It is conceded by the prosecution that [A's father] was the principal offender. However, in respect of the thirteen year old girl it is quite clear that the prisoner here, played a significant part in taking her to Granville and he was an active participant in driving her to places where she was required to work as a prostitute, and in my view there is no doubt that he knew exactly what he was doing.
4 It is apparent that the applicant's role was more significant in relation to the offences concerning the younger victim. Nonetheless he also facilitated the commission of the offences involving the 15 year old by driving her to the street in Bankstown where she engaged in the various acts of prostitution and by acting as a "lookout" and providing security to her whilst she was doing so. In that way he was able to provide assistance to his father.
5 The applicant was arrested and charged by police on 12 July 2001. In a lengthy ERISP he admitted to an involvement in the offences although his acknowledgement as to the extent of his involvement was somewhat qualified. He also sought to attribute most of the blame to his father whom he said forced him to participate in these offences. This aspect of the matter assumed considerable importance in the sentencing proceedings. The applicant gave sworn evidence upon the issue and also relied on a report from a psychologist, Mr Glancey, which extensively detailed his background. The sentencing judge referred to that evidence at some length. His Honour observed that it had not been the subject of challenge by the Crown. The sentencing judge found that the applicant's father was "an autocratic, domineering and violent individual. He was not a drinker, he did not use drugs [although he sold them], he was aggressive by nature, he was a bully". The applicant's mother, as well as the applicant, was a victim of his violence. She eventually separated from him and it seems that the applicant thereafter assumed some responsibility for looking after at least some of his younger siblings.
6 The applicant exhibited behavioural problems as a child and had difficulties at school. His family life was dysfunctional and he frequently ran away from home. He spent time in refuges but even there he was not immune from his father's violence. At one point he was leading a nomadic existence on the streets. He thereafter drifted into criminal activities and ended up in juvenile detention centres.
7 The applicant apparently found the periods of time which he spent in detention as a relief from the oppressive control of his father. Mr Glancey concluded that the applicant felt powerless and passive in the presence of his father. It was against this background that the applicant found it difficult to resist his father's demands as to what he wanted the applicant to do in respect of the two victims in the present case. The applicant believed that were he not to do as his father directed, then he would find himself yet again a victim of his father's violence as would his siblings. It was an invidious choice and he chose the path of least resistance.
8 There was support for the applicant's version of events in the statements of the two victims. There was also evidence from them which confirmed that the applicant appeared to be fearful of his father. There was evidence that they had seen the applicant's father in possession of a pistol. Each of them said that in comparison with his father's treatment of them, the applicant was "relatively pleasant" towards them and that his involvement in these offences was fairly minimal. Indeed each of them seemed at some stage to be in love with him. The sentencing judge said that he had quoted extensively from Mr Glancey's report because of its relevance to the applicant's assertion that he behaved towards the victims in the manner in which he did because of his "fear of his father". The sentencing judge concluded not only that the applicant's father was the major offender but that there was "an element of involuntary behaviour" on the applicant's part and "an element of coercion at the hands of [his] father".
9 The applicant was aged 19 at the time of these offences. He was however, as I have indicated, no stranger to the criminal courts and had by then already acquired a number of convictions. In 1997, whilst still a juvenile, he was placed on probation for various driving offences and matters of dishonesty. In the same year he was subjected to a control order, the length of which was reduced on appeal, in respect of offences of take and drive a conveyance and driving whilst disqualified. He was also at the same time placed on probation for various matters of dishonesty.
10 In 1998 he was sentenced to a control order for 2 months for driving whilst disqualified and was fined in respect of various other driving offences. In February 2000 in the District Court he was committed to an institution following a conviction for armed robbery. Various other matters including common assault, driving in a manner dangerous and driving whilst disqualified were taken into account on a Form 1. As a result he was on conditional liberty at the time of the commission of the present offences. In February 2001 he was sentenced to 12 months' imprisonment with a non-parole period of 3 months for a number of yet further offences of driving whilst disqualified.
11 The applicant's father was also arrested and charged in relation to these matters. Upon his release from custody on bail, he approached the applicant and indicated to him that he wanted something done to ensure that the two victims did not appear in court as witnesses against him. The applicant reported this approach from his father to police. He thereafter assisted police in their investigation into his father's activities. He agreed to wear a listening device to a meeting with his father. He went to that meeting with an undercover police operative whom he introduced to his father as someone who could remove the witnesses from the scene. The details of the meeting were recorded. Five telephone conversations between the applicant and his father were also intercepted.
12 The applicant's assistance to the authorities was a very significant part of his case on sentence. He provided several statements to the authorities in which he set out his knowledge of the various matters in which his father had been involved. He also undertook to give evidence in accordance with those statements. As a result of his efforts, the Crown now has available to it in respect of the child prostitution offences alleged to have been committed by his father, evidence which corroborates the material that was already contained in the Crown brief. Clearly there was already in respect of those matters a more than respectable Crown case. Nonetheless the applicant's anticipated evidence will further strengthen it.
13 More importantly, as a result of the applicant's assistance, the Crown is now proceeding against the applicant's father on charges of conspiracy to murder the two victims of the prostitution offences. It is quite apparent that the applicant's father was only charged as a result of his assistance. The conversations which were recorded with the active involvement of the applicant suggest that the Crown has a strong case in respect of those matters as well. Indeed we were informed by the Crown that the applicant's father has now pleaded guilty to a number of offences and is awaiting sentence in respect of them. Not only did the applicant display considerable courage in participating in the process whereby those critical conversations were recorded, but his actions may well have saved the lives of the two victims. Moreover the significance of his undertaking to give evidence against his father cannot be overestimated. It will effectively bring to an end any possibility of a continuing relationship between father and son in the future. Given his father's predisposition to violence, the applicant and perhaps other members of his family will also have to live with the ever present threat of reprisals.
14 Furthermore, two significant offenders who committed break and enter and car stealing offences and who were also suspected of having committed armed robberies, have also been brought to justice by reason of the applicant's assistance to the authorities. In those circumstances, the sentencing judge quite properly proceeded upon the assumption that the applicant would be expected to serve his sentence in protective custody.
15 There were other matters upon which the applicant was entitled to rely in order to ameliorate what would have been the otherwise appropriate sentence. Not only did the applicant plead guilty to the various charges but he did so at the earliest opportunity available to him. His decision to do so spared the victims the ordeal of having to give evidence against him. Moreover by pleading guilty he cast to one side any opportunity that may have been available to him to rely upon a defence of duress.
16 At the time of sentence the applicant was in a settled relationship and had a young child. The sentencing judge concluded in all the circumstances that "there [were] significant prospects of rehabilitation". In view of the attitude of co-operation which the applicant had displayed since his arrest and given his age, such a finding was clearly open to the sentencing judge.
17 It is convenient to deal first with the applicant's submissions. His fundamental complaint is that the sentencing judge "fell into error in his assessment of the applicant's criminality in failing to take proper account of the duress under which he acted and his psychological powerlessness to resist the influence of his father". It is expressly conceded, as indeed it had to be, that the sentencing judge accepted the uncontradicted evidence of duress and the evidence of the applicant's powerlessness in the face of his father's demands although it must be said that there is a considerable degree of overlapping between the two issues. However it is submitted by the applicant that in the final analysis his Honour nevertheless did not give them appropriate weight. On its face that it is a difficult proposition to accept. It is even more difficult to accept when his Honour's sentencing remarks are read in their entirety particularly, as I have already observed, given the prominence which these matters received during the course of those remarks.
18 In support of his submissions, the applicant placed particular emphasis upon the following passage which appears in the Remarks on Sentence. His Honour said:
In the case of each of the five charges against the thirteen year old girls, I would start by imposing a penalty of ten years' imprisonment. However, because of the assistance to the authorities, which is of an extreme and unusual kind and exposed [A] to very great danger, I will reduce my starting point to four years' imprisonment. Because of the plea of guilty, that results in a head sentence of three years' imprisonment.
19 It was submitted that a starting point of 10 years' imprisonment, before the various discounts for matters favourable to the applicant, demonstrates that insufficient weight had been allowed for the reduction in the applicant's moral culpability by reason of the fact that he was acting under duress and in a state of powerlessness. However on the very next page his Honour indicated that 10 years' imprisonment would have been the starting point "if there had not been an element of coercion at the hands of the father". Although the matter is not entirely free from ambiguity, it may be that his Honour in that latter passage was seeking to clarify what he had earlier said and that accordingly the manner in which his Honour expressed himself on the second occasion reflects his Honour's real intention. If that be the case, then there is simply no substance in the applicant's complaint.
20 If however what appears in the first passage reflects his Honour's true intention then the submission requires further consideration. What that interpretation would entail is that the sentencing judge discounted the otherwise appropriate sentence for the applicant's assistance to the authorities from 10 years to 4 years, that is by 60%. It is important to bear in mind the statutory requirement in s 23(3) of the Crimes (Sentencing Procedure) Act 1999 that a sentence which is reduced by reason of an offender's assistance to the authorities must nonetheless "not be unreasonably disproportionate to the nature and circumstances of the offence". See also Gallagher v The Queen (1991) 23 NSWLR 220 at 232, 234. The Crown's representative at sentence properly conceded that a very generous discount was called for. Nevertheless a discount of 60% would ordinarily exceed what is appropriate. See R v Pang (1998) 105 A Crim R 474. It is unnecessary however to determine whether such a discount would have exceeded the range that was properly available in the highly unusual circumstances of the present case.
21 Of greater significance is the fact that the sentencing judge then allowed a further 25% discount for the applicant's plea of guilty meaning that, on this interpretation of his Honour's remarks, an overall discount of 70% was allowed for his assistance to the authorities and for his plea of guilty. In Gallagher (supra) Gleeson CJ with whom Meagher JA agreed, said that:
[i]t must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interconnected considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical. (at 228)
22 Those remarks are apposite to the present case. See also Wong v The Queen (2001) 207 CLR 584 at 612; R v X (2003) NSWCCA 56 at para 24.
23 Accordingly, if the sentencing judge had in fact intended to allow an overall discount of 70%, then it may well be that error has been exposed. Nevertheless it would have been an error that was significantly to the applicant's advantage. As such it would not of itself be sufficient to warrant the intervention of this Court particularly as a discount of that magnitude would, in practical terms, offset any disadvantage which the applicant may have suffered in thus not having the starting point reduced below 10 years on account of his having acted under duress. However, as I have said, I do not believe that this is the approach which his Honour took.
24 In any event even if error had been established, then it would be necessary to consider the operation of s 6(3) of the Criminal Appeal Act 1912. That in turn would require consideration to be given to the objective gravity of the offences. As to that aspect of the matter, his Honour made the following observations with which I respectfully agree. His Honour said:
The offences are serious because of the effect they have on the victims and the fact that the victims are particularly vulnerable. As I have already said, the prisoner and his father knew that the first victim was only thirteen years old at the time. No matter how sophisticated or adventurous these girls may seem, by virtue of their age they are particularly vulnerable. Both of them indicated that they resented and were horrified by the work that they did.