Citation: Pizzimenti v R [2017] NSWCCA 231
Court: Court of Criminal Appeal, New South Wales
Date: 27 September 2017
Judges: Bathurst CJ, Hoeben CJ at CL, McCallum J
Background
The applicant pleaded guilty in the District Court to 13 historical child sexual assault offences committed in the late 1980s and early 1990s against a family member. The victim was between 8 or 9 and 13 years old at the time of the offending. The applicant was in his late 20s and early 30s when the offences occurred and was 57 by the time he was sentenced.
The offences included counts of forced masturbation, fellatio, cunnilingus, and partial penile/vaginal penetration. Five of the 13 charges arose not from complaints by the victim but from disclosures made by the applicant himself during the investigation. The sentencing judge applied a 15% discount for the utilitarian value of the guilty plea across all counts and an additional 15% "Ellis discount" (reflecting voluntary disclosure of uncharged conduct) to those five counts, giving a combined 30% reduction for them.
The sentencing judge imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 8 years, after making a finding of special circumstances given the applicant's lack of prior custodial experience and his rehabilitation needs. The applicant sought leave to appeal on two grounds: first, that the judge erred in failing to specify which indicative sentences were to be served concurrently and which cumulatively; and second, that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether a sentencing judge imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is required to specify which indicative sentences are to be served concurrently and which are to be accumulated, and to what degree.
- Whether the aggregate sentence of 12 years with an 8-year non-parole period was manifestly excessive having regard to comparable cases and the totality of the offending.
Decision
Ground 1: Failure to specify concurrent and cumulative terms
McCallum J, with whom Bathurst CJ and Hoeben CJ at CL agreed, rejected the first ground. The Court held that an aggregate sentence under s 53A does not require a judge to specify which indicative sentences run concurrently and which accumulate. Section 53A requires only that the judge indicate the sentence that would have been imposed for each individual offence and state the reasons for imposing an aggregate sentence rather than separate sentences. The aggregate sentence itself then reflects the judge's assessment of totality.
The sentencing judge had set out indicative sentences for each of the 13 counts and expressly referred to the principle of totality before announcing the aggregate term. The Court found this approach was entirely consistent with the statutory requirements. The applicant's argument rested on a misconception of what s 53A demands.
Ground 2: Manifest excess
The Court also rejected the manifest excess argument. Comparable cases were examined, including R v SJH (involving multiple offences against a child over six years, resulting in a 12-year sentence with an 8-year non-parole period after Crown appeal) and R v Smith (5 counts including 3 of fellatio, with an effective total of 11 years and an 8-year non-parole period). The Court accepted the Crown's submission that total sentences in double figures with substantial non-parole periods have been regularly imposed for multiple serious child sexual abuse offences from the 1990s involving pre-teen victims abused by persons in parental or quasi-parental roles.
The applicant had not demonstrated that the aggregate sentence was unreasonable or plainly unjust. Neither ground succeeded and leave to appeal was refused.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not require a sentencing judge to specify which indicative sentences are to run concurrently and which are to accumulate when imposing an aggregate sentence. The judge must state the indicative sentence for each offence and the reasons for imposing an aggregate term, leaving the aggregate figure itself to embody the totality assessment.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an aggregate sentence of 12 years with an 8-year non-parole period fell within an acceptable range for 13 historical child sexual assault offences committed against a pre-teen victim over several years.
- An "Ellis discount" remains available where an offender voluntarily discloses uncharged criminal conduct during an investigation, operating separately from and in addition to the utilitarian discount for a guilty plea.
- No error arises merely because a sentencing judge describes the imprecision inherent in indicative sentences for historical offences carrying varying maximum penalties and attracting different discount rates. Such imprecision is an acknowledged feature of the aggregate sentencing process.
- Where an applicant does not challenge any of the individual indicative sentences, the task on a manifest excess appeal is to assess the aggregate sentence against comparable cases, not to reconstruct how the individual sentences might theoretically be arranged.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A
- Crimes Act 1900 (NSW), ss 61E, 61M, 61O, 66A, 66C
Cases
- Kerr v R [2014] NSWCCA 235
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- PWB v Regina (2011) 216 A Crim R 305; [2011] NSWCCA 84
- R v Brown [2012] NSWCCA 199
- R v Ellis (1986) NSWLR 603
- R v Nykolyn [2012] NSWCCA 219
- R v SJH [2010] NSWCCA 32
- R v Smith [2003] NSWCCA 353