Salvaggio v Regina [2006] NSWCCA 327

New South Wales Court of Criminal Appeal

CITATION: Salvaggio v Regina [2006] NSWCCA 327

HEARING DATE(S): 25 August 2006

JUDGMENT DATE: 12 October 2006

JUDGMENT OF: Grove J at 1; Kirby J at 2; Hislop J at 3

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Criminal law - Sentencing - Weight given to duress - No error demonstrated.

Crimes Act 1900 - ss 97(1), 154C(2) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 32 Drug Misuse and Trafficking Act 1985 - s 10(1)

CASES CITED: Markarian v R (2005) 215 ALR 213 R v Bassett (unreported CCA 20/5/1994)

PARTIES: Applicant - Jacob Salvaggio Respondent - Regina

FILE NUMBER(S): CCA 2006/1295

COUNSEL: Applicant - Mr C. Steirn SC Respondent - Mr P. Barrett

SOLICITORS: Applicant - Philip Sim & Associates Respondent - New South Wales Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 24/13/990

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 18 November 2005

- 1 - IN THE COURT OF CRIMINAL APPEAL 2006/1295

GROVE J KIRBY J HISLOP J

12 October 2006 Jacob SALVAGGIO v REGINA Judgment

1 GROVE J: I agree with Hislop J. 2 KIRBY J: I agree with Hislop J. HISLOP J: 3 This is an application for leave to appeal against sentence. 4 The applicant pleaded guilty on indictment to the following counts: 1. On 19 February 2004 at Strathfield NSW, being armed with an offensive weapon, namely a pistol, he did rob Michael Walsh of a Lexus motor vehicle and one mobile telephone being the property of Michael Walsh contrary to the Crimes Act 1900 s 97(1). 2. On 19 February 2004 at Silverwater NSW, being armed with an offensive weapon, namely a pistol, he did rob Amendra Pratap of a Nissan 200SX motor vehicle, one mobile telephone, one wallet and contents, the property of Amendra Pratap contrary to the Crimes Act 1900 s 97(1). 3. On 20 December 2003 being in company with other persons, he did rob another contrary to the Crimes Act 1900 s 97(1).

The maximum penalty for each of these offences is 20 years imprisonment. 5 The applicant asked that the following offences be taken into account on a Form 1 under the Crimes (Sentencing Procedure) Act 1999 s 32: 1. On 18 October 2003 at Castle Hill NSW, whilst in the company of another person he did, without the consent of the owner, take and drive a motor vehicle when another person was in the motor vehicle contrary to the Crimes Act 1900 s 154C(2). The maximum penalty for this offence is 14 years imprisonment. There is a standard non-parole period of five years imprisonment. 2. On 25 October 2003 at Brookvale NSW, being armed with an offensive weapon, namely a pistol, he did rob Simon Portus of a Nissan SX motor vehicle and $1,900 in cash money, the property of Simon Portus contrary to the Crimes Act 1900 s 97(1). The maximum penalty for this offence is 20 years imprisonment. 3. On 25 March 2004 at Kemps Creek NSW he did have in his possession a prohibited drug, namely 8.6 g of methylamphetamine contrary to the provisions of the Drug Misuse and Trafficking Act 1985 s 10(1). The maximum penalty for this offence is 2 years imprisonment and/or a fine. 6 The method of operation used by the applicant in relation to the offences in counts 1 and 2 and the second offence on the Form 1 was the same. He telephoned a person who had advertised his motor vehicle for sale and arranged to inspect the vehicle. Later he and another male inspected the vehicle and asked to test drive it. On each occasion the applicant and his companion got into the car with the owner and after driving the vehicle a short distance the applicant pointed a pistol at the owner and ordered him from the vehicle which was then driven off. In the case of the first and second counts the owner's mobile phone was also taken. In the case of the second offence on the Form 1 the owner's bank cards were taken and used to withdraw $1,900 from his bank accounts. The first offence on the Form 1 involved the same method of operation save that a pistol was not used. The cars (other than the car involved in the first Form 1 offence) were not recovered and were valued in the range of thirty to forty thousands dollars each. 7 The third count involved the hold up of an attendant in a service station shop at about 4am on 20 December 2003. Entry to the shop was via automatic doors which, at that time of the morning, were operated by the attendant pressing a button behind the counter. A customer arrived at the doors, the attendant opened them to admit him and whilst the doors were slowly closing three male persons, one of whom was the applicant, entered the shop. One of the persons (not the applicant) was carrying a gun with which he threatened the attendant and customer. Between three and four hundred dollars in cash and cigarettes worth approximately $4,000 were stolen. 8 The factors subjective to the applicant included that he was a single man born on 28 February 1980. He had a close-knit and supportive family. He attended school to year 10. He then commenced a shop fitting and cabinet making apprenticeship. He completed the apprenticeship and worked as a cabinet maker in the family business. He had no prior criminal record. He pleaded guilty at the first opportunity. He gave evidence of remorse which his Honour accepted was genuine. 9 Dr Roberts, a psychiatrist, in a report dated the 25 July 2005, concluded the applicant: … has a history of depression and feelings of inadequacy and inferiority, he is predisposed to substance use by the fact that such substances remove negative feeling. As a result of his substantial use, with resultant accumulation of debt, and a degree of cognitive impairment that would have clouded his capacity to accurately assess the consequences of his action, he engaged in certain activities which he deeply regrets. 10 A Probation and Parole Pre-Sentence Report dated 26 August 2005 reported the applicant had received mediocre reports in relation to his attitude and behaviour in custody and that he had unresolved drug dependence issues. At the time of the report he had not participated in alcohol and other drug programs in custody and it was considered that he may be at risk of relapse into drug use in the community. His Honour recorded the applicant had completed a one day drug and alcohol program and had put his name forward to do other programs. 11 His Honour referred to a number of reports from friends and relatives of the applicant attesting to his prior good character. His Honour concluded the applicant's rehabilitation to date and his intention to continue his rehabilitation upon his release from custody constituted special circumstances permitting a variation of the statutory ratio. 12 The applicant asserted that the offences were committed by him whilst under duress. He gave evidence that in 2002 he became involved in drug taking and that toward the end of 2003 he owed his drug supplier about $3,000 which he was unable to pay. The people who supplied him "…threatened my life and I had to pay up or else something was going to happen to me." His sister also was threatened. The applicant concluded the only way to solve the problem was to get the supplier his money. He then commenced committing the offences. 13 The applicant's sister gave evidence of five or six threats received by her by telephone between late September or early October 2003 and 3 December 2003. The police were called in on 3 December 2003 and the telephone numbers were changed. A Police Incident Report dated 3 December 2003 confirmed that complaint was made on that date. The applicant's sister confirmed in evidence there were no further threatening phone calls to her after 3 December 2003 save for one received after the applicant was gaoled following his arrest which warned that the applicant would be assaulted. This in fact occurred. 14 The pre-sentence report dated 26 August 2005 recorded: Mr Salvaggio's father confirmed that the family had received threats, including his daughter, and that initially they did not know why they were receiving threats. Since becoming aware of the reason for the threats, Mr Salvaggio's father advised that they have changed their phone numbers, the police have been informed, and he no longer considers his family to be under threat. … … [The applicant] recognised that he should have asked his father for money to pay his debts, regardless of the consequences of doing that, and should not have resorted to criminal behaviour. 15 His Honour in his Remarks on Sentence stated: I am prepared to accept that the prisoner was under some duress at the time he committed the offences. He also needed the money to meet his drug habit.

…

I found that duress played a part in the offences committed by the prisoner and will result in some reduction of the overall sentence although in my opinion the offences were committed because of the prisoner's drug addiction, something that can explain his actions but cannot excuse them. But I can take duress into consideration is established by authority see R v Bassett (unreported CCA 20/5/1994). 16 On 18 November 2005 the Applicant was sentenced in the District Court. On each of the first and second counts the applicant was sentenced to a fixed term of three years imprisonment to date from 4 May 2004 and conclude on 3 May 2007. On the third count the applicant was sentenced to a non-parole period of four and a half years to commence on 4 May 2004 and conclude on 3 November 2008 and an additional term of two and a half years to commence on 4 November 2008 and conclude on 3 May 2011. His Honour took the Form 1 offences into account on the third count. 17 The applicant has sought leave to appeal against those sentences. The proposed grounds of appeal are: 1. The sentencing judge although finding that duress played a part in the offences committed nonetheless erred in not giving sufficient weight to this factor when imposing sentence. 2. The sentence imposed was manifestly excessive in the circumstances. 18 Senior counsel for the applicant, in his oral submissions, stated: There is really only one point in this appeal and it is whether or not the sentencing Judge gave sufficient weight in relation to the aspect of duress in sentencing the appellant. 19 Senior counsel for the applicant submitted that the threat of harm to the applicant and his family was both real and serious and gave rise to a level of fear in the applicant which was the overriding reason he committed the offences and that the sentence imposed by his Honour did not adequately reflect this. He also submitted the applicant was arrested on 4 May 2004 and the last offence was 19 February 2004. It was submitted that at the time of his arrest he was starting to come around to what his life was prior to lapsing into crime through his drug addiction, and being in debt to his drug supplier. 20 However there were countervailing considerations. The applicant had not sought to raise duress as a defence, the applicant could have approached his father for money to pay his debts rather than resorting to criminal behaviour, the value of the property stolen far exceeded the debt and the applicant had needed money to sustain his drug habit. 21 His Honour, in accordance with principle, did not specify the extent to which he took duress into account in sentencing the applicant. 22 In Markarian v R (2005) 215 ALR 213 the High Court held at [27] and [37]: … what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached … [He must] arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis" … So long as a sentencing Judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the Judge must perform … As has now been pointed out more than once, there is no single correct sentence. And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 23 Accordingly the question whether his Honour failed to give sufficient weight to duress must be determined having regard to the sentences as a whole. 24 The applicant had a favourable subjective case. However his Honour fully considered that case. He expressly stated he took duress into account in reduction of the overall sentence. He expressly stated that he weighed up all the factors and took into account all that had been put before him in determining the appropriate sentence. This included taking into account the matters in the Form 1 which he took into account in sentencing on count 3. 25 The offences charged were very serious offences which displayed a high level of criminality. Each carried a maximum sentence of 20 years. The matters taken into account on the form 1 were also very serious as is apparent from the maximum penalties which they carry. The ultimate sentences and the non parole period imposed by his Honour were well open to him in balancing the objective and subjective features in these matters. The need for retribution and deterrence was high. 26 In my opinion the sentences are not such, when considered in their totality, as to establish his Honour, in exercising his sentencing discretion, failed to accord adequate weight to the factor of duress. 27 The sentences are not such, when regard is had to all the circumstances as to cause me to conclude that some other sentence, less severe, was warranted in law and should have been passed. Accordingly whilst I would grant leave to appeal, I would dismiss the appeal.

Orders

28 I propose the following orders:

1. Leave to appeal granted. 2. Appeal dismissed. **********

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