R v Toma

[2018] NSWCCA 45

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Toma [2018] NSWCCA 45
Hearing dates:	16 February 2018
Decision date:	23 March 2018
Before:	Hoeben CJ at CL at [1]; White JA at [2]; N Adams J at [54]
Decision:	Appeal dismissed.
Catchwords:	CRIME – Crown appeal against sentence - participating in acts of child prostitution - s 91D Crimes Act 1900 (NSW) – whether the sentencing judge erred in his assessment of the objective seriousness of the offending leading to the imposition of a sentence that was manifestly inadequate – whether the sentence was manifestly inadequate – residual discretion exercised not to resentence
Legislation Cited:	Crimes (Child Prostitution) Amendment Act 1988 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) - ss 3A(b), 7 Crimes Act 1900 (NSW) - ss 91C, 91D(1)(b) Criminal Appeal Act 1912 (NSW) - s 5D
Cases Cited:	CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 Glover v The Queen [2016] NSWCCA 316 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 R v Darwich [2018] NSWCCA 46 R v Nelson [2016] NSWCCA 130 R v O’Connor [2014] NSWCCA 53
Category:	Principal judgment
Parties:	Regina (Crown) Elia Toma (Respondent)
Representation:	Counsel: S Dowling SC (Crown) D Barrow (Respondent)   Solicitors: C Hyland – Solicitor for Public Prosecutions (Crown) M MacDonald – Nyman Gibson Miralis (Respondent)
File Number(s):	2012/165924
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 2 November 2017 Before: Blackmore DCJ File Number(s): 2012/165924

Judgment

1. HOEBEN CJ at CL: I agree with White JA and the order which he proposes.

2. WHITE JA: This is a Crown appeal against sentence brought under s 5D of the Criminal Appeal Act 1912 (NSW). On 20 June 2017 the offender, Mr Elia Toma, was found guilty of two offences under s 91D(1)(b) of the Crimes Act 1900 (NSW) that between 13 March and 14 November 2009 he participated as a client with a girl (called “BE”) under the age of 18 years, namely, 14 or 15 years, in an act of child prostitution. He pleaded not guilty. The maximum penalty for each offence was 10 years. There is no standard non-parole period applicable to the offences committed at that time.

3. On 2 November 2017 Mr Toma was sentenced by the primary judge (his Honour Judge Blackmore SC) to imprisonment for one year and eight months to be served by way of an intensive correction order (“ICO”) pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. By an amended notice of appeal filed on 22 January 2018, the Director of Public Prosecutions appeals on the grounds that:

• 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; and

• that the sentence pronounced was manifestly inadequate.

5. The primary judge made the following findings:

“The offender engaged on two occasions in sexual contact with a child. The police on investigation were of the view that the child had been acting as a prostitute. When observed by the police she was wearing heavy makeup at the time.

The offender during his trial admitted that he had had sex on one occasion with this complainant. He denied that he had intended to have sex with a child as a prostitute.

The jury’s verdict, that he did in fact have sex with a child on two occasions, must be accepted. The child was 14 years of age at the time of the offences; she was closely approaching her 15th birthday.

I am unable to find beyond reasonable doubt that the offender sought out, as opposed to having sex with, a child and the seriousness of the offences is obvious, children are entitled to the protection of the law, even when they themselves are not protecting themselves. Adults are required to act with restraint and in particular they are required to act within the law. The law prohibits sexual relations with children. No one in our community could be under any misunderstanding about that. I am satisfied that this offender was well aware of his obligation not to have sexual relations with a child even in circumstances where the child is offering herself as a prostitute. His actions do require condemnation and denunciation.”

6. It appears from the submissions of counsel who appeared for Mr Toma before the sentencing judge that “in relation to one of the offences, the offender’s defence was one of honest and reasonable mistake of fact.” According to the Crown’s submissions on appeal Mr Toma had argued at trial that the Crown had failed to rebut the possibility that he had an honest belief on reasonable grounds that when he paid for sexual services from the girl in question she was 18 years of age. The Crown submits rightly that the jury’s verdicts indicated that the jury rejected Mr Toma’s account. No doubt the reason Mr Toma argued a defence of honest belief on reasonable grounds in respect of only one of the offences was because he said he only had sexual relations with the girl on one occasion.

7. The Crown’s submissions include the following:

“The Crown Case at Trial

15.   It was the Crown case at trial that the respondent had procured the services of BE (DOB 8 June 1994) on two occasions through Adrienne Garner. On each of those occasions the respondent collected BE from a townhouse where she was staying at with Adrienne Garner. The respondent drove to a carpark near the Whitlam Centre in Liverpool, where he and BE moved to the back seat of his vehicle and engaged in penile-vaginal intercourse. The respondent then drove BE back to the townhouse and the respondent paid Adrienne Garner for BE’s services. The two incidents happened within a few weeks of each other. BE was 14 years of age in March/April of 2009 and turned 15 years old in June 2009. The respondent was aged 52 years at the time.

16.   Evidence at trial established that the two offences occurred between 14 March 2009 and the end of April 2009, that is before the complainant turned 15. His Honour found that the [complainant] was aged 14 at the date of offending.

17.   Adrienne Garner gave evidence that she had known the respondent since 2005. She gave evidence that she had organised for BE to have sex with the respondent in exchange for money. She said that the respondent came to her townhouse to collect BE, she walked BE out to his vehicle and introduced BE to him, BE entered his vehicle and they drove away. They returned later and BE handed over about $100. She gave evidence that a few weeks later a similar arrangement took place with the respondent. She gave evidence that she had told BE to say that she was 17 or 18 years of age.

The Defence Case at Trial

18.   The respondent gave evidence at trial as follows:

•   Although he was unable to recognise the complainant, he accepted that he had sex with BE on one occasion, organised by Adrienne Garner. He said that he picked up BE from a unit at Forbes Street, that she entered his vehicle, that she had worn heavy make-up, and he believed her to be over 18. He drove her to the Whitlam Centre, Memorial Avenue, where they engaged in penile-vaginal intercourse on the backseat of his vehicle. Afterwards he drover he back to the same address and paid Adrienne Garner $50.

•   The one act of sexual intercourse with BE occurred in 2011 not 2009.

•   The respondent denied there ever being a second occasion.

•   In cross-examination the respondent gave evidence that he believed BE to be over 18 ‘because she was wearing tight top, high heels, fully make up on her face, short dress.’ He asked how old she was, and BE replied ‘I’m 18’.”

8. Mr Toma did not take issue with this description of the evidence given at the trial.

9. Sections 91C and 91D of the Crimes Act provide:

“91C   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.

91D   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.”

10. It is not an element of the offence under s 91D that the accused should know, believe or suspect that the child is under the age of 18. It would be a defence to the charge that the accused honestly believed on reasonable grounds that the prostitute was not a child under the age of 18 (CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25).

11. In submissions on sentence before the primary judge, counsel for Mr Toma said:

“4.   The Offender gave evidence during the trial that the victim told him she was aged 18.

5.   The victim gave evidence during the trial:

a.   she wore makeup when she met with the accused

b.   the Offender may have asked her age but she could not remember

6.   Adrienne Garner told the victim to tell the Offender that she was aged seventeen or eighteen.

7.   Sergeant Easson saw the victim on 21 March 2009 and he formed the opinion that she was engaging in prostitution. He described her as wearing heavy makeup.

8.   There is no evidence that the Offender specifically sought a girl aged less than eighteen years.”

12. The primary judge made no finding as to whether Mr Toma asked BE her age.

13. The jury’s verdict is consistent either with the jury’s (or some members of it) not being satisfied that Mr Toma believed that BE was under the age of 18 or over, or with the jury’s (or some members of it) being satisfied that if or although he did have that belief, it was not reasonable. The primary judge was not asked to make a finding as to Mr Toma’s state of mind and his Honour did not do so. The primary judge’s statement that Mr Toma was well aware of his obligation not to have sexual relations with a child, even in circumstances where she was offering herself as a prostitute, is not to be taken as a finding that Mr Toma was aware that BE was a child. The sentence appeal must be dealt with on the basis that Mr Toma believed that BE was not under the age of 18, but did not have reasonable grounds for that belief.

14. The primary judge’s remarks on sentence were brief. Relevantly, they were as follows:

“I have read a statement from the complainant, it is not so much as a victim impact statement as a statement as to her current circumstances. I note her claims of having been forced into prostitution, however, I have not taken those views into account when assessing the objective seriousness of the offending. There is no evidence that the offender was aware of any such coercion.

The objective seriousness of the offence is also enhanced by the younger age of the complainant. Having said that, objectively these offences in my view fall towards the bottom of the range for such offending, there is only the one victim involved. Clearly that victim was, at least, as far as the offender was concerned a willing participant.

It was submitted by the Crown that there were issues of parity involved in this sentence. That submission is misconceived. Each of these offences are individual. Other sentences passed on other offenders are useful but do not in any sense amount to cases involving parity. I have read the cases that were provided by the Crown and taken them into account.

The offender himself has no prior convictions. He is a relatively old man at 61. The fact that he has no prior convictions is something that can be taken into account and can be taken into his favour. I am prepared to find that this behaviour on this occasion was out of character for him and he is entitled to some additional leniency as a result.

Having considered the facts in the case and the subjective circumstances of the offender which were contained in a comprehensive presentence report, also taking into account the fact that the offender had already spent 56 days in full-time custody I consider that a sentence to be imposed in this case is likely to be one of two years or less. Considering then options for sentencing I ordered an intensive corrections report, the report has now been returned which indicates that the offender is suitable for such an order. I note that the Crown is of the view that such an order is below that which should be available for this type of offending. I have taken the Crown’s views into account on sentence but clearly I am of a different view. I have now read the intensive corrections report and I am of the view that such a disposition is available here and I propose to make such an order.

I note that because the offender did not plead guilty he is not entitled to a discount on sentence inasmuch as I have not referred in detail to s 21A of the Crimes (Sentencing Procedure) Act and the factors outlined therein. I note that I have taken those factors into account on sentence.

I propose to impose an aggregate sentence.

In each case there will be a sentence of 15 months’ imprisonment.

Those sentences will be partially accumulated.

I specifically note that I am not backdating the sentence to take account of the presentence custody. I took the fact of the presentence custody into account when considering whether it was appropriate to order an intensive correction order.”

15. The Crown challenges the primary judge’s finding that:

“[O]bjectively these offences in my view fall towards the bottom of the range for such offending, there is only the one victim involved. Clearly that victim was, at least, as far as the offender was concerned a willing participant.”

16. The Crown argued that the primary judge erred in finding that objectively the offences fell towards the bottom of the range. Only two reasons were given for that conclusion. One was that the offences involved only one victim. The other was that to Mr Toma’s perception she was a willing participant.

17. The fact that BE was the only victim says nothing about the seriousness of the offences against BE.

18. 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.

19. R v Nelson [2016] NSWCCA 130 concerned offences under s 66C(1) and (3) of the Crimes Act of having sexual intercourse with a person under the age of 14 years and under the age of 16 years. Basten JA, with whose reasons Rothman J generally agreed, said (at [23]):

“While acknowledging that lack of consent was not an element of the offences, the sentencing judge placed some weight on the fact that the activity as described by him ‘was consensual’. [Judgment on sentence, p 11.] No doubt the use of threats or force in overcoming resistance would be an aggravating factor; however, mere lack of opposition is otherwise irrelevant. The activity was not adequately described as ‘consensual’; it might be better described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.”

20. These comments are applicable to the circumstances of the present case.

21. The Crown rightly points to other matters that indicate objectively that the offences were not at the bottom of the range for such offending. The first was that BE at the time of the offending was aged about 14 years and 10 months. Mr Toma had said that he had had sexual intercourse with BE in 2011, not in 2009. If that were so, BE would have been between 16 and 17 at the time. The indictment alleged that the offences occurred in 2009, not in 2011. The jury’s verdict established BE’s youth at the time of the offences. The sentencing judge so found.

22. There was a significant age differential between Mr Toma and the victim. At the time of the offences he was 53 or 54. I do not regard that as an aggravating factor for an offence under s 91D(1)(b).

23. The victim’s age is an aggravating factor. At the time of the offences she was not yet 15. Having regard to that factor and the nature of the sexual intercourse engaged in, that is, penile-vaginal penetration, it was not right to characterise the offences as falling towards the bottom of the range. The fact that Mr Toma did not seek out a child with whom to have sex, but was offered a child with whom to have sex, cannot indicate that the offence was at the bottom end of the range.

24. The Crown submitted:

“The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157. The younger the child the more defenceless and vulnerable they are and the more serious the offence: MLP v R [2006] NSWCCA 271 at [22]; Shannon v R [2006] NSWCCA 39 at [28]; CT v R [2017] NSWCCA 15 at [66]. Courts have long acknowledged the long-term psychological effects that such conduct can have upon a child: R v ND [2016] NSWCCA 103 at [39]. Young child victims are especially vulnerable and it is important that sentences passed recognise the harm done to the victim of the crime and take into account the ongoing effect upon a young victim: R v Gavel [2014] NSWCCA 56 at [110]-[112]. A complainant’s age is highly relevant to the assessment of the objective seriousness of the offending and the younger the age the greater the aggravation: SW v R [2013] NSWCCA 255 per Johnson J at [47].”

25. I accept that submission.

26. The DPP complains that the primary judge had no regard to one of the important purposes of sentencing, namely, to prevent crime by deterring other persons from committing similar offences (Crimes (Sentencing Procedure) Act (1999) s 3A(b)). That complaint is justified. The Crown’s submissions on sentence before the primary judge, both orally and in writing, stressed that general deterrence was a significant factor on sentences for offences involving the exploitation of children. The Crown’s written submissions before the primary judge observed that whilst Adrienne Garner was responsible for causing BE to participate in the acts of child prostitution, such acts could not occur without clients being willing to engage in sex with underage prostitutes. The Crown submitted by reference to Glover v The Queen [2016] NSWCCA 316 that the offending required the imposition of a sentence that denounced the conduct and acted to deter other adults from treating young females in a similar manner.

25. Section 91D was introduced into the Crimes Act by the Crimes (Child Prostitution) Amendment Act 1988. In the Second Reading Speech in the Legislative Assembly, the Attorney General said:

“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.”

28. The Crown submitted that:

“In enacting the offences under s 91D, in addition to the protection of children, one of the Parliament’s primary objectives was to deter the commercial use of children for prostitution and deter those who use children for their own sexual gratification.”

29. I agree with that submission. In his remarks on sentence the primary judge said that Mr Toma’s conduct required condemnation and denunciation. Neither denunciation nor general deterrence was reflected in the sentence imposed.

30. The primary judge identified the following relevant subjective circumstances relevant to the offender. First, that Mr Toma had no prior convictions. Secondly, that he was 61 years of age at the time of sentence. Thirdly, that his behaviour was out of character. It is not a ground of appeal, nor did the Crown submit, that the primary judge erred in finding that the conduct was out of character.

31. Mr Toma’s subjective case was summarised by the Crown as follows:

“23.   The respondent was aged 61 years at the date of sentence. He moved to Australia from Iraq in 1980 to be with his family. He is married and has two adult daughters. He has had employment as a security guard in the past and has performed casual work as a cleaner since his release to bail. He gave evidence that he had never used prohibited drugs. He has no prior criminal convictions.

24.   The respondent gave evidence at his sentence. He confirmed he was taken into custody on 24 May 2012 and spent just under 2 months in custody (56 days) before his release to bail. He told of suffering from high blood pressure, being treated with medication and under control. Apart from the high blood pressure he gave no further evidence of any medical or mental illnesses or conditions.

25.   The pre-sentence report of Renee Ma dated 28 August 2017 (‘PSR’) assessed the respondent to be a low risk of re-offending and stated that he would benefit from a period of supervision by Community Corrections. The respondent was assessed as suitable for a community service order.

26.   No other material was advanced in the respondent’s subjective case.

27.   The time between the date of charging and the imposition of sentence was 5 years and 3 months.”

32. This submission did not address the onerousness of Mr Toma’s conditions of bail. The bare statement that the passage of five years and three months between the date of charging and the imposition of sentence does not illuminate the pressures and restrictions to which Mr Toma was subject during the extraordinarily long period between his being charged and finally tried.

33. The offences occurred in 2009. Mr Toma was arrested on 24 May 2012. He was refused bail. He served 56 days in custody on remand. On 18 July 2012 he was granted conditional bail by the Local Court on conditions that included that he reside at his address and not leave that address unless in the company of his wife or adult daughter, and that he report to the police daily.

34. On 12 December 2012 the bail conditions were varied in that Mr Toma was allowed to leave his house between 8.00am and 8.00pm for purposes of employment. Mr Toma had worked as a security guard and as a cleaner. Employment opportunities were mostly at night. He was not able to obtain employment. Because he could not get a job he did not leave the house between those hours, except in the company of his wife or one of his adult daughters.

35. On 11 September 2013 the conditions of bail were further varied permitting Mr Toma to be absent from his house between 7.00am and 6.00pm. After 6.00pm he had to be accompanied by his wife or one of his adult daughters.

36. This curfew was not lifted until 7 May 2015, almost three years after he was charged. At that time his reporting conditions were reduced to three days per week. On 16 August 2016 the bail conditions were varied to require reporting to police on Mondays and Saturdays. Mr Toma was first able to obtain work in mid 2017 as a cleaner.

37. Mr Toma said that during the period of almost five years after his arrest he sat at home doing nothing, looking for a job. He said that “But most of the cleaning jobs were at night time.” He said that he was under a lot of stress sitting at home with no income. Although not referred to in the remarks on sentence, in the course of submissions the primary judge said that “for the life of me I don’t understand the justification for the conditions that were applied in this case.” During submissions the primary judge said he would have regard to the conditions of bail and to the period of what he characterised as effective home detention in determining the sentence to be imposed.

38. The primary judge took Mr Toma’s pre-sentence custody into account in deciding that it was appropriate to make an intensive correction order.

39. Mr Toma was not responsible for any part of the delay in his case coming on for trial. It was common ground that initially Mr Toma was charged with other co-accused who were alleged to have had sexual relations with BE or other girls whose services were procured by the two Ms Garners. The first trial was scheduled to commence in September 2014. It was vacated because the Crown prosecutor was unwell. The next trial in May 2015 was also vacated. In October 2015 orders were made for separate trials of the Ms Garners and other offenders alleged to be clients of child prostitutes arranged by the Ms Garners. On 8 August 2016 the trial of Mr Darwich and Mr Toma commenced before her Honour Judge Tupman and a jury. Evidence of BE was taken at that trial. This Court was told that the trial was vacated when Mr Darwich withdrew his legal representation. Mr Toma was not responsible for that delay. Finally, the trial of Mr Toma proceeded before the primary judge on 13 June 2017.

40. The long delays in the charges being brought to trial, the 56 days spent by Mr Toma in custody, and the onerous conditions of bail, were all matters to be taken into account by the primary judge in sentencing.

41. The primary judge had regard to the victim impact statement of BE. That statement was given in respect of the charges against the Ms Garners. The primary judge said that he had not taken the views of BE into account when assessing the objective seriousness of the offending because there was no evidence that Mr Toma was aware of the coercion to which BE said she was subject at the hands of the Ms Garners. The Crown does not submit that this was erroneous. Nor was it.

42. Notwithstanding the absence of prior convictions, Mr Toma’s age, the unchallenged finding of good character, the long delays in the charges against Mr Toma being brought to trial, his period in custody before bail was granted and the onerous conditions of bail, in my view the sentence imposed was manifestly inadequate. Having regard to the maximum penalty for the offence, the fact that, contrary to the views of the sentencing judge, the offences did not fall towards the bottom of the range for such offending, and having regard to the need for general deterrence, a need to which the sentencing judge did not refer, a sentence of full-time imprisonment was warranted.

Residual discretion

43. The primary purpose of Crown appeals under s 5D is to lay down principles of sentencing to be followed by lower courts. This is a limiting purpose to be considered in deciding whether to exercise the residual discretion not to interfere with a sentence even though it is erroneously lenient. Disruption of an offender’s progress to rehabilitation is a relevant consideration in favour of exercising the discretion not to resentence (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [2] and [36]).

44. The Crown submitted that if this Court were to find that the sentence imposed on Mr Toma was manifestly inadequate, then, in the interests of general deterrence the Court should resentence Mr Toma by imposing a custodial sentence. The Crown cited the observations of Adamson J in R v O’Connor [2014] NSWCCA 53 where her Honour said (at [88]-[89]):

“[88] Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion.

[89]Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v R [2005] HCA 25 ; 228 CLR 357 at [82] per McHugh J. Another associated purpose is to prevent the community from supposing that justice could ever require the infliction of extra-curial punishment to make up for any perceived inadequacy of a sentence imposed by a court. As Lord Lane CJ said in R v Darby (1986) 8 Cr. App R (S.) 487 at 490:

… one of the objects of punishment and by no means the least important object of punishment, is to prevent, so far as possible, the victims of crime from taking matters into their own hands. It is no great step from private vengeance to vendetta, and there is no knowing where vendetta will stop.”

45. No question of specific deterrence arises in the present case. It may be taken that if a sentence imposed by a lower court is erroneously lenient, it will have failed to meet the object of general deterrence. It is the inadequacy of the sentence that provides the occasion for the Court to consider whether the residual discretion to resentence should be exercised.

46. The Crown acknowledged that the residual discretion was a major hurdle for it to overcome. The Crown did not submit in terms that it would be an affront to the administration of justice that would undermine confidence in the criminal justice system if the sentence were allowed to stand (Green v The Queen at [42]). That is not to say, that that is the only circumstance where the court may resentence. The discretion to resentence may be exercised where the Crown has established an error of principle or a gross departure from a sentencing norm that results in a manifestly inadequate sentence.

47. Mr Toma was sentenced on 2 November 2017. He gave unchallenged evidence that between the time of being sentenced and approximately 1 February 2018 he was required to report once a week to Community Corrections. He did report on every occasion he was required to do so. He deposed that on or about 1 February 2018 his case officer explained to him that because he had been attending all his appointments and had not breached anything he was required to report only once a fortnight. He said that he had co-operated with his case officer, and had provided information to him, including about how he was feeling and under what restrictions he was placed. He has employment as a cleaner, working four hours per day, seven days per week. He says that he is trying to work a lot of hours because he had not worked for so long. As part of his intensive correction order he does community service. The evidence was unchallenged. If resentenced his rehabilitation would be severely disrupted.

48. I have concluded that this is a case in which the residual discretion not to resentence should be exercised. In reaching that conclusion I take into account the period on remand, the extraordinary delays in the charges coming on for trial and the onerous conditions of the very lengthy period on which Mr Toma was on bail. I also have regard to the disruption that resentencing Mr Toma to a custodial sentence would cause to his rehabilitation. I do not think it necessary to resentence in order to provide an appropriate guideline.

49. This Court heard an appeal in the matter of R v Darwich [2018] NSWCCA 46 on the same day as this appeal. Reasons in Darwich are being handed down at the same time as these reasons. Even though Mr Darwich and Mr Toma were in no sense co-offenders, there are similarities in their cases that raise the issue of consistency in sentencing. In Darwich the offender pleaded not guilty to five counts of child prostitution. One of the counts was participating as a client with a child under the age of 18 years in an act of child prostitution where the child was under the age of 14 years. The child in question was 12 at the time. As in the case of Mr Toma, the child prostitutes were procured by the Garner sisters. Mr Darwich was given an aggregate sentence of three years and six months with a non-parole period of 20 months. The Crown appealed under s 5D in respect of that sentence. The aggregate sentence is to be increased to five years with a non-parole period of three years.

50. The offences committed by Mr Darwich were significantly more serious than those committed by Mr Toma. He was convicted of five offences involving three girls, one of 15 or 16 years of age, one of 15 years of age, and one of 12 years of age. He knew the girls were under age. The maximum penalty for the offence in respect of the 12 year old girl was 14 years. There were aggravating circumstances in Mr Darwich’s case. In particular the 12 year old girl appeared unwilling. During sexual intercourse she put a pillow on her face. She was crying and she also said she had her eyes shut. On another occasion in respect of a different girl, Mr Darwich hid when the girl’s mother came looking for her or him before resuming sexual relations.

51. The same considerations of disruption of rehabilitation do not apply in the case of Mr Darwich.

52. In my view the circumstances of the offences and of the offenders is sufficiently different to justify the exercise of the residual discretion in Mr Toma’s case not to resentence, notwithstanding the inadequacy of his sentence and notwithstanding the increased sentence to be imposed on Mr Darwich.

53. I propose that the appeal be dismissed.

54. N ADAMS J: I agree with the orders proposed by White JA for the reasons given by his Honour.

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Decision last updated: 23 March 2018