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Court of Criminal Appeal 5 February 2007

Darrigo v Regina

[2007] NSWCCA 9

Sexual offences
CRIMINAL LAW SENTENCING AGGRAVATED INDECENT ASSAULT RELEVANCE OF PRIOR SIMILAR OFFENDING UNDISCOUNTED STARTING POINT OF SENTENCE STANDARD NON

Citation: Darrigo v Regina [2007] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 5 February 2007
Judge(s): Hodgson JA, Howie J, Price J

Background

The applicant pleaded guilty in the Local Court to a single count of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years imprisonment and a standard non-parole period of 5 years. The offence involved the sexual touching of a four-year-old child in a Dubbo shop in March 2005. The applicant, then aged 55, had a lengthy criminal history that included prior convictions for sexual offences against children in 1987 and 1998.

In the District Court, Acting Judge Woods sentenced the applicant to 7 years imprisonment with a non-parole period of 5 years. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge set an excessive starting point and failed to expressly identify it or quantify the discount for an early guilty plea
  • Whether the judge incorrectly characterised the offence as warranting consideration of the maximum penalty
  • Whether the judge misapplied s 44 of the Crimes (Sentencing Procedure) Act 1999 by declining to find special circumstances and fixing the parole period mechanically
  • Whether prior similar convictions were improperly treated as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentence was, overall, manifestly excessive

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in several respects. The judge failed to expressly state an undiscounted starting point before applying the guilty plea discount, making it impossible to assess whether the discount had been properly quantified. This procedural omission was itself a sentencing error.

On the treatment of prior similar offending, the Court confirmed that a history of similar sexual offences against children is a relevant consideration in sentencing, but must be applied carefully within the framework of s 21A of the Crimes (Sentencing Procedure) Act 1999. Such a history properly informs the weight given to retribution, personal deterrence, and community protection, without constituting double-counting.

The Court characterised the offence as beyond the mid-range of objective seriousness. It assessed the appropriate undiscounted term at 8 years imprisonment, then applied a 25% discount for the utilitarian value of the early guilty plea, reducing the sentence to 6 years. The Court declined to find special circumstances and set the non-parole period at 4 years and 6 months, treating the departure from the standard non-parole period as justified solely by the plea discount. The original sentence of 7 years with a 5-year non-parole period was quashed and replaced with the revised sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed in the District Court quashed
  • In lieu thereof, the applicant sentenced to a non-parole period of 4 years and 6 months commencing 23 March 2005 and expiring 22 September 2009, with a balance of term of 1 year and 6 months expiring 22 March 2011

Key Takeaways

  • A sentencing judge must expressly state the undiscounted starting point before applying any guilty plea discount; failure to do so constitutes an error that may ground appellate intervention.
  • Under s 54B of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period for aggravated indecent assault under s 61M(2) of the Crimes Act 1900 is 5 years, serving as a reference point, benchmark, and guide post rather than a mandatory minimum.
  • A history of prior similar sexual offending against children legitimately increases the weight given to retribution, personal deterrence, and community protection in sentencing, within the s 21A framework.
  • In dismissing the claim of special circumstances, the Court of Criminal Appeal held that the sole reason for departing from the standard non-parole period in this case was the guilty plea discount, and that reason alone informed the structure of the sentence.
  • A 25% discount was applied for the utilitarian value of an early guilty plea entered in the Local Court and confirmed in the District Court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 21A(2), 21A(2)(d), 21A(4), 44, 44(2), 54A(2), 54B

Cases
- Ibbs v The Queen (1987) 163 CLR 447
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Moffit (1990) 20 NSWLR 114
- R v Simpson [2001] NSWCCA 534
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Lynn [2004] NSWCCA 222
- R v Sutton [2004] NSWCCA 225
- R v Way [2004] NSWCCA 131
- R v Westerman [2004] NSWCCA 161
- R v AJP (2004) 150 A Crim R 575
- R v Waqa (No 2) [2005] NSWCCA 33
- R v Skaf [2005] NSWCCA 297
- MLP v R [2006] NSWCCA 271
- R v McNaughton [2006] NSWCCA 242
- R v M.A.K, R v M.S.K. [2006] NSWCCA 381