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Court of Criminal Appeal 29 November 2004

Regina v Vincent John Virgona

[2004] NSWCCA 415

Sexual offences
CRIMINAL LAW SENTENCE POSTPONEMENT OF SENTENCE

Citation: Regina v Vincent John Virgona [2004] NSWCCA 415
Court: NSW Court of Criminal Appeal
Date: 29 November 2004
Judge(s): Wood CJ at CL, Hislop J, Smart AJ

Background

The applicant pleaded guilty in the District Court in August 2003 to seven counts of sexual offences against two young relatives, committed between 1983 and 1989. The offences included indecent assault and sexual intercourse with children aged under 16. The sentencing judge, Berman DCJ, imposed fixed terms of two years imprisonment on each of counts one to five, and four years imprisonment with a non-parole period of three years on counts six and seven, all commencing 21 August 2003.

The case had a significant historical dimension. The applicant had already been sentenced in 1998 by a different District Court judge to six years imprisonment for related sexual offences against another young relative during the same period. He completed his non-parole period and was released to parole in November 2002, only to be returned to custody in August 2003 when he was bail refused on the present charges.

The applicant sought leave to appeal against sentence, arguing that the sentencing judge had given insufficient weight to the lengthy delay in prosecution and to the circumstances of his return to custody after a period of release on parole.

  • Whether the sentencing judge gave adequate weight to the delay between the commission of the offences and the sentencing, in accordance with the principles in R v Todd [1982] 2 NSWLR 517 and Mill v R (1988) 166 CLR 59
  • Whether sufficient account was taken of the applicant's return to custody more than nine months after his release from an earlier, related sentence
  • Whether the progress of the applicant's rehabilitation warranted a reduction in the non-parole period

Decision

The Court of Criminal Appeal upheld the appeal in part. The head sentences of four years imprisonment on counts six and seven were not disturbed, and the appeal was dismissed entirely in relation to counts one to five. However, the Court found that insufficient weight had been given to the passage of time between the offences and sentencing, to the late return to custody, and to the applicant's rehabilitative progress.

Hislop J acknowledged that the sentencing judge appeared to have had the Todd principles broadly in mind, noting that Berman DCJ did treat delay as a mitigating factor and found that the applicant was most unlikely to reoffend. However, those principles were not applied with sufficient force given the particular circumstances: the offences dated back more than a decade before sentencing, and the applicant had been released on parole before being returned to custody to face these charges.

Hislop J also noted the seriousness of the offences, observing that the offence on one victim had been described by the sentencing judge as showing significant depravity and callousness, and that the overall sentence could arguably have been said to be unduly favourable given that two separate victims were involved. Nonetheless, the failure to give adequate weight to delay, late return to custody, and rehabilitation constituted special circumstances justifying a shorter non-parole period.

The non-parole periods on counts six and seven were reduced from three years to two years and three months, both commencing 21 August 2003.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed as to counts one to five inclusive
  • Appeal dismissed as to the sentences of four years imprisonment commencing 21 August 2003 in respect of counts six and seven
  • Non-parole periods of three years in respect of counts six and seven quashed; non-parole periods of two years and three months commencing 21 August 2003 substituted

Key Takeaways

  • The Todd principles require that, where there has been a lengthy postponement before sentencing, a court must give real and identifiable weight to the prisoner's rehabilitation, the uncertainty they have experienced, and the staleness of the crimes. A general acknowledgement of delay without sufficient reflection in the sentence may constitute error.
  • Returning an offender to custody after a period of release on parole is a distinct sentencing consideration that the Todd principles are designed to address, not merely a background fact.
  • In dismissing the challenge to the head sentences, the Court confirmed that the objective gravity of serious child sexual offences and the need for general deterrence and retribution can sustain a substantial sentence even where rehabilitation is well advanced.
  • The Court of Criminal Appeal reduced only the non-parole periods, leaving the head sentences intact, demonstrating that Todd considerations can affect the balance between custodial and non-custodial portions of a sentence without necessarily reducing the total term.
  • A sentencing judge's failure to expressly cite Todd or Mill is not automatically fatal, but the reasoning must reflect the substance of those principles with adequate force on the specific facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1), 61E(1A), 66C, 66C(2)

Cases
- R v Todd [1982] 2 NSWLR 517
- Mill v R (1988) 166 CLR 59