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Court of Criminal Appeal 23 March 2018

R v Toma

[2018] NSWCCA 45

Sexual offences
CRIME CROWN APPEAL AGAINST SENTENCE S 91D CRIMES ACT 1900 (NSW)

Citation: R v Toma [2018] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 23 March 2018
Judges: Hoeben CJ at CL, White JA, N Adams J

Background

The respondent was convicted after trial of two offences under s 91D(1)(b) of the Crimes Act 1900 (NSW): participating as a client with a girl aged 14 in acts of child prostitution. The offences occurred in early 2009. On each occasion, the respondent collected the girl from a townhouse, drove her to a car park, engaged in penile-vaginal intercourse in the back seat of his vehicle, and paid the woman who had arranged the encounters. The respondent was 52 years old at the time.

At trial, the respondent admitted to sexual intercourse on one occasion but denied it occurred in 2009, denied a second occasion, and argued (in respect of one offence) an honest and reasonable belief that the girl was aged 18. The jury rejected his account and convicted him on both counts. Each offence carried a maximum penalty of 10 years' imprisonment, with no applicable standard non-parole period.

On 2 November 2017, the sentencing judge imposed a term of one year and eight months' imprisonment, to be served by way of an intensive correction order (ICO). The Crown appealed on the ground that this sentence was manifestly inadequate.

  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offending
  • Whether the resulting sentence of an ICO was manifestly inadequate
  • Whether, even if the sentence was found to be inadequate, the Court of Criminal Appeal should exercise its residual discretion to decline to resentence the respondent

Decision

White JA (with whom Hoeben CJ at CL and Adams J agreed) accepted that the sentence imposed was manifestly inadequate. The sentencing judge's assessment of objective seriousness was found to be flawed, and an ICO was not a proportionate response to the gravity of offending involving repeated sexual exploitation of a 14-year-old child through prostitution.

Nonetheless, the Court exercised its residual discretion not to resentence the respondent. A significant factor was the disruption that resentencing to a custodial term would cause to the respondent's rehabilitation, which was already underway under the ICO. The Court considered this a compelling reason to decline to interfere further, even while acknowledging the inadequacy of the original sentence.

The Court also considered consistency with a companion appeal, R v Darwich [2018] NSWCCA 46, decided on the same day. That case involved the same procurer network but significantly more serious conduct: five offences involving three girls (including a 12-year-old), the offender's knowledge that the girls were underage, and particularly distressing circumstances during the offences. The aggregate sentence in Darwich was increased to five years with a non-parole period of three years. The Court found the two cases sufficiently different to justify different outcomes on the residual discretion question.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence for participating in child prostitution under s 91D of the Crimes Act 1900 (NSW) must reflect the serious objective criminality of exploiting a child, even where the offender did not specifically seek out an underage person.
  • Under s 91D, knowledge of the child's age is not an element of the offence; an honest and reasonable belief that the person was 18 or over operates as a defence, but the jury's verdict here rejected that defence.
  • In dismissing the appeal, the Court applied the residual discretion available on Crown sentence appeals, finding that the respondent's rehabilitation progress under the ICO provided sufficient reason not to resentence, despite the sentence being inadequate.
  • A manifestly inadequate sentence will not automatically result in resentencing: where disruption to rehabilitation is a genuine and significant consideration, the Court may decline to intervene even after finding error.
  • Sentencing consistency principles were engaged by comparison with R v Darwich, but the Court found the circumstances of the two offenders sufficiently distinct to justify different treatment on the residual discretion question.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 91C, 91D(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(b), 7
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Child Prostitution) Amendment Act 1988 (NSW)

Cases:
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- R v Darwich [2018] NSWCCA 46
- Glover v The Queen [2016] NSWCCA 316
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v Nelson [2016] NSWCCA 130
- R v O'Connor [2014] NSWCCA 53