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Court of Criminal Appeal 7 June 1999

Regina v Virgona

[1999] NSWCCA 136

Sexual offences
CRIMINAL COURT SENTENCE APPEAL AGAINST SEVERITY INDECENT ASSAULT ON A MALE HOMOSEXUAL INTERCOURSE WITH A MALE SEXUAL ASSAULT PAEDOPHILIA

Citation: Regina v Virgona [1999] NSWCCA 136
Court: Court of Criminal Appeal, New South Wales
Date: 7 June 1999
Judge(s): Grove J; Carruthers AJ

Background

The applicant, a man in his late thirties to early forties at the time of the offending, was the uncle by marriage of his victim. Over a period spanning approximately January 1983 to January 1990, he committed a series of sexual offences against the complainant, who was as young as nine years old when the offending began.

The applicant was presented for trial in the District Court at Dubbo on eight counts of sexual assault. After the complainant had given much of his evidence-in-chief, the applicant pleaded guilty to six counts. The remaining two counts were discharged by consent. Kirkham DCJ sentenced the applicant to a minimum term of four years and six months penal servitude on the most serious counts (homosexual intercourse with a male aged between ten and eighteen), with an additional term of one year and six months, and fixed terms of twelve months on the lesser counts.

The applicant then sought leave to appeal against the severity of those sentences in the Court of Criminal Appeal.

  • Whether the sentencing judge gave inadequate weight to the evidence of the applicant's rehabilitation.
  • Whether the sentencing judge erred by failing to find "special circumstances" under section 5(2) of the Sentencing Act 1989, which would have justified an additional term exceeding one-third of the minimum term.

Decision

On the rehabilitation question, the Court found no error in Kirkham DCJ's approach. The sentencing judge had acknowledged some rehabilitation and credited the applicant for it, but concluded that rehabilitation could not be regarded as complete. The Court of Criminal Appeal agreed that the late timing of the guilty pleas, entered only after the complainant had already given most of his evidence, was a legitimate reason to treat the rehabilitation claim with some reservation.

On the special circumstances question, Carruthers AJ examined the applicable principles. A finding of special circumstances under the Sentencing Act is not a two-stage exercise. There is effectively one question: whether the circumstances justify imposing an additional term longer than one-third of the minimum term. Any decision to increase the additional term must also be weighed against the need for the minimum term to adequately reflect the criminality of the offending. A sentencing judge is not bound to extend the additional term even where circumstances could theoretically be characterised as special.

Applying those principles, the Court held that Kirkham DCJ was entitled to find no special circumstances warranting a departure from the statutory ratio. The objective seriousness of the conduct was very high. The offending continued over many years against a child progressing from age nine through adolescence, and involved a significant breach of family trust. The Court noted that the legislature expects courts to deal severely with sexual assaults on young children, and that growing public concern about paedophilia in the community was a relevant consideration for sentencing courts.

The Court concluded that both the minimum terms and the additional terms imposed by the District Court were well within the sentencing discretion available to Kirkham DCJ, and no error had been demonstrated.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the question of special circumstances under section 5(2) of the Sentencing Act 1989 is not truly a two-stage inquiry. The only operative question is whether the circumstances justify an additional term exceeding one-third of the minimum term.
  • Even where circumstances capable of being characterised as special exist, a sentencing judge retains a discretion not to impose an additional term beyond the statutory proportion.
  • Any variation of the minimum-to-additional-term ratio requires the sentencing court to consider whether the resulting minimum term still adequately reflects the objective criminality of the offending.
  • Late guilty pleas, entered after a complainant has already given substantial evidence-in-chief, attract a reduced discount compared with pleas entered at the outset, and may legitimately temper findings about the completeness of rehabilitation.
  • In dismissing the appeal, the Court reinforced that sexual offences against young children committed over extended periods and in breach of positions of trust fall in the upper range of seriousness, warranting substantial custodial sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), sections 81, 78K, 78Q(1)
- Sentencing Act 1989 (NSW), section 5(2)

Cases:
- Hampton (Court of Criminal Appeal, unreported, 25 June 1998)
- Morrisey (Court of Criminal Appeal, unreported, 15 July 1994)
- McDonald (Court of Criminal Appeal, unreported, 12 October 1998)
- GDR (1994) 35 NSWLR 376
- Eagles (Court of Criminal Appeal, unreported, 16 December 1993)
- MFG (Court of Criminal Appeal, unreported, 7 November 1997)