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Court of Criminal Appeal 21 July 1999

R v Di Cola

[1999] NSWCCA 195

Sexual offencesAssault & violence
ACTS CITED :

Citation: R v Di Cola [1999] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 21 July 1999
Judge(s): Studdert J; Simpson J

Background

The appellant pleaded guilty in the District Court to two counts of assault with act of indecency under section 61M(2) of the Crimes Act, carrying a maximum penalty of ten years imprisonment per offence. The charges arose from two incidents in September 1997, committed seven days apart, in which the appellant indecently assaulted a nine-year-old girl while babysitting her. The appellant had been in a relationship with the child's mother and had known the child since she was four years old.

Judge O'Reilly of the District Court sentenced the appellant to concurrent terms of three years imprisonment for each offence. His Honour found special circumstances, setting a minimum term of twelve months and an additional term of two years, with release on parole to follow upon expiry of the minimum term.

The appellant sought leave to appeal against the sentence on the grounds that the sentencing judge failed to give sufficient weight to the evidence of contrition presented by the appellant and his wife.

  • Whether the sentencing judge gave adequate weight to the evidence of the appellant's contrition, including sworn evidence from the appellant and his wife.
  • Whether the pre-sentence report was given undue weight, given it was prepared on the apparent assumption that the more serious charge of sexual intercourse had been committed.
  • Whether the sentence imposed fell outside the appropriate range of the sentencing discretion.
  • Whether the structure of the sentence, including the finding of special circumstances, was appropriate.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach to contrition. While the appellant and his wife had given sworn evidence expressing remorse, the sentencing judge was entitled to weigh that evidence against the content of the ERISP (recorded police interview) and the pre-sentence report. Both sources indicated the appellant was reluctant to fully acknowledge his conduct and showed significant disregard for the impact on the victim. The Court noted that the sentencing judge was the tribunal of fact and his conclusion was an available one on the evidence.

The Court rejected the submission that the pre-sentence report was tainted by an incorrect assumption about the offences. The report's author had interviewed the appellant directly, was not cross-examined, and the sentencing judge was entitled to treat the recorded statements as objective material. No error was established in the use made of the report.

The Court was not persuaded that the sentence fell outside the proper range of sentencing discretion. The offences were characterised as serious and involved a significant breach of trust, given the appellant was caring for the child at the time. The structure of the sentence, including the extended additional term reflecting special circumstances, was found to be appropriate given the need for supervision on release.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is entitled to weigh sworn evidence of contrition against inconsistent material such as a recorded police interview and a pre-sentence report, and may decline to accept contrition on that basis without error being established on appeal.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge acts as the tribunal of fact in assessing credibility and contrition, and an appellate court will not substitute its own assessment where the judge's conclusion was open on the evidence.
  • No error arises from reliance on a pre-sentence report simply because the report author may have proceeded on assumptions about the offending, where the statements recorded were made by the appellant in interview and the author was not cross-examined.
  • A concurrent three-year sentence with a twelve-month minimum term fell within the permissible range for two offences of assault with act of indecency under section 61M(2) of the Crimes Act in circumstances involving a serious breach of trust against a young child.
  • Finding special circumstances to extend the additional term, and thereby the period of parole supervision, was endorsed as appropriate where an offender's circumstances on release warrant extended oversight.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), section 61M(2) (assault with act of indecency, maximum penalty ten years imprisonment)

Cases cited: No cases were cited in the judgment text provided.