REGINA v ROMANO

CATCHWORDS : Sentence appeal - inducing children to participate in child prostitution - attempting to pervert the course of justice - accumulation of charges - significance of utilitarian discount for pleas of guilty where accumulating sentences - significance of prior good character - special circumstances where accumulating sentences - appeal allowed - sentences reduced LEGISLATION CITED : Crimes Act 1900 - ss 61D, 61J, 66C(3), 91E, 323 Crimes (Sentencing Procedure) Act 1999 - s44 CASES CITED : R v The Queen (2001) 118 A Crim R 538 Thomas (1993) 65 A Crim R 269 Regina (Respondent) PARTIES : v Vicent Joseph ROMANO (Applicant) FILE NUMBER(S) : CCA 60158/04 COUNSEL : Mr L Lamprati SC (Crown) Mr S Odgers SC (Applicant) SOLICITORS : S Kavanagh (Crown) P Safi (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3344 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60158/04

DUNFORD J ADAMS J HOWIE J

THURSDAY 4 NOVEMBER 2004 REGINA v ROMANO Judgment 1 DUNFORD J: I agree with Adams J. 2 ADAMS J: The applicant, Vincent Joseph Romano, seeks leave to appeal from the sentences imposed on him by the District Court on 4 September 2003. Romano had pleaded guilty to a number of charges arising from his having induced two children, one aged thirteen years and the other fifteen years, to participate in acts of child prostitution and hand over to him much of the price paid by the customers for this activity. When these crimes came to the attention of police and he was charged, he solicited a person who, fortunately, was an undercover police officer, to injure or kidnap the girls in order to prevent them from giving evidence against him. For these very serious offences Romano was sentenced to a total overall sentence of thirteen years and nine months with an effective non-parole period of eleven years. He submits that, one way or another, this is an excessively harsh sentence.

The facts 3 The following account is taken from the statement of facts and a number of statements tendered by the Crown without objection at the sentencing hearing. 4 JS was three months short of her thirteenth birthday when in April 2000 she began a relationship with Sean Mason, then nineteen years old. In July 2000, JS ran away from home and lived at Gosford with friends. In September she stayed at a refuge in Wyong for about three weeks and then moved back to her mother's home for a week before finally moving out and living in a squat near Central railway station in Sydney with Sean Mason, HW and her then boyfriend for about a month and a half. DOCS eventually intervened and JS was taken in by her uncle and her grandmother. She continued to see Mason and, through him, met Adrian Romano, Romano's step-son. In late December 2000 JS was in a vehicle with Mason and Adrian and others when they filled the car with petrol at a service station but were unable to pay. Police were called. Romano also arrived at the service station and spoke with the officers. JS and Mason went to Romano's property in Granville where they stayed for the next few days, living in the garage (the house having been destroyed by fire some little time earlier) with Romano, and his four sons, including Adrian. 5 One morning, JS woke up to find Mason gone. On that day, Romano bought her some new clothes and told her that she was going to work in a brothel for him. She was told by Adrian that she had to pay back the money that she and Mason owed Romano for fines he claimed to have paid following the incident in the service station. That night and for the next five nights Romano and Adrian took JS to a brothel at Parramatta where she was required to work, giving massages, performing fellatio and having vaginal intercourse with clients. The manager of the brothel took 20% of the payment received by JS who gave the balance either to Romano directly or to Adrian to be passed on to Romano. At the end of each shift she was picked up and returned to the garage at Granville. Adrian Romano had told JS that Romano would kill both her and Mason if he did not get his money back and JS believed that she would not be able to get away from him. After working for six nights at the brothel in Parramatta, JS was taken to another brothel at Auburn where she again worked as a prostitute, again giving part of her earnings to the brothel owners and the remainder either to Romano or his son. After five nights at this brothel she was taken to another brothel at Granville where she worked for one night. On the following night Romano took JS to a street near Canterbury Road, Bankstown to work as a prostitute, Romano and his son waiting nearby whilst JS serviced clients in their cars. JS worked here for two nights, giving her earnings to Romano. She was taken to another position where she worked for another night or perhaps two when she was approached by police who took her to Bankstown Police Station. Despite using the false identification that had been given to her by Romano, the police managed to identify her and called her mother. Her mother came to collect her but JS made contact with Romano and, using a subterfuge, ran away from her mother and was collected by Romano in his vehicle, which was nearby. JS went back to work in Canterbury Road the next night and for something over the ensuing two weeks. Over this period, Romano accommodated JS at various motels. Quite what operated on JS' mind to make her return to Romano's clutches is unclear but his control over her once she returned, both directly and through Adrian, was manipulative, callous and criminal. 6 Eventually, on 27 January 2001, JS waved down a passing police vehicle and was taken back to Bankstown Police Station, where her mother collected her and she went back to live with her family. After several weeks, JS made a full statement to police. In substance, she said that she had worked for Romano and his step-son because of physical threats against her and Mason and manipulation of various other kinds.

7 HW was eight months short of her sixteenth birthday when she first met Romano in late January 2001. She and two of her girlfriends were waiting at a bus stop when Romano, with a friend of HW's, Sean Mason as a passenger, drove up and offered them a lift. They accepted and Romano drove them to the Central Coast. HW obtained Mason's telephone number and, about a week later, telephoned him to make contact. It appears that arrangements were made by HW and a thirteen year-old girlfriend of hers, Crystal, to be collected from Gosford by Romano and brought to Sydney. Romano turned up a short time later with two young men in the car, Travis Boswell and his step-son, Adrian Romano. When they arrived in Sydney, Romano took the girls to a hotel in the Liverpool area and paid for a single bedroom with a double bed where the five of them stayed the night. It is not suggested that any sexual behaviour took place. In the morning HW telephoned her mother, telling her that she was at a friend's house in Sydney and would return home that day or the next. On the following morning all five persons left the hotel and Romano and HW drove to a car park near a sports field "to score" (this matter was not further explored, though it suggests drug use). Romano told HW that Crystal had disappeared taking a mobile telephone and $500 with her. He told her that she would have to work as a prostitute for him in order to pay for the missing mobile telephone and cash. At this point, he only asked her to work for him for one night. Romano locked the doors of the car. HW panicked and tried to escape but Romano grabbed her around the throat and told her to calm down. HW told him that she was only fifteen years old and could not do it. Romano said to her that it did not matter, he would give ID. HW agreed because, she said, she was scared since Romano "is older and he is big. I thought that if I said no he would hurt me. I wanted to go home but I did not think Vincent would let me go." HW remained in Romano's company until, at about 5pm, he drove her to a street off Canterbury Road, Bankstown, gave her clothes to wear, a wallet containing a birth certificate and other papers of identification, condoms and instructions about providing sexual services to clients, including where to take them. Boswell and Adrian Romano were nearby for the purpose of ensuring her safety. HW worked that night until 6am, handing Romano the money she was paid for her services, a total of just over $500. 8 Romano took HW from Canterbury Road to a motel where he booked a room with one double bed. HW fell asleep on the bed but was awakened a couple of hours later when Romano put his finger in her vagina. This lasted for about thirty seconds. HW said that she did not like what he had done to her but was worried that if she made a fuss about it there would be trouble. (This interference was the subject of count 8, which alleged sexual intercourse but, for reasons that it is unnecessary to go into, not lack of consent.) HW remained in Romano's company during the day although she had been asked to be taken to a railway station. At about 4pm Romano took her back to Canterbury Road and HW started to work as a prostitute once more. This occurred for the next three days, Romano taking her earnings and Adrian Romano and Boswell nearby to ensure her safety. Romano then took HW to a motel where she was kept, always being in the company of one of Romano, his step-son or Boswell. HW continued to work as a prostitute as Romano directed. 9 On 10 February 2001, having driven HW back to Canterbury Road yet again, Romano showed her a small silver-coloured handgun, putting it in her hand and saying, "Do the right thing, or learn the hard way". HW said that she had been arguing with him and she believed that he meant that if she did not stop doing so he would hurt her. HW said that she was only working as a prostitute because Romano forced her to do so and that she felt unable to escape, that the only way to make sure that she would be safe was to do what Romano told her to do. On one occasion, Romano instructed HW to call the police and "tell them that you are here of your own free will". HW used Romano's mobile to call the message bank service attached to her mobile phone and heard a voice message from a police officer from Gosford police station and a phone number. HW used Romano's mobile phone to call that police officer and assured him that she was all right and that there were no problems. When she ended the call, Romano grabbed her by her hair, kneed her in the head and threatened her. She went to work for him again that night. 10 On 10 February 2001, HW was approached by police, as I understand it, while she was working in Canterbury Road, and taken to Bankstown police station where she made a statement and she returned to Gosford with her father. However, later that night, HW returned to Sydney and contacted Adrian Romano who, she said, she "really liked". He picked her up from the station at Strathfield. They went to Canterbury Road, Bankstown to return some shoes to a prostitute when the police pulled them over. Adrian Romano was arrested for driving without a license and the police took HW back to Bankstown police station and arranged for her father to collect her. As they were driving home, however, HW and her father argued and HW left home (I gather at her father's insistence). HW contacted Romano because, she said, she had "nowhere else to go and no one else to help me". Romano collected her with Boswell, HW saying that she hoped to find somewhere to live when she got to Sydney. HW was taken to Romano's property at Granville where they slept in the garage. The garage was surrounded by a fence with locked gates and HW could not escape. The night after HW's return to Sydney, Romano took her to a brothel in North Parramatta where HW worked for three nights and then to another brothel at Auburn where she worked for four nights. On the last night, however, HW told the brothel owner that she was fifteen years old and left the brothel, eventually making her way home again. About two weeks later, HW made a further statement to police. 11 On 27 February 2001 Romano was charged with offences arising from these activities and obtained bail. On 19 September he was arrested for breach of his bail conditions and a week later was granted bail again. Immediately following his release, he contacted Adrian and arranged to meet him to "discuss dealing with the witnesses so we can both get out of this shit". Adrian contacted police about this conversation. He met his father later that evening. Romano told Adrian - "What kind of junkie goes ahead with this. I can understand before because [HW] but why is she still going ahead with it now? Don't worry, I'll get [HW] first, then Sean [Mason] and then [JS] will follow suit. But Sean and [HW] are the key. We'll get rid of them and all of the problems are solved." 12 They arranged to meet again. This occurred about three weeks later. Adrian introduced an undercover police officer to Romano as willing to undertake the proposed job. The ensuing conversation was recorded. Amongst other things, Romano said - "I got a major court case coming up. These two girls, they made some bullshit up…I just don't want 'em to appear in court…its that fuckin' simple…I can't go near them obviously. I mean, that's for obvious reasons. I don't want to go back to Silverwater [gaol]…I just want the whole mess to go away…If we get hold of [Mason], I believe they will cave in. If not, fuckin' snatch the two girls…We'll put them, in fuckin' hiding until the court case goes through".

A fee of $10,000 was agreed on but, after the undercover officer left, Romano, all too perceptively, remarked to Adrian that he thought the man "was a copper".

Subjective features 13 Romano had no previous convictions. Goldring DCJ concluded that he was therefore a man of good character, although "to use that expression in this context rather sticks in the craw". His Honour thought that he was bound by R v The Queen (2001) 118 A Crim R 538 to take this into account and, presumably did so although, as was appropriate, he did not indicate any specific allowance for this factor. I would infer that he gave it some, but little weight. This was appropriate. As McHugh J said in R at 547 - "In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case."

Aside from the fact that Romano was otherwise law abiding, little more could be said for him under this head. 14 Romano was thirty-six years of age at the time of sentencing. He had grown up in the Wollongong area where his family were respectable citizens. He qualified as an accountant. He was married but separated and undertook the care of some of his children. His home at Narellan was burnt down and he moved to Granville, where he had an investment property. However, that was also destroyed by fire and, as a result, he and the children were living in the garage on the land at the time of these offences. His business had also collapsed. These circumstances call for some sympathy which, it appears, the learned sentencing judge took into account. His Honour made the obvious and correct observation, however, that they provided no excuse whatever for the offences for which he was being sentenced. 15 There was no direct evidence of remorse but, no doubt, the pleas of guilty can be regarded as some evidence of this. The Crown case was overwhelming since Adrian had agreed to give evidence for the prosecution. 16 It was accepted that Romano had pleaded guilty at the earliest practicable opportunity and that, in addition to the saving of considerable public expense for a trial, the inevitable embarrassment and distress that giving evidence would have caused the victims was also avoided. His Honour accordingly gave a utilitarian discount of twenty-five per cent in respect of each of the sentences that he imposed.

The charges 17 Romano was ultimately indicted on a number of charges, some of them in the alternative. Those details are presently unimportant. In the result, he pleaded guilty to charges under s323 of the Crimes Act 1900 (maximum penalty seven years), in respect of each of HW and JS, of soliciting a person to cause injury to or kidnap them to prevent them from giving evidence (counts 3 and 6); in respect of JS four charges under s91D of the Crimes Act (maximum penalty fourteen years) of causing her, being a child aged thirteen, to participate in acts of child prostitution (counts 9, 11, 13, 15) and four charges under s91E of the Crimes Act (maximum penalty ten years) of receiving money knowing that it was derived from acts of child prostitution (counts 10,12,14,16); and, in respect of HW, one charge under s66C(3) of the Crimes Act (maximum ten years) of sexual intercourse with her, then being a child aged fifteen years (count 8), three charges under s91D of the Crimes Act (maximum penalty ten years) of causing her, a child aged fifteen years, to participate in acts of child prostitution (counts 17,19,21) and three charges under s91E of the Crimes Act (maximum penalty ten years) of receiving money knowing that it was derived from acts of child prostitution (counts18,20,22). In respect of JS, ten additional charges under s91D and ten additional charges under s91E were dealt with on a Form 1 and, in respect of HW, eight additional charges under s91D, seven additional charges under s91E and two charges of common assault were dealt with on a Form 1.

The sentences 18 Romano was sentenced as follows: on counts 3 and 6, to imprisonment for a fixed term of three years and nine months to commence on 21 August 2003 and expire on 20 May 2007; on count 8 to imprisonment for a fixed term of one year and six months to commence on 21 May 2007 and expire on 20 November 2008; on count 9 (taking the Form 1 offences into account) to imprisonment for nine years to commence on 21 May 2008 and expire on 20 May 2017, with a non-parole period of six years and three months to expire on 20 August 2014; on counts 10, 12, 14, 16, 18, 20 and 22 to imprisonment for a fixed term of three years to commence on 21 May 2008 and expire on 20 May 2011; on counts 11, 13, 15,17,19 and 21 to imprisonment for a fixed term of six years to commence on 21 May 2008 and expire on 20 May 2014. The overall result of this regime is that Romano was sentenced to a term commencing 21 August 2003 and ending on 20 May 2017, a period of thirteen years and nine months and is eligible to be released on parole on 20 August 2014, having served a period of eleven years.

The case on appeal 19 A number of grounds were argued on Romano's behalf to support the contention that the sentences were excessive. 20 It was firstly submitted that the concurrent sentences imposed on counts 3 and 6, concerning the proposal to kidnap the victims to prevent them from giving evidence were in error since Goldring DCJ indicated that the appropriate sentence for these counts was three years and nine months (five years less the utilitarian discount) and declined to fix a non-parole period as he proposed (as his Honour should be understood) to accumulate sentences for the other offences on that which was imposed for these offences. The effect of this, of course, was to accumulate further terms on what was, in effect, a head sentence rather than what would have been a non-parole period. The Crown conceded that this was, indeed, a correct characterisation of these sentences. 21 In Thomas (1993) 65 A Crim R 269, Hunt CJ at CL (with whom Grove and James JJ agreed) said (at 275-6) - "[Where sentences are accumulated] it is appropriate…for the Judge to set a fixed term of what would otherwise have been the appropriate minimum term…It would not be appropriate in such circumstances to impose a fixed term for what would otherwise have been the total sentence of the Court."

The reason for this practice is obvious: the non-parole period would have no utility if the offender was required to stay in prison to serve the terms of the other sentences and the balance of the term would not be also be deprived of its fundamental purpose, namely giving the offender an opportunity for rehabilitation by way of parole. 22 In my view this ground is made out. It also applies to the sentence passed on count 8 because of the accumulation of the balance of the sentences passed on the other counts. It does not apply, however, to the other fixed sentences imposed as no sentences are accumulated on them. Those fixed sentences are not otherwise excessive. 23 It also submitted by Odgers SC on Romano's behalf that the sentences on counts 9, 11, 13, 15, 17, 19 and 21 are manifestly excessive, both when independently considered and following adjustment for totality. 24 So far as the sentence of nine years on count 9 (causing a child aged thirteen years to participate in acts of child prostitution) is concerned, Mr Odgers points to the statement by the learned sentencing judge that the sentence would have been twelve years but for the utilitarian discount, when the maximum term provided by s91D is fourteen years. Moreover, this sentence reflected the following opinion - "In my view, the offence of causing a thirteen year old child to participate in prostitution, which carries a maximum penalty of fourteen years imprisonment…can be regarded in many ways as being analogous to a violent aggravated sexual assault in terms of its effect on the community and particularly on the girl." 25 Mr Odgers submitted, in my view rightly, that this was an inappropriate analogy. Romano was not charged with any offence of which violence was an element, although there can be no doubt that the girls were overborne and frightened. The maximum penalty for an aggravated sexual assault is twenty years' imprisonment. It is also argued that it was significant that Romano was motivated by a desire to be repaid for a debt and was presumably unconcerned with how that debt was to be paid. This argument is without merit. Whether Romano was motivated by "some sexual purpose of his own" is immaterial both in relation to the offences for which he was sentenced and to an offence of aggravated sexual assault. Moreover, it is patently obvious that the so-called debts were merely created for the purpose of manipulating the victims into prostitution and Romano could not for one moment have supposed that the girls were obligated to him in any way, let alone to repay him in the mode he demanded. 26 Mr Odgers also submitted that Romano's subjective circumstances also indicated that a sentence significantly close to the maximum penalty was not appropriate. 27 The passage from Goldring DCJ's reasons for sentence which I have set out above does indicate, to my mind, that his Honour was influenced by the seriousness of what he saw as an analogous crime. Some elements of s61J of the Crimes Act could reflect some of the facts that occurred in this case such as the ages of the victims and the implicit threats of violence but it would be wrong to sentence for the offences charged here as though Romano had committed an analogous crime to that provided under that section. This was an error. 28 Considered solely as an offence under s91D and thus against a maximum penalty for a case falling into the worst class of fourteen years, I would hold that a starting point of twelve years, after taking all objective and subjective features into account is excessive for a single offence. However, when the offences on the Form 1 are taken into account, I would not be prepared to hold that such a sentence is outside the appropriate sentencing range. These offences were premeditated from the very beginning of Romano's contact with the girls. The instructions about false identity, the provision of clothing, the specification of price and services, the selection of the venues both on the street and at particular brothels, all bespeak a business and one that had been going on for some little time, even ignoring the statements made by the victims about Romano's connexions with other prostitutes. His behaviour towards these girls was manipulative, brutal, threatening and sustained. The mere fact that he saw it as necessary to have the victims under observation whilst servicing clients demonstrates that he also realized that he was exposing them to significant physical danger, of more than one kind. Aside from the fact that Romano had no previous convictions and the possibility of some remorse as evidenced by the plea, there was nothing in his subjective circumstances that significantly operated in his favour. To my mind, no lesser sentence than was imposed on this count by Goldring DCJ is warranted in law. 29 Odgers SC pressed the same submissions on the Court in respect of counts 11, 13, 15, 17, 19 and 21. I do not consider, for the reasons stated in connexion with count 9, that the sentences were appealably wrong. 30 I now come to the non-parole periods. Mr Odgers submitted that the non-parole period in respect of count 9 - six years and three months of a total term of nine years - did not adequately reflect the special circumstances that arose because of its accumulation on other sentences. The non-parole period represents fractionally less than 70 per cent of the head sentence, so special circumstances were implicitly applied, despite the learned sentencing judge's statement that there were "no special circumstances" unless, of course, his Honour simply made an error of calculation: a non-parole period of 75 per cent of the head sentence would be six years and nine months. 31 The accumulation of sentences should have been a matter that established special circumstances, if only to ensure that Romano would be eligible for parole after he had served 75 per cent of the total effective sentence. This sentence is thirteen years and nine months. There is no reason to suppose that enabling Romano to be released on parole after he had served 75 per cent of his sentence would lead to an inappropriately short period of imprisonment. Accordingly (assuming the total effective head sentence to be correct), he should have been eligible for parole after a little over ten years and three months, rather than the eleven years which Goldring DCJ imposed. In this respect, the attack on the non-parole period has been made good. 32 It follows that, whilst the fixed sentences are not in themselves excessive, considered as head sentences, those imposed in respect of counts 3, 6 and 8, upon which other sentences were accumulated, were excessive; the head sentences are otherwise appropriate but the non-parole period in respect of count 9 was wrongly calculated and did not take account of accumulation. 33 It seems to me, therefore, that this Court should interfere to correct these errors. In doing so, it is necessary to consider the effect of the utilitarian discount lest the accumulation of sentences which individually reflect an appropriate discount leads to an effective withdrawal when the total is calculated. It has been said more than once that discounting a sentence for a timely plea does not arise from the merit of the offender but reflects public policy considerations that promote the administration of justice. Accordingly, it should be explicitly taken into account and effectively applied. In this case, the total term of thirteen years and nine months suggests a starting point (however calculated) well in excess of eighteen years. I do not think that this reflects an actual discount, although the sentences that make up this term each have been appropriately discounted. The effect of accumulation in this case has been to effectively withdraw these discounts. The variations that I propose make it clear that the utilitarian discount has been given. Absent such a discount, I consider that an appropriate overall sentence reflecting the totality of criminality would have been fifteen years. Applying the utilitarian discount of twenty-five per cent yields a total term of eleven years and three months. The non-parole period should reflect the statutory formula referred to in s44 of the Crimes (Sentencing Procedure) Act 1999: this results in a non-parole period that requires Romano to serve a (rounded down) term of eight years before he will be eligible for parole. Having regard to the nature of the appeal - in particular that no sentence can be increased and any accumulation must avoid an effective increase in the term to be served - the changes that I propose are somewhat artificial but in my view they represent a fair and appropriate correction of the errors that have been identified both in the individual sentences and the overall result.

As to counts 3 and 6 : Quash the sentences of three years and nine months and substitute concurrent fixed terms of two years and nine months (which is equal to 75% of the original sentence, rounded down) to commence on 21 August 2003 and expire on 20 May 2006.

As to count 8: Quash the sentence of one year and six months and substitute a fixed term of one year and one month (which is equal to 75% of the original sentence, rounded down) to commence on 21 May 2006 and expire on 20 June 2007.

As to count 9: Vary the commencement date of the sentence and non-parole period from 21 May 2008 to 21 November 2005, so that the term expires on 20 November 2014 (the sentence of nine years being unchanged but the commencement date changed to account for the utilitarian discount on the total sentence); quash the non-parole period of six years and three months and substitute a period of five years and nine months, which expires on 20 August 2011.

As to counts 10, 12, 14, 16, 18, 20 and 22: Vary the commencement date to 21 May 2007 so that the terms expire on 20 May 2010 (the sentences of three years being unchanged).

As to counts 11, 13, 15, 17, 19 and 21: Vary the commencement date to 21 May 2005 so that the terms expire on 20 May 2011 (the sentence of six years being unchanged).

In the result, the overall sentence to be served by the appellant is eleven years and three months and the earliest date upon which the appellant will be eligible for parole is on the expiry of eight years' imprisonment, namely 20 August 2011. 35 HOWIE J: I agree with Adams J.

Last Modified: 11/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.