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Court of Criminal Appeal 26 August 1999

R v Arbolino

[1999] NSWCCA 249

Sexual offences
SENTENCE NO QUESTION OF PRINCIPLE.

Citation: [1999] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 26 August 1999
Judge(s): Mason P, Abadee J, Simpson J

Background

The appellant was charged with seven counts relating to acts of indecency and sexual assault involving a fourteen-year-old boy. The jury convicted him on count 1, acquitted him on counts 2 to 6, and was unable to reach a verdict on count 7. The conviction appeal was adjourned pending further enquiries; the Court proceeded separately with the sentence appeal.

The offence on count 1 involved the appellant placing his hand inside the complainant's pants on a train journey while a third person, Dianne Griffin, was present. The complainant was in his school uniform at the time. The offence fell within section 61M(1) of the Crimes Act 1900, which creates the offence of sexual assault in circumstances of aggravation, here the victim's age being under 16 years.

The original sentence, imposed by Kirkham DCJ in the District Court, was a minimum term of three years with an additional term of one year. The appellant sought leave to appeal that sentence as excessive.

  • Whether the sentence imposed by the District Court was manifestly excessive having regard to the objective circumstances of the single offence for which the appellant was convicted.
  • Whether the relationship between the minimum and additional terms should be varied to reflect special circumstances, including family support and the need for extended supervision upon release.

Decision

Mason P found the original sentence was excessive when measured against the objective facts of the specific offence for which the appellant stood convicted. While the Court acknowledged that individual and general deterrence loomed large, and that rehabilitation prospects were problematic, the sentence had to be calibrated to the particular offence rather than to the broader charges on which the appellant had been acquitted.

The Court drew on the principle from Engert (1995) that sentencing considerations can pull in different directions simultaneously. A factor reducing the weight of general deterrence may at the same time increase the weight given to protection of society. Here, the relevant aggravating features included the complainant's age and the fact that the appellant was on parole at the time of the offence, having previously been convicted of similar offences involving boys of similar ages.

The appellant's personal circumstances were also considered. He had sustained significant head injuries in a 1978 motor vehicle accident, resulting in frontal lobe damage and borderline intellectual functioning. Medical evidence presented a mixed picture: one psychologist concluded the appellant was unlikely to modify his conduct, while his treating doctor noted maturation and reduced aggressive behaviour in recent years.

Mason P concluded that a total sentence of three years imprisonment remained appropriate, but that special circumstances existed warranting a longer than usual additional term. Those circumstances included substantial family support and the value of extended supervision on parole as both a protective and deterrent mechanism. Abadee J and Simpson J agreed with Mason P's reasons and proposed orders.

Orders Made

  • Leave to appeal against sentence granted.
  • Sentence imposed by Kirkham DCJ set aside.
  • Appellant sentenced to three years imprisonment, comprising:
  • A minimum term of fifteen months commencing 21 July 1998 and expiring 20 October 1999.
  • An additional term of twenty-one months commencing 21 October 1999 and expiring 20 July 2001.
  • Appellant eligible for release on parole on 20 October 1999.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence for an offence under section 61M must be assessed against the objective gravity of the particular offence for which the offender was convicted, not the broader charge sheet or acquitted conduct.
  • Under section 61M(3) of the Crimes Act 1900, "circumstances of aggravation" encompass several distinct factors, including where the victim is under 16 years of age; the Court noted it is "dangerous to rely upon undifferentiated statistics" given the range of aggravating features captured by the section.
  • Where an offender was on parole for similar offences at the time of the new offence, that remains a significant aggravating factor at sentencing.
  • Special circumstances justifying a longer than usual additional term (and corresponding shorter minimum term) can include strong family support and the need for extended supervisory mechanisms upon release.
  • Sentencing courts must navigate the interaction between competing considerations: factors that reduce the weight of general deterrence may simultaneously increase the weight given to community protection.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), section 61M

Cases
- Engert (1995) 84 A Crim R 67
- Veen (No 2) (referenced in the judgment, full citation not stated)