Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DO v R [2014] NSWCCA 189 Hearing dates: 4 September 2014 Decision date: 25 September 2014 Before: Gleeson JA at [1]; Fullerton J at [94]; Garling J at [95] Decision: 1. Leave to appeal is granted. 2. Appeal allowed. 3. The sentence imposed in the District Court on 12 August 2013 is quashed. 4. The applicant is sentenced to imprisonment comprising a non-parole period of 13 months and 15 days commencing on 11 August 2013 and expiring on 25 September 2014 with a balance of term of 13 months and 15 days commencing on 26 September 2014 and expiring on 10 November 2015. The applicant is to be released to parole on 26 September 2014. Catchwords: CRIMINAL LAW - Appeal - Appeal against sentence - Whether trial judge failed to take into account applicant's limited intellectual capacity and vulnerability to manipulation - Whether some other sentence warranted at law - Consideration of sentence imposed on co-offender - Whether sentence imposed adequately reflected different roles, moral culpability, and subjective circumstances Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 66C(4) Crimes (Sentencing Procedure) Act 1999 (NSW) s 12 Criminal Appeal Act 1912 (NSW) s 6(3) Cases Cited: Aslan v R [2014] NSWCCA 114 Ayshow v R [2011] NSWCCA 240 Beldon v R [ 2012] NSWCCA 194 Elturk v R [2014] NSWCCA 61 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 McLaren v R [2012] NSWCCA 284 Muldrock v R [2011] HCA 39; 244 CLR 120 R v Engert (1995) 84 A Crim R 67 R v Koloamatangi [2011] NSWCAA 288 R v Postiglione [1997] HCA 26; 189 CLR 295 Sheen v R [2011] NSWCCA 259 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: DO (Applicant) Regina (Crown) Representation: Counsel: R Burgess (Applicant) N Adams (Crown) Solicitors: Legal Aid NSW (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Crown) File Number(s): 2011/197144 Publication restriction: No Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-08-12 00:00:00 Before: Maiden DCJ File Number(s): 2011/197144 Judgment 1GLEESON JA: The applicant, DO, seeks leave to appeal against the sentence imposed by his Honour Judge Maiden SC in the District Court at Newcastle on 12 August 2013. 2The applicant had pleaded guilty on 25 February 2013 to the offence of sexual intercourse with a person above the age of 14 years and under the age of 16 years, in circumstances of aggravation (namely, that she was in the company of her then partner) contrary to s 66C(4) of the Crimes Act 1900 (NSW). The victim of this crime was a family friend. The maximum penalty for this offence is 12 years imprisonment. 3The applicant was sentenced to a term of imprisonment with a non-parole period of 18 months expiring on 10 February 2015 and a balance of term of 18 months expiring on 10 August 2016. 4The applicant's partner was also charged with the same offence. He pleaded guilty on 19 August 2013. On 7 March 2014 Maiden DCJ sentenced the co-offender to a term of imprisonment with a non-parole period of 4 years and 6 months and a balance of term of 1 year 4 months and 6 days. Grounds of appeal 5If leave is granted, the proposed grounds of appeal relied upon by the applicant are as follows: (1)His Honour erred in failing to take into account the applicant's intellectual disability in relation to her moral culpability. (2)His Honour erred in failing to consider the diminished need for general deterrence. (3)His Honour erred in finding that the objective seriousness of the offence was between the middle and the top of the range. (4)The applicant has a justifiable sense of grievance when considering the sentence imposed on her co-offender. 6The essential challenge raised by these grounds is that the sentencing judge erred in the manner in which he dealt with the psychological evidence relating to the applicant's limited intellectual capacity and her vulnerability to manipulation by the co-offender. Circumstances of the offence 7The sentencing judge proceeded on the basis of a statement of agreed facts. It is necessary to refer to the facts in some detail as they shed light on the different roles of the applicant and her co-offender in the offending conduct which amounted to a joint criminal enterprise. 8The uncontested facts are that the applicant and her co-offender were in a de facto relationship and had three children under the age of 4. The victim was a family friend of the applicant who had regularly babysat the applicant's children since about June 2010. 9On the afternoon of 19 February 2011 the victim arrived at the applicant's home to babysit the children and it was arranged that the victim would stay the night. The victim was then aged 15 years and 10 months and the applicant was 31 years old. They spent the afternoon together during which time the applicant received a text message from her co-offender, which she read, and then said to the victim "xxxx (the co-offender) wants to know if you would like to have a threesome tonight". The victim replied "No". Nonetheless the applicant sent a text back to her co-offender in which she stated "She probably will later because you know what she's like when she's got alcohol in her." His Honour correctly observed (at ROS 1) that the applicant's response could not be said in any way to have adequately stated the victim's denial of the proposition of group sex. 10The applicant and the co-offender left the house at about 8:30pm and returned around 1:10am the following day at which point both were intoxicated. The victim was still awake and watching television. After the co-offender had a shower, he joined the applicant and the victim in the lounge room. At some point the applicant left to go to bed after she and the co-offender had an argument. The victim went to the kitchen. The co-offender then entered the kitchen and made a threat to the victim stating "If you don't have sex with me, I'll hit xxxx (the applicant) and you". The victim headed to the applicant's bedroom out of fear that she would be physically assaulted. 11When the victim entered the bedroom the applicant was in bed, under the sheets, and was naked. The co-offender entered the room and took off the victim's outer clothing and told her to sit on the bed. He told the victim to sit or lay down. The victim lay on the bed facing the wall. The applicant then began to kiss the victim and took off the victim's bra at the request of the co-offender. Whilst this was happening the co-offender also undressed and got into bed and told the applicant to start "doing stuff" to the victim, but she replied "No". He then proceeded to kiss the victim, remove her underwear, digitally penetrate her, and have penile-vaginal sexual intercourse with the applicant whilst kissing both the victim and the applicant. During this time the applicant continued to touch and suck on the victim's breasts. The victim attempted to move away, but the co-offender pulled her body back towards him. 12After about 10 minutes the co-offender ceased having intercourse with the applicant and then proceeded to commence intercourse with the victim. The applicant then left to go to the bathroom and when she returned the co-offender was continuing to have intercourse with the victim. The applicant and her co-offender then had penile-vaginal intercourse with each other whilst the victim was on the bed. After a couple of minutes they stopped, and the co-offender had intercourse with the victim again. The applicant again left for a few minutes, and then returned and watched television whilst the co-offender continued to have intercourse with and eventually ejaculated in the victim. After this the co-offender left to go to the bathroom and the victim left and went into one of the children's bedrooms. Soon after the co-offender and applicant followed the victim into that bedroom and asked whether the victim had "had enough". The pair then left to go to sleep. 13The next day, at about lunchtime, the applicant was sitting with the victim and asked her "Did you enjoy last night?" to which the victim replied "No. it was horrible." The victim left the house later that day. About a week later the victim came to the applicant's house to visit the children and the applicant asked her "Would you like to do it again?" The victim responded "Don't ever mention it to me again". 14About one month later the victim made a complaint to her mother about the matter and reported it to the police. That afternoon the applicant and co-offender attended a friend's place and discussed the incident, during which the applicant made comments that "I did help him. I know what I done was wrong and I shouldn't have done it". 15Over the next few months the police undertook covert surveillance of the applicant and the co-offender, including using listening devices to record conversations between the victim and applicant. In one conversation, on about 2 June 2011, the applicant was recorded as saying that the co-offender did not make her do it. In other conversations with the victim on 9 June 2011, the applicant was recorded as saying that: * the incident "didn't bother me"; * the victim should "know what males are like"; * the applicant had not been concerned about getting into trouble with the co-offender if she hadn't done it; and * the victim needed to think of the kids and the consequences to them if the co-offender went to prison. 16At some point between 14 March and 16 July 2011 the applicant sent a text message to the victim saying "You little bitch. You're getting xxxx (the co-offender) charged ...". 17On 16 July 2011 the applicant and her co-offender were arrested and interviewed. The applicant denied ever having engaged in sexual activity with the victim or any sexual impropriety. The applicant was initially committed for trial on 8 February 2012 on four counts. On 25 February 2013, on the morning of her trial (after two earlier trial dates had been vacated), the applicant pleaded guilty to one count of aggravated sexual intercourse. Subsequently, on 12 July 2013, the applicant agreed to give evidence against her co-offender and made a statement to that effect on 12 August 2013 in preparation for his trial date of 19 August 2013. As already mentioned, the co-offender pleaded guilty on this trial date. 18One further matter should be mentioned. In a signed statement dated 12 August 2013 (AB 29-31), which the applicant gave to the police in connection with the prosecution against her co-offender, the applicant stated that when she was in the taxi with her co-offender returning home on the night of the offence her co-offender raised the suggestion of a "threesome" with the victim, and the applicant responded "No I don't want to". The co-offender then said to her "Well if you don't go through with this, I'm gonna hit you like I'm gonna hit her". The transcript of the sentencing hearing records that the applicant's statement was provided to his Honour by the Crown (T 3, line 20). The applicant's subjective case 19The applicant was 31 years of age when she offended and 33 years when sentenced. The applicant had no prior criminal history. She did not give evidence during the sentencing hearing. 20The applicant left school at the end of year 10 and completed a Certificate II in Hospitality at TAFE. It seems that the applicant gave conflicting information to the authors of the pre-sentence report and the psychological reports as to whether she attempted to complete years 11 and 12 at TAFE. Ultimately nothing turns on this. The applicant was employed in a factory work position at the age of 17 for a period of approximately one year until the position was made redundant. She had been unemployed since that time. 21The applicant had been in a relationship with the co-offender since about 2006 and, as mentioned above, had three young children with him. 22The unchallenged evidence, in psychological reports from Ms Hopkins, was that the applicant's full-scale intelligence was assessed as being in the first percentile for her age group and in the extremely low to borderline range. She had very poor verbal competence and non-verbal reasoning skills. Despite the applicant's low intellectual functioning, Ms Hopkins did not diagnose any intellectual impairment. She considered that the applicant was able to function adequately due to the moderating effect of her adaptive function skills, likely learned through experience and repetition. 23In her first report dated 8 April 2013, Ms Hopkins noted that the applicant had reported that her relationship with the co-offender was positive and she denied any difficulties with domestic violence or with the co-offender attempting to control or bully her. 24Nonetheless Ms Hopkins expressed the view that the applicant's problematic social functioning and naivety would make her particularly malleable to the influence of others. Ms Hopkins concluded that: "Her offending seems best understood in the context of her alcohol intoxication, low intellectual capacity, likely malleability to her partner's actions, and seemingly poor understanding of appropriate sexual boundaries." (AB 45) 25In her second report dated 8 August 2013, having reinterviewed the applicant by telephone, Ms Hopkins noted that the applicant had provided a relationship history with the co-offender which was inconsistent with the earlier history which she had given. The applicant reported a relationship punctuated by verbal arguments approximately once a month, that the co-offender had been verbally aggressive, and that she had been scared of him and remained fearful of him. She told Ms Hopkins that her partner had asked her on several previous occasions if they could engage in a "threesome" but she was not interested in doing so. She explained to Ms Hopkins that on the evening of the offence she agreed to do so out of fear that her partner might "bash" her or assault her, although he did not verbalise these threats. (By contrast the applicant had reported to the author of the pre-sentence report, dated 12 June 2013, an actual threat of violence by the co-offender. The applicant reported that while in the taxi, on the way home on the evening of the offence, the co-offender said "he would hurt both me and xxxx (the victim) if I don't and I didn't want her to get hurt so I did it".) 26Ms Hopkins concluded that the earlier history of a positive relationship was motivated out of a desire to protect herself and her partner, and potentially out of fear of disclosing the difficulties she had in her relationship. 27Ms Hopkins' updated assessment of the applicant was that: * she was fearful of her partner's volatility due to previous periods of verbal aggression by him and the precariousness of their union; * there seemed to be a power differential between the applicant and her partner; * her decision-making would have been impacted by her low intellectual functioning and the fact that she had consumed a quantity of alcohol; and * she was immature and naïve with regard to sexual boundaries. Reasons of the primary judge 28The sentencing judge found that the objective seriousness of the offence was somewhere between the "middle and the top of the degree of seriousness" (at ROS 4). In reaching this conclusion his Honour took into account the following circumstances relating to the offending: * the victim (who in fact was aged 15 years and 10 months) had made it clear to the applicant that she did not wish to engage in group sex but her will was overborne by the co-offender and the applicant; * the applicant had gone along with the demands of the co-offender; * the applicant had abused a position of trust; * the applicant's behaviour shortly after the offence showed a lack of compassion for the victim and limited signs of remorse. 29His Honour took into account the two reports from the psychologist, Ms Hopkins, which he noted indicated that the applicant had limited intellectual capacities and possibly some depressive risk. He also noted that the second report gave greater insight into the mind of the applicant - that she was a person who was confused because of her affection for her partner (the co-offender) who was the father of her three children, and seems to have been easily manipulated by him. However his Honour did not regard these matters as lessening the applicant's moral culpability and found that the sentence must give effect to general deterrence in relation to the conduct in which the applicant was engaged (at ROS 5). 30Taking into account that the objective seriousness of the offence was "higher than mid range" and called for general deterrence, his Honour found that no other sentence other than a custodial sentence was appropriate (at ROS 6). 31His Honour found special circumstances, given the applicant "has been manipulated by the co-offender" (at ROS 5). 32His Honour noted the applicant's expression of remorse. He observed that the fact that the applicant had continued to live with the co-offender and "that she has not been able or willing to embark upon a course that would cause her to avoid any possible threat of retribution by her partner which has been shown in the psychological reports" possibly reflected her degree of confusion (at ROS 5). 33His Honour also noted that the presentence report confirmed the matters in the psychological reports, in particular that the applicant was scared of the co-offender. He observed however that the applicant had not taken the opportunity to remove herself and her children from the influence of the co-offender (at ROS 6). 34His Honour allowed a 10% discount for the applicant's late plea of guilty and a 15% discount for assistance to authorities. (The applicant had agreed to give evidence against her co-offender.) No complaint is made in relation to these discounts. 35His Honour considered that a head sentence of 4 years was an appropriate starting point. Allowing for the 25% discount, he arrived at a head sentence of 3 years, and, having found special circumstances, imposed a sentence of imprisonment with a non-parole period of 18 months with a balance of term of 18 months (at ROS 6). The non-parole period represents 50% of the total sentence. Sentence imposed on co-offender 36On 19 August 2013 the co-offender pleaded guilty to the offence of sexual intercourse with a person above the age of 14 years and below the age of 16 years, in circumstances of aggravation, namely, that he was in the company of his then partner, the applicant - contrary to s 66C(4) of the Crimes Act. 37As already mentioned the co-offender was also sentenced by Maiden DCJ. His Honour found the objective seriousness of his offending was near to the higher end of the scale (at ROS 6). He considered the issue of parity between the applicant and the co-offender, and concluded that the facts found in the applicant's case were different to the facts in the co-offender's case, in that the co-offender was the "prime mover" in respect of what had occurred (at ROS 1). 38His Honour did not accept the co-offender's explanation, in which he blamed his behaviour on his consumption of alcohol (at ROS 6). He also gave little weight to the co-offender's expression of remorse which was belated and had followed the refusal of bail for some period. He observed that the co-offender had not shown an understanding of his actions and the damage caused to the victim (at ROS 7). 39The co-offender was aged 26 years at the time of the offending and 28 years when sentenced. He had no prior convictions. He was assessed as having a low to moderate risk of reoffending. His Honour found that there was a need for both general deterrence and specific deterrence. He concluded that the circumstances of the offence were explained purely by the co-offender's desire for sexual gratification. 40His Honour considered that the appropriate starting point was a head sentence of 6 years and 6 months. He allowed a discount of 10% for the late plea of guilty and found special circumstances. As already mentioned, the co-offender was sentenced to a term of imprisonment with a non-parole period of 4 years and 6 months and a balance of term of 1 year 4 months and 6 days. Ground 1 - Suggested failure to take into account the applicant's intellectual disability in relation to the moral culpability 41It should be said immediately that the reference in ground 1 to the applicant's "intellectual disability" is inaccurate. It is clear from the applicant's written submissions that this ground is directed to the applicant's limited intellectual capacity. On no view of the evidence did the applicant have an intellectual disability as such. Counsel for the applicant did not contend otherwise. Ground 1 should be approached on this basis. 42The relevant passage of his Honour's judgment in respect of which complaint is made is as follows (at ROS 5): "There are two reports which are of relevance from psychologist Danielle Hopkins, a psychologist with the Lennings Seidler Collins group, a group well known to this court and whose reports are of assistance. The first report given in April of this year indicated a woman with limited intellectual capacities and possibly some depressive risk. The second report which although done by telephone appears to give greater insight into the mind of this offender, that is, a mind which was confused between the affection for her partner who is the father of her three children and a person who has in the past limited social skills and appears to have been easily manipulated by her partner in the past and perhaps continuing. That, of course, is not an answer to what was the wrong that she partook in and in respect of that, this court must consider general deterrence in relation to these facts and that is, that if people wish to involve a third person against their will, and although their level of touching might be seen to be minor, it did allow a fifteen and a half year old girl to be raped by her partner. It is always unfortunate where a young mother who has had what would seem to be a difficult upbringing with limited verbal and written skills to make her way in society. I do find that she has been manipulated by her co-offender and thus in terms of the subjective factors I find special circumstances and give her the benefit of a lengthy probation." 43Counsel for the applicant contended that his Honour erred in not taking into account the evidence of the applicant's limited intellectual capacity in relation to the objective seriousness of the offence, the applicant's role in the offence, and in considering the appropriate head sentence. In particular it was said that the applicant's moral culpability was reduced, to some degree, by the manipulation of the co-offender and that this should have been reflected in the head sentence. In supporting this ground, reference was made to the unchallenged psychological evidence that the applicant was fearful of the co-offender's volatility; that there was a power differential in the relationship; and that her decision to acquiesce in her co-offender's request should be understood in the context of a limitation on her intellectual ability to understand appropriate sexual boundaries and to resist the influence of her co-offender. 44The Crown submitted that the psychological evidence was included in the instinctive synthesis undertaken by his Honour and was taken into account in accordance with the submissions made on the applicant's behalf. It was submitted that this evidence was only relied upon by the applicant before the sentencing judge as being relevant to establishing special circumstances and not in relation to the question of moral culpability. Reference was made to the submissions on this topic by the applicant's counsel at the sentencing hearing (T 4, lines 29-35). Consideration 45There are difficulties with the Crown's submissions. 46First, the applicant's counsel at the sentencing hearing (who was not the counsel who appeared on this application) did not confine his submissions based on the psychological evidence to the issue of special circumstances. The transcript records that this material was relied upon by the applicant's counsel both on the issue of special circumstances (at T 4, lines 29) and more generally (at T 8, lines 10-12). The latter transcript reference records the submission by the applicant's counsel that what was important in this case was: "... the combination of the plea, the assistance, the applicant's role in the offending, her previous clean record, and what was described as her intellectual functioning". 47The transcript then records (at T 8, lines 12-14) the concession made by the applicant's counsel, quite properly, that the applicant had not been diagnosed as having an intellectual disability and that her case did not approach the level of intellectual handicap as in Muldrock v R (Muldrock) [2011] HCA 39; 244 CLR 120. Nonetheless the submission which was made (at T 8, lines 15-19) was that the psychological evidence of the applicant's level of functioning: "... is quite telling, not only of her general makeup but also the way that she participated in this offence and in my submission what your Honour can draw from all of this material, the influence that was played by Mr xxxx (the co-offender), so its something that your Honour can - your Honour ought take that into account." 48The applicant's counsel then referred (at T 8, lines 21-28) to possible sentencing options, in particular a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). (This would have first required a conclusion that a sentence of 2 years or less would have been appropriate.) 49Thus, contrary to the Crown's submissions, the applicant did not rely on the psychological evidence solely as being relevant to establishing special circumstances when setting the length of the non-parole period. 50Secondly, it should be accepted that his Honour did not have regard to the applicant's limited intellectual capacity (nor consider this matter as being relevant) when assessing her moral culpability. This is evident from his Honour's remarks (reproduced above at [42]) that the evidence of the applicant's vulnerability to manipulation by her co-offender was not an answer to the offence that she took part in. 51The psychological evidence was clearly relevant to an assessment of the applicant's moral culpability. There was unchallenged evidence before his Honour, which he failed to relevantly consider, that the factors which explained the applicant's offending included her low intellectual capacity and likely malleability to her co-offender's actions. 52It follows, in my view, that the sentencing judge erred in his assessment of the applicant's moral culpability. Ground 1 is made out. Ground 2 - Suggested failure to consider the diminished need for general deterrence 53The applicant contended that his Honour erred when considering the need for general deterrence by limiting his consideration to the facts of the offence and his finding as to the objective seriousness being higher than mid range. It was said that his Honour failed to consider whether the need for general deterrence ought to have been moderated in light of the applicant's "mental disability". Specifically, it was contended that the applicant was a less than appropriate vehicle to deter others from offending taking into account his Honour's finding that the applicant had been manipulated by her co-offender. 54The Crown submitted that the premise of this ground - that the applicant had an intellectual disability which made her vulnerable to manipulation by the co-offender - was incorrect because there was no finding to this effect by his Honour, nor did the psychological evidence support a finding of intellectual impairment. 55The Crown further submitted that, having regard to the way in which the applicant presented her case to the sentencing judge, she ought not to be permitted, so it was said, to reformulate her case on appeal. Reference was made to Zreika v R (Zreika) [2012] NSWCCA 44 at [80]-[81]. The Crown repeated its submissions in relation to ground 1, that the applicant only relied on her limited intellectual functioning as being relevant to establishing special circumstances. 56In oral argument counsel for the applicant put this ground slightly differently, accepting as she must that the applicant did not have a mental disability. It was contended that Zreika had no relevance because here counsel for the applicant had raised before the sentencing judge the issue of manipulation by the applicant's co-offender, his Honour had made a finding to that effect, and this necessarily raised an issue for general deterrence. The error was said to be that his Honour had failed to take that matter into account when considering general deterrence. Consideration 57It may be accepted that the approach in Zreika has been consistently emphasised and applied by this court in circumstances where reliance is sought to be placed on appeal on aspects of the offender's mental condition which have been expressly eschewed by counsel at sentencing hearing: see Beldon v R [ 2012] NSWCCA 194 at [36]. 58Here however I would not regard ground 2 as an improper attempt to revise and reformulate the applicant's case as presented to the sentencing judge. Insofar as the applicant's written submissions in this Court referred to a "mental disability", the applicant's counsel clarified in oral argument that this was not intended to put the case any higher than had been advanced before the sentencing judge. 59Viewed in this light, the unchallenged psychological evidence supports the applicant's contention that, notwithstanding the fact that she had some appreciation that what she did was wrong, her intellectual limitations made it difficult to reason as an ordinary person might, and made her vulnerable to pressure from her co-offender. 60In terms of the weight to be given to general deterrence, the central question is whether the offender is an appropriate vehicle to deter others from offending: R v Engert (1995) 84 A Crim R 67; Muldrock at [53]-[55]. 61It is evident however, from his Honour's remarks (at ROS 5), that in considering general deterrence he did not take into account his earlier finding (at ROS 5) that the applicant had in fact been manipulated by the co-offender. Notwithstanding that finding of manipulation by the co-offender, his Honour said: "that, of course, is not an answer to what was the wrong that she partook in and in respect of that, this Court must consider general deterrence in relation to these facts ..." (at ROS 5). 62It may be accepted, by analogy with the authorities dealing with offenders suffering from some mental impairment or disability, that there is no presumption of a more lenient sentence for an offender (such as the applicant) who has limited intellectual functioning. As Simpson J explained, in a different context, in Aslan v R [2014] NSWCCA 114 at [34]: "It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for." 63Here it was not suggested by the Crown that the applicant's limited intellectual functioning meant that she was a danger to the community (indicating a need for community protection). Rather the Crown simply submitted that the applicant's "mental state" was not such as to mandate that less emphasis be given to general deterrence. This however ignores the significance of his Honour's finding that the applicant was manipulated by her co-offender. That finding was based on an acceptance of the psychological evidence that the applicant's limited intellectual functioning made her vulnerable to manipulation by her co-offender. It follows, in my view, that the sentencing judge erred in failing to consider whether this had the consequence that the applicant was an inappropriate vehicle for general deterrence. 64Ground 2 is made out. Ground 3 - Finding that the objective seriousness of the offence was between the middle and the top of the range Ground 4 - The applicant has a justifiable sense of grievance when considering the sentence imposed on the co-offender 65Grounds 3 and 4 may be dealt with together, as the applicant relied upon ground 4 not as a standalone ground, but as indicator (together with the matters in grounds 1 and 2) of error in his Honour's assessment of the objective seriousness of the applicant's offending. 66The applicant contended that his Honour's finding of objective seriousness being "between the middle and the top of the degree of objective seriousness" was erroneous, particularly when viewed in light of the offending by her co-offender who, as already mentioned, his Honour later described as being the "prime mover" when sentencing him. 67The Crown did not concede that the assessment of the applicant's offending was erroneous, but took the approach in submissions that if the Court were to find error, then no lesser sentence is warranted at law. This was said to follow when one has regard to the sentence actually imposed, the objective seriousness, and all other factors in the case. Consideration 68In Muldrock at [27], where a standard non-parole period was provided for an offence, the High Court said at [27]: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 69It has been observed in this Court that the judgment of the High Court in Muldrock has left somewhat opaque the meaning of the term "objective seriousness": R v Koloamatangi [2011] NSWCAA 288 at [19]-[21]. Nonetheless, as subsequent decisions of this Court have stated, it remains part of a sentencing judge's function to consider the objective gravity of the subject crime and the moral culpability of the offender: Ayshow v R [2011] NSWCCA 240 at [39]; Sheen v R [2011] NSWCCA 259 at [169]; Zreika at [47]. 70The issue was considered in McLaren v R (McLaren) [2012] NSWCCA 284 at [27]-[29] (McCallum J; McClellan CJ at CL and Bellew J agreeing). There the contention had been advanced that Muldrock renders impermissible any consideration of the applicant's state of mind in assessing objective seriousness of the offence in question. McCallum J explained why Muldrock does not derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question. This assessment includes consideration of the offender's "mental state" or, as in this case, the applicant's limited intellectual functioning. Most recently in Elturk v R [2014] NSWCCA 61 at [34], Beazley P (R A Hulme and Schmidt JJ agreeing) endorsed the observations of McCallum J in McLaren. 71The applicant relied on two matters as indicating error in his Honour's assessment of objective seriousness. First it was said that his Honour took into account an irrelevant consideration (at ROS 5), namely, that the applicant's participation in the offending allowed a young girl (in fact aged 15 years and 10 months) to be raped by her co-offender. His Honour's reference to the offence of rape is to be taken as a reference to the offence of sexual assault contrary to s 61I of the Crimes Act. This offence involves, as an element of the offence, the absence of consent to sexual intercourse. This offence also carries a higher maximum penalty of 14 years imprisonment. It was not in dispute that his Honour incorrectly made reference to an offence with which the applicant had not been charged. 72In my view, his Honour's reference to the offence of rape (sexual assault: s 61I Crimes Act) should not be regarded as merely infelicitous. It is implicit in his Honour's assessment of the applicant's offending that he mischaracterised the applicant's conduct. 73Secondly, the applicant contended that his Honour failed to take into account a relevant consideration, namely, the matter already mentioned under grounds 1 and 2 - that the applicant's moral culpability was reduced, to some degree, by the manipulation of the co-offender. This submission should be accepted as it follows from grounds 1 and 2 having been made out. His Honour also seems to have not considered that the applicant did not initiate the offence, and that her role was relatively minor insofar as she assisted the co-offender to sexually gratify himself. 74These two matters are sufficient to establish that his Honour's finding of objective seriousness was erroneous. Ground 3 is made out. 75The errors established by grounds 1, 2, and 3 are sufficient for the grant of leave to appeal. This makes it unnecessary to separately address ground 4 in the context of whether leave to appeal should be granted. The parity principle is a matter to be taken into account when considering whether some other sentence is warranted. In particular, it is necessary to keep in mind that the principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be metered out to reflect differences between those that are relevantly different: Green v The Queen; Quinn v The Queen (Green and Quinn) [2011] HCA 49; 244 CLR 462 at [28]. Is some other sentence warranted in law? 76It is necessary to consider whether some other sentence is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW). Aside from reliance upon the matters advanced in support of grounds 1 - 4, counsel for the applicant relied upon affidavit evidence from the applicant, her mother, and her solicitor in relation to her present circumstances and those of her children, who now have both parents in custody. 77Counsel for the applicant submitted that the affidavit evidence established that the applicant: (1)was remorseful; (2)had completed various courses including the Young Adults Satellite Program, and had recently started a Certificate II course in Skills in Job Search and Training; (3)had recently decided to end her relationship with her co-offender and had informed him by letter that the relationship was now over; and (4)was anxious and concerned that her absence in custody was affecting her three young children, aged 7, 5, and 3, who are currently in the care of her parents, particularly her eldest daughter who was having difficulties coping with her mother's absence. 78The Crown submitted that the Court should decline to intervene as no lesser sentence is warranted at law. 79Neither party suggested that sentencing statistics provided useful guidance to the determination of an appropriate sentence in the present case. Consideration and conclusion 80I have had regard to the applicant's subjective circumstances. Except for this incident she is a person of good behaviour. As a consequence of her offending she has been separated from her three young children since being imprisoned in August 2013. Those circumstances have rendered her sentence more onerous. She has already served over 13 months of her sentence. 81The applicant's affidavit demonstrates that she has been a responsible in-mate with no disciplinary findings made against her. She has also taken steps in terms of rehabilitation by seeking to enrol in appropriate treatment programs. 82The sentencing judge did not make any finding as to the applicant's prospects of rehabilitation. This no doubt reflected the state of the psychological evidence before him. The second report of Ms Hopkins noted that there was insufficient evidence available to assign the applicant to a risk rating scale of re-offending. The report identified a number of issues which were considered protective against her risk of further offending. These relevantly included that the applicant did not present with any current substance abuse problems and did not have a serious history of mental illness or suicidal behaviour; and that the offence was not representative of chronic behaviour problems and had occurred on one occasion without any obvious escalation, severity, or diversity of offending behaviour. 83On the other hand Ms Hopkins' report also noted some factors which could elevate the applicant's future risk of re-offending including her extremely low intellectual functioning and malleability to the influence of others. As to this last matter, as already mentioned, the applicant has recently taken the positive step of ending her relationship with her co-offender. This will obviously assist with her rehabilitation, as will the support she enjoys from her parents. 84Overall the applicant has a far stronger subjective case to that of her co-offender. 85It is necessary to balance all these matters against the offending. 86Notwithstanding her limited intellectual functioning, the applicant appreciated what she was doing was wrong. The offending was obviously serious. The applicant abused a position of trust with a young girl who was a family friend. The traumatic impact of this crime on the victim cannot be understated. The sentencing judge was correct to observe that the applicant showed little compassion for the victim immediately after the offending. 87Subsequently, the applicant expressed her remorse in a statutory declaration which was provided to the sentencing judge, in which she said she wanted to tell the author of the pre-sentence report "how sorry I was". 88More recently, in her affidavit of 20 August 2014, the applicant has acknowledged that she had done the wrong thing and was terribly sorry for what she had done. The Crown did not submit that the applicant was not sincere in her contrition for her offending. 89It may be accepted that the applicant's moral culpability was reduced, to some degree, by her limited intellectual functioning and her vulnerability to manipulation by her co-offender. The Crown did not dispute that the co-offender is properly to be viewed as the prime mover in this joint criminal enterprise. The applicant's participation, although a necessary element of the offending, was secondary in comparison to her co-offender. In my view, the objective seriousness of the applicant's offending is, for that reason, below the mid range. 90When regard is also had, as it must, to the sentence imposed on the co-offender (Green and Quinn at [32]), I am satisfied that a lesser sentence is warranted for the applicant to properly reflect their different roles, moral culpability, and subjective circumstances: R v Postiglione [1997] HCA 26; 189 CLR 295 at 301-302. 91The appropriate starting point for the head sentence, in my view, is 3 years. Allowing for the 25% discount found by the sentencing judge, the head sentence should be 27 months. Having regard to his Honour's finding of special circumstances, and maintaining the ratio applied by his Honour (of a non-parole period equal to 50% of the head sentence), I would fix a non-parole period of 13 and a half months, with a balance of term of 13 and a half months. 92The applicant should be resentenced to a term of imprisonment with a non-parole period of 13 months and 15 days, commencing on 11 August 2013 and expiring on 25 September 2014, and a balance of term of 13 months and 15 days, expiring on 10 November 2015. Order 93I propose the following orders: (1)Leave to appeal is granted. (2)Appeal allowed. (3)The sentence imposed in the District Court on 12 August 2013 is quashed. (4)The applicant is sentenced to imprisonment comprising a non-parole period of 13 months and 15 days commencing on 11 August 2013 and expiring on 25 September 2014 with a balance of term of 13 months and 15 days commencing on 26 September 2014 and expiring on 10 November 2015. The applicant is to be released to parole on 26 September 2014. 94FULLERTON J: I agree with Gleeson JA. 95GARLING J: I agree with Gleeson JA. ********** Amendments 25 September 2014 - Last sentence of order 4 reworded. Amended paragraphs: Coversheet - order 4 and paragraph 93 - order 4 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. Decision last updated: 25 September 2014