Citation: Regina v Fabrizio Calderoni [2000] NSWCCA 511
Court: NSW Court of Criminal Appeal
Date: 22 November 2000
Judge(s): Sully J (principal judgment), Bell J, Whealy J
Background
The respondent was tried and acquitted on a charge of murder in March 2000. During that trial, he gave sworn evidence that contained admissions capable of establishing his involvement in a robbery in company committed in June 1991. Following the acquittal, the Attorney General preferred an ex officio indictment (a charge brought directly to a higher court without committal proceedings) for robbery in company, and the respondent pleaded guilty before Greg James J in the Supreme Court.
The underlying robbery involved the respondent accompanying a co-offender to confront a drug dealer at Wyong. The respondent's role was to provide physical support. He retrieved a bag from the victim's car at the co-offender's direction while the victim was unconscious. The evidence indicated the respondent was not the instigator of the scheme and did not receive any share of the proceeds.
Greg James J sentenced the respondent to two years' imprisonment, with no non-parole period set, and then suspended the entire sentence under the newly enacted Crimes (Sentencing Procedure) Act 1999. The Crown appealed, contending the sentence was manifestly inadequate.
Legal Issues
- Whether the sentence of two years' imprisonment, wholly suspended, was manifestly inadequate for robbery in company under s 97 of the Crimes Act 1900 (which carries a maximum of 20 years)
- Whether the primary judge erred in the approach taken to the respondent's subjective circumstances, including rehabilitation and the delay between offence and sentence
- Whether, even if error were established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and dismiss the Crown appeal
Decision
Sully J accepted that the Crown appeal raised real questions about whether the sentence was within the appropriate range for an offence of this seriousness. Robbery in company is a significant offence, and the Court did not resile from that proposition. The objective circumstances, though placing the respondent toward the lower end of culpability as a non-instigating participant, still involved planning, the use of violence against a victim, and the theft of a substantial sum.
The Court found it unnecessary to reach a concluded view on whether the primary judge had erred, because the residual discretion to dismiss the appeal should in any event be exercised in the respondent's favour. Two subjective factors were decisive. First, the respondent had demonstrated sustained, ongoing, and apparently successful rehabilitation in the years since the offence. Second, there had been significant delay between the 1991 offence and the eventual sentencing in 2000, a factor warranting some flexibility even if not independently sufficient to avoid full-time custody.
Sully J described the outcome as "a very very finely balanced point" and resolved it in the respondent's favour only because imposing full-time imprisonment at that point would have been unduly harsh given the rehabilitation evidence. His Honour expressly emphasised that this outcome should not be treated as a general signal that suspended sentences are appropriate for robbery in company. The seriousness of that offence remains and courts are required to treat it accordingly.
Bell J and Whealy J agreed with Sully J's reasons and orders.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that even where a Crown sentence appeal raises arguable grounds of error, the court retains a residual discretion to dismiss the appeal if intervention would produce an unjust outcome in the particular circumstances of the case.
- Demonstrated ongoing rehabilitation is a weighty subjective factor capable of supporting a non-custodial outcome, particularly where significant time has passed between the offence and sentencing.
- Delay between offence and sentencing is a relevant mitigating consideration but, standing alone, will not necessarily be sufficient to justify avoiding full-time custody for a serious offence.
- In dismissing the appeal, Sully J explicitly cautioned against reading the outcome as a precedent that leniency or suspended sentences will ordinarily follow a guilty plea to robbery in company. The offence is serious and courts must treat it as such.
- A respondent's admissions made on oath in an earlier trial for a related but more serious charge can form part of the evidence base supporting a subsequent prosecution on a lesser charge arising from those admissions.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97 (robbery in company; maximum penalty 20 years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (suspension of sentence)
Cases: No specific cases were cited in the portions of the judgment provided.