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Supreme Court 16 June 2000

REGINA v. CALDERONI

[2000] NSWSC 572

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ROBBERY IN COMPANY INVLUNTARY AND UNINTENDED ASSISTANCE REMORSE REHABILITATION

Citation: Regina v Calderoni [2000] NSWSC 572
Court: Supreme Court of New South Wales (Criminal Division)
Date: 16 June 2000
Judge(s): Greg James J

Background

The offender was tried for murder in relation to events in June 1991. He was acquitted of that charge, but the sworn admissions he made during the murder trial exposed him to a separate charge of robbery in company under s 97 of the Crimes Act 1900. He was subsequently indicted by ex officio indictment on that charge.

The facts, agreed between the parties, involved the offender accompanying Graeme Brown on what he understood would be a confrontation to recover money, with knowledge that violence might occur. The robbery took place on 11 June 1991, making the offence nearly a decade old by the time of sentencing.

The offender pleaded guilty at the earliest opportunity after being charged. He had spent approximately one month and nineteen days in custody, and had thereafter been on bail for an extended period. The sentencing also provided an early opportunity for Greg James J to apply the then newly commenced Crimes (Sentencing Procedure) Act 1999, including its re-introduction of suspended sentences to New South Wales.

  • Whether the offender's involuntary and unintended assistance to the Crown (through sworn admissions at the murder trial) qualified as "assistance" under s 23 of the Crimes (Sentencing Procedure) Act 1999
  • The weight to be given to the guilty plea under s 22, given it was based on the offender's own sworn evidence rather than an independent acknowledgment of guilt
  • How to apply the new sentencing framework under the Crimes (Sentencing Procedure) Act 1999, including the principle that full-time custody is an option of last resort
  • Whether a suspended sentence was appropriate given the offender's rehabilitation, the age of the offence, and the absence of further offending
  • How to account for time already spent in custody where the offender had been acquitted of the more serious charge to which that custody was originally referable

Decision

Greg James J rejected the Crown's submission that involuntary or unintended assistance falls outside the scope of s 23. The court held that assistance given without altruistic motive, or without any intent to assist, still counts as assistance for the purposes of that provision. The offender's admissions in the recorded conversations and at trial had plainly assisted the prosecution, regardless of his intent.

The guilty plea was given a substantial discount under s 22, though the court noted the plea carried limited weight as an indicator of genuine remorse. The admissions were made on oath in another proceeding, and the guilty plea essentially followed from overwhelming evidence of the offender's own making. That said, the court recognised the plea saved public cost and inconvenience, and that the very circumstances making remorse less persuasive also reinforced the credit owed under s 23.

The court noted the significant changes brought about by the Crimes (Sentencing Procedure) Act 1999, including the restoration of a total-sentence approach, the statutory recognition of full-time custody as a last resort, and the re-introduction of suspended sentences. Greg James J observed that, given the absence of modern New South Wales authority on suspended sentences, some guidance had been sought from South Australian and Victorian decisions, though differences in the statutory regimes were acknowledged.

On the overall circumstances, including the offender's rehabilitation, lack of further offending over nearly a decade, the age of the offence, the nature of his involvement (involuntary and peripheral), and the Crown's concession that further supervision was unnecessary, the court concluded a fully suspended sentence was appropriate. The sentence was suspended for its entirety, with the offender released on a good behaviour bond.

Orders Made

  • The offender was sentenced to imprisonment until 26 April 2002 for robbery in company.
  • The execution of the whole sentence was suspended.
  • The offender was directed to be released from custody upon entering into a good behaviour bond for the full term of the sentence.
  • Conditions of the bond: the offender must be of good behaviour for the entire term, and must notify the NSW Director of Public Prosecutions of any change of address.
  • In the event of breach, the offender may be returned to New South Wales and dealt with under s 99 of the Act, which permits revocation and return to custody (whether full-time, periodic detention, or home detention).

Key Takeaways

  • Assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 does not require that the offender intended or volunteered that assistance; the Supreme Court held that involuntary and unintended assistance still attracts credit under the provision.
  • A guilty plea based on the offender's own prior sworn admissions may still attract a discount under s 22, though it carries less weight as evidence of genuine remorse than an independently motivated plea.
  • Under the Crimes (Sentencing Procedure) Act 1999, full-time custodial imprisonment is a sentencing option of last resort, a principle the Crown conceded applied in this case.
  • The re-introduction of suspended sentences into New South Wales by the Crimes (Sentencing Procedure) Act 1999 left the court without modern local authority on the topic; the court looked to South Australian and Victorian decisions while noting material legislative differences.
  • Where an offender has demonstrated rehabilitation, refrained from further offending over a lengthy period since the original offence, and the Crown concedes further supervision is unnecessary, a fully suspended sentence may be appropriate even for a serious offence such as robbery in company.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97 (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 22, 23, 24, 44, 96, 99
- Crimes Act 1914 (Cth), s 17A
- Sentencing Act 1989 (NSW)

Cases:
- Huang (1995) 78 A Crim R 11
- Carroll [2000] NSWSC 410
- Bugmy (1990) 169 CLR 525
- Petrinovic [1999] NSWSC 1131
- Veen (No 2) (1997-1998) 164 CLR 465
- Jones (1985) 14 A Crim R 364
- Todd (1982) 2 NSWLR 517
- Mill (1988) 106 CLR 59
- Govinden (1999) 106 A Crim R 314