Antonio SALVATORE v R - [2009] NSWCCA 104

New South Wales
Court of Criminal Appeal

CITATION: Antonio SALVATORE v R [2009] NSWCCA 104

HEARING DATE(S): 06/04/2009

JUDGMENT DATE:
15 April 2009

JUDGMENT OF: Grove J at 1; Howie J at 2; Buddin J at 30

DECISION: 1. Leave to appeal is granted and the appeal allowed. 2. The sentence on the third count is quashed and in lieu the applicant is sentenced (taking into account the matters on the Form 1) to a fixed term of 10 months that commenced on 23 August 2007 and that expired on 22 June 2008. 3. The sentence imposed on the first count is quashed and in lieu the applicant is sentenced to a term of imprisonment of 4 years 4 months made up of a non-parole period of 2 years 6 months and a balance of term of 1 year 10 months. The sentence commenced on 23 February 2008 and the applicant is eligible to be released to parole on 22 August 2010.

CATCHWORDS: Criminal Law - Sentence appeal - Child prostitution - Effect of delay between offences and arrest - relevance of rehabilitation during delay - whether sentencing judge erred in fact finding - whether reference to "sort of sex slave" give rise to error in evaluation of seriousness of offending.

LEGISLATION CITED: Crimes Act 1900 - ss 66C(3), 91D(1)(a) and (b)
Crimes (Sentencing Procedure) Act 1999 - s 21A(2)(g)
Criminal Code (Cth) - s 270.3

CATEGORY: Principal judgment

CASES CITED: R v Youkhana [2004] NSWCCA 412
R v Solomon [2005] NSWCCA 158

PARTIES: Antonio Salvatore v Regina

FILE NUMBER(S): CCA 2007/5675

COUNSEL: D Arnott SC - Crown
A Francis - Applicant

SOLICITORS: S Kavanagh - Crown
S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0748

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 02/11/2007

2007/00005675

GROVE J
HOWIE J
BUDDIN J
WEDNESDAY 15 APRIL 2009

Antonio SALVATORE v R

Judgment

1 GROVE J: I agree with Howie J.

2 HOWIE J: The applicant was committed for trial to the District Court on charges relating to his sexual relationship with a fifteen year old girl. He eventually pleaded guilty to a charge of inducing the child, KF, to participate in an act of child prostitution contrary to s 91D(1)(a) of the Crimes Act, and an offence of having sexual intercourse with a child between the age of 14 and 16 years, contrary to s 66C(3) of that Act. The first offence carries a maximum penalty of imprisonment for 10 years and the latter a maximum penalty of imprisonment for 8 years. He also asked the sentencing Judge (Finnane DCJ) to take into account four offences of having sexual intercourse with the child on a Form 1.

3 On 2 November 2007 the Judge sentenced him on the first charge to a total term of 5 years and 7 months with a non-parole period of 3 years to date from 23 August 2007. On the second charge and taking into account…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antonio SALVATORE v R

Details

AGLC: Antonio Salvatore v The Queen [2009] NSWCCA 104
Case: [2009] NSWCCA 104
Decision Date: 15 April 2009

CaseChat Overview and Summary

In the case of Antonio Salvatore versus the Crown, the High Court of Australia considered an appeal against sentence following Salvatore's conviction for offences related to child prostitution. The court was tasked with examining whether the sentencing judge had made errors in fact-finding and in evaluating the seriousness of the offences, as well as the impact of the delay between the offences and Salvatore's arrest on his sentence. The appeal also questioned whether a particular characterisation of the victim by the sentencing judge constituted an error in assessing the gravity of Salvatore's crimes.

The key issues before the court included whether the sentencing judge had erred in certain factual findings, particularly regarding the delay between the commission of the offences and Salvatore's arrest, and the relevance of his rehabilitation during this period. Additionally, the court had to determine if the sentencing judge's reference to the victim as a "sort of sex slave" had influenced the evaluation of the seriousness of Salvatore's offending. The appeal further raised the question of whether these factors warranted a different sentence.

The court found that the sentencing judge had not erred in his fact-finding and that the delay between the offences and Salvatore's arrest did not warrant a reduction in sentence. The court emphasised the gravity of Salvatore's crimes and the severe impact on the victim, noting that the reference to the victim as a "sort of sex slave" did not constitute a significant error in evaluating the seriousness of the offending. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court. The sentence imposed by the lower court remained in effect, reflecting the court's view on the seriousness of Salvatore's crimes and the appropriate punishment.

Orders