R v Toma

1. [1]

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

2. [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. [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. [4]

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

5. [5]

   The primary judge made the following findings:

6. [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. [7]

   The Crown’s submissions include the following:

8. [8]

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

9. [9]

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

10. [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. [11]

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

12. [12]

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

13. [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. [14]

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

15. [15]

    The Crown challenges the primary judge’s finding that:

16. [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. [17]

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

18. [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. [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]):

20. [20]

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

21. [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. [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. [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. [24]

    The Crown submitted:

25. [25]

    I accept that submission.

26. [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.

27. [27]

    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:

28. [28]

    The Crown submitted that:

29. [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. [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. [31]

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

32. [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. [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. [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. [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. [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. [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. [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. [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. [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. [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. [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

1. [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]).

2. [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]):

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [51]

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

10. [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.

11. [53]

    I propose that the appeal be dismissed.

12. [54]

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