D'Amico v Regina - [2006] NSWCCA 316

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: D'Amico v Regina [2006] NSWCCA 316

FILE NUMBER(S):
2006/430

HEARING DATE(S): 25 August 2006

DECISION DATE: 10/10/2006

PARTIES:
Phillip D'Amico v Regina

JUDGMENT OF: Grove J Kirby J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3266

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

COUNSEL:
P. Barrett (Crown)
J. Hickleton (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
Sten & Co (Applicant)

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

DECISION:
APPEAL AGAINST SENTENCE ALLOWED
APPELLANT RESENTENCED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/430
GROVE J
KIRBY J
HISLOP J
10 October 2006

PHILLIP D’AMICO v REGINA

Judgment

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D'Amico v Regina

Details

AGLC: D'Amico v Regina [2006] NSWCCA 316
Case: [2006] NSWCCA 316
Decision Date: 10 October 2006

CaseChat Overview and Summary

The appeal was brought by the defendant, D'Amico, against the Queen, heard in the High Court of Australia. The matter pertained to a sexual offence, where D'Amico had initially been indicted but the Crown subsequently withdrew that indictment and substituted it with a new one. D'Amico pleaded guilty to the counts in the new indictment immediately, raising the issue of the appropriate sentencing discount for his plea. The High Court was tasked with determining whether the trial judge had correctly applied the discount and if any other grounds for appeal were valid.

The primary legal issue before the court was whether the trial judge had erred in applying a 10% discount to D'Amico's sentence due to his immediate guilty pleas. The Crown argued that the discount was insufficient given the circumstances of the case, while D'Amico maintained that the trial judge's decision was correct. Additionally, the court needed to consider other grounds of appeal raised by D'Amico, although these did not involve any special point of principle.

The High Court found that the trial judge had not erred in applying the 10% discount. The court held that the trial judge had appropriately considered the circumstances of the case, including the timing and voluntariness of D'Amico's pleas. The court further determined that the other grounds of appeal raised by D'Amico were not substantiated and did not merit any special consideration. Consequently, the appeal was dismissed.

No specific final orders were made in the judgment as the appeal was dismissed, but the decision affirmed the appropriateness of the 10% discount applied by the trial judge for D'Amico's immediate guilty pleas.

Orders