New South Wales Court of Criminal Appeal CITATION: D'Amico v Regina [2006] NSWCCA 316 HEARING DATE(S): 25 August 2006 JUDGMENT DATE: 10 October 2006 JUDGMENT OF: Grove J at 1; Kirby J at 31; Hislop J at 32 DECISION: APPEAL AGAINST SENTENCE ALLOWED; APPELLANT RESENTENCED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SEXUAL OFFENCES - SENTENCE - CROWN WITHDRAWS INDICTMENT AND SUBSTITUTES ANOTHER - IMMEDIATE PLEAS OF GUILTY TO COUNTS IN NEW INDICTMENT - UTILITARIAN VALUE OF PLEAS - "DISCOUNT" OF 10 PERCENT INADEQUATE TO CIRCUMSTANCES - OTHER GROUNDS NOT SUSTAINED - NOT INVOLVING ANY SPECIAL POINT OF PRINCIPLE LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cameron v The Queen 2002 209 CLR 339 R v Dib [2003] NSWCCA 117 CASES CITED: R v Durocher-Yvon 2003 58 NSWLR 581 R v George [2004] NSWCCA 247 R v Thomson 2000 49 NSWLR 383 PARTIES: Phillip D'Amico v Regina FILE NUMBER(S): CCA 2006/430 COUNSEL: P. Barrett (Crown) J. Hickleton (Applicant) SOLICITORS: S. Kavanagh (DPP) Sten & Co (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3266 LOWER COURT JUDICIAL OFFICER: Maguire DCJ LOWER COURT DATE OF DECISION: 11 August 2005 LOWER COURT MEDIUM NEUTRAL CITATION: n/a IN THE COURT OF CRIMINAL APPEAL 2006/430 GROVE J KIRBY J HISLOP J 10 October 2006 PHILLIP D'AMICO v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against sentence imposed on the applicant by Maguire DCJ at Campbelltown District Court. The applicant had pleaded guilty to three counts of aggravated sexual assault upon a person under the age of sixteen years contrary to s 61J of the Crimes Act 1900, a count of aggravated act of indecency towards a person under the age of sixteen years committed in company contrary to s 61O of that Act and a count of aggravated indecent assault upon a person under sixteen years of age contrary to s 61M. The offences occurred between June 1995 and August 1997. The prescribed maximum penalties for offences against those provisions are, respectively, imprisonment for twenty, five and seven years. His Honour was asked to take into account pursuant to the Form 1 procedure a further charge of committing an aggravated act of indecency. 2 His Honour imposed sentences expressed as total terms within which he set non parole periods and for initial purposes it is convenient to adopt that mode of expression. 3 On the count of committing an aggravated act of indecency (count 1) the applicant was sentenced for imprisonment for one year ten months with a non parole period of one year four months commencing on 11 August 2005. On two counts of aggravated sexual assault (counts 2 and 4) he was sentenced to concurrent imprisonment of six years and four months with a non parole period of four years eight months also commencing on 11 August 2005. On the count of aggravated indecent assault (count 3) he was sentenced to imprisonment for two years and eight months with a non parole period of two years and three months commencing on 11 August 2005 and on the remaining count of aggravated sexual assault (count 5) to imprisonment for seven years three months with a non parole period of five years six months, this to commence on 11 August 2006. At the outset of his remarks on sentence his Honour stated that the further charge of aggravated act of indecency had been taken into account but in imposing terms he did not state in which of the individual sentences this charge was to be found reflected. 4 The applicant's date of birth is 11 June 1954. He was sentenced upon an agreed statement of facts. A co-offender was also dealt with for offences by Maguire DCJ who concluded that her culpability did not "bear the same gravity" as the applicant. That finding is not the subject of challenge in this appeal. 5 The agreed facts were: "At the time of the offences, the offender, Phillip D'Amico was married to the victim's (aunt). The victim was born on 12 June 1984. The offences occurred between 12 June 1995 and 31 August 1997. From around the age of 12 the victim was regularly invited to stay at the unit of the offender and his wife. Around June 1995 the offender told the victim that he wanted her to meet his girlfriend Lisa. The victim was driven by the offender to the home unit of the co-offender, Lisa Callanan at Concord. The offender took the victim to Callanan's bedroom where a pornographic video was put on and he and Callanan undressed. He told the victim to also undress and lay on the bed with them. The offender and Callanan then had sex in front of the victim and the offender told her to watch ( Count 1 ). After the offender and Callanan had sex the co-offender Callanan performed cunnilingus on the complainant and licked and sucked her breasts. Callanan then performed fellatio on the offender and then the offender asked the victim to do the same. The victim then performed fellatio on the offender ( Count 2 ). He then rubbed his penis back and forth along her vagina whilst his penis was erect ( Count 3 ). The offender and Callanan then showered and afterwards the victim also showered. They all then dressed and the offender and the victim left the unit. On an occasion between 12 June 1995 and 11 June 1997, more likely towards the latter period within that timeframe, the victim was at the home of the offender at Chester Hill. The offender then gave the victim some alcohol, picked her up and carried her to the bedroom. He there took her clothes off and then undressed himself. He placed her onto her back and performed cunnilingus ( Count 4 ). The offender then rubbed his penis in between the breasts of the victim until he ejaculated ( Form 1 matter ). On an occasion between 1 March 1997 and 31 August 1997, the victim thinks close to her 13th birthday (12 June 1984), the victim was at the offender's house. The offender called her into his bedroom and told her to get undressed. He then picked her up and carried her to the bed and told her to spread her legs. He kissed her on the lips and neck and then placed his erect penis in and out of her vagina twice ( Count 5 ). The victim felt sharp pain and when the offender removed his penis from her vagina she said 'what did you do to me, you hurt me'. The victim says she then went to the bathroom to wipe herself she noticed a light coloured pinkish red liquid on the paper. She said to the offender, 'Phillip, why am I bleeding', to which he replied, 'you'll be alright, its normal'. The victim then had a shower and dressed and the offender dropped her at home. He said 'this is our secret, don't tell anyone what happened, no-one has to know'. The offender cannot recall this conversation. In February 2003 the victim was having a conversation with her mother about difficulties of a sexual nature that the mother had in Lebanon. Towards the end of this conversation the mother noticed that the victim was holding herself with her arms crossed and said, 'I want to see (the aunt), I need to speak to her now'. At this time the victim was upset and crying. The mother said 'why, why' and the victim replied 'its got something to do with Phillip'. The mother said 'did he do anything to you' and the victim nodded and disclosed the offences to her mother. Police were later notified and the offender was arrested on 22 February 2003. He was interviewed by detectives, the allegations were put to him and he denied them." 6 Three grounds of appeal were presented and they were in these terms: "1. The Learned Judge erred in assessment of the appropriate discount for the Applicant's plea of guilty. 2. That, given the objective gravity of the offending (set out in an agreed Statement of Facts) and the subjective circumstances of the Applicant, the Learned Sentencing Judge erred in imposing a sentence upon the Applicant which is inconsistent with sentences imposed upon similar offenders. 3. In determining the sentence, the Learned Sentencing Judge failed to take into account that the Applicant would serve all or part of his time in protective custody as a consideration relative to the issue of 'special circumstances'. 7 I turn to ground 1. The learned sentencing judge's remarks in this regard were brief. He said: "He has pleaded guilty. I have taken that into account on sentence, but to a limited extent by reason of its lateness. I allow 10 percent". 8 The submissions by the applicant adverted to both the utilitarian value of his pleas of guilty and their quality as demonstrations of his remorse. I deal initially with the former. In R v Thomson 2000 49 NSWLR 383, the discount range encouraging early pleas of guilty was postulated as lying between 10 and 25 percent. It was recognized that, generally, the level would be affected by two factors, the timing of the plea and the complexity of the issues. 9 In a written submission the Crown noted his Honour's finding that the plea was late and continued "although at the earliest opportunity should not necessarily attract a maximum utilitarian discount". 10 There was reference to what was said by Hodgson JA in R v Dib [2003] NSWCCA 117: "If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount". 11 A short history was set out in the applicant's written submissions and its accuracy was not contested. The applicant was arrested and charged with offences in February 2003. He was committed for trial and on 20 February 2004, a joint indictment was presented against him and his co-offender Callanan. The indictment contained thirty seven counts alleged against the applicant and eleven of them charged Callanan jointly with him. Some counts charged offences of elevated seriousness by reason of allegations that at the relevant time the victim was aged less than ten years. Negotiations took place between the Crown and the representatives of the co-offender in which the applicant was necessarily interested in the sense that his position could be affected. In September 2004 the Crown advised the District Court that it intended to amend the indictment. On 28 January 2005 a fresh indictment was presented charging the five counts which I have identified above, none of which alleged an offence against a child of less than ten years. The applicant pleaded guilty forthwith upon arraignment on this indictment. 12 In the circumstances, it was as I understand it, common ground that the pleas of guilty were offered at the earliest opportunity: Cameron v The Queen 2002 209 CLR 339 and what was in contest was the question of the level of "discount". 13 The intensity of the contest abated somewhat in the course of oral submissions. Ms Hickleton of counsel for the applicant sought to modify her written submission which had sought a 25 percent discount to say "it should be towards the high end of the range as opposed to the low end". Mr Barrett of counsel for the Crown submitted that, whilst he did not agree with the proposition that it should be 25 percent, "a discount recognizing the utilitarian value of the plea should be within those two extremes, if you like, and I cannot argue that would not be appropriate in the circumstances". Acknowledging the assistance to be derived from these concessions, I conclude that the contentions of the applicant have been made good and ground 1, so far as it relates to the utilitarian value of the pleas of guilty, should be upheld. 14 The applicant gave evidence at the sentencing hearing expressing public apology and it was noted that the complainant was among the persons gathered in the Court. His Honour accepted the change in attitude from earlier denial to this exhibition of contrition. Such a change was evidenced in part by the pleas of guilty and it was not necessary for his Honour to give some separate indication of its contribution to ultimate sentence assessment. 15 Ground 2 was sought to be supported by reference to what was described as a table of cases, the features of which were said to invite comparison with the objective and subjective factors of the applicant's case. It has been said, and I would respectfully endorse the observation, that mere recital of sentences imposed in apparently somewhat similar cases may be neither helpful nor justified by authority: R v George [2004] NSWCCA 247. 16 At the hearing of the appeal, the judgments in this table of cases were collected and handed up. They were: R v Crowe [1999] NSWCCA 239 R v Moore unreported NSWCCA 12 April 1994 R v ICC [2002] NSWCCA 119 R v CAA unreported NSWCCA 4 December 1998 R v Chmielowiec unreported NSWCCA 21 July 1998 R v RSS unreported NSWCCA 27 February 1996 R v Mills unreported NSWCCA 27 June 1996 17 It suffices to observe that none of the cases involved identical conduct particularly in respect of the involvement of two adults with one child victim. The sentences assessed by his Honour do not reveal error consequent upon departure, to the disadvantage of the applicant, from any established sentencing pattern. I would reject ground 2. 18 Ground 3 traverses an area which has been repeatedly travelled in this Court. It is, regrettably, not a rarity for offenders against child victims to come before the courts. It is notorious that these offenders are at risk from other prisoners. By reason of the numbers of such offenders it is not axiomatic that service of sentence in protection means custody in isolation. 19 A finding that an offender is to serve a sentence in protection will not necessarily result in a shorter head sentence or a finding of special circumstances so as to adjust the statutory ratio of minimum custody against the period of potential parole in favour of the offender: R v Durocher-Yvon 2003 58 NSWLR 581. 20 The learned sentencing judge made no reference in his remarks on sentence to the circumstances in which the applicant was likely to serve his sentence or whether that service would be unusually onerous. As, in the light of my determination in relation to ground 1, I would propose resentence, it is convenient to note the information in the affidavit of the applicant which describes some aspects of the first ten months of his custodial history. It shows that the applicant, since transfer to Junee has been able to attend courses and work, and I am unpersuaded that cause for particular mitigation by reason of elevated onerousness of custody has been established. 21 However, it can be observed that, by reference to the effective enveloping imposition of imprisonment for eight years three months with a non parole period of six years six months, the proportion of minimum custody to full term is 78.78 percent. This exceeds the proportion which would result from application of the statutory ratio which would be 75 percent. It is true that the statute only obliges the giving of reasons for departure which would reduce that proportion in favour of an offender but I see no reason in the present case why, on resentence, departure should occur in either direction. 22 Subject to what I shall turn to presently in regard to matters of calculation, I would assess appropriate sentences in harmony with those made at first instance, but apply a discount of 20 percent to reflect the utilitarian value of the plea of guilty which, although late in the proceedings, was offered at the earliest reasonable opportunity. 23 In order to expose the processes whereby I have reached the impositions which I propose, I record this analysis. The total terms of the sentences at first instance followed the application of a stated discount of 10 percent. The calculations can more easily be examined if they are expressed in months. Maguire DCJ's actual total sentences were twenty two months (count 1); seventy six months (counts 2 and 4 concurrent); thirty two months (count 3) and eighty five months (count 5). Starting points to reach those figures after deduction of 10 percent would be "back" calculated as 24.44 months, 84.44 months, 35.5 months and 94.44 months respectively. 24 Applying to these lastmentioned figures, a discount of 20 percent in lieu of 10 percent would result in terms of 19.5 months, 67.55 months, 28.4 months and 75.55 months. The respective non parole periods which would be equivalent to 75 percent of those total terms when the statutory ratio is applied would be 14.6 months, 50.66 months, 21.3 months and 56.6 months. 25 The foregoing calculations, whilst performed to provide transparency to the process, give an unwarranted impression of precision to a process which is an exercise in judgment rather than arithmetical computation. I would round the calculated figures by ignoring the fractions of months which appear in the above figures. 26 I consider that the circumstances do call for some cumulation of sentence and I am content to reflect this by commencing the sentence on count 5 one year later than the commencement of other impositions. This is the approach taken at first instance. The imposition on count 5 should take into account the matters on the Form 1. 27 In accordance with the Crimes (Sentencing Procedure) Act 1999 (s 44(1)) it is requisite to first set the non parole period. It is apt, however, to return to direct attention to the total enveloping term in order to maintain an intention that the balance term should not exceed one third of the non parole period in overall terms or, put another way, that the minimum custody by way of non parole period should be three quarters of the total term. 28 A practical way of achieving this is to adjust the non parole period on count 5 down to fifty two months. As this period will commence twelve months after the commencement of other counts, there will be an overall custodial period of sixty four months as against a total imposition equivalent to eighty seven months. The proportion which the lesser figure represents is 73.5 percent of the total which in round figures approaches the intention to adhere to the statutory ratio. 29 The proposed outcome of this appeal should, in my view, not be interpreted as in any way reflecting a diminution of the serious criminality of the applicant's depradations upon an innocent child victim but the adjustment in his favour is an application of received doctrine concerning the encouragement of pleas of guilty as well as substantial application of the statutory ratio between non parole period and total term. 30 I propose the following orders: 1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentences imposed in the District Court quashed and, in lieu thereof, the applicant sentenced as follows: (a) On count 1 (aggravated act of indecency) to imprisonment consisting of a non parole period of one year two months commencing on 11 August 2005 and expiring on 10 October 2006 with a balance term of five months commencing on 11 October 2006; (b) On counts 2 and 4 (aggravated sexual assault) to imprisonment consisting of a non parole period of four years two months commencing on 11 August 2005 and expiring on 10 October 2009 with a balance term of one year five months commencing on 11 October 2009. these sentences to be served concurrently; (c) On count 3 (aggravated indecent assault) to imprisonment consisting of a non parole period of one year nine months commencing on 11 August 2005 and expiring on 10 May 2007 with a balance term of seven months commencing on 11 May 2007; and (d) On count 5 (aggravated sexual assault), taking into account the charge on the Form 1, to imprisonment consisting of a non parole period of four years and four months commencing on 11 August 2006 and expiring on 10 December 2010 together with a balance term of one year eleven months commencing on 11 December 2010. 4. The earliest date of eligibility for parole specified as 10 December 2010. 31 KIRBY J: I agree with Grove J. 32 HISLOP J: I agree with Grove 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. 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.