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Court of Criminal Appeal 15 April 2009

Antonio SALVATORE v R

[2009] NSWCCA 104

Sexual offences
CRIMINAL LAW SENTENCE APPEAL CHILD PROSTITUTION

Citation: Antonio Salvatore v R [2009] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 15 April 2009
Judge(s): Grove J, Howie J, Buddin J

Background

The appellant pleaded guilty in the District Court to inducing a 15-year-old girl to participate in an act of child prostitution (contrary to s 91D(1)(a) of the Crimes Act 1900) and to having sexual intercourse with a child aged between 14 and 16 years (contrary to s 66C(3)). Four further sexual offences involving the same complainant were taken into account on a Form 1. The offending occurred over a short period in April 2002 when the complainant had left home after a family dispute.

The appellant, aged 23 at the time, persuaded the distressed teenager to work as a prostitute, directed her to street locations, advised her on pricing, and had sexual intercourse with her on multiple occasions. Following the offending, the appellant left New South Wales in late 2002 and was not arrested until April 2006 in Perth, where he had married, started a business, and had no further criminal offending.

In the District Court, Finnane DCJ sentenced the appellant to a total effective term of 6 years with an overall non-parole period of 4 years. The appellant sought leave to appeal, arguing that the sentencing judge made unsupported factual findings about harm to the complainant and impermissibly took into account conduct amounting to a more serious offence.

  • Whether the sentencing judge made findings of fact about psychological harm to the complainant that were not supported by the evidence before the court
  • Whether the sentencing judge breached the De Simoni principle by referencing conduct (describing the complainant as a "sort of sex slave") that would constitute a more serious offence, thereby improperly elevating the assessed seriousness of the offending
  • Whether the sentencing judge gave adequate weight to the significant delay between the offending and sentencing, and to the rehabilitation the appellant had demonstrated during that period

Decision

The Court of Criminal Appeal granted leave to appeal and allowed it on all three grounds. On the first ground, the Court found that the sentencing judge's statement that the offending "almost always results in lifetime psychological damage" was not supported by any evidence before the court. The judge also speculated about the complainant's likely future psychological state, which went beyond what the evidence permitted.

On the second ground, the Court found that the judge's reference to the complainant being treated as a "sort of sex slave" introduced a characterisation consistent with a more serious offence under the Criminal Code (Cth), s 270.3. This reference impermissibly took into account conduct beyond what the appellant had admitted or been charged with, contrary to the De Simoni principle (which prohibits sentencing a person as though they had committed a more serious offence than the one for which they were convicted).

On the third ground, the Court was satisfied that insufficient weight had been given to the delay of approximately four years between the offending and arrest, and to the rehabilitation the appellant had achieved in Western Australia during that period. The Court noted that the offence under s 91D(1) carried the greatest criminality, and that while general deterrence remained important, it required moderation in light of delay and rehabilitation. The Court also took into account that the appellant had been experiencing a painful medical condition during his incarceration, making imprisonment more burdensome.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • The sentence on the third count (sexual intercourse with a child) quashed and replaced with a fixed term of 10 months, commencing 23 August 2007 and expiring 22 June 2008
  • The sentence on the first count (inducing child prostitution) quashed and replaced with a term of 4 years 4 months, comprising a non-parole period of 2 years 6 months and a balance of term of 1 year 10 months, commencing 23 February 2008, with eligibility for parole on 22 August 2010

Key Takeaways

  • A sentencing judge cannot make findings about harm to a victim, including predictions about long-term psychological damage, unless those findings are supported by evidence actually before the court.
  • The De Simoni principle prohibits a sentencing court from treating an offender as though they committed a more serious offence than the one to which they pleaded guilty; characterising the complainant's situation in terms consistent with a slavery offence was an error where no such charge had been proved.
  • Significant delay between offending and arrest, particularly where the offender has undergone genuine rehabilitation during that period, is a mitigating factor that sentencing courts must meaningfully weigh against the need for general deterrence.
  • Where a sentence appeal is upheld, the Court of Criminal Appeal may take into account post-conviction matters, including deteriorating health that makes imprisonment more onerous, when resentencing.
  • In dismissing the original sentences, the Court of Criminal Appeal reduced the overall effective sentence from 6 years (non-parole: 4 years) to 4 years 10 months (minimum custody: 3 years), reflecting the combined weight of the identified errors.

Legislation and Cases Referenced

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

Cases:
- R v Youkhana [2004] NSWCCA 412
- R v Solomon [2005] NSWCCA 158