R v Toma

Residual discretion

1. 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. 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]): "[88] Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion. [89] Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v R [2005] HCA 25 ; 228 CLR 357 at [82] per McHugh J. Another associated purpose is to prevent the community from supposing that justice could ever require the infliction of extra-curial punishment to make up for any perceived inadequacy of a sentence imposed by a court. As Lord Lane CJ said in R v Darby (1986) 8 Cr. App R (S.) 487 at 490: … one of the objects of punishment and by no means the least important object of punishment, is to prevent, so far as possible, the victims of crime from taking matters into their own hands. It is no great step from private vengeance to vendetta, and there is no knowing where vendetta will stop."
3. 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. 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. 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. 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. 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. 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. The same considerations of disruption of rehabilitation do not apply in the case of Mr Darwich.
10. 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. I propose that the appeal be dismissed.
12. N ADAMS J: I agree with the orders proposed by White JA for the reasons given by his Honour.

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