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Court of Criminal Appeal 23 March 2018

R v Darwich

[2018] NSWCCA 46

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE PAROLE PERIOD OF 20 MONTHS

Citation: R v Darwich [2018] NSWCCA 46
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 of five counts of participating as a client in an act of child prostitution, contrary to s 91D(1)(b) of the Crimes Act 1900 (NSW). The offences involved three separate children aged 12, 15, and 15 to 16 years respectively. The maximum penalty for this offence is 14 years' imprisonment.

At first instance, Conlon SC DCJ sentenced the respondent to an aggregate head sentence of 3 years and 6 months with a non-parole period of 20 months. The Crown appealed that sentence under s 5D(1) of the Criminal Appeal Act 1912 (NSW), contending it was manifestly inadequate and resulted from error in the sentencing judge's assessment of objective seriousness.

The appeal was heard alongside, and engaged with, a related matter involving a co-offender (Mr Toma), who had been charged with similar but less extensive offences. The Court of Criminal Appeal had also found that sentence manifestly inadequate but, in that separate case, exercised its residual discretion not to intervene.

  • Whether the sentencing judge erred in assessing the objective seriousness of the five child prostitution offences as below mid-range and possibly towards the lower end of the range
  • Whether the aggregate sentence of 3 years and 6 months with a 20-month non-parole period was manifestly inadequate
  • Whether the Court should exercise its residual discretion to decline to re-sentence, even if error were established
  • Whether principles of parity with the co-offender's sentence should influence the outcome

Decision

The Court of Criminal Appeal unanimously allowed the Crown appeal on both grounds. The Court found that the sentencing judge had erred in characterising the offences as below mid-range in objective seriousness, and that the resulting sentence was manifestly inadequate. N Adams J (with whom Hoeben CJ at CL and White JA agreed) identified this as an error of principle, not merely a disagreement about degree.

White JA provided additional reasons addressing the proper scope of the residual discretion under s 5D. Drawing on Green v The Queen and earlier High Court authority, his Honour explained that the purpose of Crown appeals is to lay down principles for the governance and guidance of sentencing courts, but that this purpose does not prevent the Court from actually varying a sentence where error is shown. The Court's discretion to re-sentence is not limited to cases where re-sentencing is the only way to provide guidance.

On the parity question, the Court acknowledged the unusual position that the co-offender's sentence had not been increased. However, it found there were meaningful distinctions between the two cases. The respondent was charged in relation to three children, including a 12-year-old, whereas the co-offender's charges involved one child approaching 15. The Court was satisfied that the circumstances justifying the exercise of the residual discretion in the co-offender's case did not apply to this respondent.

Having regard to all relevant factors, N Adams J concluded the respondent should be re-sentenced to a total effective term of 5 years' imprisonment, with a non-parole period of 3 years.

Orders Made

  • The Crown appeal on Grounds 1 and 2 was allowed
  • The aggregate sentence imposed on 19 October 2017 was quashed
  • In lieu thereof, the respondent was sentenced to an aggregate term of imprisonment with a non-parole period of 3 years commencing 6 May 2017 and expiring 5 May 2020, and a balance of term of 2 years expiring 5 May 2022
  • Indicative sentences were imposed: Count 1 (2 years), Counts 2 to 4 (2 years and 3 months each), Count 5 (3 years)

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing a respondent to below mid-range for multiple child prostitution offences involving victims as young as 12 constituted an error of principle, not merely a sentencing disagreement.
  • Under s 5D(1) of the Criminal Appeal Act 1912, the purpose of Crown appeals is to provide guidance to sentencing courts, but this does not restrict the Court of Criminal Appeal to simply declaring what the correct sentence would have been without actually imposing it.
  • Parity principles do not strictly apply between co-accused in separate proceedings, and the Court may distinguish cases on their individual facts when deciding whether to exercise the residual discretion.
  • Where distinguishing features exist between co-offenders, including the number of victims, the ages of victims, and responsibility for delay, those differences can justify re-sentencing one offender while declining to re-sentence another.
  • A finding of manifest inadequacy, combined with error of principle, ordinarily enlivens the Court's discretion to vary the sentence, and the residual discretion not to do so requires specific justifying circumstances that were not present here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 44, 66C, 66EB, 61J, 91C, 91D
- Crimes (Child Prostitution) Amendment Act 1988 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Green v The Queen; Quin v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Chamseddine v R [2017] NSWCCA 176
- JH v R [2017] NSWCCA 22
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Glover v R [2016] NSWCCA 316
- Pasoski v R [2014] NSWCCA 309
- Collier v R [2012] NSWCCA 213
- Clarke v R [2009] NSWCCA 49
- Mitten v R [2009] NSWCCA 103
- Elyard v R (2006) 45 MCR 402; [2006] NSWCCA 43
- Mulato v R [2006] NSWCCA 282