Antonio SALVATORE v R [2009] NSWCCA 104

New South Wales Court of Criminal Appeal

CITATION: Antonio SALVATORE v R [2009] NSWCCA 104

HEARING DATE(S): 06/04/2009

JUDGMENT DATE: 15 April 2009

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

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

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

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

CATEGORY: Principal judgment

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

PARTIES: Antonio Salvatore v Regina

FILE NUMBER(S): CCA 2007/5675

COUNSEL: D Arnott SC - Crown A Francis - Applicant

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

LOWER COURT JURISDICTION: District Court

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

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 02/11/2007

IN THE COURT OF CRIMINAL APPEAL 2007/00005675

GROVE J HOWIE J BUDDIN J

WEDNESDAY 15 APRIL 2009 Antonio SALVATORE v R Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: The applicant was committed for trial to the District Court on charges relating to his sexual relationship with a fifteen year old girl. He eventually pleaded guilty to a charge of inducing the child, KF, to participate in an act of child prostitution contrary to s 91D(1)(a) of the Crimes Act, and an offence of having sexual intercourse with a child between the age of 14 and 16 years, contrary to s 66C(3) of that Act. The first offence carries a maximum penalty of imprisonment for 10 years and the latter a maximum penalty of imprisonment for 8 years. He also asked the sentencing Judge (Finnane DCJ) to take into account four offences of having sexual intercourse with the child on a Form 1. 3 On 2 November 2007 the Judge sentenced him on the first charge to a total term of 5 years and 7 months with a non-parole period of 3 years to date from 23 August 2007. On the second charge and taking into account the matters on the Form 1 he was sentenced to a total term of 3 years imprisonment with a non-parole period of 1 year to date from 23 August 2010. The applicant is to be released to parole on 22 August 2011. The effective sentence is 6 years with an overall minimum period to be served of 4 years. 4 The facts can be briefly stated. On 17 April 2002 the complainant, then aged 15 years 11 months, went missing from her home after an argument with her mother. She met up with the applicant with whom she had been in contact for about a month via telephone calls and text messages. They had intercourse that night giving rise to the first charge on the Form 1. The applicant persuaded her, after she initially refused his request, to work for him as a prostitute. The applicant arranged for a friend to drive them to Canterbury Road where she was left alone. However, shortly after she arrived, police spoke to her. They telephoned the applicant but he hung up the phone. They then drove her to a railway station where she again made contact with the applicant. 5 She was then driven to Kings Cross. She was distressed and refused to prostitute herself, but the applicant begged her to do so for money to buy food. She was taken to a street while the applicant waited a short distance away. He had advised her of what the payment should be depending upon the type of service she gave. The complainant had sex in an alleyway with one man and gave the applicant the $100 she was paid. She and the applicant again had intercourse that evening. This act gave rise to the second charge on the indictment. The other three matters on the Form 1 included two acts of fellatio performed upon the applicant and an act of anal intercourse. There was another time when she was taken to prostitute herself, but on this occasion she only talked to the person for which she was paid $50. 6 The complainant returned home to her mother on 25 April 2002. The police were informed about the applicant's conduct but he left the State in December of that year. He was eventually arrested on 27 April 2006 in Perth. 7 The applicant was aged 23 at the time of the offences. His parents separated when he was aged 12 months and he had no further contact with his father. He had a disturbed relationship with his mother and eventually he was placed into the care of his grandmother in 1986. His mother resumed custody in 1990 but shortly thereafter the applicant was made a ward of the state. He was placed in foster care but that proved unsuccessful and he was put into a home. He was unable to establish a stable living environment and led what the Probation and Parole Officer described as "an almost nomadic existence rotating amongst refuges, relatives and foster care". 8 The applicant went to Western Australia in 2002 and met a person there whom he later married. His wife came with him to this State when he was extradited to face the current matters. He had not been able to find employment since returning to Sydney but his wife had. They intend to return to Western Australia when they are able to do so. The applicant had started a business importing car parts, but that failed after he came to this State. The couple sold their house in Perth to pay for legal representation but they were in debt. 9 A psychological report prepared by the Department of Corrective Services refers to the applicant's concern about the negative impact of these matters upon the life he had established in Perth. He was reported to have limited acceptance of responsibility for the offences. However another psychologist reported that the applicant had regret and remorse for his offending conduct. 10 The applicant has a criminal record commencing in 1994. He has convictions for mainly dishonesty offences. A sentence of periodic detention imposed in 2000 for breaking and entering was converted to full-time custody in 2001. The applicant had not been charged with any offences since leaving New South Wales. 11 The applicant gave evidence stating that he had gone to Perth to remove himself "from all the bad elements" in Sydney and for "self reflection". He said that he persuaded the complainant to prostitute herself out of necessity as he had recently been released from gaol. His wife gave evidence that her family supported the applicant. 12 The first ground of appeal complains that the Judge made findings of fact concerning the harm occasioned to the complainant that was not supported by the evidence. The second ground is that the Judge breached the De Simoni principle by taking into account conduct that would amount to a more serious offence. Both of these complaints arise from the following part of the Judge's sentencing remarks. The first ground relates to the first passage underlined and the second ground the second marked passage.

Without wanting to sound pompous, it seems to me that one of the principal aims of the law is to protect the weak and another aim is to punish those who injure the weak. A child of fifteen years and eleven months, who appears to be having family problems and leaves home is a particularly weak and vulnerable person. On the objective facts before me, he took advantage of this weak vulnerable child. Having sex with a child of that age was and is a criminal offence and he knew it and the facts in this case mean that he has admitted having it on five separate occasions. He has had vaginal sex, oral sex and anal sex with this girl. That I think is pretty bad; he was an adult, he was nearly twenty-four. He may have had a bad life as a child, but that is no reason at all to punish other children, to make their lives miserable, merely because he had had a miserable life and conduct such as that almost always results in lifetime psychological damage for the young girl victim . I have no information about her, apart from her name which I have suppressed, but it would seem to me probable that she would, as a result of these experiences, go through life feeling extremely inferior, wondering why it was that she was treated so badly and exploited so much. What was it about her that said that she was available for that sort of treatment?

However, the worst thing has to be putting this child out to work in the streets of Kings Cross, having tried earlier to get her working on Canterbury Road. To place her on the streets to get money for him was first of all to expose her to great physical danger. Any man could pick her up and who knows what any man who picked her up might do. She could be attacked, she could be raped, she could be stabbed. What was there to prevent these things occurring? Although she did this, it would appear on these facts only for a short period, she was handing the money over to him, so she was working for him making nothing. She was, in reality, a sort of sexual slave .

It should be noted that there was no victim impact statement presented to the court. 13 The complaint as to the first passage underlined is that, while it was open to the Judge to have regard to the kind of emotional harm that would be expected to result from the conduct of the applicant, the comments went far beyond that which might be assumed in the absence of evidence. Further it is argued that the Judge was taking into account the aggravating factor set out in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 by finding that the complainant suffered "substantial emotional harm". 14 I doubt whether it was open to the Judge from his general life experiences to draw the conclusion that he did about the specific psychological effect of the applicant's conduct upon the complainant. However, I would be quite prepared to find that the effect of the applicant persuading an unwilling young female to prostitute herself would be a traumatic incident that would have a considerable emotional effect upon the young person. But even if the Judge was in error in that regard, it does not seem to me to amount to such an error that it affected his sentencing discretion. To a very significant extent this part of his sentencing remarks were little more than musings. 15 I do not believe that he was intending to make a finding under s 21A(2)(g): he does not mention the section nor does he refer to the effect of the conduct as an aggravating factor. He makes no finding on this issue beyond reasonable doubt as he would need to do if he was determining an aggravating factor, but quite the contrary uses language that is inconsistent with such a finding. It is plain to me that the Judge is denouncing the applicant's behaviour and stressing the fact that he had no regard for the consequences of his conduct on the emotional or physical health of the complainant. 16 The applicant refers to two decisions of this Court concerned with s 21A(2)(g); R v Youkhana [2004] NSWCCA 412 and R v Solomon [2005] NSWCCA 158. They were both dealing with sentencing for armed robbery. As I pointed out in Solomon, when laying down a guideline as to the type of penalty that might be imposed for that offence, this Court had taken into account the assumed effects of the offending upon the victims of such crimes. Therefore, before taking into account the effect upon the victim of a particular robbery as an aggravating factor, there had to be a greater harm than is normally assumed and has already been factored into the sentence to be imposed. I can see nothing in those decisions that has any bearing on this case. 17 As I have already indicated, I do not believe that the Judge was taking the probable effects of the applicant's conduct upon the complainant as an aggravating factor under s 21A(2)(g) or otherwise. In any event the difference between what his Honour said and what would be the assumed effects upon the complainant do not differ so greatly as to give rise to an error affecting his discretion. I do not believe that, even had there been evidence that there had been no long-lasting psychological or emotional effect upon the complainant, that it would have been a significantly mitigating factor. The conduct itself warranted a severe sentence to denounce the conduct and deter other adults from treating young females in a similar manner. 18 The second complaint has even less merit. The submission is that the use of the expression "a sort of sex-slave" in the second of the underlined passages imported into the sentencing exercise "an irrelevant aggravating feature". I agree that the use of the expression was perhaps ill advised, and completely unnecessary but these are the only criticisms that can be made of it. The suggestion that in some way the Judge was taking into account conduct that would give rise to an offence of slavery under s 270.3 of the Criminal Code (Cth) that carries a maximum penalty of 25 years imprisonment is described benignly in the Crown's written submissions as "inventive". 19 It is obvious that the Judge was using the term in a colloquial fashion in order to reflect upon the exploitation of the complainant by the applicant. No more needs to be said to dismiss this ground of appeal. 20 Finally it is argued that the sentences are manifestly excessive. One of the contentions is that the conduct with which the applicant was charged under s 91D was less serious than other conduct that falls within the section. The argument is that the maximum penalty of 10 years is prescribed for the worst case of conduct falling under s 91D(1)(b), an offence of participating as client with a child in an act of child prostitution, and not for the offence with which the applicant was charged under s 91D(1)(a), the offence of causing or inducing a child to participate in an act of child prostitution. The decision in Ibbs v The Queen [1987] HCA 46; 163 CLR 447 is relied upon. 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 worst 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). 22 However, a sentence in the order of that imposed by his Honour might have been appropriate, although at the very top of the range, had the applicant been sentenced in 2002. But the sentence does not seem to me to take into account the very significant matter of the delay in the sentencing of the applicant for these offences and the very different person that the applicant was when sentenced by his Honour to that when he committed the offences. I understand that the Judge appreciated the importance of these matters but the sentence imposed does not in my view significantly reflect them. 23 It must be said that, even though the applicant clearly took advantage of the vulnerability of the applicant to have a sexual relationship with her, in light of her age, just short of 16, it cannot be said that the sentences imposed for the second count and the Form 1 matters showed any great leniency. The Crown before us submitted that any severity in the sentence for the first count was balanced by the leniency in the sentence imposed for the second count. I cannot accept that submission. 24 I have already indicated that I do not accept the applicant's submission that the offending in the first count should be considered to be low in the range of criminality that is embraced by offences within the section. Yet a starting sentence of 6½ years as against a maximum penalty of 10 years seems to me to be excessive having regard to the quite unusual and striking subjective factors of the applicant. Had the delay been due to his absconding then little regard could be had to it or his rehabilitation over the period of four years since the offending. But there was no suggestion that this was the case. It may be that the police could not find him to charge him before he left the jurisdiction in December 2002. But there is nothing to indicate that he was aware that he was to be charged and there was a considerable delay between the offending and his leaving the jurisdiction. 25 In my opinion the sentence for the first count is manifestly excessive notwithstanding the seriousness of the offending. There should have been a significant degree of leniency shown to the applicant because of the delay and his remarkable rehabilitation during the period. It is not apparent to me that the sentence imposed reflects that fact. Had the applicant been sentenced just for the sexual assault offences, I doubt that in all the circumstances he would have received a significant custodial sentence given the complainant's age and the delay before sentencing. The offence under s 91D(1) contained far greater criminality than the sexual assault offence even taking into account the matters on the Form 1. Although general deterrence was important it should be moderated by the delay in sentencing and the applicant's rehabilitation. I am prepared to find special circumstances as the Judge did, although I doubt that there were any apart from the accumulation of sentences. 26 Two affidavits were filed on behalf of the applicant on the basis that this Court might determine to uphold the appeal and resentence the applicant. They concern the health of the applicant. Since his incarceration he has experienced anal bleeding, constipation and abdominal pain. On 13 February 2009 the applicant had a colonoscopy. A rectal polyp was removed. The applicant believes that it was benign. The applicant has continued to suffer pain and discomfort. He says that he has not been given treatment to help him cope with the pain. 27 Counsel for the applicant accepted that the only realistic basis upon which the Court could treat this evidence was to take into account that, at least from last August, the applicant has been finding gaol more onerous because of his pain and discomfort. Although the Crown sought and was granted time to have the medical condition of the applicant fully investigated, in light of the applicant's stance on this material it is unnecessary for that to take place. 28 The starting sentence for count 1 should be 5 years discounted by 15 per cent. The starting sentence for count 3 should be a fixed term of 12 months discounted by 15 per cent. It is a fixed term because of the sentence for the first count. I intend that the applicant should serve an overall sentence of 4 years 10 months with an overall minimum period of custody of 3 years. 29 I propose the following orders:

1. Leave to appeal is granted and the appeal allowed.

2. The sentence on the third count is quashed and in lieu the applicant is sentenced (taking into account the matters on the Form 1) to a fixed term of 10 months that commenced on 23 August 2007 and that expired on 22 June 2008.

3. The sentence imposed on the first count is quashed and in lieu the applicant is sentenced to a term of imprisonment of 4 years 4 months made up of a non-parole period of 2 years 6 months and a balance of term of 1 year 10 months. The sentence commenced on 23 February 2008 and the applicant is eligible to be released to parole on 22 August 2010. 30 BUDDIN J: I agree with Howie J **********

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