Darrigo v Regina

Darrigo v Regina - [2007] NSWCCA 9 - NSWCCA 2006 case summary — Zoe

[19]

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.

[21]

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:

[22]

"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."

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