Regina v A

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3300 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60132/2003 60182/2003

SANTOW JA SULLY J BUDDIN J

FRIDAY 13 JUNE 2003 REGINA v A Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court. The Crown appeals against the inadequacy of those sentences. On 16 September 2002 the offender (whom for convenience I shall refer to as the applicant) pleaded guilty on indictment to ten counts brought pursuant to s 91D of the Crimes Act. Five counts alleged that he caused a child under the age of 18, namely a young female then aged 13, to participate in an act of prostitution. The maximum penalty for each such offence, by reason of the victim being aged under 14, is imprisonment for 14 years. The remaining five counts were in the same terms except that on each of these occasions the victim was another young female who was then aged 15. The maximum penalty for each of those offences was accordingly 10 years' imprisonment. A further nine offences of a similar nature appeared on a Form 1 document and were taken into account by the sentencing judge. The applicant had originally pleaded guilty before a magistrate to all 19 charges but following negotiations between the parties the matter proceeded in the manner to which I have just referred. 2 In respect of each of the first five counts, and taking into account the Form 1 matters, the sentencing judge imposed a head sentence of three years' imprisonment to commence on 16 September 2002 with a non-parole period of 15 months which will expire on 15 December 2003. In respect of each of the remaining five counts, the sentencing judge imposed a head sentence of 2 years and 3 months with a non-parole period of 15 months which will also expire on 15 December 2003. All sentences were ordered to be served concurrently. 3 The facts giving rise to these offences, which all occurred in the period between 20 December 2000 and 27 January 2001, were conveniently summarised by the sentencing judge in the following terms: The first victim who was thirteen had become involved with a boy who was considerably older than her, and this boy knew the accused, the prisoner. She had previously run away from home but she had been reported to the Department of Community Services, and they had arranged for her grandmother to take her into her care. Indeed, there was a meeting at the Gosford office of the Department of Community Services in session when this woman and her boyfriend decided to leave, the boyfriend and the prisoner saying that they needed to leave Gosford because the police were looking for them. They went to Sydney and the girl ended up staying in a garage at Granville with her boyfriend, the prisoner, and his father. The boyfriend appeared to have his own problems. But on 2 January 2001 the prisoner, the boyfriend and the young girl were involved in an offence where they stole motor vehicle number plates, and placed them on a motor vehicle belonging to the prisoner in an attempt to obtain petrol without paying. As a result of that the prisoner and the boyfriend, I understand, were also required to pay fines.

At this stage the prisoner's father apparently threatened the prisoner that if he did not obtain the money to pay the fines then he and the young girl would end up in the gutter, and apparently the girl passed a casual remark saying that she would do anything to get the money, including going on the streets. Shortly after that [A's father] apparently arranged for her to be taken to a brothel in Parramatta where she was forced to work. At this time the prisoner and his father were aware that the victim was thirteen and she was told that if she did not work as a prostitute to earn money then she would be killed, as would her boyfriend. The prisoner and his father purchased some clothes for the girl before they took her to the brothel. The arrangement was that the brothel owner received a percentage of the girl's earnings and the balance she gave to the prisoner and he gave them to his father. It is not suggested that the prisoner obtained any financial benefit from these activities. The girl was forced to work in the brothel for at least three additional nights after the first. Apparently at that stage the management of the brothel came to suspect that the girl was under age, told [A and his father] that she could not work there any further, and she did not. She was taken to another brothel at Rawson Parade, Auburn, and she was made to work there, the only difference being that the owner of the brothel received a larger percentage of the takings. Three of the offences on the Form 1 related to something that happened after that period, a number of them relate to further offences relating to causing this girl to work in the brothel at Auburn. Three of them, the last three matters on the Form 1, relate to a series of incidents where the girl was taken to Canterbury Road in Bankstown and made to work as a prostitute with customers who picked her up in their car and took her to the end of the cul-de-sac nearby on the basis that they would take her back to the place where they had picked her up, and at that stage she would give a signal to the prisoner and his father indicating that the customer had paid. She says that on one occasion she saw the prisoner and his father with baseball bats, although she did not ever see them use them. The second victim was aged 15 at the time and she apparently shared a boyfriend with the younger girl. She also came from the Gosford area. Her evidence was that she had met [A's father] and was with a friend when they said they were bored and wanted to go to Sydney, and in response to an offer previously made by him to them, [A's father] collected them and took them [together with the applicant] to Sydney where he kept them in various motel rooms and forced her to work. The other girl went away, having stolen [A's father's] mobile telephone and some money, according to him, but the victim was kept at various hotels, and she also was forced to work as a prostitute on Canterbury Road at Bankstown on a number of occasions.

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.

The community has an expectation that people who commit these offences will receive very significant punishments. 25 Plainly enough it is necessary to give effect to the clear legislative intention that appropriate action be taken against those who seek in this way to profit from the sexual exploitation of children. Young women in the vulnerable position in which these two victims found themselves must be properly protected from such exploitation. That being so, I am not of the opinion that "some other sentence…less severe is warranted in law and should have been passed". 26 It is now convenient to consider the Crown appeal. As I have said, the applicant was sentenced on 16 September 2002. On 1 October 2002 the applicant lodged a notice of intention to appeal against those sentences. Somewhat belatedly on 30 April 2003 he filed a notice of application for leave to appeal together with Grounds of Appeal and an outline of submissions. On 26 May 2003 his application was listed in the call-over list before the Registrar. It was then listed for hearing on today's date. It was not until 30 May 2003 that the Crown filed its appeal against the inadequacy of the sentences thus imposed. The Crown apparently formed the view (and correctly so) that both matters should be heard together. Accordingly it sought, in advance of the hearing, to have both matters taken out of today's list. It sought a fresh date at some time in the future. There was no legitimate reason which warranted such a course being adopted and the matters have proceeded before us today. 27 The Crown submitted that the sentencing judge erred in a number of respects. First, it submitted that the overall discount allowed by the sentencing judge for the applicant's assistance to the authorities and his plea of guilty was excessive. I have already dealt with this matter when considering the applicant's submissions and I need not repeat what I said there. If indeed his Honour had intended to allow an overall discount of 70% for these features of the case but from a starting point of 10 years' imprisonment without giving consideration to the question of duress, then in my view there would be substance in the applicant's submission that his Honour's starting point was too high. Secondly, it is submitted that his Honour failed to observe the requirements laid down in Pearce v The Queen (1998) 194 CLR 610. His Honour directed that the sentences were to be served concurrently on the basis that the applicant's offences were all part of the same episode in which he acted under the control of his father. Upon a fair reading of his Honour's overall remarks, I am not persuaded that the Crown has demonstrated that his Honour has made an error of the relevant kind especially as no submission was advanced to the sentencing judge by the Crown that cumulative sentences should have been imposed. Thirdly, it is submitted that the sentencing judge extended undue leniency to the applicant in that he took into account various matters of a subjective nature which were favourable to the applicant both when fixing the overall sentence and then again when determining what factors would constitute "special circumstances". That of itself does not bespeak error of a kind that was identified by this Court in R v Simpson [2001] 53 NSWLR 704. The Crown also submitted that the sentencing judge erred in not referring to the fact that the applicant was on conditional liberty at the time these offences were committed and in not, so it was said, taking into account the matters on the Form 1 document. 28 In the final analysis the disposition of this appeal depends upon an assessment of the Crown's primary submission that the sentences imposed were manifestly inadequate. In Dinsdale v The Queen (2000) 202 CLR 321, Gaudron and Gummow JJ said: In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been "upon the facts…unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. Was the sentence "manifestly wrong"? (at 329) (footnotes omitted) 29 In my view, particularly when regard is had to the exceptional nature of the jurisdiction which the Crown seeks to invoke, the Crown is quite unable to satisfy the requisite test. Not only does no issue of sentencing principle arise but the Crown has not demonstrated that the sentences imposed in the somewhat unusual circumstances of this case were wrong let alone manifestly so. I am fortified in coming to that conclusion by the fact that the asserted manifest inadequacy of the sentences did not, it seems, become apparent to anyone in the Crown for a period of some 8½ months after the sentences had been imposed. Furthermore, it seems reasonable to assume that had the applicant not sought leave to appeal, then no thought would ever have been given to instituting a Crown appeal. The chronology of events preceding the institution of the Crown appeal speaks eloquently upon the question of its merits. 30 Given the lengthy and unexplained period of time which has elapsed since sentence was imposed, I would have had no hesitation, had it been necessary to determine the issue, in proposing that the Crown appeal be dismissed in the exercise of the Court's residual discretion. In so concluding, I need only to refer to this Court's decision in R v Hernando [2002] NSWCCA 489, in which the authorities upon the question of delay in the notification and institution of Crown appeals, were extensively reviewed. 31 I propose the following orders:

1 Application for leave to appeal against sentence granted.

3 Crown appeal dismissed. 32 SANTOW JA: I agree. 33 SULLY J: I also agree. 34 SANTOW JA: The orders of the Court will be as proposed by Buddin J.

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