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Court of Criminal Appeal 4 November 2004

REGINA v ROMANO

[2004] NSWCCA 380

Sexual offencesPublic order & justice offences
SENTENCE APPEAL ACCUMULATION OF CHARGES SIGNIFICANCE OF PRIOR GOOD CHARACTER APPEAL ALLOWED SENTENCES REDUCED

Citation: REGINA v ROMANO [2004] NSWCCA 380
Court: NSW Court of Criminal Appeal
Date: 4 November 2004
Judge(s): Dunford J, Adams J, Howie J (Adams J delivered the principal judgment; Dunford J and Howie J agreed)

Background

The appellant had pleaded guilty in the District Court to a series of charges arising from his exploitation of two girls, aged thirteen and fifteen, whom he induced to work as prostitutes and whose earnings he appropriated. The offending was systematic and prolonged, involving threats of violence and manipulation to maintain control over the victims.

When police charged the appellant, he went further: he solicited a person he believed to be a criminal contact, but who was in fact an undercover police officer, to injure or kidnap the girls so they could not give evidence against him. This conduct formed the basis of additional charges for attempting to pervert the course of justice.

At first instance, Goldring DCJ sentenced the appellant to a total term of thirteen years and nine months, with an effective non-parole period of eleven years. The appellant sought leave to appeal on the ground that the overall sentence was manifestly excessive.

  • Whether the sentencing judge gave adequate weight to the utilitarian discount for guilty pleas when imposing accumulated sentences across multiple counts
  • Whether prior good character was given appropriate consideration in the overall sentencing exercise
  • Whether special circumstances justifying an extended non-parole period had been properly addressed in the context of a long accumulated sentence
  • Whether the aggregate sentence was manifestly excessive having regard to the totality principle

Decision

The Court of Criminal Appeal allowed the appeal, finding several errors in the way the District Court had approached the accumulation of sentences. The principal error was the failure to apply a meaningful utilitarian discount to the total sentence. Where guilty pleas are entered across numerous charges that are then accumulated, the practical benefit of those pleas must be reflected in the overall sentence actually served, not merely in individual head sentences considered in isolation.

Adams J reasoned that, absent a discount for guilty pleas and without regard to the appellant's prior good character, the appropriate total sentence for this serious criminality would have been fifteen years. Applying a utilitarian discount of twenty-five percent to reflect the pleas yielded an appropriate overall term of eleven years and three months.

On special circumstances, the Court noted that the existence of an extended accumulation itself constitutes a basis for extending the non-parole period beyond the statutory default proportion under section 44 of the Crimes (Sentencing Procedure) Act 1999. Even so, the non-parole period had to be recalculated consistently with the corrected overall term.

The Court acknowledged that the mechanics of adjusting individual sentence commencement dates to achieve the correct overall result were, by necessity, somewhat artificial. This arose because the appellate court cannot increase any individual sentence and must avoid producing a result that effectively increases the total term served.

Orders Made

  • Leave to appeal granted
  • Counts 3 and 6: sentences of three years and nine months quashed; concurrent fixed terms of two years and nine months substituted, commencing 21 August 2003 and expiring 20 May 2006
  • Count 8: sentence of one year and six months quashed; fixed term of one year and one month substituted, commencing 21 May 2006 and expiring 20 June 2007
  • Count 9: commencement date varied to 21 November 2005 (term of nine years unchanged, expiring 20 November 2014); non-parole period of six years and three months quashed and replaced with five years and nine months, expiring 20 August 2011
  • Counts 10, 12, 14, 16, 18, 20 and 22: commencement dates varied to 21 May 2007 (terms of three years unchanged, expiring 20 May 2010)
  • Counts 11, 13, 15, 17, 19 and 21: commencement dates varied to 21 May 2005 (terms of six years unchanged, expiring 20 May 2011)
  • Overall sentence: eleven years and three months, with earliest parole eligibility on 20 August 2011 (after eight years)

Key Takeaways

  • Where multiple charges are accumulated, the utilitarian discount for guilty pleas must be assessed by reference to its practical effect on the total sentence served, not simply applied count by count in isolation before accumulation.
  • Prior good character retains mitigating weight even in cases involving serious and sustained offending, and the sentencing court must account for it in calibrating the overall penalty.
  • An extended period of accumulation is itself capable of constituting special circumstances for the purposes of section 44 of the Crimes (Sentencing Procedure) Act 1999, supporting a non-parole period that departs from the standard statutory proportion.
  • The Court of Criminal Appeal confirmed that appellate adjustment of accumulated sentences is constrained by the prohibition on increasing any individual sentence, which can require technically artificial adjustments to commencement dates to give effect to a corrected overall result.
  • In dismissing the suggestion that the original total was within range, the Court assessed the appropriate sentence by first determining an unmitigated baseline and then applying the discount, rather than working backwards from the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 61J, 66C(3), 91E, 323
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v The Queen (2001) 118 A Crim R 538
- Thomas (1993) 65 A Crim R 269