Pizzimenti v R - [2017] NSWCCA 231 - NSWCCA 2017 case summary — Zoe

NSWNSWCCA

Pizzimenti v R

[2017] NSWCCA 231

Court of Criminal Appeal (NSW)|2017-05-24|Before: Bathurst CJ, Hoeben CJ, McCallum J, Callum J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2017-05-24

Before

Bathurst CJ, Hoeben CJ, McCallum J, Callum J

Catchwords

[1998] HCA 57 PWB v Regina (2011) 216 A Crim R 305

Source

Original judgment source is linked above.

Catchwords

[1998] HCA 57 PWB v Regina (2011) 216 A Crim R 305

Judgment (3 paragraphs)

[1]

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of McCallum J in draft. I agree with the order proposed by her Honour and with her Honour's reasons.
HOEBEN CJ at CL: I agree with McCallum J.
McCALLUM J: David Pizzimenti seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to 13 child sexual assault offences. The offences were historical. They were committed against a family member in the late 1980s and early 1990s when the applicant was aged in his late 20s and early 30s. The victim was 20 years his junior and was aged between 8 or 9 and 13 years at the time of the offences. The applicant was aged 57 years by the time he was sentenced. The conduct for which he was sentenced included requiring the victim to masturbate him (four counts), requiring her to perform fellatio on him (two counts), three counts of cunnilingus, one count of penile/vaginal intercourse (without full penetration) when the girl was aged 10 years and three other indecent acts.
The applicant pleaded guilty but not at the earliest opportunity; the pleas were entered when he was arraigned on indictment in the District Court. The judge allowed a discount of 15% to reflect the utilitarian value of the plea. In addition, 5 of the 13 charges were based on misconduct not complained of by the victim but disclosed by the applicant during the course of the investigation. In respect of those matters, the judge determined that the applicant was entitled to an Ellis discount in the order of 15% giving a combined discount in respect of those charges of 30%: see R v Ellis (1986) NSWLR 603.
The judge imposed an aggregate sentence, as allowed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant was sentenced to a term of imprisonment for 12 years with a non-parole period of 8 years. The ratio of the balance of the term of the sentence to the non-parole period exceeded that contemplated by s 44(2) of the Sentencing Act, reflecting a finding of special circumstances. The judge's reasons for that finding were that the applicant had not been to gaol before and would require assistance with rehabilitation.

The judge proceeded to indicate, in respect of each count on the indictment, the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. The indicative sentences and the particulars of the offences to which they relate are adequately summarised in a table included in the Crown's written submissions, as follows: Count Offence Maximum Penalty Indicative Sentence s 61E(1A) Crimes Act 1900 Indecent assault child under 16 and under authority. 1 year 7 months 1 Forced masturbation of applicant. 6 years (after 15% discount applied) 1987/1988. Victim aged 8/9. Representative count: weekly/fortnightly basis for several months (Agreed Facts [15]). s 61E(1A) Crimes Act 1900 Indecent assault child under 16 and under authority. 1 year 7 months 2 Forced masturbation of applicant. 6 years (after 15% discount applied) 1987/1988. Victim aged 9. Representative count: the sequence of conduct of Counts 2 & 3 occurred at least three more occasions (Agreed Facts [19]). s 66A Crimes Act 1900 Sexual intercourse with child under 10. 3 years 3 Forced fellatio (after Count 2 masturbation). 20 years (after 15% discount applied) 1987/1988. Victim aged 9. Representative count: the sequence of conduct of Counts 2 & 3 occurred at least three more occasions (Agreed Facts [19]). s 61E(1A) Crimes Act 1900 Indecent assault child under 16 and under authority 2 years 4 Forced masturbation of applicant. 6 years (after 15% discount applied 1987/1988. Victim aged 8/9. Representative count: the sequence of conduct of Counts 4, 5 & 6 occurred twice per month for the next 6 years (Agreed Facts [22]). s 66A Crimes Act 1900 Sexual intercourse with child under 10. 3 years 6 month 5 Fellatio (after Count 4 masturbation). 20 years (after 15% discount applied) 1987/1988. Victim aged 9. Representative count: the sequence of conduct of Counts 4, 5 & 6 occurred twice per month for the next 6 years (Agreed Facts [22]). s 66A Crimes Act 1900 Sexual intercourse with child under 10. 3 years 6 Cunnilingus (after Count 4 masturbation and Count 5 forced fellatio) 20 years (after 15% discount applied) 1987/1988. Victim aged 9. Representative count: the sequence of conduct of Counts 4, 5 & 6 occurred twice per month for the next 6 years (Agreed Facts [22]). s 61E(2A)/s 61O(1) Crimes Act 1900 7 Incite act of indecency, child under 16 and under authority. 4 years 9 months Victim wanted to see applicant's penis which he exposed and she held. (the lower of the two available maximum penalties) (after 30% discount applied) Between 1987 & 1991. Victim aged 8-12. s 61E(1A) Crimes Act 1900 8 Indecent assault child under 16 and under authority. 6 years 1 year Rubbed penis against victim's bottom - no skin contact. (after 30% discount applied) 1988/1989. Victim aged 10. s 66C(2) Crimes Act 1900 Sexual intercourse with child aged 10-16. 2 years 9 Cunnilingus. 10 years (after 15% discount applied) 1991/1992. Victim aged 12/13. Representative count: there had been 5-8 occasions of masturbation-fellatio-cunnilingus before this (Agreed Facts [33]). s 66C(2) Crimes Act 1900 10 Sexual intercourse with child aged 10-16. 10 years 3 years Penile/vaginal intercourse without full penetration, immediately after Count 9. (after 15% discount applied) 1991/1992. Victim aged 12/13. s 61M(1) Crimes Act 1900 11 Aggravated indecent assault child under 16 and under authority. 7 years 2 years 6 months Rubbed penis repeatedly against victim's bottom - no skin contact. (after 30% discount applied) 1991/1992. Victim aged 12/13. S 61O(1) Crimes Act 1900 12 Aggravated act of indecency with child under 16 and under authority. 5 years 1 year 9 months Forced masturbation. (after 30% discount applied) 1991/1992. Victim aged 12/13. s 66C(2) Crimes Act 1900 13 Sexual intercourse with child aged 10-16. 10 years 2 years 9 months Cunnilingus. (after 30% discount applied) 1991/1992. Victim aged 12/13.

[2]

The applicant does not assert that any of the individual sentences indicated by his Honour reveals error. That is unsurprising. As his Honour remarked, the individual sentences might appear "modest" when regard is had to the impact, range and nature of the offending but that was explained by the lower range of sentences for such historical offences. It is clear both from his Honour's remarks and the indicative sentences themselves that his Honour gave careful, individual attention to each of the 13 offences on the indictment. After stating the indicative sentences, his Honour said: I accept that there might appear to be a measure of imprecision in these indicative sentences, but such as there might be is the product of the varying maximum penalties that are to be brought to account in respect of each of the individual offences, the range of the misconduct upon which the offender engaged and the different discounts that are to be applied in respect of counts 7, 8, 11, 12 and 13 to reflect utility and the facilitation of the course of justice, a discount which differs from that applied in the remaining counts where utility is the only consideration.
His Honour then pronounced the aggregate sentence, expressly referring to the principle of totality and finding that the totality of offending required an aggregate sentence of 12 years.
The approach his Honour took was, with respect, entirely in accordance with the requirements of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). That section provides: 53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following: (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.
The applicant submitted that the judge's exercise of his sentencing discretion miscarried by reason of a failure to specify "what sentences of imprisonment were to be served concurrently or what sentences were to be accumulated on the 13 counts on the indictment so that the principle of totality was effectively ignored by his Honour". Specifically, the applicant complained (my emphasis): "His Honour did not at any stage during his carefully worded remarks on sentence indicate what of the 13 counts were concurrent and which were accumulated as he said he was going to do after first announcing the indicative sentences."
In my respectful opinion, those submissions misconceive both the sentencing judge's remarks and the requirements of s 53A.
As has been recognised in a number of decisions of this Court, the purpose of s 53A was to reduce the complexity of complying with the principles stated by the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 in a case where (as here) an offender stands to be sentenced for multiple offences. The section strikes a balance between simplifying that task and maintaining transparency, permitting a court to impose an aggregate sentence for multiple offences while expressly requiring the court to indicate the individual sentences that would otherwise have been imposed.
A number of decisions of this Court that followed shortly upon the introduction of the section emphasised the importance of proper compliance with the requirement to indicate the individual sentences that would have been imposed had the Court not determined to impose an aggregate sentence under the section. Specifically, it was held that the sentencing judge, in stating the indicative sentences, is required to do more than take a "blanket" approach and should proceed to make an assessment of the individual criminality of each separate offence: see R v Brown [2012] NSWCCA 199 at [26] per Grove AJ; Macfarlan JA and myself agreeing at [1] and [2] respectively; R v Nykolyn [2012] NSWCCA 219 at [32] per McClellan CJ at CL; Hall J agreeing at [50]; R A Hulme J agreeing generally at [52].
In a separate judgment in Nykolyn, R A Hulme J explained the importance of articulating an indicative assessment of the individual criminality of each offence, as follows (at [58] to [60]; Hall J agreeing with his Honour's additional observations at [51]): The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this Court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal. In relation to the last matter, if one or more of the underlying convictions are quashed on appeal, whilst this Court does not know what the judge at first instance might have imposed by way of aggregate sentence in respect of the remaining convictions, the indicative sentences for the individual offences provides a useful guide to the task of re-sentencing. There is a recent example of this Court having to engage in such an exercise: FP v R [2012] NSWCCA 182 at [327] - [329]. These four matters are the types of considerations that informed the inclusion of s 53A(2) in the aggregate sentencing provisions. In the second reading speech for the Crimes (Sentencing Procedure) Amendment Bill 2010, the Honourable Michael Veitch on behalf of the then Attorney General stated: "The reasons for setting out the precise details of each sentence are to ensure transparency, reflect criminality and ensure that victims get due recognition. This also makes it easier to adjust an overall sentence when one sentence is changed on appeal. Those principles remain important, but in order to simplify the sentencing process for the judiciary, and for the community's understanding of it, the Government has decided to remove the requirement to specify the precise detail of any overlap between the sentences by allowing it to set one overall sentence and one non-parole period, provided that the court first indicates the appropriate sentence that would have been given for each offence had it been sentenced individually. The amendments will allow the judge to approach sentencing for multiple offences in a simple way when appropriate and lead to a sentence which is simpler and more easily understood by all." (New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010 at 27867)"
I would respectfully agree with the remarks of R A Hulme J in that case. Nothing in those remarks suggests the need for the sentencing judge to go to the extent of fixing the degree of concurrency or accumulation within each individual indicative sentence; a requirement to do so would eliminate the whole benefit of the simplified approach allowed under the section. An illustration of a sentencing judge going further than required was considered by this Court in Kerr v R [2014] NSWCCA 235. I remain of the view I expressed in that case at [51] (in a separate judgment not commented upon by the other members of the Court): I do not think it was necessary for the learned sentencing judge to address the issue of accumulation in the detail that he did in his indicative sentences, which included specification of the commencement and concluding date of each sentence: cf Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] per Button J (Hoeben CJ at CL and Garling J agreeing at [1] and [2]). The whole point of the introduction of a power in s 53A to impose an aggregate sentence was to remove at least one complexity in the sentencing task which was adding unnecessarily to the already substantial sentencing workload of the District and Local Courts. These remarks are not in any respect to criticise the learned sentencing judge, whose approach was detailed and precise, but only to note the permissibility of adopting a simpler approach. Section 53A(2) requires a court imposing an aggregate sentence to indicate "the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence". Truong, I think, stands as authority for the proposition that, in order to comply with that provision, in the case of sentences of imprisonment, the judge need only indicate the term of imprisonment that would have been imposed for each individual offence. In doing so there is no need, in my view, for the judge to indicate the commencement date or non-parole period that would have been fixed for each individual offence.
In my respectful opinion, it misconceives the requirements of s 53A, and indeed frustrates that section's purpose of eliminating unnecessary burden on sentencing judges, to construe the section in the manner assumed as a premise of this ground of appeal.
To the extent that the ground was based upon the sentencing judge's remarks as to what his Honour "said he was going to do", it was also misconceived, in my view. I accept the Crown's submission that his Honour was simply stating his intention first to indicate the individual sentences that would otherwise have been imposed and then to pronounce the aggregate sentence and its non-parole period.
For those reasons, I am of the view that Ground 1 must be rejected.
Ground 2 is: The sentence of 12 years' imprisonment with a non-parole period of 8 years was manifestly excessive having regard to the sentences that were imposed on offenders for the types of offences committed between the period specified in the indictment.
The applicant's written submissions in support of this ground were brief and may in turn be addressed briefly, confining attention to the argument raised. The submissions rested primarily on the decision of this Court in PWB v R (2011) 216 A Crim R 305; [2011] NSWCCA 84 and, more particularly, the table included in the judgment of R A Hulme J in that case. However, the applicant provided little in the way of analysis of the table by reference to the facts of this case.
The applicant's written submissions contended that Ground 2 should be assessed on the premise that the starting point for the sentence imposed upon the applicant was "a head sentence of 15 years and 6 months' imprisonment". The submission entailed an arithmetic error unfavourable to the applicant but in any event was misconceived. If the correct approach was to unwind a discount of 30% by reference to the aggregate sentence of 12 years, the starting point was in the order of 17 years and 7 weeks, not 15 years and 6 months.
However, the submission otherwise entailed both factual and conceptual error. Factually, it assumed the discount of 30% was allowed for all offences whereas it was allowed only for counts 7, 8, 11, 12 and 13. For the remaining offences, a discount of only 15% was allowed for the utilitarian value of the plea. More importantly, the submission assumed that the correct approach is to unwind the discount by reference to the aggregate sentence whereas the correct approach would be to consider what each indicative sentence would have been before the application of the relevant discount.
Presumably by reference to the posited starting point of 15 years and 6 months, the applicant submitted that no offender referred to in the table provided in PWB for offences of a similar nature received a sentence of imprisonment "anywhere near" that imposed on the applicant. The Crown submitted that the applicant's submission was factually incorrect, noting that there were a number of matters on the table involving "a head sentence and/or non-parole period as high as that of the applicant".
A difficulty in assessing those competing submissions is that the applicant's position was reached by taking an incorrect reference point (as explained above) while the Crown's position was based on a comparison with the applicant's aggregate sentence, which is also problematic, since that sentence comprehends the impact of the different discounts and the application of the principle of totality.
Any comparison with the matters summarised in the table is further complicated by the necessarily limited information available from the table alone and the fact that almost all of the offenders on the table were sentenced before the decision of the High Court in Pearce, rendering comparison with individual sentences problematic.
In light of those qualifications, as helpful as the table is, its usefulness as the sole basis for a ground of manifest excess is limited. That said, the Crown noted that the table includes three matters where multiple offences resulted in "a head sentence and/or non-parole period as high as that of the applicant", being the matters of R v Hill (sentenced in July 1992); R v EMC (sentenced in November 1996) and R v D (sentenced in October 1996). There are others of which the same can be said, such as R v Tucker (sentenced in April 1992) and R v Colquhoun (sentenced in September 1993).
More importantly, the table reveals that the indicative sentences stated in the present case were within the range of sentences imposed for similar, individual offences during the relevant period and were perhaps even moderate by that standard (although that is difficult to judge having regard to the possibility that those sentences were not fixed in accordance with the principles stated in Pearce).
Separately, the Crown relied on two decisions provided to the sentencing judge in the present case. One was the matter of R v SJH [2010] NSWCCA 32. In that case, the offender was sentenced for 8 counts with 9 similar matters on a Form 1 including 5 intercourse offences in total. The offences were committed between 1993 and 1999 and involved a single victim aged between 7 and 13 years at the time of the offences who was the natural daughter of the offender. Allowing a Crown appeal, the Court held that "an overall sentence of 12 years with a non-parole period component of 8 years is an appropriate reflection of the totality of criminality coupled with due regard to the favourable aspects of the respondent's subjective case including a twenty-five per cent reduction for his early pleas of guilty": at [53] per R A Hulme J; Grove and Simpson JJ agreeing at [1] and [2].
Secondly, in R v Smith [2003] NSWCCA 353, the offender was sentenced for 5 counts including 3 counts of sexual intercourse (fellatio) committed between 1997 and 1999 involving a single victim (the offender's stepdaughter) who was aged between 8 and 9 years at the time of the offences. By majority, the Court of Criminal Appeal dismissed an appeal against an effective total sentence of 11 years with a non-parole period of 8 years (per Meagher JA at [13]; Shaw J agreeing at [38]; Kirby J dissenting at [36]).
The Crown acknowledged that the material provided to the sentencing judge did not establish a clear sentencing practice given the many variables in cases of this kind. The Crown submitted, however, that "total sentences in double digits with substantial non-parole periods have been regularly imposed in child sexual abuse cases from the 1990s involving multiple serious offences against pre-teen victims by offenders in parental or quasi-parental roles". In my respectful opinion, that submission is amply sustained by the material relied upon by the Crown.
The present case involved 13 offences committed over a number of years. The offences commenced when the victim was aged 8 or 9 and ceased when she was 13. A number of the counts on the indictment were representative of similar, uncharged acts. The 13 counts included six counts of sexual intercourse (two counts of fellatio, three counts of cunnilingus and one of partial penile/vaginal penetration).
The applicant's submissions have not persuaded me that the aggregate sentence imposed was unreasonable or plainly unjust. In my view, Ground 2 must be rejected.
As explained above, each of the grounds of appeal in the present case misconceived the law or else was based on incorrect assumptions. For that reason, the order I propose is that leave to appeal be refused.