New South Wales Court of Criminal Appeal CITATION: Salvaggio v Regina [2007] NSWCCA 136 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 10 May 2007 JUDGMENT DATE: 18 May 2007 JUDGMENT OF: Campbell JA at 1; James J at 2; Smart AJ at 3 DECISION: Leave to appeal against sentence granted; appeal against sentence dismissed CATCHWORDS: Aggravated detain for advantage and two serious assaults occasioning actual bodily harm - No allowance for accumulation of sentences as a special circumstance - Non-parole period and fixed terms totalling 3 1/2 years out of sentences totalling 4 years - Lesser periods in prison could not be imposed otherwise sentences would not reflect the criminality adequately. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990 CASES CITED: Presta (2000) NSWCCA 40 The Queen v Hudson (1985) FCR 228 PARTIES: Anthony Salvaggio v Regina FILE NUMBER(S): CCA 2007/386 COUNSEL: (A) Mr M Johnston (C) M W Dawe QC SOLICITORS: (A) S E O'Connor (C) S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/1130 LOWER COURT JUDICIAL OFFICER: Knox DCJ LOWER COURT DATE OF DECISION: 23 June 2006 IN THE COURT OF CRIMINAL APPEAL 2007/386 CAMPBELL JA JAMES J SMART AJ F riday , 18 M ay 2007 A nthony SALVAGGIO v Regina JUDGMENT 1 CAMPBELL JA: I agree with Smart AJ. 2 JAMES J: I agree with Smart AJ. 3 SMART AJ: Anthony Salvaggio seeks leave to appeal against these sentences of imprisonment, imposed after a trial: Court Offence Sentence 2 Aggravated detain for advantage Non-parole period of 3 years from 17.1.06, balance of term of 1 year expiring 16.1.2010 2b Assault occasioning actual bodily harm Fixed term of 18 months from 17.1.08 to 16.7.09 2c Assault occasioning actual bodily harm Fixed term of 18 months from 17.1.08 to 16.7.09 4 Thus the applicant was sentenced in total, by way of non-parole period and fixed terms of imprisonment for 3½ years with a balance of term of 6 months, a total sentence of 4 years. The applicant complained that the effective ratio of non-parole period-fixed term to the total sentence was 87.5 per cent. The Facts 5 The applicant and VC (a lady) had been in a relationship of some four to five months. VC had been to the applicant's house on a number of occasions prior to 23 October 2004. On that evening they had been together at a club, consuming a quantity of alcohol. The judge made these findings of fact: "(i) the parties returned to the offender's unit. There was tension and subsequent argument between them which occurred at least partly, because the offender thought that men had been speaking to [VC] at the … Club. As a result of those attentions the offender accused her as 'acting like a whore'; (ii) In response to this accusation and related accusations which were made at other stages during the evening [VC] said 'Don't be stupid, they were only talking to me. I'm going to bed.' She then did that and the offender subsequently apparently joined her in the bedroom; (iii) There was abusive language by each of and towards the other during the course of the early hours of that morning; (iv) The offender kicked [VC] when she was on her hands and knees in the bedroom as a result of which she suffered some injuries to her mouth. The evidence on that is not precisely clear. … (v) The detention of [VC] by the offender occurred when the victim attempted to get her keys from her bag but was unable to do so because they were not there. It was on that occasion the offender said to her the first time, 'You are not going anywhere until you have a shower and clean up' I do not accept the offender's evidence that he was simply attempting to have [VC] take a shower and clean up her face because she looked terrible, as indicating any concern on his part. Not do I accept that the offender had any concern that [VC] would be driving if she left the unit. He had travelled with her to his home from the … Club without any kind of protestation on his behalf at her level of alcohol consumption; (vi) I accept that comments were made to that effect, namely, that the victim was not leaving, on a number of occasions by the offender during the course of the evening. I find that was consistent with the offender's intention to detain [VC] for the specific advantage that he did not want her to go outside at a time when she was clearly bleeding and distressed. The language used by the offender from time to time included accusations that what she was doing was going to get him into trouble and 'dog him' to the police. That was consistent with the intention of someone who had just been released from periodic detention or who had ceased periodic detention some months earlier. The offender was very apprehensive about being reported to the police. Similar words were used by the offender to the effect of 'Do you want to see me locked up do you, you fucking dog?' (vii) I also find that [VC] attempted to [contact] the police and emergency services by dialling 000. I accept her evidence that at that stage the offender got her phone off her and smashed it on the ground. (viii) When [VC] went to her knees and tried to pick up the pieces of the phone I find it was at that stage the offender kicked her in the stomach and the abdomen area; (ix) The offender then threw a bowl of rice over [VC]. At that time he was yelling and screaming words to the effect that he knew where the victim's mother lived as well as her daughter; (x) I accept that thereafter he picked up a piece of wood … and with both hands above his shoulder, as described by [VC] hit her in the direction of her face. … [VC] shielded her face and the wood came into contract with her forearm causing her a great deal of pain. That was the extent of the injuries to her arm … I accept the evidence of [VC] given in cross-examination that the offender was aiming at her face with a piece of wood; (xi) I find that [VC] fell to the floor at which stage the offender was sitting on the lounge. The offender threw her cigarettes over the floor and said words to the effect 'You want a cigarette bitch?' When [VC] leaned down to pick them up he put his cigarette into her back when she was in his immediate presence. I accept [VC's] words that that was something which caused her, and it must have been the case that it caused her, excruciating pain. She saw the cigarette on the ground and it was at that stage still half burning; (xii) I specifically reject the offender's account that [VC] rolled over onto the cigarette." 6 The judge explained that the Count 2b assault related to the cigarette burning to VC's shoulder area and the Count 2c to assault to the injuries to VC's left arm. 7 The judge made the following further findings: "In relation to the detention charge, I also note the offender's evidence himself in cross-examination that the victim went to the balcony and tried to jump off it. He thought she was attempting to escape by climbing over the top of a tree. As I have said in the course of submissions, having observed [VC's] age and build that is consistent with the level of desperation which was experienced by her to get away from what I find to be a relentless, ferocious and ongoing attack on her. It cannot be imagined that a woman of that age, build, dressed as she was, and a person from the background and employment from which she came, would be trying to adopt that method of egress, other than a situation of fear and while trying to escape. I also find that the letter written by the offender to [VC] a month after the incident while he was in gaol was a clear admission by him that what he had done was wrong. There was no mention in that letter of any issue of self defence or anything which could constitute the basis of self defence." 8 The judge found that the applicant was a powerfully built and intelligent man of considerable strength and contrasted her build with the applicant's muscularity. 9 The applicant, who was born on 9 September 1970, was married but separated from his wife with whom he had three dependent children. The Pre-Sentence report revealed that he had a stable upbringing and family background but commenced using drugs in his early teenage years. He had good trade qualifications. 10 The judge held that the applicant had had substantial drug abuse problems and that these formed the core of his long term issues. From his early years the applicant has consistently and regularly abused cannabis, amphetamines, including methylamphetamines as well as alcohol. He has also engaged in compulsive gambling for a long period of time. The judge continued: "I do not see in those circumstances that there is any evidence on which I could be satisfied that he has the capacity for self control and self discipline which is necessary if he is going to participate in any kind of realistic rehabilitative measures." 11 The judge found that the detention lasted about one hour and that there was considerable fear and terror occasioned to VC. She was released after the police attended at the applicant's house consequent upon neighbours hearing her screaming and found that the applicant tried to silence her so the police would not intervene and that this was evident from the language he used towards her. 12 The judge relied on the decision of Grove J in Presta (2000) NSWCCA 40 in which he referred to the 20 year penalty applying unless the offender proved to the satisfaction of the Court that the victim was released without substantial injury. In The Queen v Hudson (1985) FCT 2287 at 243 this was explained as "being more than minor or slight but need not be of such a serious kind which would constitute being grievous bodily harm." 13 The judge found that what was occasioned to VC in terms of burning her shoulder was substantial injury. He also held that her injuries to her left arm after being hit with a lump of wood were not minor nor slight. The judge concluded that the applicable maximum penalty to be considered was one of 20 years imprisonment. 14 As to the assaults occasioning actual bodily harm the judge said: "He went into the bedroom after her. It was thereafter … an unrelenting situation of bullying and violent series of events by him … the offender was aware of the gravity of what he was doing to her. and "What took place … was a series of violent acts of frightening criminality … and "… the offence was at least of the order of a mid-range of criminality in relation to both assault counts." 15 The judge adverted to the applicant's history stating: "It is also clear that Mr Salvaggio's criminal record sets out a series of charges which relate to times and occasions when he has been intoxicated. What is of particular concern is that between the ages of eighteen and thirty three Mr Salvaggio injected amphetamines once or twice per month. From the age of thirty-three he started consuming both amphetamines and methylamphetamines , injecting every couple of days." 16 The first sentence does not appear to be based on the applicant's admissible criminal history. However, it may be based on the report of the psychiatrist consulted by the applicant and the statement ",,, the criminal record that has been supplied to me indicates that he has frequently been intoxicated at times that police(??) have become involved. In fact almost all his charges relate to times when he has been intoxicated." That statement may also be based at least in part on sections of the applicant's history which are inadmissible. The applicant tendered that report. 17 The report of the Probation and Parole Service and that of the psychiatrist make it plain that the applicant has a severe drug abuse and alcohol problem. The remainder of the passage quoted from the juge's remarks is supported by the reports mentioned. 18 The judge relied on a Bail Report of the NSW Police which reveals that on 3 June 1995 the applicant was charged with four counts of assault police, offensive behaviour, two counts of resist police, a driving offence (unlicensed driver) and steal a motor. The report states that on 1 September 1995 at Windsor Local Court the applicant was discharged upon the conditions that he take medication as prescribed, be supervised by the NSW Probation Service and accept psychiatric evaluation as requested by Penrith Health. Any breach was to be reported to the Court under s 33(3)(B). 19 There are a number of problems in the judge relying on such a report. There is no s 33(3)(B) of the Mental Health Act. Section 33 of that Act deals with a different subject matter. It is a part of the Act dealing with involuntary admissions to hospitals. The intended reference was probably to the Mental Health (Criminal Procedure) Act 1990. Section 33 of that Act deals with mentally ill persons but there is no s 33(3)(B). What was probably intended was a reference to s 33(3A) and 3B) of that Act. Section 32 deals with persons suffering from mental illness or mental condition. Section 33(3A) enables a magistrate if he suspects within six months of the order being made that a defendant may have failed to comply with a condition to call upon him to appear: Section 33(3A) enables a magistrate if the defendant does not appear to issue or cause to be issued an arrest warrant. No action appears to have been taken under s 32(3A) and (3B). 20 Section 32(4) provides that a decision to dismiss charges does not constitute a finding that the charges are proven or otherwise. There is a companion provision in s 33(4). 21 The charges never having been proven cannot be taken into account against the applicant. The judge erred when he held that the applicant had had convictions involving violence towards police officers. 22 Prior to 24 October 184 the applicant's criminal history consists mainly of matters dealt with in the Local Court and at the lower end of the criminal scale. There are some dishonesty offences, one in 1984 and eight dishonesty offences in 2000 and one in 2001. In 2001 he was convicted of driving on road while his licence was suspended and driving whilst disqualified. In 2003 he was convicted of possessing a prohibited drug. In 2004 he served six months periodic detention for offences in 2003 of common assault, escape from lawful custody, stalking and contravening an apprehended domestic violence order. It appears from the unclear records that the applicant did not complete the serving his periodic detention until 23 September 2004. 23 The judge has recorded that the assaults took place on 9 and 10 August 1003 and that it was agreed between counsel that the applicant had his then partner and mother of his three children, that he was charged by police, released and that the following evening hit the lady again. 24 After 24 October 2004 the applicant was sentenced by the District Court to three months imprisonment, there having been a revocation of Community Service Orders which had been made prior to that date. 25 The applicant was on a bond at the time of the offences. 26 The judge held that given that the applicant had completed periodic detention a few weeks before 24 October 2004 there was a need for personal deterrence. 27 The judge after incorrectly reciting that the applicant had convictions involving violence towards police officers recorded that the Crown submitted that against that background, there was a particular need for personal deterrence from crimes involving assault on women. The judge said that he would take that into account. It is disturbing that after being punished for assaulting his partner, the applicant detained and seriously assaulted VC. The judge found that the incident of 24 October 2004 on VC. That is to be expected. 28 On the basis of the evidence before him the judge accepted that the applicant had abstained from drugs while he was in gaol, but the judge had no confidence that the applicant would not re-offend in the future or accept the opportunity for rehabilitation. 29 The judge said, "What is most important ,,, is that this is a case of a repeat offender for domestic violence." 30 The judge was not satisfied that a longer than normal period of supervision would be to the applicant's benefit. He declined to find special circumstances.' 31 He judge considered questions of totality concurrency and accumulation and determined that the sentences for the two offences of assault should be concurrent but there should be a degree of partial accumulation of those sentences on the sentence for detention. 32 After imposing the sentences stated earlier the judge told the applicant that the total effect of the sentence was that he would be in custody for 3 years 6 months and on parole for 6 months. 33 The judge did not explain why the non-parole period was so short and formed such a small part of the overall sentence, that is, about 12½ per cent. After being in gaol for three and a half years a longer period of supervision by the Probation and Parole Service than six months is beneficial and helps a prisoner to re-establish himself in the community. The judge did not explain why he did not treat the partial accumulation of the sentence as a special circumstance. This is a curious omission when the judge otherwise gave lengthy and detailed reasons. Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 requires reasons to be given where there are special circumstances for the non-parole period being less than three-quarters of the term of the sentence. There is no statutory requirement for the Court to give reasons where the effective non-parole period and fixed terms together amount to more than three-quarters of the total of the sentences of imprisonment. 34 The finding of special circumstances is a discretionary matter but there is no sound reason for not treating the accumulation in the present case as a special circumstance. As to the detention charge the judge fixed a non-parole period of three-quarters f the term of the sentence. 35 When considering sentences it is important that the non-parole period imposed be adequate. 36 Turning to the sentences imposed in the present case the sentence imposed by the judge for the detention offence of three years non-parole period and one year balance of term was, on the facts at the bottom of the permissible range. 37 Similarly the sentences of fixed terms of two years for each of the assaults was at the bottom of the permissible range. 38 The problems and error lie in the structure of the sentences and the manner of accumulation. As a matter of practical convenience it is often best to impose the longest sentence at the end of the chain of sentences. 39 Counsel for the applicant focussed his attack on the judge failing to treat the accumulation as a special circumstance and the consequent very short non-parole period. The applicant sought the reduction of the total of the non-parole period and fixed terms from 4 years to at least 3 years 4 months two weeks, that is, three-quarters of the total of the terms of imprisonment of 4 years 6 months. This would result in a balance of term of 1 year 2 months and 2 weeks. Counsel for the Crown contended primarily that the sentences imposed should not be disturbed. He accepted that there may have to be a re-sentencing but only because of a combination of the judge treating the 1995 offences as proven and the short non-parole period after a substantial period of imprisonment. 40 To give effect to the criminality revealed a permissible approach would have been to impose concurrent fixed terms of 18 months for each of the assault offences from 17 January 2006 and a non-parole period of 3 years for the detention offence from 17 January 2007 and a balance of term of 1 year 4 months on the detention charge. This would reflect the ratio of the total of the non-parole period and the fixed term of three-quarters to the total of the sentences. Naturally, the applicant did not seek such a result nor did the Crown. 41 The dominating factor is the extent of the criminality of the applicant. These were very serious offences. The fixed terms and the non-parole period totalling 4 years represent the minimum time which the applicant should spend in prison. Despite the judge's reservations about whether the applicant will rehabilitate, a longer period on parole would extend the sentence. It should not be overlooked that the applicant's rehabilitation should commence in gaol and there is evidence that he has ceased to take drugs and alcohol. 42 This application has revealed errors in the sentencing process and arguments of substance were put. In the circumstances of this case I would propose the following orders: Leave to appeal against sentence granted; appeal against sentence dismissed. ********** 29/05/2008 - Incorrect term shown - Paragraph(s) 40 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.