R v Calderoni

[2000] NSWCCA 511

CITATION:	Regina v Fabrizio Calderoni [2000] NSWCCA 511
FILE NUMBER(S):	CCA 60498/2000
HEARING DATE(S):	22 November 2000
JUDGMENT DATE:	22 November 2000
PARTIES :	Regina Fabrizio Calderoni
JUDGMENT OF:	Sully J at 1; Bell J at 30; Whealy J at 31

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70034/97
LOWER COURT JUDICIAL OFFICER :	Greg James J

COUNSEL :	R. Cogswell SC - Crown P. Hamill - Respondent
SOLICITORS:	S. E. O'Connor - Crown Russo & Coburn - Respondent
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
DECISION:	Crown appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60498/00

SULLY J
BELL J
WHEALY J

22 November 2000

REGINA v Fabrizio CALDERONI

JUDGMENT

1 SULLY J:: This is a Crown appeal against sentence. It challenges a sentence passed upon Mr Fabrizio Calderoni ("the respondent") by his Honour Greg James J of this Court on 16 June last year. 2 The material facts are these. The respondent was tried and acquitted on a charge of murder. During the course of his trial he gave sworn evidence. Some of the evidence thus given was capable of amounting to admission evidence of his inculpation in a robbery in company. 3 Following his acquittal on the murder charge, that acquittal having occurred on 24 March last, an ex officio indictment charging robbery in company was preferred by the Attorney General against the respondent; and in due course the respondent pleaded guilty before James J to that charge. 4 Such an offence contravenes section 97 of the Crimes Act 1900; and it attracts upon conviction a statutory maximum penalty of imprisonment for twenty years. His Honour dealt with the respondent, effectively, by sentencing him to two years' imprisonment without a non-parole period, and by thereupon suspending in manner provided by the recently enacted Crimes (Sentencing Procedure) Act 1999, the operation of the whole of that two year sentence. That is the essential background against which the present Crown appeal is brought. 5 So far as concerns the relevant objective facts surrounding the robbery in company, they are sufficiently stated in the following extracts from his Honour's remarks on sentence.

"The offender met Graeme Brown in Alice Springs about the end of 1986 when he and his then partner, Sandy Hamilton, stayed at a house occupied by Brown and one 'Roslyn Rogers ('Ros') also known as 'Patricia Adams'. He returned to Brisbane in November 1987 and his relationship with Ms Hamilton ceased in late 1990. The offender started seeing a Karen Skinner. At the beginning of 1991, he and Ms Skinner went to Long Jetty and stayed with 'Ros' for a while before renting a place next door.

About June 1991, Brown visited 'Ros' a couple of times. The offender saw him about three to four days prior to 11 June 1991 and again on 11 June 1991.

At the earlier meeting, Brown told the offender that 'someone had ripped him off ... he wanted it back ... and might want me to help'. Further, 'Ros' had lent him $7,000 and she wanted it back. The offender said he understood Brown to mean that, 'I would go along with him, just to see him get his money back - there could be a fight or anything'. The offender knew he might have to be involved in violence on someone to get money. If they were going to beat (Brown) up or something, 'I probably would have stepped in'. Brown mentioned to the offender that a drug dealer was going to buy some drugs, or that is what he had been given to think. Brown had told him he had grass for sale. Brown had arranged for the drug dealer to come to Wyong. The victim, Marneros, apparently came to Wyong to fulfil that role.

About 8.00 pm on 11 June 1991, Brown turned up at the offender's residence and about an hour later left with the offender and Skinner in the offender's car. Brown dropped the offender and Skinner off at a street near the railway line at Wyong saying, 'wait here, I'll turn up later on with this guy'. The offender and Skinner waited in the dark for about two hours. A car they did not recognise came up the road and stopped nearly opposite their position. The offender saw two people in the car.

It was not until the occupant on the passenger's side got out of the vehicle, after a lapse of between 30 seconds to a minute, that the offender recognised him as being Brown who called out, 'where are youse?' The offender and Skinner approached the vehicle and saw that Brown had opened the driver's door. The offender saw, 'what looked to me was the guy was already punched in', 'he didn't move, you know, he was unconscious sort of thing'. The offender maintained he didn't see Brown hit the man next to him because it was dark, and could not recall seeing any blood on him.

Brown told the offender to open the rear passenger's door and said, 'there is a bag in the back, grab it'. The offender did so and saw Brown and Skinner remove the driver from the front of the vehicle and put him in the boot. The offender denied touching the person. He said he threw the bag to Brown.

The offender and Skinner made their own way back to the offender's residence with Brown arriving separately about five to 10 minutes later. 'Ros' showed the offender that she had received some money although he did not know how much.

The offender maintained that he did not carry a weapon during the robbery. He did not see Brown with any weapon and Skinner did not have a weapon to his knowledge.

Evidence given in the trial by the witnesses Gary Thoburn and Bernard Bridge indicates that Marneros had about $50,000 in cash with him just prior to the robbery. George Page, also known as 'Fat George', said that he brought somewhere between $4,500 and $6,000 to Wyong to give to Marneros. 'Fat George' was of the view that Marneros had other money with him and that it was possible Marneros was doing a drug deal.

'Ros' said that Brown gave her $7,000 when he returned to the offender's house but apart from alleging that the offender had said to her, 'Brett and I will get $10,000 each', there is no evidence that the offender received anything from Brown. The offender maintained that he neither asked for nor received any money from Brown and this cannot be refuted by the Crown."

6   In connection with those objective facts his Honour assessed as follows the culpability of the respondent.

"Those facts establish that the offender was not a prime mover in the scheme to rob but joined in more or less on a casual basis to provide physical support and assistance in a project to rob a drug dealer. His assistance was at the instigation of Brown who, it was accepted in the Crown submissions and by reason of the acquittal verdict in the murder trial was the murderer of the victim drug dealer. It was Brown who devised the criminal scheme.
……………

The offender's role appears to have been to help out as ordered and to assist in stealing money. He, certainly on the Crown case at the murder trial, realised the deceased was dead at some time before getting back to the premises at the Central Coast, where they met up afterwards, however, bearing in mind his evidence and bearing in mind the verdict it is not possible for me to be satisfied beyond reasonable doubt that he became aware that the dealer was dead at any point earlier than the morning following the death. It is certainly not open to me to conclude that he was aware he was robbing a dead body or disposing of a dead body. He is not charged with any offence relating to the perversion of the course of justice, the assisting of Brown after the event or the concealing of the crime. Sentences passed upon the others involved yield little of assistance. These sentences were for offences entirely different to this offence."

7   The evidence available to inculpate the respondent in the robbery in company embraced in part the admissions to which I have earlier referred, and in part the contents of certain intercepted telephone conversations in which, at least on one available view, the respondent had made admissions against his interest in connection with the alleged robbery in company. 8   Dealing with those matters, his Honour made these observations:

"His admissions made on oath at that trial were admissions that plainly were of assistance to the prosecutor and, indeed, amplified and explained otherwise inadequate evidence contained in recorded conversations and some limited evidence given by an indemnified protected witness who was herself involved in the very matters, at least to the extent of being an accessory after the fact. The Crown has submitted, however, that the offender was not being altruistic or, alternatively, that his degree of remorse and contrition for the relevant offences cannot be much assisted by assistance given that way. Indeed the Crown goes so far as to say that the unsuspecting assistance he plainly did give in the recorded conversations and that given by way of his admissions on trial for the more serious offence is not to be regarded as within the concept of assistance to which section 23 of the Act speaks. I do not accept that submission. Clearly the offender afforded assistance whether he wanted or intended to or not."

9 The first contention put for the Crown, and the first question which has to be resolved in this Court, is whether that stated perception by his Honour of the scope and operation of section 23 of the Crimes (Sentencing Procedure) Act 1999 is correct. Insofar as his Honour held that unwitting assistance given to the relevant authorities was capable of coming within the purview of section 23 of the Act, I am of the opinion that his Honour fell clearly into error. It is not, I think, necessary to embark upon a lengthy and involved discussion of the entirety of section 23, or of the interplay of the various subsections and paragraphs which make it up. It is sufficient for present purposes to say, as I believe to be the correct perception in point of law, that unwitting assistance given to the authorities cannot as a matter of commonsense come within the purview of section 23. 10 A simple illustration canvassed with counsel during the course of this morning's argument will perhaps point up the relevant considerations as I see them. 11 Let it be supposed that a burglar leaves unwittingly at the scene of a burglary a set of his fingerprints. Let it be supposed that they are discovered, traced back to the burglar, and that they play a significant part in his subsequent successful prosecution for the burglary. 12 It would surely be beyond the comprehension of anybody of ordinary commonsense that in such circumstances the burglar could claim a discount, - and, given the way in which these matters are conventionally argued in the Court, a substantial discount, - by reason of the fact that without his fingerprints unwittingly left behind at the scene of the burglary the police would not have had a case against him; and that, therefore, he has given them in the relevant sense assistance that entitles him to a substantial discount under section 23. 13 It is trite that a statute is not to be construed in a fashion that imputes to the Legislature an intention to bring about so transparently absurd a result. Insofar as his Honour's perception was to the contrary, it is my respectful view that his Honour fell into error. 14 That conclusion without more would in this case be sufficient to re-open for the consideration of this Court the question of the proper sentencing of the respondent. For it seems to me that the error to which I have referred infects the totality of the process of reasoning on which his Honour relied. 15 That point having been reached, it is necessary for this Court as part of the re-sentencing exercise, - and indeed it was necessary for his Honour at first instance, - to have dutiful regard to the requirements of s 5 of the Crimes (Sentencing Procedure) Act 1999 requiring, as that section does, that an offender is not to be sentenced to imprisonment unless the sentencing Court is satisfied "having considered all possible alternatives that no penalty other than imprisonment is appropriate". 16 The scheme of the Act is such that at this stage of a sentencing inquiry the available alternative possibilities are those of a community service order pursuant to s 8; a good behaviour bond pursuant to s 9; an absolute or conditional discharge pursuant to s 10; a deferral of sentence with accompanying bail pursuant to s 11; and a fine pursuant to s 15. 17 A view of the objective facts most favourable to the respondent is that he willingly made himself available to participate in a projected robbery in company in circumstances where it was admittedly present to his mind that the projected robbery might entail incidental violence into which he would be drawn. In those circumstances, it would seem to me, as it must be acknowledged in fairness it seemed to his Honour the primary Judge, that a sentence of imprisonment was properly to be preferred to any of the available alternatives. 18 Having reached that point, it is then necessary to consider what sentence of imprisonment might be thought to answer fairly to the requirements of the case on a fair balancing of the relevant objective and subjective features. It is not necessary, I think, to canvas in fine detail the relevant subjective features. They are set out in all necessary detail in the learned primary Judge's remarks on sentence; and it is not suggested that any of the findings his Honour made, favourable to a high degree as they were to the respondent, were not open to his Honour. 19 Before his Honour it was submitted for the Crown, but by counsel not appearing before us on the hearing of this appeal, that a sentence in the order of a head sentence of imprisonment for three years with an accompanying non-parole period in the order of eighteen months might be thought appropriate to the given circumstances of the case. The question for this Court in a practical sense, therefore, is whether in that context the sentence of two years in fact selected by the learned primary Judge as the appropriate head sentence can be seen fairly to be, not lenient, which it undoubtedly is; or even very lenient, which in my own view it certainly is; but appellably lenient - that is to say, lying outside the range of an available sentencing discretion. 20 I am not persuaded that, in a context in which the Crown's own submission was that a head sentence in the order of three years would have been appropriate, a sentence in fact of two years falls outside the range of a permissible sentencing option, although I repeat with emphasis my own view that it is, on any sensible approach, to be considered an extremely lenient sentence for this offence, or indeed for any offence, of robbery in company. 21 It is worthwhile remarking yet again that the statutory maximum penalty for the offence is imprisonment for twenty years. It is an offence axiomatically regarded both by the Legislature and by the Courts as an offence of the most serious character. 22 The path of reasoning I have thus far followed raises these further questions. First, was the learned primary Judge in error in having decided to suspend simply the operation of the entire sentence of two years upon which his Honour had settled; and secondly, if so, ought this Court, bearing in mind the constraints that attend a Crown appeal, and those general considerations of residual discretion that arise on appeal in this Court, intervene and impose in practical terms a sentence of full time custody of whatever extent? 23 I would wish for the sake of frankness to say that for my own part, if it were necessary to come to a final decision on the point, I would have thought that the simple suspension of the sentence in this case was erroneous, and that the more appropriate course would have been to impose an appropriately shortened non-parole period. That would have administered the necessary correction to the respondent himself; and it would have maintained more properly than I think, with respect, was done, the public interest to ensure that all those concerned understand that the playing of any part in any robbery in company is a serious criminal offence which will bring in its train upon proper conviction a sentence of full time imprisonment, tailored, of course, to the particular circumstances of the individual case. 24 As it happens, I do not think it necessary to come to a concluded formal view on that troubled question, for the reason that it is my view that in the circumstances of this case, even were it to be found that the primary Judge had fallen into that additional error, the discretion of the Court ought to be exercised in favour of the respondent. 25 I will not pretend that I find that a comfortable result. It seems to me to be a choice between two evils. Nonetheless, it is important that the respondent's case be dealt with in a proper way according to its own individual tenor. Approached on that basis, there are very significant subjective matters, of which, to my mind, the most compelling is the clearly demonstrated fact of ongoing rehabilitation. There is the additional matter of delay; and although I accept at once, as I am bound by authority to do, that that is a matter calling for some prudent flexibility, I would not have thought that standing by itself it would have been sufficient to avoid some full-time custodial component in a proper sentence in the present case. 26 The matter of rehabilitation, however, is an important one. The respondent was at the time of the offence a comparatively young man. The uncontradicted evidence is that he has made sustained and continuing efforts to rehabilitate himself. The Court has no reason to think they are not being, and will not be, successful and effective. In those circumstances, to intervene now and to impose a sentence of full-time imprisonment, however short, would I think be unduly harsh, and inappropriate to the circumstances of the case. 27 But lest there be any doubt about it, I wish to say for myself that it is a very very finely balanced point. That I resolve it in this particular case in the respondent's favour should not, I wish to say with emphasis, be taken as any warrant that, so far as I am concerned, it can safely be assumed that in future people who plead guilty to robbery in company can expect to get lenient sentences, or lenient sentences simply suspended. It is worth saying again: an offence of this character is serious, and it is incumbent on all Courts to treat it in that way. 28 For the whole of the reasons given, however, I am of the opinion that in this particular case the proper order would be to dismiss the Crown appeal in the exercise of the relevant residual discretion of the Court. 29 I propose to order accordingly. 30 BELL J: I agree. 31 WHEALY J: I agree.

32   SULLY J: The order of the Court will be as I have announced.

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