Tidona v Regina

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Markarian v R [2005] 79 ALJR 1048 R v Fisher (1989) 40 A Crim R 442 R v Groat [2001] NSWCCA 452 R v Hofer [2001] NSWCCA 544 R v Johnson [2004] NSWCCA 76 R v McGouty [2002] NSWCCA 335 R v Misiepo [2005] NSWCCA 405 CASES CITED: R v Moffitt (1990) 20 NSWLR 114 R v P [2004] NSWCCA 218 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 R v Wickham [2004] NSWCCA 193 Ryan v The Queen (2001) 206 CLR 267 Veen v The Queen (No 2) (1998) 164 CLR 465

Aurelio Tidona - Applicant PARTIES: Regina - Respondent

Mr H Dhanji - Applicant COUNSEL: Mr P Ingram - Respondent

SE O'Connor, Solicitor for Legal Aid - Applicant SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Respondent

IN THE COURT OF CRIMINAL APPEAL 2005/1319

SIMPSON J ADAMS J HOEBEN J

Friday, 2 December, 2005 Aurelio TIDONA v REGINA judgment 1 SIMPSON J: I agree with Hoeben J. 2 ADAMS J: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence On 6 April 2004 (the first day of the trial) the applicant pleaded guilty to the offence of aggravated indecent assault, contrary to s61M(1) Crimes Act 1900 in that on 24 August 2003 at Macquarie Fields he assaulted KB and at the time of that assault, committed an act of indecency upon her in circumstances of aggravation in that KB was then under the age of 16 years, namely 12 years. This offence carries a maximum penalty of imprisonment for 7 years. 4 On 10 December 2004 the applicant was sentenced by Gibb DCJ for that offence in the Campbelltown District Court. Her Honour imposed a term of imprisonment for a non-parole period of 3 years and 11 months to date from 5 September 2003 and to expire on 4 August 2007 and a balance term of 1 year and 3 months to date from 5 August 2007 and expire on 4 November 2008. 5 On 28 February 2003 after a contested hearing in the Local Court, the applicant had been convicted of an offence of committing an act of indecency with a person under 16 years contrary to s61N(1) Crimes Act 1900. The maximum prescribed penalty in the Local Court for that offence was imprisonment for a term of 1 year. On that date the Local Court magistrate imposed a good behaviour bond of 1 year, pursuant to s9 Crimes (Sentencing Procedure) Act 1999. 6 The commission of the s61M(1) offence on 24 August 2003 constituted a breach of that good behaviour bond. The applicant consented to being sentenced in relation to that breach by Gibb DCJ. The matter was appropriately before her Honour by the combined operation of ss98(1)(c) and 99(1)(q) Crimes (Sentencing Procedure) Act 1999. 7 On 10 December 2004 Gibb DCJ sentenced the applicant in relation to the s61N(1) offence. Her Honour imposed a fixed term of imprisonment of 12 months to date from 5 September 2003 and expire on 4 September 2004. 8 The applicant seeks leave to appeal from both sentences.

Factual background 9 The applicant was born on 4 November 1935. His wife died from cancer in early 2002. Thereafter the applicant resided on his own. 10 On 15 November 2002, the victim AP, who was then aged thirteen and was a neighbour of the applicant, was asked by him to attend his home to perform housework. She had done so on one previous occasion and had been paid $50. When the victim arrived at his house, the applicant sat near her and offered her $250 to perform sexual acts with him. The applicant reached with his left hand and grabbed the right wrist of the victim and squeezed it. The victim pulled away and left the house. As she was leaving the applicant called out to her to come back the next day and not to tell anyone. 11 The victim in fact told her mother and the incident was reported. It was that matter which was the subject of the conviction in the Local Court on 28 February 2003 and in relation to which the applicant became subject to a good behaviour bond of 1 year. 12 On 24 August 2003 the victim KB was aged twelve years. She also was a neighbour of the applicant. At about 9.30 am she was approached by the applicant who asked her to help him clean his place up. This was not an unusual circumstance as KB had been helping him to do this for about one year. 13 KB had coffee with the applicant and started her cleaning in the kitchen. The applicant was in another part of the house. When KB was in the third bedroom, she heard a zip. She ignored that for a while but when she turned around she saw the applicant with his underpants and trousers around his knees and his penis exposed. The applicant then said to KB "Do you want to have sex with me", KB replied "No". 14 The applicant pulled his trousers up, approached KB and grabbed her by her upper arm. He dragged her to the bed where he pushed her down by her shoulders. A struggle ensued during which the applicant said he wanted to have sex with KB. KB continued to struggle and told him no. After a short time a noise was heard in the house and the applicant released KB and went to investigate. KB jumped over the bed and ran out of the house. The applicant called after her "Don't tell anyone. It's our secret". 15 KB kept the secret until Wednesday, 3 September 2003 when she revealed what had happened to a school friend. They in turn told the school principal and the police were notified. On 5 September 2003 the police attended the applicant's home and arrested him. The applicant has been in custody since that date.

Subjective matters 16 The applicant was aged 67 at the time of the offence and was 69 at the date of sentence. At the time of the commission of the first offence on 17 November 2002, he had no prior criminal history. He was born in Sicily and was the youngest of six children. He came to Australia in 1964 and was married in 1966. He worked as a labourer with the Water Board until he was retrenched in about 1994. He is only partially literate. He is the father of two children aged 34 and 37. The applicant was very dependent on his wife, who died of cancer in early 2002, after a six month illness. Thereafter he had lived on his own. 17 The applicant's daughter returned to Australia in November 2003 after ten years overseas. Her evidence was that the applicant had become depressed as a result of the death of his wife. She remained supportive of the applicant and was going to look after him when he was released from prison. She was not sure whether they would continue to reside in Australia, or whether they would return to Sicily. 18 The situation in relation to the applicant's health was not clear. He gave a history of having suffered a stroke in 2000, but this was not confirmed by medical reports. The effect of reports from general practitioners who treated him is that he had become anxious and depressed following the death of his wife and had not recovered emotionally from her death. He was prescribed Zoloft and Valium during 2003. 19 Reports from Professor Greenberg, a psychiatrist, and from Suzanne Freeman, a psychologist, confirmed the likelihood of anxiety and depression being present at the time of the offences, but did not attribute the offences to those conditions. Of some significance is the fact that on the Bumby Molest Scale, which is a recently developed test designed to detect cognitive distortions for sexual offenders, the applicant's responses revealed five cognitive distortions. It was for that reason that Ms Freeman recommended: "Aurelio requires treatment and should be assessed for a group sexual therapy program within the Correctional system or in the community. Alternatively, in the community he could have individual treatment with a psychiatrist specialising in sexual behaviour. Aurelio would also benefit from counselling to deal with his anxiety, grief and depression. In the community he should be placed under the supervision of the Probation and Parole Service." 20 What does seem clear and her Honour so found, is that following his arrest the applicant on 9 September 2003 suffered what has been variously described as a "left side stroke" with a decreased ability to talk and a "mild left cerebro-vascular accident". In addition the applicant, not surprisingly given his age, suffers from a number of minor health problems such as epigastric discomfort, chest pains and pains of an arthritic type, including pains in the back.

Remarks on sentence 21 Her Honour first considered the objective seriousness of the offence (ROS 6.3) and in particular the need for general deterrence. Her Honour referred to the observation in R v Fisher (1989) 40 A Crim R 442 that sexual assaults upon young children, especially by those who stand in positions of trust to them, must be severely punished and that those who engage in this evil conduct must go to gaol for a long period, not only to punish them but also to endeavour to deter others who may have similar inclinations. 22 Her Honour had regard to the principle of specific deterrence. She did so because of the similarity between the two offences and the fact that the applicant had not been deterred by his conviction for the similar offence in November 2002. Her Honour took the applicant's incorrect and exculpatory explanations of his conduct which were given to doctors as indicating a lack of contrition and remorse. 23 In relation to the offence itself her Honour took as her starting point (ROS 9.1) that the legislature had provided for a standard non-parole period of 5 years. As to whether that standard non-parole period should apply, her Honour had regard to R v Way (2004) 60 NSWLR 168 at [118]: "That question will be answered by considering: (i) The objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) The circumstances of aggravation and of mitigation which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3), and as incorporated by the general provisions of s21A(1)(c) and by the concluding sentence to s21A(1)." 24 Her Honour noted that in accordance with R v Way the standard non-parole period would only apply where the offender was convicted after trial. In this case a plea of guilty had been entered on the first day of the trial and accordingly the standard non-parole period was not strictly applicable. Because that plea had not been entered at the earliest opportunity, her Honour was only prepared to give the applicant the benefit of a discount of 15%. 25 In accordance with R v Way her Honour then had regard to aggravating and mitigating factors in accordance with s21A of the Crimes (Sentencing Procedure) Act. Her Honour took as aggravating features (ROS 12.3) the prior conviction for a substantially similar offence, the fact that the applicant was in a position of trust in relation to the victim and the vulnerability of the victim. Her Honour concluded (ROS 12.9): "Further, this is a victim who is particularly vulnerable. This is a victim who was very young, at the age of twelve; and relevantly placed in a vulnerable position. She was, at his invitation, in his house with a history of having been in the house at his invitation. It is, however, again relevant to note that the vulnerability is, in this context in part by position and in part equally by virtue of the relationship. It is not appropriate to take into account the age per se, since the victim's age is in fact the essence of this charge. Accordingly, although both factors (k) and (l) of s21A(2) are activated to some degree, they are for the purposes the one factor; and the one factor which must be read with some caution, having regard to the overall circumstances." 26 Her Honour also had regard to the fact that the victim had suffered considerable emotional harm, although that was resolving at the time of sentence. Other aggravating factors identified were that there was some degree of planning involved and that the offence had been committed whilst the applicant was on a bond. 27 In relation to mitigating factors her Honour was only prepared to allow in the applicant's favour his plea of guilty. 28 In relation to subjective circumstances, her Honour had regard to the applicant's age (which she thought was 67 but in fact was 69), his poor health, his good character up to November 2002 when the first offence occurred, and the effect on him of the death of his wife. Her Honour also noted that the applicant's daughter had returned from overseas and was now in a position to provide care for him so that he would no longer be living in a socially isolated condition as he was before the offences. 29 Taking all those matters into account her Honour concluded that the offence objectively should be placed in the mid-range of the class of offences under s61M(1) and that it would normally attract the standard non-parole period. Her Honour's conclusions were (ROS 27): "Having regard, however, to the subjective matters which have been discussed, it seems to me that this is a case in which, despite the obvious problems of health there are no relevant special circumstances which can be called in aid. This is an offender who, save for his benefit of a plea, evidences neither contrition nor remorse, nor any insight nor understanding nor recognition of the severity of the offence or the risk that he poses to the community at large. He has previously been given the benefit of a bond and that has been of no assistance. It is, however, the case that this is an offender who, at the age of 67, entered custody for the first time. He enters custody suffering poor health, depressed and anxious, and complaining of a variety of physical problems, and has it seems in the period that he has been in custody suffered a stroke, although the precise effects of that stroke are somewhat difficult to ascertain. It would seem to me that, but for the benefit of the plea, the appropriate sentence here would be a non-parole period of approximately 56 months. That, however, is a sentence which must be reduced by 15%, having regard to the sentence and benefit of plea. In the circumstances it seems to me that the appropriate non-parole period to be imposed, which is a sentence which must be increased and is increased having regard to the aggravating factor of the prior conviction and the offence on bond, the non-parole period that should properly be imposed for this offence is a non-parole period of 3 years 11 ½ months." 30 Her Honour then determined the balance of the sentence, ie the parole period, by dividing the non-parole period which she had assessed by one-third. It is by that mechanism that her Honour calculated the components of the sentence which was imposed.

Grounds of Appeal Ground of Appeal 1 - The learned sentencing Judge erred in failing to have proper regard to the maximum penalty when sentencing the applicant with respect to the offence of aggravated indecent assault. 31 The thrust of the applicant's submission under this ground of appeal is that her Honour placed undue weight on the standard non-parole period and failed to have due regard to other considerations which included such matters as the maximum prescribed penalty. 32 Reliance was placed on R v Way at [121]-[122]: "[121] If the question which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in s3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s3A of the Sentencing Procedure Act . [122] In this approach the standard non-parole period can properly take its place as a reference point, or bench mark, or sounding board, or guide post, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s22 of the Act contemplates that the fact of a plea will attract a discount." 33 It seems to me that there is some force in this submission. The process of reasoning suggested in the above extract from Way envisages an "instinctive synthesis" approach to fixing a sentence which should be then assessed against such "reference points or guide posts" as the standard non-parole period. 34 This is clear from Way at [124]: "The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGouty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect."

The start point in the reasoning process should not be the standard non-parole period. 35 Although her Honour referred to the maximum prescribed penalty, what emerges from the structure of her judgment is that she took as her start point the standard non-parole period and then adjusted it by reference to such matters as the discount for the plea of guilty, aggravating and mitigating factors in accordance with s21A of the Crimes (Sentencing Procedure) Act 1999 and the applicant's subjective case. This is clear from the fact that the discount for the early plea of guilty was applied to the non-parole period rather than to the head sentence as required by R v Thomson and Houlton (2000) 49 NSWLR 383. 36 As the ground of appeal suggests, a more appropriate start point in that reasoning process was the maximum prescribed sentence rather than the standard parole period. This was the approach recommended by the majority in Markarian v R [2005] 79 ALJR 1048 at [30]-[31]: "[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. … [31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible cases and the case before the court at the time; and thirdly, because in that regard they do provide, taken in balance with all of the other relevant factors, a yardstick …" 37 Although this point was not taken on appeal, her Honour's conclusions as set out in para 27 are open to the interpretation that her Honour took into account subjective matters when considering the objective seriousness of the offence. If she did so this also was indicative of error in her reasoning process. 38 In my opinion Ground of Appeal 1 has been made out.

Ground of Appeal 2 - The learned sentencing Judge erred in her approach to s44 of the Crimes (Sentencing Procedure) Act by adopting a strictly sequential approach. 39 This ground of appeal raises the same issue as Ground of Appeal 1. By calculating the total sentence only after setting the non-parole period, her Honour lost the opportunity of reviewing the total sentence and considering whether it was just and appropriate. 40 The reasoning process involved in applying the current version of s44 of the Crimes (Sentencing Procedure) Act was discussed by Simpson J in R v Misiepo [2005] NSWCCA 405 at [42]: "When he ultimately sentenced the respondent, his Honour did so in accordance with the current version of s44. However, when he earlier stated his view of what the sentence should have been absent the plea of guilty he specified this as a sentence of 6 years and 4 months imprisonment, presumably, a reference to the total term of the sentence he had in mind. The Crown has made some criticism of him for this, suggesting that he applied the earlier version of s44 by setting the head sentence first. Given that the sentence as imposed was correctly done, in accordance with the current s44, I do not think this criticism can be sustained. Further, there is nothing in the current version of s44 that demands that the reasoning process follows a particular sequence. Provided a judge complies with the requirements of the section it is not necessary that his or her thought processes commence with the non-parole period …" 41 A similar observation was made by Hulme J in R v P [2004] NSWCCA 218 at [26]: "Notwithstanding the temptation, provided by the terms of s44 of the Crimes (Sentencing Procedure) Act , to think that his Honour's approach of fixing the non-parole period and then independently fixing the balance of the term is the correct approach, in fact it is not. That was decided in R v Moffitt (1990) 20 NSWLR 114 at 134 in respect of earlier legislation but in R v Way the court indicated that R v Moffitt should be followed in relation to the current wording of s44." 42 For these reasons and those set out in relation to Ground of Appeal 1, I am of the opinion that Ground of Appeal 2 has been made out.

Ground of Appeal 3 - The learned sentencing Judge erred in taking into account the applicant's prior conviction as an aggravating factor. 43 In relation to the applicant's prior conviction her Honour said: "For the purpose of this sentence, having made this sentence totally concurrent with the sentence to be imposed today, the existence of that prior offence will be treated as an aggravating factor and taken into account in increasing the sentence that would otherwise have been imposed for the offence before me today." (ROS 3.8) "In the circumstances it seems to me that the appropriate non-parole period to be imposed, which is a sentence which must be increased and is increased having regard to the aggravating factor of the prior conviction and the offence on the bond …" (ROS 27.8) 44 The applicant submits, correctly, that her Honour was in error to use the fact of the applicant's previous conviction to increase the sentence imposed on him. It was open to her Honour to have regard to the fact that the offence was committed while the applicant was subject to a bond as an aggravating factor but not the fact of this prior conviction. This was made clear in R v Blair [2005] NSWCCA 78 at [53]: "I would suggest that it is unfortunate that the legislature has included "a record of previous convictions" in the list of aggravating factors, because it invites, as appears to have happened here, overlooking the qualification in s 21A(4) that a court does not have regard to any such factor as specified if it is contrary to "rule of law" to do so. "Rule of law" is construed to include common law principles: R v Johnson [2004] NSWCCA 76. It is the common law that prior conviction does not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is appropriate to give more weight to factors such as retribution, deterrence or community protection Veen v The Queen (No 2 ) (1998) 164 CLR 465 ; R v Wickham [2004] NSWCCA 193."

See also Ryan v The Queen (2001) 206 CLR 267 at para 67, R v Groat [2001] NSWCCA 452 at [10] and R v Hofer [2001] NSWCCA 544. 45 In my opinion her Honour did err in the manner complained of and this ground of appeal has been made out.

Ground of Appeal 4 - The sentence in relation to the offence of aggravated indecent assault is in all the circumstances manifestly excessive. 46 The applicant submitted that when one added to the head sentence of 5 years and 2 months the discount for the plea of guilty and other discount factors, her Honour's starting point for the head sentence must have been in excess of 6 years and 1 month. This did not sit easily with her Honour's finding that the offence was to be characterised at the mid range of objective seriousness. 47 The threshold to be satisfied by an applicant relying upon this ground of appeal is a high one. It has not, in my opinion, been satisfied here. Although it is clear that the starting point for the head sentence must have been high, her Honour identified a number of factors which placed the start point of 6 years and 1 month well within the available range of sentencing options. 48 Significant in her Honour's consideration was the applicant's lack of remorse, the need for general and specific deterrence and particularly the similarity in a number of respects between this offence and that of November 2002. Her Honour's approach to that factor was in line with Veen v The Queen (No 2) (198) 164 CLR 465 at 477: "It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 49 This ground of appeal has not been made out.

Ground of Appeal 5 - The sentence in relation to the offence of commit act of indecency in all the circumstances is manifestly excessive. 50 The applicant's right to seek leave to appeal against this sentence arises under s99(5) of the Crimes (Sentencing Procedure) Act 1999. 51 The applicant's submission was that this offence had originally been dealt with in the Local Court which had a jurisdictional limit of imprisonment for 1 year. That limit was significant in the circumstances of this case where the matter was dealt with in the District Court purely for convenience. (R v El Masri [2005] NSWCCA 167) 52 Her Honour should have been advised of this. In fact her Honour was erroneously told that the maximum penalty to which she should have regard was imprisonment for 2 years. That this was an error was accepted by the Crown (submissions, para 45). 53 This meant that the applicant effectively received the maximum sentence for this offence. In addition her Honour had not taken into account, in the sense required by Pearce v The Queen (1998) 194 CLR 610, the specific circumstances relating to that offence, in particular the applicant's good character prior to it, and that by reference to objective seriousness it was not a particularly bad example of offences of this kind. 54 It seems to me that through no fault of her own her Honour was misled into thinking that the maximum sentence for this offence was imprisonment for 2 years and that as a result her sentencing discretion miscarried. There is also force in the complaint that her Honour did not approach the offence as a separate and discrete matter as required by Pearce. I am of the opinion that this ground of appeal has been made out.

Conclusion 55 For this Court to quash a sentence and impose a lesser one, it is not sufficient for the applicant to establish error. It is necessary that this Court be satisfied that "some other sentence … is warranted in law and should have been passed" - subs6(3) of the Criminal Appeal Act 1912, R v Simpson (2001) 53 NSWLR 704 at [79] and [99-100]. 56 I am not persuaded that the head sentence passed by her Honour of 5 years and 2 months is excessive and that some other sentence is warranted in law and should have been passed. Given the aggravating features which her Honour identified, together with the objective seriousness of the offence and issues of general and specific deterrence, that sentence was within the appropriate range. 57 What is of concern, however, is her Honour's methodology in using as a start point the standard non-parole period and then crafting the structure of the sentence around it. By following that approach her Honour deprived herself of the opportunity of standing back and looking at the appropriate balance between the head sentence and non-parole period. 58 Had her Honour done so, it would have been clear that there were a number of factors which amounted to special circumstances and which required that the statutory ratio between the head sentence and non-parole period be adjusted so as to increase the period of supervision on parole for the applicant. These factors were his age, his poor state of health both physically and mentally, and the fact that he had commenced his first period of imprisonment at an advanced age. There is also the need for some psychiatric intervention as identified by the psychologist, Ms Freeman. 59 Taking those matters into account it seems to me that a longer period of supervision by the Probation and Parole Service is required in this matter and that the sentence should be adjusted accordingly. 60 In relation to the s61N(1) offence, although the 12 months term of imprisonment has been completed and no practical benefit will enure for the applicant, it seems to me that some other sentence was warranted in law and should have been passed and that such a sentence should have been calculated by reference to the jurisdictional limit of the Local Court for that offence of imprisonment for 1 year. 61 The orders which I propose are as follows:

(1) That leave to appeal against the severity of sentence be granted.

(2) That the appeal be allowed and that the sentences passed by Gibb DCJ on 10 December 2004 be quashed.

(3) In lieu thereof in respect of the s61M(1) offence the applicant is sentenced to a period of imprisonment comprising a non-parole period of 3 years commencing 5 September 2003 and expiring on 4 September 2006 and a balance term of 2 years and 2 months commencing on 5 September 2006 and expiring on 4 November 2008.

(4) In lieu of the sentence passed in respect of the s61N(1) offence, the applicant is sentenced to a fixed term of imprisonment of 6 months commencing 5 September 2003 and expiring on 4 March 2004.

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