AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 10 October 2006

D'Amico v Regina

[2006] NSWCCA 316

Sexual offences
CRIMINAL LAW AND PROCEDURE SEXUAL OFFENCES SENTENCE UTILITARIAN VALUE OF PLEAS OTHER GROUNDS NOT SUSTAINED

Citation: D'Amico v Regina [2006] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 10 October 2006
Judge(s): Grove J (with Kirby J and Hislop J agreeing)

Background

The appellant was convicted in the District Court at Campbelltown on five counts of serious sexual offences against a child, committed between June 1995 and August 1997 when the victim was approximately 11 to 13 years of age. The offences included three counts of aggravated sexual assault, one count of aggravated act of indecency committed in company, and one count of aggravated indecent assault. The appellant was the husband of the victim's aunt and had used that familial trust to facilitate the offending.

The appellant entered guilty pleas to the counts contained in a substitute indictment, which the Crown had put in place after withdrawing the original indictment. The pleas were entered immediately upon the substituted indictment being presented. Maguire DCJ sentenced the appellant to an aggregate custodial term and applied a guilty plea discount of only 10%, characterising the pleas as late.

The appellant sought leave to appeal against sentence on three grounds: that the discount for the guilty pleas was too low, that the sentences were inconsistent with sentences for comparable offenders, and that the sentencing judge failed to treat the prospect of serving time in protective custody as a special circumstance warranting a longer balance of term.

  • Whether the sentencing judge erred in allowing only a 10% discount for guilty pleas that were entered immediately upon presentation of the substituted indictment
  • Whether the sentences imposed were inconsistent with sentences imposed on offenders convicted of similar conduct
  • Whether the need to serve part or all of the sentence in protective custody should have been recognised as a special circumstance, reducing the proportion of the sentence spent in the non-parole period

Decision

On the guilty plea discount, Grove J found that the 10% discount was inadequate. The Crown had withdrawn the original indictment and substituted another, and the appellant had pleaded guilty to the new counts immediately. This meant the pleas were, in the relevant sense, entered at the earliest opportunity. Grove J applied the principle from R v Thomson that discounts for early guilty pleas should generally fall between 10% and 25%, with the precise level depending on timing and the complexity of the issues. A discount of 15% was appropriate in these circumstances, acknowledging both the utilitarian value of the pleas and the remorse they demonstrated.

The remaining two grounds did not succeed. The Court found no demonstrated error in the sentencing judge's assessment of the objective gravity of the offending relative to comparable cases. On the protective custody ground, the Court was not persuaded that the prospect of serving time in protective custody had been overlooked or that it required any specific adjustment in this case.

Having found error in the discount, the Court also addressed the statutory ratio between the non-parole period and the total term. A practical adjustment to the non-parole period on count 5 brought the overall structure into closer alignment with the standard ratio, producing a non-parole period of approximately 73.5% of the total term. Grove J was careful to note that these adjustments did not diminish the seriousness of the appellant's conduct.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentences imposed in the District Court quashed and the appellant resentenced as follows:
  • Count 1 (aggravated act of indecency): non-parole period of 1 year 2 months from 11 August 2005, balance term of 5 months
  • Counts 2 and 4 (aggravated sexual assault, concurrent): non-parole period of 4 years 2 months from 11 August 2005, balance term of 1 year 5 months
  • Count 3 (aggravated indecent assault): non-parole period of 1 year 9 months from 11 August 2005, balance term of 7 months
  • Count 5 (aggravated sexual assault, incorporating the Form 1 matter): non-parole period of 4 years 4 months from 11 August 2006, balance term of 1 year 11 months
  • Earliest date of eligibility for parole specified as 10 December 2010

Key Takeaways

  • Where the Crown withdraws an original indictment and substitutes another, and a defendant pleads guilty immediately to the counts in the new indictment, that plea should be treated as having been entered at the earliest opportunity for the purpose of calculating the utilitarian discount.
  • A 10% discount may fall below the appropriate range established in R v Thomson where the circumstances warrant recognition that the plea was entered promptly, even if the overall proceedings were not at an early stage.
  • The Court of Criminal Appeal confirmed that the applicable discount range for early guilty pleas in NSW runs between 10% and 25%, with timing and complexity of issues remaining the primary variables.
  • Remorse, as demonstrated by a guilty plea, is a distinct consideration from its utilitarian value, though both may inform the appropriate discount.
  • Adjusting a guilty plea discount upward from 10% to 15% does not minimise the objective gravity of serious sexual offending against a child; it reflects the application of established sentencing doctrine regarding the encouragement of guilty pleas.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 61O
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Thomson (2000) 49 NSWLR 383
- Cameron v The Queen (2002) 209 CLR 339
- R v Dib [2003] NSWCCA 117
- R v Durocher-Yvon (2003) 58 NSWLR 581
- R v George [2004] NSWCCA 247