately in the exercise of his sentencing discretion regard the fact that the applicant was on a s 9 bond at the time of the offence as an aggravating factor, he was not entitled to regard his prior convictions in a similar way. 27 These grounds of appeal are based on remarks on sentence made by the Judge. His Honour, relevantly, said ( ROS at page 6): "Aggravating factors here must include his record of similar offending behaviour, together with the fact that he was on a bond at the time of the offence." And (ROS at page 7) "The maximum under the provision is 10 years. And where there has been a history of similar offences, we must be getting beyond the need to refer to s 54B and getting into a position to having (sic) consider the maximum." And (ROS at page 7) "Because of the history of similar offending, I must whilst considering the plea of guilty, still consider a non-parole period well into that as recommended under s 54B for a middle range case." 28 The Judge was understandably concerned about the circumstances of the offence, the applicant's history of similar offences, his lack of rehabilitation and the need to protect young children. His Honour noted (ROS at page 4) that the "psychological report suggests that the offender has lack of control of his actions, and is unable to accept responsibility for such offences – they just happen" and "Mr Ashkar suggests that the offending behaviour reflects an entrenched paedophilia arousal pattern." 29 His Honour observed (ROS at page 6): "But the prime factor here where rehabilitation and treatment has been attempted, and yet he still submits to an urge even when he has been warned whilst on a bond, the prime factor must be the protection of the community." 30 Section 21A (2) of the Crime (Sentencing Procedure) Act 1999 ('CSPA') relevantly provides: "The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ………… (d) the offender has a record of previous convictions." 31 Section 21A(4) provides: "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." 32 In R v McNaughton [2006] NSWCCA 242, this Court determined how prior criminality should be used against an offender in the light of the common law and the terms of s 21A ('CSPA'). The Court said in R v M.A.K. R v M.S.K. [2006] NSWCCA 381 [at 51]: "Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act provides that the fact that an offender has a record of previous convictions is an aggravating factor to be taken into account in determining the appropriate sentence for an offence. This Court comprising a bench of five judges recently considered the application of s21A(2)(d) to the determination of a sentence. In R v McNaughton [2006] NSWCCA 242 it was held that a record of previous convictions cannot be taken into account in an assessment of the objective seriousness of an offence because to do so would infringe the principle of proportionality. The only relevance of such a record is whether it discloses that more weight is to be given to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist". 33 There was no error by his Honour when he observed that aggravating factors must include the applicant's record of offending behaviour and his observations of the failure of rehabilitation and treatment and the need to protect the community were consistent with Veen v The Queen (No 2) (1988) 164 CLR 465. 34 The remarks of the Judge (ROS at page 7) suggest that his Honour incorrectly made use of the applicant's prior convictions as an objective circumstance of the offence and to expand the bounds of the sentence beyond that proportionate to the objective circumstances of it. I find support for this view in the notional starting points of the undiscounted sentence. 35 The imposition of the maximum penalty for an offence is reserved for a case which can be properly characterised as falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451 – 452, R v Way (2004) 60 NSWLR 168 [at 51], R v Westerman [2004] NSWCCA 161 [13] – [15]. Either of the notional starting points of the undiscounted sentence to which I have referred [supra] is appropriate, in my view, only for a case which can be properly characterised within or very close to the worst category of an offence contrary to s 61M(2). 36 It is implicit from the remarks of the Judge that he assessed the criminality of the offence as being beyond the mid-range. The sole factor, however, identified as giving rise to consideration of the maximum penalty was the history of similar offending. 37 I am satisfied from the remarks on sentence and the notional starting points of the undiscounted sentence that his Honour used the applicant's prior similar offending as an objective circumstance and to characterise the offence as falling within or very close to the worst category. 38 The use by the Judge of the applicant's prior similar offending to determine the upper boundary of a proportionate sentence and as an objective circumstance increasing the seriousness of the offence constitutes error: McNaughton at [24]-[25] and [30]. I hasten to add that his Honour did not have the benefit of the judgment in McNaughton at the time he sentenced the applicant. 39 The applicant's offending conduct was very serious. The complainant, a mere child of four, was grabbed around the vagina/buttock area. She was playing at the time on the floor of the Salvation Army shop in an environment that her mother was entitled to expect that she would be safe. 40 Although the Judge remarked that the offence may not appear to be part of a planned criminal activity he found that the surveillance suggested that the applicant was in the vicinity of the complainant "for some amount of time, and apparently went so far as to find a doll, to provide the excuse to actually go up to the girl and commit the offence". 41 The touching involved, however, was on the outside of the complainant's underclothing, the applicant was not a relative nor was he in a position of trust. 42 Although a very serious offence, it cannot, in my view, be regarded as being within or very close to the worst category of offence contrary to s 61M(2) of the Crimes Act 1900 (NSW). 43 The complaint made in the second ground of appeal to this extent has been established. 44 It is appropriate to note what was said in R v Skaf [2005] NSWCCA 297 [at 54]: "It would be both undesirable and inappropriate to seek to define the requirements of the category of the worst class of case. Plainly, it is not necessary for a case to so qualify that the conclusion be reached that it would be impossible to conceive of a worst case. However, more is required than that the case be regarded as a very serious one." 45 The notional starting points of the undiscounted sentence, as I have said, are appropriate only for something within or very close to the worst class of case and I am satisfied are excessive. The first ground of appeal, to this extent, has been established. 46 The third ground of appeal is that his Honour erred in his application of s44 Crimes (Sentencing Procedure) Act by expressly declining to find special circumstances and fixing a period of parole in a strictly sequential way. 47 The applicant correctly argues (which the Crown concedes) that the Judge, having declined to find special circumstances did not comply with s44(2) Crime (Sentencing Procedure) Act in fixing the balance of the term of the sentence. 48 S 44(2) provides: "The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." 49 His Honour imposed a sentence of 7 years and set a non-parole period of 5 years, the balance of the term (2 years) exceeded one third of the non-parole period. The non-parole period having been set at 5 years confined the total sentence to not more than 6 years 8 months. 50 There was no error in his Honour declining to find special circumstances. The third ground of appeal to the extent indicated has been established. 51 It is unnecessary to consider the fourth ground of appeal. 52 In my view, the errors demonstrated, render it appropriate for this Court to re-sentence. 53 A standard non-parole period, as mentioned, has been prescribed in respect of the offence of five years imprisonment. The standard represents "an offence in the middle range of objective seriousness" (s 54A(2)). 54 Guidance to the approach to be taken to the imposition of a custodial sentence in respect of an offence where there is a standard non-parole is provided by Kirby J in MLP v R [2006] NSWCCA 271 at [33] who identified four principal issues to be addressed: (i) What term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? (ii) Should the offence be characterised as being in the mid-range of objective seriousness ? (iii) Are there other reasons in the matters identified in s 21A (relating to the offender) for departing from the standard non-parole period ? (iv) Are there special circumstances ? 55 These issues are not required to be addressed in any particular order: MLP [at 34], R v Moffit (1990) 20 NSWLR 114. 56 A plea of guilty might in itself be a reason for departure from the standard non-parole period. Where a Court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, bench mark, sounding board or guide post: R v AJP (2004) 150 A Crim R 575, R v MLP [at 32]. 57 The offence in the present case is characterised as being beyond the mid- range of objective seriousness. It is, as previously stated, a very serious offence. 58 The subjective circumstances of the applicant have been outlined (supra). He is of Aboriginal descent, with limited education, who has experienced a difficult background. At the time of offending, he was aged 55 years. 59 More weight is to be given in the case of the applicant to considerations of retribution, personal deterrence and protection of the community due to his history of similar offending. 60 The standard non-parole period of 5 years imprisonment is to be used as a reference point. The maximum penalty is 10 years imprisonment. 61 In my view, the appropriate term of imprisonment having regard to the very serious nature of the offence and the subjective circumstances of the applicant is 8 years imprisonment. From that, I would allow a discount of 25% for the utilitarian value of the early plea of guilty. This would reduce the sentence to 6 years. 62 I do not find special circumstances. I set the non-parole period at 4 years and 6 months. The only reason for departing from the standard non-parole period is the discount for the early plea of guilty. 63 I therefore propose the following orders: (i) Leave to appeal granted; (ii) Appeal allowed, sentence imposed in the District Court quashed; (iii) In lieu thereof the applicant be sentenced to a non-parole period of 4 years and 6 months commencing on 23 March 2005 and expiring on 22 September 2009 and a balance of term of 1 year and 6 months expiring on 22 March 2011. ********** 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.