R v Musso

[2002] NSWCCA 487

CITATION:	Regina v Vincenzo Musso [2002] NSWCCA 487
FILE NUMBER(S):	CCA 60029/02
HEARING DATE(S):	05/12/02
JUDGMENT DATE:	5 December 2002
PARTIES :	Regina (Applicant) Vincenzo Musso (Respondent)
JUDGMENT OF:	Sully J at 28; Dunford J at 36; Buddin J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/3378
LOWER COURT JUDICIAL OFFICER :	Bellear DCJ

COUNSEL :	P Barrett (Crown) JS Stratton (Respondent)
SOLICITORS:	SE O'Connor (Crown) DJ Humphreys (Respondent)
CATCHWORDS:	Crown appeal against inadequacy of sentence - respondent convicted of three counts of aggravated sexual assault, one count of aggravated indecent assault and one count of act of indecency - victim was fourteen and the respondent was her stepfather - respondent had significant medical problems arising from spina bifida - no prior convictions - Crown appeal allowed - requirements in Pearce not observed - sentences made wholly concurrent - extent of intervention constrained particularly because of Crown's acquiescence and respondent's health.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1976-7) 137 CLR 293 Pearce v Queen (1998) 194 CLR 610 R v Allpass (1994) 73 A Crim R 561 R v Baker [2000] NSWCCA 85 R v BJW (2000) 112 A Crim R 1 R v Burchell (1987) 34 A Crim R 148 R v Qi (1998) 102 A Crim R 172 R v Simpson [2001] 53 NSWLR 704 R v Smith (1987) 44 SASR 589 R v Vachalec (1981) 1 NSWLR 351
DECISION:	Crown appeal allowed. The sentence in respect of count 2 is quashed. In lieu thereof the respondent is sentenced to imprisonment for a period of four years and six months to commence on 19 October 2002 and to expire on 18 April 2007 with a non-parole period of two years and six months to expire on 18 April 2005. The sentence in respect of count 3 is quashed. In lieu thereof the respondent is sentenced to imprisonment for a period of four years and six months to commence on 19 April 2003 and to expire on 18 October 2007 with a non-parole period of two years and six months to expire on 18 October 2005 at which time the respondent will be eligible for release on parole. All other sentences are confirmed.

60424/02

SULLY J
DUNFORD J
BUDDIN J

5 DECEMBER 2002

REGINA v VINCENZO MUSSO

Judgment

1 SULLY J: The Court is in a position to give judgment in this matter. Justice Buddin will give the first judgment.

2 BUDDIN J: This is an appeal by the Director of Public Prosecutions, pursuant to section 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent at the Parramatta District Court.

3 On 17 April 2002 the Crown presented an indictment against the respondent containing three counts of aggravated sexual assault, one count of aggravated indecent assault and one count of act of indecency. The respondent pleaded not guilty to all counts. On 19 April 2002 the jury returned verdicts of guilty on all counts. The Respondent was then remanded in custody.

4 On 21 June 2002 his Honour imposed the following sentences:

Count one (Aggravated sexual assault) Imprisonment for four years and six months to commence on 19 April 2002 and to expire on 18 October 2006 with a non-parole period of two years and six months to expire on 18 October 2004.
Counts two and three (Aggravated sexual assault) Imprisonment for a fixed term of two years and six months on each to commence on 19 April 2002 and to expire on 18 October 2004.
Count four (Act of Indecency) Imprisonment for a fixed term of six months to commence on 19 April 2002 and to expire on 18 October 2002.
Count five (Aggravated indecent assault) Imprisonment for a fixed term of eighteen months to commence on 19 April 2002 and to expire on 18 October 2003.

Each of counts 2 to 5 were thus ordered to be served concurrently with each other and with the sentence imposed in respect of count 1. Counts 1 and 2 were said to have occurred on two different occasions in the period between 1 January and 30 March 2001 whilst counts 3 – 5 were all said to have occurred on 20 May 2001.

5 The maximum penalty for an offence of aggravated sexual assault pursuant to s 61J of the Crimes Act 1900 is imprisonment for twenty years. For an offence of act of indecency pursuant to s 61N(1) of the Crimes Act 1900 the maximum penalty is two years imprisonment and for an offence of aggravated indecent assault pursuant to s 61M of the Crimes Act 1900, the maximum penalty is imprisonment for seven years.

6 The respondent was the victim’s stepfather. The respondent and the victim’s mother had been separated for a period of time but had resumed living together in early 2001. The victim was fourteen years of age at the relevant time.

7 For the purpose of sentencing the respondent his Honour was obliged, consistently with the jury’s verdicts, to make appropriate findings as to the relevant facts. His Honour’s summary of those facts is in the following terms:

Count one : The offender and his stepdaughter on the first occasion went fishing on a day between 1 January and 30 March 2001 at Wollongong and left home between 10.00 and 10.30 pm in the offender’s motor vehicle, a station wagon. After fishing for approximately half to one hour both the offender and the complainant left to go home. The complainant initially sat in the front passenger seat of the motor vehicle. The offender stopped the motor vehicle on the way home to relieve himself. When this occurred the complainant got out of the front passenger seat and into the back seat and laid on her stomach and tried to go to sleep. The offender returned to the motor vehicle to where the complainant was lying and climbed into the back seat with her. The complainant tried at that time to get up to tell the offender to stop what he was doing. The offender then inserted his penis in the complainant’s bottom and moved it backwards and forwards after it was inside her ‘a couple of minutes’. The offender then drove her home soon after the incident occurred.
On arrival at their home the complainant went to the toilet and found there was ‘white stuff’ on her bottom. The complainant did not wake her mother to tell her what had occurred that night nor did she complain to anyone else at that time.
Count two: There had been occasions when the complainant went fishing with the offender subsequently before the next incident which occurred after another fishing trip to Wollongong, again on the way home. This incident occurred on either a Tuesday or Wednesday night. On this return trip the complainant was sitting on the back seat and then lay down. The offender stopped the motor vehicle at about the same location as he did on the first occasion and went to the toilet. The complainant was again lying on her stomach on this occasion. When the offender returned he went to the back seat, pulled her panties down and again inserted his penis inside her bottom. When he withdrew his penis from her bottom the offender drove her home. She remained in the back seat of the vehicle on the return trip. Again the complainant told no one of what had occurred to her that night as she was ‘too scared’ to do so.
Count three : On the night of 20 May 2001 being the night after the complainant commenced second term at Ayres High School she wanted to watch the movie ‘Zorro’ on Foxtel. The complainant had been in bed but got up and went downstairs to the loungeroom and saw that the movie was on the TV. The complainant on this occasion saw the offender who told her then to go into the kitchen. She did and so did he. On this occasion the offender was holding his shorts with one hand and his penis was on the outside of the leg of his shorts. The complainant was then grabbed by the offender and pushed down to the floor by her shoulder. The offender then inserted a ‘little bit’ of his penis into her mouth. She tried to tell him to stop but was unable to do so as his penis was to her throat. His penis was removed from her mouth.
Count four: It was immediately after the offender took his penis from the complainant’s mouth, [whilst] he still had hold of her shoulder [and whilst] still in the kitchen [that he] commenced to masturbate himself. This act of masturbation occurred whilst the complainant was forced to look on, this being the offence of an aggravated act of indecency.
Count five: Immediately after the offender commenced masturbating in front of the complainant he then ejaculated onto her face. This act makes out the offence of aggravated indecent assault. The complainant found it necessary to wipe the ejaculate onto the sleeve of her nightie.

8 It may be noted that semen was located upon the nightie. Upon analysis it was found that the DNA profile on the nightie matched the DNA profile of the respondent.

9 His Honour then turned to consider the matters which were relied upon by the respondent in mitigation. The respondent is now aged 38 years and was 37 years at the time of the commission of the offences. He was born in Italy and came to Australia in 1968. He was brought up in a stable family environment. He had no prior criminal convictions of any kind.

10 The respondent commenced a de facto relationship with the mother of the victim when he left his family home at age twenty seven. The relationship was a turbulent one during which there had been various periods of separation. They have two children together who are currently aged eight and nine. During these periods of separation the children have apparently lived with the respondent.

11 The respondent left school after he obtained the School Certificate. He had worked in various labouring jobs and had also been employed as a security guard although in more recent times, he has been in receipt of the supporting parent’s benefit.

12 The respondent was born with spina bifida. As a consequence of damaged nerves in the bladder, the respondent had surgery at the age of five to create an ileostomy (an opening from the body with a bag for urine collection). He has a slight limp. The respondent also has a heart murmur that does not require medication but may nevertheless impact upon his health in the long term.

13 There were a number of testimonials before the sentencing judge which described the respondent as being a responsible and caring parent and in every other respect as being a respectable member of his community. He enjoys the ongoing support of his family.

14 The Crown concedes, for the most part, that his Honour referred to and applied the relevant principles which guide the exercise of the sentencing discretion in relation to offences of this kind. His Honour acknowledged, in a detailed judgment which contained appropriate references to the leading authorities, the extreme objective gravity of the offences of which the respondent had been convicted. His Honour adverted to the fact that the community expects that appropriately salutary penalties will be imposed in cases where sexual assaults are perpetrated, particularly where as here the victim is under the age of 16, is living in a domestic setting with the offender and the offences are carried out over a period of time and thus cannot be viewed as isolated incidents. His Honour also acknowledged that although there was no evidence of physical harm suffered by the victim as a result of these offences, the psychological effects can nonetheless be just as devastating. See R v Allpass (1994) 73 A Crim R 561.

15 His Honour then indicated that the otherwise appropriate sentences should be ameliorated by reason of the respondent’s good character and his state of health. His Honour referred, again in impeccable terms, to the various authorities which touch upon the question of the relevance of an offender’s ill-health to the sentencing process. His Honour referred, for example, to the well-known passage in R v Smith (1987) 44 SASR 589 in which King CJ said:

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Service’s authorities to provide appropriate care and treatment for sick prisoners. Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health. (at 589)

16 His Honour concluded that the relevant authorities were able to provide for the respondent’s care and treatment. See R v Vachalec (1981) 1 NSWLR 351. His Honour then made a finding, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, of “special circumstances.” He did so by reason of the respondent’s ill-health and the need for him to have on-going medical treatment, the fact that he was in protective custody, the need for him to undergo on-going sexual assault rehabilitation programs, and the need for him to have supervision by the Probation and Parole Service upon his release into the community.

17 The Crown concedes that it was open, as plainly it was, for his Honour to have made a finding of “special circumstances.” See R v Simpson [2001] 53 NSWLR 704. The Crown contends however that the extent of the departure which his Honour made from the normal ratio which the non-parole period bears to the head sentence, was not warranted.

18 The Crown’s primary contention is that the sentences which were imposed are manifestly inadequate although it may be observed that there is no challenge to the head sentence which was imposed in respect of count 1. A number of submissions were advanced in support of this proposition although there is a degree of repetition and overlapping in the submissions. When the various arguments are ultimately distilled, at the forefront of the Crown’s submissions is the contention that the way in which the individual sentences were structured has had the consequence that the total criminality involved in the various offences has not been properly reflected in the overall result. This, it is submitted, has arisen by reason of his Honour’s decision not to accumulate any of the sentences imposed in respect of counts 2 – 5 upon the sentence imposed in respect of count 1. In tandem with this submission was a contention that his Honour had not observed the requirements set out in Pearce v The Queen (1998) 194 CLR 610. It was pointed out that his Honour made no reference to that decision or to the principles enunciated in it. Error, it is submitted, has thus been established.

19 Accordingly the Crown submits that “the effect of the sentences imposed by his Honour is that the respondent was not punished at all for the offences comprising counts 2 to 5 on the indictment.” Because counts 4 and 5 arose out of the same incident as count 3 it was acknowledged that the imposition of concurrent sentences for those offences was open to his Honour and was accordingly “not inappropriate.” The real complaint was in respect of the order that the sentences imposed for each of counts 2 and 3 should be served wholly concurrently with each other and with count 1.

20 The principles governing this Court’s approach to Crown appeals are well-established and require no further elucidation in the present context. See Dinsdale v The Queen (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1976-7) 137 CLR 293; R v Allpass (1994) 73 A Crim R 561; R v Baker [2000] NSWCCA 85. Moreover the respondent presented a powerful subjective case although it must be said that he did not have the benefit of a claim to leniency by reason of a plea of guilty and any associated expression of remorse he having run, as was his entitlement, a contested trial.

21 Notwithstanding these important considerations I have come to the view that the Crown’s submissions must be accepted. It seems patently clear that his Honour simply paid no heed whatsoever to the approach required by Pearce. Moreover on any view of it, the offences of which the respondent was convicted were of very significant objective seriousness. The maximum penalties which the legislature has prescribed for offences involving child sexual abuse reflects the community’s abhorrence for such offences. General deterrence is thus of very considerable importance in the sentencing of such offenders, especially when the offender is in a position of trust in respect of the victim. See R v BJW (2000) 112 A Crim R 1; R v Burchell (1987) 34 A Crim R 148.

22 The respondent submits that if the Court concludes that error has been established then it should nonetheless exercise its undoubted discretion not to intervene and proceed to re-sentence. In support of that submission the respondent relies upon further material which has been received by the Court. Of particular relevance are the contents of an affidavit which the respondent has affirmed. In it the respondent reveals the difficulties which his medical condition has occasioned for him whilst he has been in custody. It has for example restricted the types of work that he has been eligible to undertake. Furthermore, disparaging remarks have been made about his ileostomy both by other prisoners and by prison officers. He has also been particularly embarrassed about the odour which is emitted when the bag leaks. He has also received treatment for a urinary tract infection.

23 The respondent also submits that it is a relevant consideration upon the question of this Court’s residual discretion that the Crown’s representative during sentence proceedings when asked if there was any argument against concurrent sentences being imposed had replied that there was not. This, it was submitted, may partly explain why his Honour furnished no explanation as to why he had decided to impose wholly concurrent sentences in respect of the various offences.

24 The relevant principles to be applied in relation to this issue are encapsulated in the following passage from this Court’s decision in Allpass in which it was said that:

The Crown is not debarred, on appeal, from taking a stance different from that taken at first instance, but this Court, in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course that was taken by the sentencing judge: Jermyn (1985) 2 NSWLR 194; 16 A Crim R 269 ; Malvaso (1989) 168 CLR 227 ; 43 A Crim R 451 . The weight to be given to such a consideration depends upon the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance. Its weight may also vary with the degree to which the appellate court thinks the sentencing judge fell into error. (at 565)

See also R v Qi (1998) 102 A Crim R 172.

25 It is clear that whilst the stance taken by the Crown at first instance can and often does assume significance on appeal it cannot be determinative of the way in which this Court exercises its jurisdiction. The position taken by the Crown during the course of the sentence proceedings in the present case should in my view be to some extent distinguished from those cases of acquiescence on the part of the Crown which relate to the overall disposition of the matter and in particular to the nature of the sentence to be served. Moreover the answer to the question of how individual sentences were to be or should be structured has to be considered in the light of the overall effect of the sentences actually imposed. It is not a question that can be, as it were, quarantined from that latter consideration. Nevertheless the attitude adopted by the Crown in the present case, which in my view was palpably misconceived, has clearly contributed to the erroneous approach adopted by his Honour and accordingly that factor cannot now be regarded as being an irrelevant consideration.

26 In all the circumstances I have come to the conclusion that it is necessary for this Court to intervene and re-sentence the respondent. However I am also of the view that the extent of the Court’s intervention should be significantly constrained by reason of the following features of the case:

(i) the “double jeopardy” consideration common to all Crown appeals;

(ii) the need to give effect to the principle of totality;

(iii) the stance adopted by the Crown at first instance;

(iv) the concession by the Crown in this Court that the overall sentence imposed in relation to count 1 was not manifestly inadequate

(v) the fact that the respondent will find imprisonment more burdensome by reason of his overall medical condition.

27 The orders that I propose are as follows:

1 Crown appeal allowed.

2 The sentence in respect of count 2 is quashed.

3 In lieu thereof the respondent is sentenced to imprisonment for a period of four years and six months to commence on 19 October 2002 and to expire on 18 April 2007 with a non-parole period of two years and six months to expire on 18 April 2005.

4 The sentence in respect of count 3 is quashed.

5 In lieu thereof the respondent is sentenced to imprisonment for a period of four years and six months to commence on 19 April 2003 and to expire on 18 October 2007 with a non-parole period of two years and six months to expire on 18 October 2005 at which time the respondent will be eligible for release on parole.

6 All other sentences are confirmed.

28 SULLY J: I agree with the orders proposed, and I agree with the reasons given by his Honour for those orders. I wish to add three brief comments of my own.

29 First, the principles that are established by the decision of the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610, and in particular those principles that are collected in the judgment of McHugh, Hayne and Callinan JJ at 623(45) - 624(48) are not optional advice as to correct sentencing procedure. They are a binding and authoritative statement of the law for Australia.

30 It follows, therefore, that it is incumbent upon primary sentencing Judges to give particular and careful consideration to the dutiful application of the principles thus established.

31 It can be acknowledged, I think, that the practical effect of the principles thus stated by the High Court has entailed a need for many a sentencing Judge to depart from a method of sentencing previously fairly well entrenched in the law and practice of this State. Be that as it may, Pearce is, I repeat, not optional sentencing advice; it is imperative and authoritative direction from the High Court to sentencing Judges. It is, I think, timely in the light of the present matter to say so again what this Court has, of course, said on many a previous occasion.

32 Secondly, and as a concept complementary to the one of which I have latterly spoken, it is no less the obligation of Crown Prosecutors to be aware of the decision; to be aware of the principles for which the decision stands; and to ensure that, when invited, - as the Crown Prosecutor in the sentencing Court was invited in this particular case, - to give assistance as to a matter that calls into operation the principles in Pearce, the assistance given by the prosecutor does, in fact, reflect the requirements of those principles as thus established.

33 Thirdly, my concurrence with the orders now proposed by his Honour is very much coloured by the consideration that the circumstances personal and particular to this individual offender, are, in my view, especially exigent; and for the reasons stated by his Honour which reasons I need not repeat.

34 Had it not been for the presence of those marked and significantly extenuating specific personal circumstances, I myself would have thought that this Court would have been well justified in not only intervening, but in intervening to bring about an end result significantly more severe than the one achieved by the orders which his Honour proposes.

35 For the whole of the foregoing reasons I am content, however, on this occasion to agree with the orders proposed.

36 DUNFORD J: I also agree that the Crown appeal should be allowed and I agree with the sentences proposed but I do so with the qualification that I consider these substituted sentences to still be manifestly inadequate for the serious offences committed on three separate occasions on this young fourteen year old girl, in a family situation, by her stepfather, and I only agree with the sentences proposed because of the principles of double jeopardy and the concessions made by the Crown Prosecutor before the learned Sentencing Judge.

37 SULLY J: The orders of the court will be as proposed by Buddin J.

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