R v Darwich

[2018] NSWCCA 46

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Darwich [2018] NSWCCA 46

Hearing dates:

16 February 2018

Date of orders:

23 March 2018

Decision date:

23 March 2018

Before:

Hoeben CJ at CL at [1]
White JA at [2]
N Adams J at [12]

Decision:

(1) The Crown appeal concerning Grounds 1 and 2 is allowed.

 

(2) The aggregate sentence imposed by Conlon SC DCJ on 19 October 2017 is quashed.

(3) In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) with a non-parole period of three years commencing on 6 May 2017 and expiring on 5 May 2020 and a balance of term of two years to expire on 5 May 2022.

Catchwords:

CRIMINAL LAW – Crown appeal against sentence - the respondent was convicted of five counts of participating as a client in an act of child prostitution contrary to s 91D(1)(b) of the Crimes Act 1900 (NSW) – he was sentenced to a head sentence of 3 years and 6 months with a non-parole period of 20 months – whether the sentencing judge erred in his assessment of objective seriousness - whether the sentence was manifestly inadequate

Legislation Cited:

Crimes Act 1900 (NSW), ss 44, 66C, 66EB, 61J, 91C, 91D
Crimes (Child Prostitution) Amendment Act 1988 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 53A
Criminal Appeal Act 1912 (NSW), s 5D

Cases Cited:

Chamseddine v R [2017] NSWCCA 176
Clarke v R [2009] NSWCCA 49
CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.
Collier v R [2012] NSWCCA 213
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Elyard v R (2006) 45 MCR 402; [2006] NSWCCA 43
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
Glover v R [2016] NSWCCA 316
Green v The Queen; Quin v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
JH v R [2017] NSWCCA 22
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mitten v R [2009] NSWCCA 103
Mulato v R [2006] NSWCCA 282
Pasoski v R [2014] NSWCCA 309
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v A [2003] NSWCCA 157
R v AEM [2002] NSWCCA 58
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v CTG [2017] NSWCCA 163
R v JF [2017] NSWCCA 217
R v Lane [2011] NSWSC 289
R v Little [2013] NSWCCA 288
R v Mammone [2006] NSWCCA 138
R v Mouloudi [2004] NSWCCA 96
R v O’Connor (2014) 239 A Crim R 487; [2014] NSWCCA 53
R v Romano [2004] NSWCCA 380
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Toma [2018] NSWCCA 45
R v Van Ryn [2016] NSWCCA 1
Salvatore v R [2009] NSWCCA 104
Sharma v R [2017] NSWCCA 85
Simpson v R [2014] NSWCCA 23

Category:

Principal judgment

Parties:

Regina (Applicant)
Bassam Darwich (Respondent)

Representation:

Counsel:
S Dowling SC (Applicant)
M Ramage QC / P Lange (Respondent)

  Solicitors:
Director of Public Prosecutions (Applicant)
Executive Legal Pty Ltd (Respondent)

File Number(s):

2012/165684; 2012/324420

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 October 2017

Before:

Conlon SC DCJ

File Number(s):

2012/165684; 2012/324420

Judgment

1. HOEBEN CJ AT CL: I agree with N Adams J and the orders which she proposes.

2. WHITE JA: I have had the advantage of reading in draft the reasons for judgment of N Adams J. I agree with her Honour’s reasons and proposed orders.

3. I would add the following on the question as to whether the Court should exercise its residual discretion not to re-sentence.

4. Section 5D(1) of the Criminal Appeal Act 1912 provides:

“5D Appeal by Crown against sentence

(1)    The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.”

5. In Green v The Queen; Quin v The Queen (2011) 244 CLR 462; [2011] HCA 49 the plurality (French CJ, Crennan and Kiefel JJ) said (at [1] and [36]) that:

“[1] The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (‘Crown appeals’) under s 5D of the Criminal Appeal Act 1912 (NSW) (‘the Criminal Appeal Act’) is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’ [Footnote: Griffiths v R (1977) 137 CLR 293 at 310 per Barwick CJ; [1977] HCA 44; Everett v R (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ; [1994] HCA 49, discussed in Lacey v A-G (Qld) (2011) 242 CLR 573 at 578–584 [8]–[20] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 10. See also R v Borkowski (2009) 195 A Crim R 1 at 18 [70].] That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the ‘residual discretion’.

…

[36] A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’ That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion. [Footnote: In Director of Public Prosecutions (Vic) v Karazisis (2010) 206 A Crim R 14 at 39–42 [104]–[115] it was suggested that relevant factors in Victoria include delay, parity, the totality principle, the rehabilitation of the offender and the conduct of the Crown.]”

6. The statement by the plurality in Green v The Queen; Quin v The Queen that the laying down of principles for the governance and guidance of courts is the limiting purpose of Crown appeals under s 5D must be understood by reference to the authorities referred to by the plurality in para [1] quoted above. In Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 Barwick CJ said (at 309) that the reference to discretion in s 5D of the Criminal Appeal Act that:

“… does no more than ensure that where a proper occasion arises for the allowance of an appeal, the court itself may substitute the sentence which it considers appropriate for that imposed by the trial judge. Thus, no question of remitting the matter to the trial judge for sentence in conformity with the reasons for judgment of the Court of Criminal appeal arises. …"

7. His Honour went on to say (at 310) that:

“Inadequacy of sentence, an expression not found in the Criminal Appeal Act but which is the form in which the ground of the Attorney-General’s appeal is expressed, is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such an inadequacy in the sentence as is indicative of error or departure from principle. No doubt, consistency in the sentences imposed by the judges of the District Court is a desirable feature of criminal administration. Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle. Thus, in an appropriate case, the Court of Criminal Appeal may exercise its influence towards such consistency of sentence. But that consistency is not to be sought or secured, in my opinion, by the Court of Criminal Appeal substituting in any case which the Attorney-General cares to bring before it, its own view of the appropriate sentence irrespective of the presence or absence of error on the part of the trial judge.

…

On my view of the proper meaning of s. 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”

8. In Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 the plurality (Brennan, Deane, Dawson and Gaudron JJ) said at 300, in reference to the passage from Griffiths v The Queen referred to above that:

“The reference to ‘matter of principle’ in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting ‘error in point of principle’.”

9. In Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 the issue concerned the construction of s 669A(1) of the Criminal Code 1899 (Qld) that provided a right of appeal by the Attorney-General against sentence and provided that on appeal the court could “in its unfettered discretion” vary the sentence and impose such sentence as the court seemed proper. The High Court by majority considered that notwithstanding the reference to the “unfettered discretion” of the Court of Appeal to re-sentence, it was necessary for error on the part of the sentencing judge to be demonstrated before the discretion to vary the sentence was enlivened (at [62]).

10. Thus the statement in Green v The Queen that the purpose of Crown appeals under s 5D is to lay down principles for the governance and guidance of courts and that this is a limiting purpose, is to be understood in the sense that the discretion to re-sentence if error of principle is shown, or the residual discretion not to re-sentence notwithstanding that error in principle is shown, is to be exercised having regard to the Court of Criminal Appeal’s function of interfering with sentences only where a sentence is manifestly inadequate, or error of principle is shown, or there is a gross departure from a sentencing norm. Section 5D(1) provides that the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the court may seem proper. The subsection does not say that the Court of Criminal Appeal can only re-sentence if the imposition of a varied sentence is essential in order to provide guidance or governance to sentencing courts. If that were the only relevant question, there would never be an occasion to increase a sentence on a Crown appeal because it could always be said that it would be sufficient for the Court of Criminal Appeal to give guidance and governance by saying what sentence should have been imposed, without actually imposing an increased sentence. That would be inconsistent with the terms of s 5D(1).

11. In the present case I agree with N Adams J that error of principle has been demonstrated and that the sentencing judge erred in finding that the offences were below mid-range and possibly towards the lower end of the range. I also agree with N Adams J that the sentences were manifestly inadequate. I agree with N Adams J that in the present case the Court should exercise its discretion to vary the sentence imposed on 19 October 2017 and to impose a new sentence as proposed by her Honour. For the reasons I gave in R v Toma (at [50]-[51]) I do not consider that the circumstances that I consider justify the exercise of the Court’s residual discretion not to re-sentence in that case to be applicable to the present case.

12. N ADAMS J: The Crown appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed upon the respondent on 19 October 2017 by Conlon SC DCJ for five counts of participating as a client in an act of child prostitution, contrary to s 91D(1)(b) of the Crimes Act 1900 (NSW). It is an offence to engage in such an act if the person providing the services is under the age of 18 years.

13. The five offences pertained to three separate children aged 12, 15 and 15-16 years at the relevant times. The respondent pleaded not guilty to all five counts and a trial proceeded before his Honour and a jury of twelve. On 16 August 2017, the jury returned verdicts of guilty on all counts. Conlon SC DCJ sentenced the respondent to an aggregate term of imprisonment of three years and six months with a non-parole period of 20 months, to commence on 6 May 2017. The non-parole period will expire on 5 January 2019.

14. An offence contrary to s 91D(1)(b) carries a maximum penalty of 10 years imprisonment or, if the child is under the age of 14 years, 14 years imprisonment. Count 5 pertained to a child aged 12 years. Although a standard non-parole period of six years imprisonment now applies to offences committed on or after 29 June 2016 (where the child is under the age of 14 years), no standard non-parole period applied at the time of the commission of count 5.

Circumstances of the respondent’s offending

15. The respondent was one of eight persons charged in relation to a child prostitution syndicate which operated in the Warwick Farm and Liverpool areas. The offences were committed between May 2010 and November 2011 on five separate occasions against three separate children: BK, CL and KB.

16. Adrienne Garner and Thalia Garner were sisters who organised and operated the child prostitution syndicate. The sisters targeted young and vulnerable girls who were often runaways or who were under the care of the (then) Department of Community Services. The young girls were prostituted to adult male clients for small reward, with the proceeds used by Adrienne and Thalia Garner to support their drug habits. The prostitution took place in hotel rooms, client vehicles and at the home of Adrienne Garner.

17. At trial, the respondent said that he met the Garner sisters in late 2007. After some time, the Garner sisters informed the respondent that they knew a girl who would provide sexual services for reward. This marked the beginning of an association between the respondent and the Garner sisters that lasted until the time of the respondent’s arrest on 24 May 2012.

18. The sentencing judge, consistent with the jury’s verdicts, was satisfied of the following facts.

Count 1 - BK

19. BK met Adrienne Garner around 2009-2010. At this point, she had been using ice daily for about a year. BK moved into Adrienne Garner’s flat at Liverpool as she had been “kicked out” of her home and needed somewhere to live. BK became aware that Adrienne Garner would have sex with men for money and use the proceeds to purchase drugs. Those drugs were shared with BK.

20. On one occasion, Adrienne received a phone call after which she told BK that a man was coming over and that she wanted BK to have sex with him for money. BK conveyed to Adrienne that she did not want to, however, she reluctantly agreed to do so when Adrienne become angry and told BK that she had to. The respondent arrived at the flat and went to the bedroom with BK where they had penile-vaginal intercourse. It was BK’s evidence at trial that she had kept her eyes closed for the whole time. The respondent gave $50.00 to Adrienne who used the money to purchase ice.

21. At the time, BK was about 15-16 years of age, Adrienne was 20-21 years of age, and the respondent was 51 years of age.

22. The respondent gave evidence that, although he met with BK for the purposes of sexual intercourse, she was non-responsive and was “definitely drug affected” so he gave Adrienne Garner $50.00 and left. He denied having any sexual intercourse with BK and stated that he believed her to be 18 years of age. Clearly this evidence was rejected by the jury.

Counts 2, 3 and 4 - CL

23. CL met Adrienne and Tahlia Garner in about 2008 to early 2009 when she was 13 years old. Between late 2009 and early 2010, Adrienne and Tahlia moved in with CL and CL’s mother in Canley Heights. CL gave evidence at trial that she was introduced to the respondent through the Garner sisters and that Adrienne had told her that she would prostitute herself to the respondent in exchange for money.

24. During her evidence at trial, CL recalled an occasion in the latter half of 2010 when she was driven by the offender, along with Adrienne, to a Formula 1 Hotel. According to CL, during that trip, the respondent suggested that he would like to have a threesome with CL and Adrienne. Referring to CL, Adrienne said, “[n]o. She is gaol bait”. On this occasion, CL waited in the bathroom while the offender and Adrienne Garner had sex.

25. Count 2 occurred in late August 2010 when CL was 15 years of age. The respondent picked CL and Tahlia up in his vehicle from CL’s mother’s residence. The respondent took them to the Sunnybrook Hotel in Warwick Farm. It was the evidence of CL that the respondent first had sex with Tahlia while CL waited in the bathroom. After they had finished, Tahlia went into the bathroom and CL went into the bedroom. The respondent touched CL on the vagina and proceeded to perform cunnilingus on her. CL then, after several requests, performed fellatio on the respondent. After some time, CL asked the respondent to stop, which he did. The respondent gave CL and Tahlia $200.00 each.

26. Count 3 occurred about three weeks later, in September 2010. The respondent collected CL and Tahlia from CL’s home and took them to the Sunnybrook Hotel. As occurred on the previous occasion, the respondent had sexual intercourse with Tahlia while CL waited in the bathroom. After they finished, CL went into the bedroom. The respondent performed cunnilingus on CL and CL performed fellatio on the respondent until he ejaculated into a towel. Once again, the respondent gave CL and Tahlia $200.00 each.

27. Count 4 occurred in about October 2010. The respondent collected CL and Tahlia and they once again went to the Sunnybrook Hotel. The same routine followed. Once Tahlia and the respondent had finished, CL went into the bedroom. CL gave evidence that the respondent had started touching and kissing CL when CL’s mother knocked on the door. CL called out to her mother and told her that she was just getting out of the shower and to wait a minute. The respondent concealed himself on the balcony while CL and Tahlia went to the door. CL’s mother had attended the hotel as she was concerned that CL may have been there with the respondent. After inspecting the room and speaking with the girls, CL’s mother left. The respondent came out of hiding, Tahlia went into the bathroom and CL got into bed with the respondent. The respondent kissed and touched CL and performed cunnilingus on her. CL then performed fellatio on the respondent until he ejaculated into a towel. The respondent gave CL and Tahlia each $100.00 and a further $360.00 to Tahlia for marijuana.

28. The respondent’s defence to the counts pertaining to CL was that count 3 was the only occasion in relation to which he had any sexual contact with CL and he had believed that she was 18 years of age. In relation to count 3, he agreed that he had touched her, kissed her and licked her vagina but denied that she put her mouth over his penis. He stated that no sexual contact occurred in relation to counts 2 and 4. Clearly this was rejected by the jury.

Count 5 - KB

29. In late 2011, KB, who was 12 years of age, ran away from a refuge she had been living at in Kemps Creek. KB was thereafter introduced to Adrienne and Tahlia Garner. KB went back with the Garner sisters to their unit as she had nowhere else to live. Adrienne asked KB whether she would perform sexual services for money. KB said that she would not. Adrienne told KB that she would have to go home if she would not sell herself for money. In need of a place to stay, KB reluctantly agreed.

29. Count 5 occurred in October or November 2011, when KB was 12 years of age. The respondent collected KB and Tahlia and took them to the Sunnybrook Hotel. KB had a shower whilst Tahlia was talking to the offender. Tahlia then went into the bathroom and told KB that she had to go into the bedroom naked. It was the evidence of KB that the respondent had penile-vaginal intercourse with KB using a condom which lasted for about 20 minutes. KB said that, during the incident, the respondent tried to talk to her but she ignored him. KB said she put a pillow on her face as the respondent tried to kiss her, that she had her eyes shut, and that she was crying at times. KB said that she asked the respondent if they could stop, after which he did stop and gave her about $100.00 and some extra money to Tahlia. KB further said that she did not tell the respondent how old she was but heard Tahlia say to him that she was 17 years of age.

30. The respondent’s defence to count 5 was that, although he met with BK, she appeared unwilling and told him that she needed to have sex with him to buy drugs, so he left. He states that there was no sexual contact between them and that he believed that she looked 18 years of age. Again, this was clearly rejected by the jury.

Procedural History

32. The trial involving the respondent was originally listed for an eight co-accused trial in September 2014. The eight accused were Adrienne and Tahlia Garner, the respondent, and five other men charged with offences relating to their respective roles as clients of the child prostitution syndicate. The joint trial was vacated as the Crown Prosecutor was unavailable to proceed. The trial was relisted for May 2015. That trial date was vacated when Adrienne and Tahlia Garner pleaded guilty. An application for separate trials was granted in October 2015.

33. A trial was listed for August 2016 with the respondent and another co-accused, Elia Toma, to be tried together (see R v Toma [2018] NSWCCA 45 (“R v Toma”) for the circumstances surrounding Mr Toma’s offending). The trial was aborted prior to the end of the Crown case when the respondent’s legal representatives withdrew. The matter was then relisted for 24 July 2017. The trial began on that date and proceeded until 31 July 2017. However, the respondent’s legal representatives were again forced to withdraw. Two further legal teams acted for the respondent, each having to later withdraw. On August 2017, the trial proceeded before Conlon SC DCJ at which time the respondent was unrepresented.

34. The respondent was arrested on 24 May 2012 and was refused bail on that date. On 18 July 2012, the respondent was granted bail on strict conditions. These conditions included, inter alia, that the respondent reside at his address, report daily to his local police station, adhere to a curfew between between 8pm and 6am and that 1 or 2 acceptable persons enter into an agreement to forfeit $1,000,000.00 in the event the respondent failed to comply with his bail undertaking. Some minor variations were made with respect to the respondent’s curfew on 21 November 2012 and 13 February 2013 to accommodate his working arrangements.

Sentence Proceedings

35. Conlon SC DCJ sentenced the respondent on 19 October 2017. His Honour made a number of findings relevant to the objective seriousness of the respondent’s offending.

36. His Honour noted that the jury, by their verdicts, had clearly rejected the respondent’s version of honest and reasonable mistake of fact that the complainants were 18 years or older. His Honour made no references to the fact that the respondent in fact denied four out of the five allegations.

37. His Honour described the matters as “objectively serious”, involving “a gross exploitation of three young complainants where the offender took advantage of their troubled circumstances and vulnerability.” His Honour also observed that “society expects that mature adults behave in a protective manner towards young and vulnerable children and not exploit them for their own sexual satisfaction.”

38. Reference was then made to the sentencing remarks of Solomon DCJ when sentencing the Garner sisters in response to which Conlon SC DCJ observed:

“…his Honour Judge Solomon referred to the different levels of objective gravity in respect of child prostitution offences. By way of example he stated in his view ‘a mature pimp who exploits children in prostitution for his own financial gain would fall into the above mid-range category of offenders.’ With that observation I respectfully agree.”

39. The sentencing judge noted that the respondent frequently met with the girls at the request of the Garner sisters and that this is to be contrasted with a person who was out “soliciting or hunting for young underage girls”. His Honour then stated that he agreed with the submission made on behalf of the respondent that:

“…the five offences can be viewed as sporadic opportunistic acts with three different victims over a period of time, rather than long term continuous offending in respect of underage girls.

None of the acts involved any mistreatment or other degrading behaviour towards the complainants. There was no coercive conduct on his part to induce them to have sex for money.

In my view the different forms of sexual intercourse had, is of no consequence in the sentencing exercise for offences under s 91D.”

40. His Honour then made observations regarding matters relevant to the objective seriousness of some of the individual counts. His Honour noted that count 1 came about as a result of Adrienne Garner’s persistence that the respondent should attend the premises on that occasion as the complainant needed money. His Honour went on to note that, in respect of count 4, the respondent was clearly on notice that CL’s mother was concerned for her welfare, and that is why she attended the Sunnybrook Hotel. However, after CL’s mother had departed, the respondent nevertheless proceeded to have sex with her.

41. His Honour then turned to consider count 5. He noted that count 5 involved a “very young child” but that she appeared in her recorded interview (when she was still 12 years of age) to be a “child who certainly appeared older than 12. However, she did not appear anywhere near 18 years of age.” His Honour took into account that the respondent stopped when KB requested him to and that the respondent had used a condom.

42. It was then noted by his Honour that “not one of the complainants suggested that the offender spoke to them otherwise than in a polite manner.”

43. His Honour then concluded the following in relation to the objective seriousness of these five offences:

“Having considered all of these factors I am unable to agree with the Crown’s assertion that the objective gravity falls slightly above midrange. In my view, so far as each offence is concerned it falls below midrange and possibly towards the lower end of the range.”

(emphasis added)

44. His Honour then turned his attention to the respondent’s subjective circumstances. In doing so, his Honour had regard to a pre-sentence report and a report from psychologist Tom Jones.

45. The respondent was 57 years of age at the time of sentencing and had no prior criminal history. He was born in Lebanon and was one of six children. Although he had grown up in a happy and supportive family, the war in 1974 (when the respondent was 14 years of age) led to poverty and material hardship. The respondent informed the psychologist that there were at times no electricity, food or water and that he recalled instances of seeing dead people in the street.

46. The respondent migrated to Australia with his family in 1975 to escape the war. Upon his arrival in Australia, he undertook English language training. He worked for State Rail for ten years where he obtained qualifications in operating machinery, forklift and crane driving. The respondent also worked at a power plant in Queensland, a gas plant in Western Australia, and for a significant period of time with Spartan Steel at Villawood.

47. In 1981, when the respondent was 21 years of age, he entered into an arranged marriage with his wife. They have six children who are aged between 15 and 34. The respondent has no history of alcohol or drug abuse.

48. The psychologist opined that the respondent does not suffer from any mental health disorders and that, in his employment, family life, community activity and religious life, the respondent appeared to be a man of good character and well respected by those who knew him.

49. In the pre-sentence report, it was said that, “[d]ue to the offender’s denial of the offences, his attitude regarding the impact of his actions upon the victims and insight into hits offending behaviour could not be fully explored.”

50. Mr Reeves, a supervisor of Mr Darwich for a number of years, also gave evidence at trial, stating that the respondent was an excellent and trusted worker who got on well with co-workers and was considerate and generous to them.

51. His Honour commented that, “[b]ut for the present offending it would appear that [the respondent] has always been a very worthwhile contributing member of the community who is held in high regard by those with whom he has worked and socialised.”

52. His Honour described the respondent’s incarceration as having a clear impact on the whole family, supported by an affidavit sworn by the respondent’s daughter that stated, inter alia, that since the respondent’s incarceration, her mother started suffering from anxiety and depression.

53. After considering the subjective material, his Honour said that he was satisfied that the respondent was unlikely to ever offend again, supported by the fact that the respondent had not come under adverse notice since the commission of the last offence in 2011. His Honour said that there was an argument that, owing to the lack of any further offending on the part of the respondent and his previous blame-free life, for all intents and purposes, the respondent had been rehabilitated. With respect to the counter-argument that, where an offender continues to deny his or her wrongdoing, prospects of rehabilitation are reduced, his Honour felt that the respondent’s denial about his knowledge of the age of the complainant’s was more attributable to the embarrassment and humiliation he would suffer in making such an admission to his family. His Honour ultimately found that the respondent would not re-offend and had rehabilitated.

54. His Honour then observed that:

“Serving a sentence of imprisonment for the first time at 57 years of age is sufficient reason to make a finding of special circumstances.”

55. His Honour concluded that no penalty other than full-time imprisonment was appropriate. An aggregate sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”). The indicative sentences were 15 months of imprisonment for counts 1 to 4, and 18 months of imprisonment for count 5. The respondent was sentenced to an aggregate term of imprisonment of three years and six months with a non-parole period of 20 months. Having made a finding of special circumstances, his Honour imposed a non-parole period which was 47% of the head sentence.

Grounds of Appeal

56. The Crown appeals the sentence imposed upon the respondent on the following two grounds:

1. The sentencing judge erred in his assessment of the objective seriousness of the offending leading to the imposition of a sentence that is manifestly inadequate.

2. That the sentence pronounced was manifestly inadequate.

The Crown’s submissions

Ground 1 – Erroneous assessment of objective seriousness leading to manifest inadequacy

57. The Crown submitted that it was not reasonably open for his Honour to characterise the offences as being “below midrange and possibly towards the lower end of the range”. It was submitted that his Honour’s approach was problematic with respect to four factors.

58. First, it was submitted that his Honour erred in finding that the five offences could be viewed as “sporadic opportunistic acts” with three different victims over a period of time, rather than long-term continuous offending in respect of underage girls.

59. Second, it was submitted that his Honour erred in having regard to the fact that none of the acts involved any mistreatment or other degrading behaviour towards the complainants and that there was no coercive conduct on the respondent’s part to induce them to have sex for money.

60. Third, it was submitted that his Honour erred in finding that the different forms of sexual intercourse had little or no consequence in the sentencing exercise for offences under s 91D.

61. Fourth, it was submitted that it was an error for his Honour to have regard to the fact that not one of the complainants suggested that the respondent spoke to them otherwise than in a polite manner.

Ground 2 – Manifest inadequacy

62. The Crown submitted that there were a number of aspects of his Honour’s reasoning that contributed to the imposition of a manifestly inadequate sentence, including: an erroneously lenient non-parole period; error in the approach to the respondent’s prospects of rehabilitation; and a failure to give weight to the principle of general deterrence.

63. These Crown submissions will be considered further below.

The Respondent’s Submissions

Ground 1 - Erroneous assessment of objective seriousness leading to manifest inadequacy

64. It was the respondent’s contention that the Crown has failed to establish that the sentence was not reasonably open to his Honour. In his submissions, the respondent addressed the four factors identified by the Crown which were said to have led to an erroneous finding of objective seriousness “below midrange and possibly towards the lower end of the range.”

65. With respect to his Honour’s finding that the conduct constituting the offences could be viewed as “sporadic opportunistic acts”, the respondent submitted that his Honour had not used the word “spontaneous” but rather “sporadic”, which was entirely appropriate. It was said that his Honour never contended that the respondent had committed the offences spontaneously and opportunistically, in the sense of happening “on the spur of the moment”, as was suggested by the Crown. Instead, his Honour’s statement was said to have been a reference to a submission made by counsel on behalf of the respondent as his sentencing hearing:

“I’ve already referred to the reference to length of time and as to [sic.] these are sporadic incidents in an extensive period, it’s not a matter of saying that because one occurred at the commencement of a decade and another at the end, the crime extends over a decade. These were individual crimes and he’s charged not with some long term offence of an ongoing kind but individual acts.”

66. The respondent argued that his Honour’s comment was an acceptance of the fact that the respondent was to be sentenced for individual acts rather than an ongoing course of conduct and that, in any event, this was not a matter which his Honour held to be relevant to the assessment of objective seriousness.

67. It was the Crown’s submission that his Honour fell into error by finding that “[n]one of the respondent’s acts involved any mistreatment or other degrading behaviour towards the complainants” and that there was “no coercive conduct on [the respondent’s] part to induce them to have sex for money”. It was submitted by the respondent that it was “entirely appropriate” for his Honour to take into account the nature of the interaction between the respondent and the victims.

68. It was argued that his Honour’s finding that the respondent’s acts did not involve any “mistreatment or other degrading behaviour” was a finding that the respondent did not subject the victims to additional humiliation and degradation than might ordinarily be expected in an act of prostitution and that his Honour was entitled to consider this fact. The respondent relied upon a number of authorities to the effect that lack of threats or coercion are relevant in determining the objective seriousness of an offence and that, in doing so, his Honour did not fall into error.

69. In terms of the Crown submission that his Honour fell into error by finding that the type of sexual conduct was “of no consequence”, the respondent submitted that his Honour’s finding was consistent with authority that holds that there is no hierarchy of sexual acts and that one must look at all the relevant circumstances: Simpson v R [2014] NSWCCA 23 at [30]. It was further submitted that, while in the context of sexual assaults it has been held that some forms of assault are generally more serious than others, one must be cautious not simply to treat the offence contrary to s 91D as being analogous to sexual assaults, especially as s 91D criminalises conduct which, if the complainant is 16 years or older, would not be criminal if not for the payment.

70. The respondent ultimately submitted that there was no specific error in relation to his Honours determination of objective seriousness, nor were his Honour’s findings unfair or plainly unreasonable.

Ground 2 – Manifest inadequacy

71. As for the significant variation to the statutory ratio, the respondent referred to authority for the proposition that the fact that an offender is entering custody for the first time may amount to special circumstances when combined with other factors (R v Little [2013] NSWCCA 288 at [30]). Such other factors were said to include the age of the offender (R v Mammone [2006] NSWCCA 138 at [54]), and that advanced age can be significant evidence of an offender’s prospects of rehabilitation (R v Mouloudi [2004] NSWCCA 96 at [67]). It was therefore submitted that there was no error in his Honour’s finding of special circumstances.

72. As for the Crown’s contention that his Honour fell into error by finding that the respondent had good prospects of rehabilitation, the respondent referred to a number of cases holding that an offender’s failure to acknowledge guilt does not of itself deprive a finding of good prospects of rehabilitation: JH v R [2017] NSWCCA 22 at [131] and R v Lane [2011] NSWSC 289 at [91]. It was submitted that his Honour had appropriately taken into account the respondent’s prior good character and the significant delay between the offences and his sentencing in finding that good prospects of rehabilitation existed.

73. In response to the Crown’s further submission that his Honour had failed to give appropriate weight to general deterrence, the respondent submitted that both parties made submissions on general deterrence at the sentencing hearing and that his Honour took this into account in his remarks, specifically stating that “I have taken into account the purposes of sentencing set out in s. 3A of the Crimes (Sentencing Procedure) Act,” which includes general deterrence.

74. Finally, it was submitted that, even if this Court were to conclude that the sentence imposed was manifestly inadequate, the appeal should be dismissed on that basis that an increase in the respondent’s sentence would lead to an unjust disparity between the respondent’s sentence and that imposed on co-offender Elia Toma, who had received an intensive correction order in relation to two offences contrary to s 91D(1)(b) of the Crimes Act concerning the same prostitution syndicate.

Consideration

75. In considering the grounds of appeal, I have had regard to the relevant principles concerning Crown appeals against sentence and, in particular, to the principle that the primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of sentencing courts.

76. The Crown relies on both specific error (Ground 1) and error within the fifth limb of error described in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”) (Ground 2). That is, the Crown contended that the aggregate sentence is manifestly inadequate in the sense of being “unreasonable and plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. A conclusion by this Court that a sentence is manifestly inadequate does not depend upon the identification of specific error: Dinsdale v The Queen at [6]. Nor would the identification of any specific error require this Court to undertake the sentencing process afresh consistent with the principles in Kentwell v R (2014) 252 CLR 601; [2014] HCA 37. Rather, the Crown must establish that any identified error of principle contributed to the imposition of a manifestly inadequate aggregate sentence for five counts contrary to s 91D(1)(b) of the Crimes Act.

Ground 1 – Erroneous assessment of objective seriousness leading to manifest inadequacy

77. Section 91D provides:

“Promoting or engaging in acts of child prostitution

(1) Any person who:

(a) by any means, causes or induces a child to participate in an act of child prostitution, or

(b) participates as a client with a child in an act of child prostitution,

is liable to imprisonment for 10 years or, if the child is under the age of 14 years, to imprisonment for 14 years.

(2) (Repealed)

(3) The consent of a child is not a defence to a charge relating to an offence under this section.”

78. Section 91C provides a definition of “Act of child prostitution” as follows”

“Definitions

For the purposes of this Division:

act of child prostitution means any sexual service, whether or not involving an indecent act:

(a) that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person), and

(b) that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child,

and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse (as defined in section 61H) for payment or masturbation committed by one person on another for payment, engaged in by a child.

child means a person who is under the age of 18 years.”

79. Thus it can be seen that the criminality covered by the offence ranges from any service, whether or not involving an indecent act, for the payment of money aimed at the “sexual arousal or sexual gratification” of an adult, through to an act of sexual intercourse. The section refers to “any sexual service” rather than any specific act and the offence is described as “an act of child prostitution”. In relation to counts 2, 3 and 4 in this matter, two separate acts of sexual intercourse were relied upon in relation to each single count contrary to s 91D(1)(b) of the Crimes Act. This is to be contrasted with the fact that specific sexual acts are to be charged separately when sexual assault offences under the Crimes Act are charged.

80. Section 91D was introduced into the Crimes Act by the Crimes (Child Prostitution) Amendment Act 1988 (NSW). In the Second Reading Speech introducing the amendment (in the Legislative Assembly on 10 November 1988), the then Attorney-General, John Dowd AO QC, said this concerning the offence:

“The object of the bills is to provide a package of legislative reforms that will assist authorities to take positive action to stamp out the exploitation of children for pornography and prostitution. It is essential to prosecute the perpetrators of these offences while ensuring that adequate care and protection is afforded to children at risk. To achieve this, significant amendments are made to three Acts. The most significant achievement brought about by this package of legislation is the creation of a number of new offences designed to effectively combat the insidious industry of child prostitution and child pornography, which in the past few years has reached alarming proportions. There are currently a large number of offences in the Crimes Act 1900 proscribing sexual activity with children. However, until now the commercial use of children for the purposes of pornography and prostitution has not been adequately outlawed. These new amendments will allow police to take effective action against those who profit from the exploitation of children as well as those who use children for their own sexual gratification. For the purposes of these amendments a child is defined as a person under the age of 18 years, which, of course, is the definition in the various pieces of child welfare legislation and that fact, of itself, creates terrible problems because of the range of ages involved.”

81. Section 91D(1)(a) creates the offence of causing or inducing a child to participate in an act of child prostitution whereas s 91D(1)(b) criminalises the conduct of participating as a client in an act of child prostitution. The section is clearly aimed at both those who profit from the exploitation of children (referred to at the hearing by the colloquial expression “pimp”) as well as those clients who use children for their own sexual gratification.

82. It is to be noted that there is very little judicial consideration of the factors relevant to an assessment of the objective seriousness of an offence contrary to s 91D(1)(b) of the Crimes Act. This is no doubt because it is not an offence which is regularly prosecuted. The Judicial Commission Research System records a total of only six sentences imposed between January 2008 and March 2017. Although there have been a number of decisions of this Court concerning s 91D(1)(a) of the Crimes Act, I have not found them to be of assistance in ascertaining the factors relevant to an assessment of objective seriousness for an offence contrary to s 91D(1)(b) of the Crimes Act.

83. In R v Romano [2004] NSWCCA 380, the offender had pleaded guilty to a number of offences contrary to s 91D(1)(a) arising out of his actions in inducing two children, aged thirteen and fifteen years respectively, to participate in acts of child prostitution. The children would then provide the money earned to him. He subsequently solicited an undercover police officer to injure or kidnap the girls in order to prevent them from giving evidence against him. That conduct was far removed from the present case and is of no current assistance. Glover v R [2016] NSWCCA 316 was also concerned with offences contrary to s 91D(1)(a) as was R v A [2003] NSWCCA 157. Section 91D(1)(a) was also briefly considered in R v JF [2017] NSWCCA 217. That was a Crown appeal in which one count contrary to s 91D(1)(a) was charged in the context of 20 other sexual offences charged under the Crimes Act, including an offence contrary to s 66EB(2) of procuring a child for unlawful sexual activity.

84. In Salvatore v R [2009] NSWCCA 104, the offender had been charged with both an offence under s 66C and s 91D(1)(b) of the Crimes Act. The applicant was aged 23 and the complainant was 15. After the applicant had sexual intercourse with the complainant, he coerced her to have sexual intercourse with another man for money. On re-sentence he received a sentence of four years and 10 months with an overall minimum period in custody of three years for both counts. Howie J (with whom Grove and Buddin JJ agreed) observed the following in relation to a submission that the maximum penalty of 10 years is prescribed for the worst case of conduct falling under s 91D(1)(b) and not for the offence with which the applicant was charged under s 91D(1)(a) (at [21]):

“This argument fails because I do not accept that conduct falling under s 91D(1)(a) is necessarily less serious than conduct falling under s 91D(1)(b). No doubt some conduct falling within the second category will be more serious than some conduct falling within the first category. There will be cases where the conduct of the offender is worse than that of the applicant because, for example, the child might be younger than the complainant. But to induce a child to participate in an act of prostitution in what was to be a course of conduct on the public streets and where the child is unwilling and distressed by it, seems to me to be considerably more serious than an isolated act of intercourse by a client. This was in my view a serious instance of an offence under s 91D(1)(a)”.

85. In his sentencing remarks, Conlon SC DCJ stated that he respectfully agreed with the observations of Solomon DCJ when sentencing the Garner sisters that “a mature pimp who exploits children in prostitution for his own financial gain would fall into the above midrange category of offenders.” I do not consider that his Honour meant by these words to state as a proposition of general application that an offence contrary to s 91D(1)(a) is necessarily more serious than an offence under s 91D(1)(b). Although it is to be accepted that, in a given case, the circumstances of a “mature pimp” exploiting children for financial gain may well lead to a finding of objective seriousness of “above midrange,” that does not mean that the objective seriousness of an offence such as that committed by the respondent would necessarily fall below such a finding. It will depend on a consideration of the facts of each individual case.

86. Although it is to be accepted that it is the pimp who receives the monetary gain through the sexual exploitation of the child, it is the client who performs the sexual act. It is uncontroversial to observe that, without clients willing to have sexual intercourse with children, there would be no opportunity to exploit the children for financial gain.

87. It seems to me that another factor relevant to the assessment of the objective seriousness of an offence contrary to s 91D(1)(b) is the degree of planning. An offence where the offender was motivated to specifically seek out children as prostitutes may point to a finding of greater objective seriousness than one in which the offender did not seek out a child under the age 18 years. Again, this factor would not be determinative. Each case is to be assessed on its particular facts.

88. In the present matter, the respondent relied upon a “defence” of honest and reasonable mistake of fact at his trial. He gave evidence to the effect that he honestly believed on reasonable grounds that each of the prostitutes were over the age of 18 years. In addition, he denied that counts 1, 2, 4 and 5 occurred at all. The onus was on the Crown at his trial to prove beyond reasonable doubt that the respondent engaged in the sexual services alleged and that he did not honestly and reasonably hold the belief that they were all over the age of 18 years: CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 at [135]. The Crown clearly discharged this onus.

89. Consistent with the jury’s verdict, it would have been open to the sentencing judge to have sentenced the respondent either on the basis that the respondent knew that the complainants were 18 years or over, or on the basis that although he believed them to be over 18 years, he did not do so on reasonable grounds: see R v Toma at [13]. Although his Honour did not expressly make any finding on this point in his assessment of objective seriousness, he later observed that:

“…I rather feel that his denial about his knowledge of the girls being under 18 has more to do with embarrassment and humiliation of making such an admission to his family. Indeed, having sat through the trial I rather thought that that’s why the matter had proceeded to trial. He was unable to admit his knowledge to his family that he knew those girls were of that age.”

90. It is to be inferred that his Honour sentenced the respondent on the basis that he knew that the children were all under the age of 18 years. As stated above, his Honour was also satisfied that the respondent’s conduct was to be contrasted with “a person who was out soliciting or hunting for young underage girls.” It seems to me that other matters relevant to the assessment of objective seriousness would include the particular form of sexual service, the frequency of the offending, the number of complainants and the age of the child.

91. It is in the context of these general observations as to the factors relevant to the assessment of the objective seriousness of any offence contrary to s 91D(1) of the Crimes Act that I turn to consider ground one.

92. As Simpson J (as her Honour then was) observed in Mulato v R [2006] NSWCCA 282 at [46], the assessment of the objective seriousness of an offence is “quintessentially for the sentencing judge” as it is an “exercise of an evaluative process akin to fact finding or the exercise of a discretion.” A finding regarding objective seriousness can only be reviewed on the principles stated in House v The King. That is, the Crown needs to establish that it was not open for the sentencing judge to have found that the objective seriousness for all of the offences, including count 5, was “below midrange and possibly towards the lower end of the range.” I note in this regard that it was not necessary for his Honour to make a finding as to precisely where on the spectrum of offending the five offences lay. In Sharma v R [2017] NSWCCA 85, RA Hulme J (with whom Beazley P and Walton J agreed) stated (at [63]-[64]):

“There is no requirement for a sentencing judge to rank the objective seriousness of the offences on a scale; rather, the requirement is that a judge "identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed": Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29].”

93. His Honour assessed the objective seriousness of count 5, as with the other four counts, as being “possibly towards the lower end of the range.” It is not entirely clear to me whether by this finding his Honour was in fact satisfied that the offences were towards the lower end of the range or his Honour merely raised it as a possibility in relation to which he had no firm conclusion. I will consider this ground on the basis that it is open to infer from this finding that his Honour did in fact assess the objective seriousness of these offences (including count 5) as being “towards the lower end of the range.”

94. The sentencing judge characterised the events as “sporadic opportunistic acts with three different victims over a period of time rather than long term continuous offending in respect of underage girls.” The Crown took issue with this finding. It was submitted that the respondent was a serial user of underage prostitutes that he accessed through the Garner sisters and thus his actions could not be considered opportunistic. He accessed the child prostitutes in the same way as he accessed the adult prostitutes. By characterising the conduct as opportunistic, its seriousness was said to be minimised.

95. It is not entirely clear to me what his Honour meant by the word “opportunistic” in this context. If his Honour meant that the respondent did not specifically seek out children to have sexual intercourse with them, I see no error in that regard. Similarly, if his Honour meant that the Garner sisters offered him prostitutes who just happened to be underage, rather than any request being made for them (as was submitted by the respondent’s counsel at the sentencing hearing), then again, I am not satisfied that there is error.

96. Putting to one side the classification of the offences as “opportunistic”, I am similarly not satisfied that it was inaccurate to describe the offences as sporadic. It is to be accepted that minds may differ as to whether five sexual acts over 19 months could be described as “sporadic” rather than “continuous” but I am not satisfied that error is established in relation to the use of that word by his Honour.

97. Another error relied upon by the Crown arises from his Honour’s statement that none of the acts involved any mistreatment or other degrading behaviour towards the complainants and that there was no coercive conduct on the part of the respondent. It was submitted on behalf of the Crown that the absence of an aggravating factor does not mitigate the sentence. The respondent relied upon a number of decisions of this Court in which the contrary proposition is to be found: Mitten v R [2009] NSWCCA 103 (at [29]); R v AEM [2002] NSWCCA 58 (at [51]); Pasoski v R [2014] NSWCCA 309; Chamseddine v R [2017] NSWCCA 176 (at [58]); and R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434, in which Simpson J (as her Honour then was) said (at [25]):

“Other appropriate areas of inquiry in the consideration of the objective seriousness of a s66A offence are, for example, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim’s compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim.”

98. It is to be accepted that the degree of “coercion” in an allegation of child sexual assault may well bear upon the assessment of the objective gravity of the offence but it is another thing entirely to view it as a mitigating factor in a charge of child prostitution. The criminal conduct to which s 91D(1)(b) is directed is not the sexual assault of a child per se, rather, it criminalises the sexual exploitation of children for financial gain. In R v Toma, the sentencing judge also found the offences to be at the bottom of the range because, inter alia, the victim appeared willing. I adopt the observations of White JA in that decision at [18] concerning that finding as follows:

“The primary judge’s finding that so far as Mr Toma was concerned, BE had willingly participated in having sexual intercourse with him, does not put the offence at the bottom of the range. The offence under s 91D is directed against child prostitution. If a child prostitute appeared to the client to be unwilling, that would be an element of aggravation. It is not a mitigating factor that a child prostitute evinces willingness to provide her sexual services. I think it can be assumed that in many cases a prostitute would appear to be willing. That should not put the offending towards the bottom of the range.”

99. His Honour did not expressly state that he regarded the fact that “[n]one of the acts involved any mistreatment or other degrading behaviour towards the complainants” and that “[t]here was no coercive conduct on his part to induce them to have sex for money” as matters reducing their objective seriousness. However, it is pertinent to note that had the respondent procured the sexual intercourse of the children by coercion, such that a lack of consent was clearly established, he would likely have been charged with a more serious offence with a different maximum penalty, such as s 61J of the Crimes Act, which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

100. In R v CTG [2017] NSWCCA 163, Hoeben CJ at CL (with whom RA Hulme and Wilson JJ agreed) had this to say on this issue of reliance upon a lack of aggravating features to mitigate a sentence (at [60]-[63]):

“The two propositions relied upon by the Crown are indicative of error on his Honour’s part. It was not appropriate for his Honour to take into account the absence of actual bodily harm and the absence of force and coercion as matters in mitigation of the offending so as to impact directly upon an assessment of objective seriousness.

If there were any doubt on that issue, it was clarified in such decisions as Bravo v R [2015] NSWCCA 302 and Mills v R [2017] NSWCCA 87).

In Bravo v R, R A Hulme J (Beazley P and Johnson J agreeing) said:

‘45 …Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, “the offence is less serious because it could have been more serious”. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452:

“[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.”’

In Mills v R, R A Hulme J (Leeming JA and Beech-Jones agreeing), in addition to referring again to Grove J’s statement in Saddler, said:

’57 Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], “In plain language, it does not make what has been done by an offender less serious because it could have been worse.’”

101. Although his Honour did not expressly state that he found these factors to be mitigating, given his finding that these offences were “possibly” towards the lower end of objective seriousness, I am satisfied that his Honour placed undue emphasis on these factors in his overall assessment of their objective seriousness.

102. Conlon SC DCJ went on to find that, “[i]n my view the different forms of sexual intercourse had, is of no consequence in the sentencing exercise for offences under s 91D.” It is to be accepted, as was submitted by the respondent, that the particular type of sexual intercourse is not determinative of the objective seriousness of any particular offence when the allegation is one of sexual intercourse. The relevant principles were stated by RA Hulme J (with whom Leeming JA and Johnson J agreed) in R v Van Ryn [2016] NSWCCA 1 at [252] as follows:

“The nature of the sexual intercourse is very relevant to the assessment of objective seriousness although there is no rigid hierarchy of seriousness of different forms of intercourse: R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [97]. However in sentencing in sexual assault cases, generally the form of intercourse is not determinative; it is necessary to look at all of the relevant circumstances: Simpson v R [2014] NSWCCA 23 at [30].”

103. Again, it is important not to lose sight of the fact that the respondent was not charged with having sexual intercourse with any of the three children. Rather, he was charged with engaging as a client in acts of child prostitution with them. Section 91C of the Crimes Act defines an act of child prostitution broadly so as to include activity far less objectively serious than an act of sexual intercourse. As stated above, the definition of an “act of child prostitution” is of wide scope. In relation to counts 1 and 5, the “sexual service” was an act of penile-vaginal intercourse with a child. In relation to counts 2, 3 and 4, the “sexual service” in fact included two acts of sexual intercourse within the meaning of the Crimes Act on each occasion: an act each of cunnilingus and an act of fellatio.

104. The fact that the conduct captured by s 91D encompasses all forms of sexual services ranging from conduct that does not even amount to an indecent act (but is done for sexual arousal), through to penetrative sexual intercourse, is a relevant matter to consider in the assessment of the objective circumstances, although clearly it is not determinative. His Honour does not appear to have had regard to the breadth of the definition of “sexual service” in s 91C of the Crimes Act, nor to the fact that multiple acts were included in counts 2, 3 and 4. It seems to me that in this regard, contrary to his Honour’s finding, the type of sexual service provided was a relevant factor when assessing the objective seriousness of the offending.

105. Finally, his Honour appears to have made the same finding of objective seriousness in relation to all five counts when he found that as far as “each offence” is concerned “it falls below midrange and possibly towards the lower end of the range.” Although he gave an indicative sentence of 18 months’ imprisonment for count 5 and indicative sentences of 15 months’ imprisonment for counts 1 to 4, that reflects the increased maximum penalty for count 5. I am satisfied that count 5 was objectively more serious than the other four counts. The facts in relation to count 5 were that the 12-year-old child put a pillow on her face as the respondent tried to kiss her and she gave evidence that “it made me feel sick and I was crying.” Furthermore, the penile-vaginal intercourse lasted for about 20 minutes.

106. Overall, I am satisfied that a finding of “below midrange and possibly towards the lower end of the range” was not open on the evidence before his Honour.

Ground 2 – Manifest inadequacy

107. Turning to the question of whether the aggregate sentence imposed was manifestly inadequate in the sense of being unreasonable or plainly unjust, the Crown relied upon three matters in support of this claim: an erroneously lenient non-parole period; error in the approach to the respondent’s prospects of rehabilitation; and failure to give weight to the principle of general deterrence.

108. First, it was submitted that the finding of special circumstances to produce an overall ratio between the non-parole period and the head sentence of 47% was unjustifiably lenient. The basis of finding special circumstances was that the respondent was 57 years of age at the time of sentencing. It was submitted by the Crown that it was not open for his Honour to make a finding of special circumstances but, even if there was, such a finding did not warrant the variation of the statutory ratio to such a significant extent.

109. As Spiegelman CJ remarked in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73] with respect to the discretionary decision by a sentencing judge to find special circumstances under s 44 (2) of the Sentencing Act:

“As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.”

110. This was the respondent’s first time in custody. Although, as was submitted on behalf of the respondent, there is authority for the proposition that an offender’s first time in custody may be a factor relevant to a finding of special circumstances, there are also decisions of this Court in which doubt has been expressed in that regard: Clarke v R [2009] NSWCCA 49 at [12] and Collier v R [2012] NSWCCA 213 at [36].

111. I am satisfied that it was open to his Honour to make a finding of special circumstances in this matter but the question is whether the extent of the departure from the statutory ratio between the non-parole period and the balance of term is such that the non-parole period was reduced below the minimum term which justice required the offender to serve in order to reflect all of the circumstances of the offence: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 629.

112. It was also submitted that the sentencing judge erred in his approach to the question of rehabilitation. The decision of Basten JA in Elyard v R (2006) 45 MCR 402; [2006] NSWCCA 43 was relied upon in support of this contention and in particular the principles enunciated at [19]. In terms of assessing the respondent’s prospects of rehabilitation, the material before his Honour showed that the respondent had pleaded not guilty, had denied some of the offences and had denied knowing the girls were under 18. His insight into his offending could not be fully explored with the author of the pre-sentence report because of his denial of the offending. Furthermore, the evidence of the psychologist did not address the question of whether the respondent was attracted to underage girls as he considered that to be outside the scope of his assessment. Despite this, the respondent was assessed as presenting a medium to low risk of re-offending. It is noted that following the respondent’s arrest on 22 May 2012, he had not come under any adverse notice - a period during which the respondent was on strict bail conditions.

113. It was in the context of this material that his Honour concluded that the respondent was unlikely to ever re-offend and had rehabilitated. It was also in this context that his Honour observed that the reason the respondent denied the offences had more to do with the embarrassment and humiliation of making such an admission to his family than anything else.

114. I have had regard to the material available to his Honour to make the evaluative judgement regarding the prospects of the respondent’s rehabilitation. Although it seems to me that his Honour’s conclusion regarding the respondent’s rehabilitation was a somewhat generous one, I am not satisfied that error is disclosed in this regard.

115. The third factor relied upon by the Crown as a possible explanation for the sentence being manifestly inadequate was the failure by his Honour to have regard to the need for general deterrence in such matters. Although his Honour stated that he had had regard to the purposes of sentencing in s 3A of the Sentencing Act, as this Court has observed on numerous occasions, a simple statement to that effect will not always be sufficient to discharge the obligation to ensure that the need for general deterrence in a particular case has been adequately addressed. I am satisfied that the aggregate sentence imposed does not adequately meet the strong need for general deterrence in relation to the offence of child prostitution and I am fortified in this conclusion by the absence of any specific reference to that particular purpose of sentencing by his Honour.

116. Finally, I have had regard to the indicative sentences identified by his Honour. Although an appeal lies against the aggregate sentence and not the indicative sentences, it is uncontroversial that the indicative sentences may be a guide as to whether error is established in relation to the aggregate sentence: see JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]. Conlon SC DCJ noted the indicative sentences as being 15 months imprisonment for each of counts 1 to 4 and 18 months imprisonment for count 5. It seems to me that these indicative sentences are so low as to suggest a possible basis for error in the aggregate sentence, and in particular, the indicative sentence of 18 months imprisonment for count 5 against which a maximum penalty of 14 years exists.

117. I have had regard to the respondent’s subjective features which I have summarised above at [44]-[52]. Taking into account those factors in the instinctive synthesis required in the sentencing process, I am satisfied that the aggregate sentence imposed on the applicant is manifestly inadequate.

Residual discretion

118. Error has been established. The next question is whether this Court should exercise its residual discretion under s 5D of the Criminal Appeal Act not to intervene and re-sentence the respondent. It is for the Crown to persuade the Court that it should intervene: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.

119. There was no delay by the Crown in bringing this appeal. The respondent was sentenced on 19 October 2017 and the notice of appeal was signed by the Deputy Director of Public Prosecutions on 31 October 2017. The notice of appeal was served on the respondent on 2 November 2017. There was, however, significant delay between the respondent being charged in this matter on 22 May 2012 and being sentenced on 19 October 2017. It is to be accepted that the delay from August 2016 was caused by the conduct of the respondent in sacking his legal representatives on four separate occasions. I have set out the procedural history of the matter above at [32]-[34]. The delay prior to August 2016 cannot be attributed to any fault on the part of the respondent.

120. There was no affidavit evidence before the court regarding any anxiety and/or distress to which the respondent has been subjected upon hearing of the Crown appeal in this matter. There was, however, an updated psychologist’s report addressing matters pertaining to the respondent’s subjective features since he was sentenced, as described at [128] below. Relevant to the exercise of the residual discretion, Mr Jones noted that the respondent has been experiencing fatigue, anxiety and depression (diagnosing him with Major Depressive Disorder) and that, while he had initially begun to adjust to the idea of being released from custody in January 2019, he is aware of the implications of a successful Crown appeal.

121. In addition to the report by Mr Jones, the only other matters relied upon by the respondent relevant to the exercise of the residual discretion were the fact that the respondent had been working whilst in custody.

122. I have had regard to the decision of R v Toma which was also delivered today. Although this Court found the sentence imposed upon Mr Toma to be manifestly inadequate, the residual discretion was exercised by the Court in that matter and the appeal was dismissed. It seems to me that the discretionary factors militating against interfering in that matter differ from those in the present appeal for the reasons set out by White JA at [43]-[47] in R v Toma.

123. The Crown submitted that the sentence imposed in this case fails both to reflect the criminality of the respondent’s offending and to address the need for general deterrence. Although the primary purpose of Crown appeals is to guide sentencing courts, it is to be accepted that the sentence in fact imposed in a given case remains important: R v O’Connor (2014) 239 A Crim R 487; [2014] NSWCCA 53 at [88].

124. Even having regard to the delay between the charging and sentencing of the respondent in this matter, I am satisfied that the Crown has discharged his onus of establishing that this is an appropriate matter in which this Court would intervene to re-sentence the respondent.

Re-sentence

125. In assessing the objective seriousness of the respondent’s offending I have had regard to the following features: there were three complainants; the three complainants were all well below the statutory age of 18 at which prostitution becomes legal; the five offences involved the exploitation of young girls in circumstances where the respondent took advantage of their troubled circumstances and vulnerability; in relation to counts 2 to 4, there were multiple occasions and multiple sexual acts performed on each occasion; count 5 involved full penile-vaginal penetration of a 12-year-old for a duration of 20 minutes during which time the complainant was crying. I have also had regard to the fact that the respondent continues to deny any wrongdoing and has expressed no remorse. The sentence to be imposed on the respondent must reflect the need for general deterrence in matters such as this.

126. As I have already indicated, I am satisfied that these five counts, and in particular count 5, cannot be considered to be towards the lower end of the range of offences contrary to s 91D of the Crimes Act, as was found by his honour. The offences are all objectively serious examples of the offence of child prostitution.

127. I have had regard to all of the respondent’s subjective matters (set out above at [44]-[52]) as well as to the material contained in the additional report of Mr Jones (dated 12 February 2018) relied upon by the respondent in the event of re-sentence. At the respondent’s proceedings on sentence, Mr Jones opined that the respondent was suffering from poor sleep, anxiety and a depressed mood, qualifying that these symptoms were consistent with those commonly found in persons facing an upcoming sentencing date. Mr Jones also opined that the respondent was not suffering from any mental disorders.

128. Mr Jones states in his updated report that he saw the respondent on 12 February 2018. He described the respondent as having developed symptoms of “persistent sadness, inability to derive pleasure even from activities that he previously enjoyed in prison, fatigue, poor sleep, marked weight loss… slowed movement and speech and feelings of guilt.” Mr Jones observed the respondent crying on several occasions during his assessment, which he had not done on the earlier occasion. Testing on various clinical scales generated results consistent with depression. Ultimately, Mr Jones diagnosed the respondent with Major Depressive Disorder. This was not his diagnosis in October 2017.

129. The sentencing judge found special circumstances based solely on the applicant’s age and varied the statutory ratio such that the non-parole period was 47% of the head sentence. I have given consideration to the question of whether a finding of special circumstances should be found on re-sentence. On balance, I am satisfied that the combination of his age, the fact that it is his first time in custody and the matters raised in the updated report of Mr Jones are sufficient to warrant the same finding, albeit I do not propose a departure from the statutory ratio of the magnitude applied by the sentencing judge. I also propose to adopt his Honour’s finding regarding the respondent’s rehabilitation. I have also had regard to the fact that the respondent was on strict bail conditions for five years between arrest and sentence.

130. As the sentencing judge correctly held, no parity issues arise in relation to the Garner sisters nor in relation to the co-accused, Mr Weger. The parity principle has no application in this case due to the highly disparate circumstances of offending perpetrated by the various co-offenders. Adrienne and Thalia Garner, who respectively received 8 years imprisonment with a non-parole period of 4 years and 11 months and 6 years and 10 months imprisonment with a non-parole period of 4 years, had a much higher role in organising, operating and profiting from the child prostitution syndicate. In addition, Adrienne Garner received a 40% discount for her plea and assistance and Thalia Garner received a 20% discount for her plea of guilty.

131. Mr Weger, who pleaded guilty in relation to two counts under s 91D(1)(b) with two additional counts heard on a Form 1, received three years imprisonment with a non-parole period of 2 years and 3 months after allowing a 15% discount for an early plea. Mr Toma was found guilty of two counts under s 91D(1)(b) in relation to a 14-year old (approaching her 15th birthday). He received an aggregate sentence of 18 months imprisonment to be served by way of an intensive correction order: see R v Toma.

132. Finally, I have had regard to the submission made on behalf of the respondent that, even if error was established in this matter, the Court would not intervene because to do so would give rise to a justifiable sense of grievance in relation to the sentencing of the co-offender Mr Toma. There are distinguishing features as between the two offenders. Mr Toma was only charged in relation to one child who was nearly 15 years of age whereas the respondent was charged in relation to three separate children, one of whom was only 12 years of age. None of the delay in Mr Toma’s case was of his own doing whereas the same could not be said for the respondent. This Court has found the sentence imposed on Mr Toma was manifestly inadequate but exercised the residual discretion not to interfere. As stated above, the matters going to the exercise of the residual discretion in that matter differed as between the two cases.

133. Although I am satisfied that principles of parity do not strictly apply in this matter, I have had regard to the unusual feature in this case that a person charged with similar, albeit less serious, matters did not have his sentence increased today whereas this respondent did. However, having regard to all the matters to which I have referred, I consider that the respondent should be re-sentenced to an aggregate term of imprisonment of a non-parole period of 3 years, with a balance of term of 2 years. I propose indicative sentences as follows:

1. Count 1 - Two years

2. Count 2 – Two years and three months

3. Count 3 - Two years and three months

4. Count 4 - Two years and three months

5. Count 5 - Three years

134. The total effective sentence will be imprisonment for 5 years.

Proposed orders

135. Accordingly, I would propose the following orders:

1. The Crown appeal concerning Grounds 1 and 2 is allowed.

2. The aggregate sentence imposed by Conlon SC DCJ on 19 October 2017 is quashed.

3. In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) with a non-parole period of three years commencing on 6 May 2017 and expiring on 5 May 2020 and a balance of term of two years to expire on 5 May 2022.

Decision last updated: 23 March 2018