Barlow v R

[2008] NSWCCA 96

Reported Decision: 184 A Crim R 187

New South Wales

Court of Criminal Appeal

CITATION:	BARLOW v REGINA [2008] NSWCCA 96
HEARING DATE(S):	Wednesday 21 November 2007
JUDGMENT DATE:	6 May 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hall J at 8; Price J at 107
DECISION:	Leave to appeal granted. Appeal dismissed. These orders pursuant to Rule 50B(3) are to be entered by the Registrar by signing and sealing a minute of the proposed orders on and not before 15 May 2008.
CATCHWORDS:	CRIMINAL LAW – detaining a person with intent to obtain an advantage - SENTENCING – appeal against severity of sentence – applicant’s offence motivated by revenge – alleged earlier sexual assault by victim upon applicant – assessment of objective seriousness of the offence – availability of a suspended sentence as an alternative – sentence not manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Dinsdale v R (2000) 202 CLR 321 Kutchera v R [2007] NSWCCA 121 Markarian v The Queen (2005) 228 CRL 357 R v AEM Snr & Ors [2002] NSWCCA 58 R v Blackman & Walters [2001] NSWCCA 121 R v Causby [1984] Tas R 54 R v Collett (CCA, unreported 1 June 1979) R v Davis [2004] NSWCCA 310 R v Foster [2001] NSWCCA 215 R v GDP (1991) 53 A Crim R 122 R v JCE [2000] NSWCCA 498 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Newell [2004] NSWCCA 183 R v Percy [1975] Tas SR 62 R v Pham (1991) 55 A Crim R 128 R v Swan [2006] NSWCCA 47 R v Way (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Wood v Samuels [1974] 8 SASR 465
PARTIES:	Melanie BARLOW v REGINA
FILE NUMBER(S):	CCA 2007/2834
COUNSEL:	Crown: Ms N Adams App: Ms H Cox
SOLICITORS:	Crown: S Kavanagh App: Aboriginal Legal Service
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3160
LOWER COURT JUDICIAL OFFICER:	Bell DCJ
LOWER COURT DATE OF DECISION:	6 March 2007

2007/2834

McCLELLAN CJ at CL
HALL J
PRICE J

TUESDAY 6 MAY 2008

MELANIE BARLOW v REGINA

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Hall J. I agree with his Honour’s reasons.

2 The offence committed by the applicant was serious. Motivated by the wrong she believed was previously done to her and accompanied by a male friend, she took the law into her own hands. The victim was punched, dragged, hit with kitchen tongs and threatened with death and generally put in terror for at least two hours. Whatever be the crime committed by the victim, a civilised society cannot condone such conduct. The rule of law requires that offenders be tried by the appropriate authorities and, if convicted, punished in accordance with accepted principle. In our society crime is dealt with by the courts.

3 As Hall J has recognised the sentencing judge was required by authority to consider whether a sentence other than a term of imprisonment was appropriate and, if not, whether the sentence should be suspended. His Honour addressed these questions having carefully considered the relevant evidence.

4 In particular his Honour gave detailed consideration to the evidence of Dr Wilcox and the psychological impact which the offence allegedly committed by the victim has had upon the applicant. My reading of the evidence admitted at the sentence hearing and the remarks of the sentencing judge does not suggest that there was any aspect of the evidence which his Honour failed to appropriately consider.

5 The sentencing judge determined, correctly in my view, that the only appropriate sentence was one of imprisonment. As his remarks indicate his Honour was also mindful of the need to consider whether a suspended sentence may, in the circumstances, be appropriate. He acknowledged the submissions which had been made on the applicant’s behalf which urged that his Honour adopt this option. Notwithstanding the evidence of Dr Wilcox, his Honour concluded the objective seriousness of the offence and the need for deterrence required that the sentence be served in prison.

6 In my judgment his Honour’s conclusion was appropriately explained and the conclusion which he reached well within his sentencing discretion. Indeed the term of the sentence even with the obligation that it be served by a period of full time custody was at the lower end of the range.

7 I agree with the orders proposed by Hall J.

8 HALL J: The applicant, by way of notice of application for leave to appeal dated 10 September 2007, seeks leave to appeal from a sentence imposed in the Wollongong District Court on 6 March 2007.

9 The applicant was charged with an offence pursuant to s.86(3) of the Crimes Act 1900 in that, on 21 January 2006, at Wyoming in the State of New South Wales, she did, without consent, detain one Michael Barlow with the intention of obtaining an advantage, namely, to detain and assault him and occasion actual bodily harm to him while he was detained, whilst she was in the company of another male person.

10 An offence under s.86(3) of the Crimes Act is subject to a maximum penalty of 25 years’ imprisonment. There is no standard non-parole period for such an offence pursuant to the Crimes (Sentencing Procedure) Act 1999.

11 The sentencing hearing was initially listed before the District Court at Gosford on 23 February 2007 and was then adjourned until 6 March 2007.

12 The applicant was sentenced on the latter date to a term of imprisonment with a non-parole period of five months and two weeks to commence 6 March 2007 and to expire on 20 August 2007, with a balance of term of 10 months to expire on 20 June 2008.

13 In an affidavit sworn 21 November 2007, the applicant stated that she was granted bail on 18 April 2007. She, accordingly, has served between 6 March 2007 and 8 April 2007 in custody, leaving approximately four months and two weeks to serve if this application for leave to appeal is unsuccessful.

14 The applicant gave birth on 20 September 2007. He baby was born in a healthy condition but was diagnosed with a urinary tract infection on 16 November 2007 and was hospitalised until 19 November 2007. The baby is on ongoing medication for that condition.

15 The applicant also stated in her affidavit (paragraph 15) that based on a conversation with a solicitor with the Director of Public Prosecutions, she understood her cousin had been convicted of an offence of having sexual intercourse and had received a good behaviour bond.

16 There were six grounds of appeal relied on in support of the application for leave to appeal. They were as follows:-

Ground 1: His Honour failed to properly assess the objective gravity of the offence
Ground 2: His Honour failed to properly consider a suspended sentence as a reasonably available outcome of the sentencing exercise
Ground 3: His Honour failed to determine the availability of a suspended sentence as a sentencing alternative in accordance with law
4: His Honour failed to properly take into account the applicant’s youth
Ground 5: His Honour erred in not finding that the applicant had good prospects for rehabilitation
Ground 6: The sentence is manifestly excessive

17 The applicant entered a plea of guilty on 21 January 2006. At the sentencing hearing, a statement of agreed facts was tendered, together with a number of other statements. The circumstances of the offence were described in the Crown’s submissions as follows.

18 On the date of the offence, the applicant went to her cousin’s caravan in company with another man whom she later stated she was unable to identify, in the early hours of the morning where they assaulted and terrorised the victim for two hours. It is stated in the summary that, during that time, she and the other man punched him, hit him and dragged him back on occasions to prevent him from escaping, tortured him, struck and poked him with kitchen tongs and threatened to kill him. As a result of the ordeal, the victim suffered a soft tissue injury to the left wrist, lacerations to the right knee (requiring four stitches), other lacerations and a suspected head injury. At the time of sentence, the victim still had scarring to his legs and had had to seek counselling for what was described as his “emotional mental decline”.

19 The sentencing judge set out his findings of fact which are said to have been based on the Agreed Facts (Exhibit A5). The summary of facts as found by the sentencing judge are set out in the Crown’s written submissions (paragraphs 6 to 13) in the following terms:-

“6. On Saturday 21 January 2006 at about 12.30 am, Michael Barlow (‘the victim’) received a telephone call from the applicant. She sounded upset and wished to speak with him. He agreed to meet her. Half an hour later, she called him again to say that she was outside of [sic] his caravan at the Wyoming Caravan Park where he resided. He let her in and walked over to the lounge. He then heard the door unlock behind him and saw the applicant letting another man into the caravan.
7. The victim told this man to leave. The man said to him ‘I’m going to kill you, sit the fuck down’. The victim tried to leave but the man punched him to the side of his left eye. He continued to try and leave but the man grabbed him and pulled him backwards. The applicant also grabbed him from behind and placed him in a headlock. She covered his mouth to stop him from calling out.
8. The victim managed to get the door slightly ajar but fell backwards. The applicant jumped on him and yelled to the other man to quickly shut the door. The other man then said ‘If you don’t want to get killed, go sit on the lounge and listen to her’. The victim complied, fearing for his safety. The applicant then yelled at the victim ‘Do you know what you have done to me’. When he replied that he did not, she slapped him on the left side of his face and became hysterical and again asked ‘Do you know what you have done to me’. He replied that he had obviously done something for her to be so upset. The applicant again slapped him across the face. The victim tried to leave again but the male person blocked his way and said ‘If you don’t want me to kill you, sit down’.
9. The applicant then said to the victim ‘Do you know that you’ve taken 4 years of my life now I’m going to give you four hours of revenge’. She was laughing and crying at the same time and seemed hysterical. She then punched the victim on the nose causing it to bleed. When he tried to get something to stop the bleeding, he was told he could just bleed on the floor. He (sic) applicant then told him ‘I don’t’ just want revenge, I want to kill you’. This made the victim very scared for his life and he tried to escape again. He was grabbed by the male and pulled back inside causing the sliding door to come off the rails and become jammed.
10. The victim managed to get his head out the door and call for help before the three of them fell back inside the caravan. The applicant had her arms around his neck pulling him backwards. The male fell on top of him and started punching him to the left side of his head – 5-6 times. He stopped punching him and told him to sit on the couch again and ‘shut up’. The applicant released him and said ‘If you think this is bad, just wait until my dad gets his hands on you, he’s going to do a lot worse’.
11. The applicant then damaged one of the victim’s compact discs and went into the kitchen where she found a set of tongs. She stood in front of the victim screaming ‘you’re fucked, you’re fucked, you’re dead, you’re dead’. She then struck the victim around the head with the tongs about two times. She then poked him in the ribs with the tongs but no skin was broken. She was laughing and screaming. She then walked back into the kitchen.
12. The victim feared that the applicant was going to get a knife and again ran to the door. The male grabbed him and there was a struggle. The applicant tried to pull the victim back inside. Eventually, the victim and the man fell through the door causing it to smash. The victim ran to a nearby van and was able to call for help. The applicant and the male were later confronted by other residents. Police arrived a short time later.
13. The incident lasted for years (sic), Senior Constable Webb having received a telephone call at 3.16 am to attend the caravan park. Medical evidence before the court (exhibits A7 and A13) showed the extent of the victim’s injuries.”

The applicant’s allegations of sexual assault upon her by Mr Barlow

20 The applicant made allegations of sexual assault upon her by Mr Barlow. These allegations were the subject of evidence in the proceedings on sentence. A report from a psychiatrist, Dr Wilcox, an affidavit from her mother, a reference, and a police Facts Sheet all tendered in evidence outlined an allegation of sexual assault by Mr Barlow upon her.

21 The applicant gave evidence that the motivation for her assault upon Mr Barlow was the alleged sexual assault by him upon her when she was 15 years of age.

22 Dr Rosalie Wilcox, psychiatrist, in her report dated 2 February 2007, stated that:-

“I believe that her offending behaviour was directly related to the sexual assault in combination with alcohol intoxication.”

23 The applicant had reported the sexual assault to police. Proceedings against Mr Barlow for sexual assault had been instituted and he had been committed for trial as at the date of the applicant’s sentence.

24 In her affidavit dated 23 February 2007, Mrs Ferguson stated:-

“I am now aware that Melanie has been raped by Michael Barlow, her cousin. … When Melanie was 14 or 15 she would visit Michael in his caravan where he was living independently while she was having access visits with her father. I think it happened while Melanie was in year 8 at school. She only told me about it last year when we were in the midst of an argument. She said something like ‘you don’t know half my shit’ and then told me about what had happened.”

25 The applicant attended Gosford and Wyong Hospital on 26 February 2006 with wrist lacerations following a relationship break up and alcohol intoxication. At that time she reported two prior incidents of self-harm in the previous two years and reported a sexual assault by a cousin as one of the features of her history. A report was tendered by the Biala Sexual Assault Service dated 7 November 2006 which stated that the applicant had first attended for counselling in March 2006.

26 As part of the applicant’s case, a police Facts Sheet was tendered which outlined the Crown allegations in the case against Mr Barlow. It was alleged by the Crown that the applicant had attended the residence of Mr Barlow sometime between 1 April 2001 and 31 August 2001 when she was 14 or 15 years of age. At the residence were both Michael Barlow and his then girlfriend, Jade Dunn. Ms Dunn went to bed at approximately 11:30 pm and the applicant went to bed in the spare bedroom soon afterwards.

27 The police Facts Sheet relevantly provides as follows:-

“The victim [the applicant] states that before she fell asleep she heard a knock on her bedroom door and then the accused [Mr Barlow] has entered the room.

…

The victim states that the accused started to try and kiss her.

…

The victim states that the accused then put his hands underneath the sheets and she felt his hand near her groin as he tried to undo the fly on her jeans. The victim tried to push him away with her legs and arms but could not and her jeans were pulled down around her knees.

The victim states that the accused touched her on the outside of her vagina and her breasts.

The victim states that the accused continued to touch her for about 10 minutes as she was unable to get him off.

The victim states that the accused then penetrated her vagina with his penis. She states that the accused moved his penis in and out of her vagina for at least 10 minutes.”

28 A statement from Mr Barlow had been provided wherein he strongly denied the allegations and, in particular, denied sexual intercourse with the victim.

29 According to the police Facts Sheet, a statement had been obtained from Ms Dunn wherein she alleged that the accused admitted to her that he had sex with the applicant. A further statement had been obtained from Ms Helen Prince, who was a subsequent girlfriend of Mr Barlow wherein she also alleged that he had admitted to her that he had had sexual intercourse with the applicant.

Ground 1: His Honour failed to properly assess the objective gravity of the offence

30 It is submitted for the applicant that his Honour erred in not taking into account the applicant’s “motivation in determining where the offence fell in the range of seriousness” (paragraph 48 of the applicant’s written submissions). The submission was supported by reference to this Court’s observations in Regina v Way (2004) 60 NSWLR 168 at [85] and [86].

31 The complaint made by the applicant in terms of Ground 1 is that the sentencing judge adopted a restrictive assessment of the objective seriousness of the offence confined, in particular, to:-

• The purpose of the detention – namely, the type of advantage sought to be obtained.

• The extent of the injury, fear or terror caused and what may be required of the detainee.

• The period over which the detention extended.

32 An assessment restricted to such matters, it was contended, demonstrated a failure by the sentencing judge to take into consideration matters of motivation, the limited degree of planning and the mental state of the applicant. Had these matters been taken into account in the assessment of the objective seriousness of the offence, then, so the submission went, the assessment would have been that the objective seriousness of it was “… very much towards the lower end of the spectrum” (written submissions at [50]). It was said that the sentencing judge’s categorisation of objective seriousness “as falling in the range between 25 and 50%, that is the second lowest quarter” was unduly mathematically and indicative of error.

33 Whilst I accept that the approach was unduly mathematical, I do not consider that the assessment made was, in itself, erroneous.

34 The sentencing judge applied the approach taken in Regina v Collett (NSWCCA, unreported 1 June 1979) in which Street CJ, with whom other members of the Court agreed, identified the three matters to which I have referred in paragraph [31]. In his remarks on sentence at p.6, his Honour expressly referred to them and then applied them in the following terms:-

“… As to (a), the statement of facts makes it clear that Ms Barlow intended to detain the victim in order to obtain psychological gratification by the infliction of injury upon. And as to (b), the certificate from Dr Oni (Exhibit A7) and hospital summary sheet (Exhibit A13) details soft tissue injury to the left wrist, lacerations to the victim’s right knee requiring four stitches, other lacerations and a suspected head injury …”

35 His Honour went on to refer to the victim’s reference in his statement to police to the fear that he held that, unless he escaped, he was going to be killed. Reference was also made to his Victim’s Impact Statement and the psychological sequale of the incident. He then continued:-

“… the Crown’s submission was that there were, ‘hours the victim was unable to protect himself’ …”

36 The sentencing judge then found that the duration of the detention had been approximately two hours. He then proceeded to make his assessment of the objective seriousness of the offence.

37 It is the fact, as has been submitted, that in this segment of the remarks on sentence, the sentencing judge did not make express reference to the matters identified in the applicant’s written submissions. However, be that as it may, I do not consider that the assessment arrived at can be said to be disproportionate or in any way excessive. As Howie J observed in Regina v Newell [2004] NSWCCA 183 at [30], the determination of the seriousness of an offence, generally, involves a fact finding exercise and is within the discretionary judgment of the sentencing judge.

38 In Newell (supra), the offender had been charged with the aggravated offence of kidnapping under s.86(2)(b) of the Crimes Act. In the present case, as earlier stated, the applicant was charged with the more serious, specially aggravated offence, under s.86(3). Howie J, in relation to the former offence, observed at [32]:-

“The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under s.86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my opinion, conclusive as to the seriousness of the offence. In particular, simply because the section makes reference to one specific type of advantage, that is ransom, it does not follow that the presence or absence of that particular type of advantage is decisive in a determination of the seriousness of the particular offence before the Court.”

39 The sentence imposed by this Court in Regina v Davis [2004] NSWCCA 310 provides, in my opinion, no assistance to the determination of the present application. The case did not contain a comparable level of violence as occurred in the present case and it contained, what Grove J described at [25], as having elements of farce.

40 The nature of the conduct by the applicant could be correctly identified in the remarks on sentence as having been in the nature of “vigilante” conduct. The seriousness of the offence in question, despite the purpose or motivation having been revenge for the alleged sexual assault by the victim upon her some six years before, involved a deliberate course of conduct, in company with another, whereby the applicant decided to act outside the law in seeking retribution for what she alleged had been done to her by the victim. Such conduct, as the sentencing judge correctly identified, is the antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms.

41 In determining the objective seriousness of this offence as “falling in the range between 25% and 50%, that is within the second lowest quarter” (Remarks on Sentence, p.8), his Honour had regard to (Remarks on Sentence, pp.6-7):-

“(a) the purpose of detention – that is the type of advantage to be obtained;
(b) the extent of injury, fear and/or terror caused and what may be required of the detainee; and
(c) the period over which the detention extended, being in company as an element of the offence automatically moves it into a higher level of criminal seriousness.”

42 In relation to mitigating factors under s.21A(3) of the Crimes (Sentencing Procedure) Act, his Honour accepted the submission on behalf of the applicant that the injury, harm, loss or damage that had to be proved was that which was over and above what might be reasonably expected to be present in the particular type of offence and that it had to be proved beyond reasonable doubt (Remarks on Sentence p.9). Accordingly, his Honour stated that he found “… this mitigating factor established”.

43 In relation to the planning of the offence, his Honour found that it was “not entirely spontaneous” and that “the degree of planning was very limited and to the extent it involved calling in aid a male to accompany her it was opportunistic” (Remarks on Sentence, p.9).

44 His Honour considered provocation at pp.9-10 of the Remarks on Sentence, stating that (at p.10, Remarks on Sentence):-

“There is no doubt that Ms Barlow embarked upon this course of action because she felt violated by what she claims her cousin had done to her. … In her evidence and to both the psychiatrist and to the author of the pre-sentence report she expressed the need to regain her power, to be empowered by taking such action against her cousin. The allegations against Mr Barlow are now in the hands of police. He is entitled to the presumption of innocence at this time so I cannot find that there was unlawful conduct by him as an act of provocation. It cannot be overlooked however that Ms Barlow’s actions were in response to the wrong she believes was perpetrated upon her.”

45 His Honour also made reference to the following factors (at pp.10-14, Remarks on Sentence):-

(a) that the offender does not possess a record of previous convictions;

(b) the youth of the offender at the time of the offence, being 19 years of age;

(c) that she was a person of prior good character;

(d) that “there is very little likelihood of re-offending because [the sexual assault matter] is now in the hands of the police” .

46 The trial judge also concluded that:-

(a) a finding could not be made that there were good prospects of rehabilitation due to the offender’s prior resistance to counselling;

(b) he did not “accord other than a nominal discount for the demonstration of remorse which will be included in the discount for the plea”, due to the continuance of the applicant in minimising the situation and his observations of her in the witness box as not persuading his Honour “that she has felt or feels any deep seated genuine sympathy for her victim” .

47 His Honour reduced the sentence by 25%, having regard to the applicant’s plea at the earliest opportunity and the other factors outlined above. His Honour accorded a discount of 10% for assistance to authorities.

48 The assessment of the objective seriousness of the offence was one which was well open to the sentencing judge and no error has, in my opinion, been demonstrated with the assessment.

Ground 2: His Honour failed to properly consider a suspended sentence as a reasonably available outcome of the sentencing exercise

Ground 3: His Honour failed to determine the availability of a suspended sentence as a sentencing alternative in accordance with law

49 These two grounds are closely related and, accordingly, have been considered together in the written submissions of the applicant and the Crown.

50 It was submitted on behalf of the applicant that the sentencing judge should have suspended the sentence imposed pursuant to s.12 of the Crimes (Sentencing Procedure) Act. In doing so, it is noted in the written submissions for the applicant (paragraph [31]):-

“… the applicant concedes that a non-custodial sentence for an offence under s.86(3) of the Crimes Act 1900 would usually not be appropriate … Regina v Anforth [2003] NSWCCA 222.”

51 It was, however, submitted on behalf of the applicant that this was “a most unusual case” where “the combination of the lower level of objective seriousness of the offence and the subjective case of the applicant combined to make a suspended sentence a reasonably available sentencing outcome” (written submissions, paragraph [53]).

52 Grounds 2 and 3, to an extent, interrelate with Ground 1. I have earlier stated the reasons why I consider that the assessment made by the sentencing judge was well open to him. To that extent, the bases for Grounds 2 and 3 have, accordingly, been determined adversely to the applicant on this application. A passage from p.20.5 of the remarks on sentence has been extracted into the written submissions (paragraph [56]). What is to be observed about that passage is the sentencing judge’s reference to the element of violence that was employed in the subject offence and also that that violence extended over a two hour period.

53 That passage also referred to the aggravating circumstance of the presence of the second person who was responsible for a considerable amount of violence in support of the applicant’s plan to meter out retribution. These were relevant matters for the sentencing judge to have regard to in determining whether or not a custodial sentence was appropriate or not. His Honour determined that no penalty other than imprisonment was appropriate, having regard to the purposes of sentencing (remarks on sentence, p.21.3).

54 His Honour was also mindful of the approach to be taken, having regard to the fact that the applicant was a young offender.

55 His Honour considered the cases of Newell (supra) and Davis (supra) and to the submissions made, in particular, in relation to Davis (at pp.18-19 of the remarks on sentence). He referred, in particular, to Grove J’s comments at paragraph [26] in Davis where Grove J observed that the sentence in the circumstances of that case was one that could have been suspended.

56 His Honour considered the relevant objective factors and subjective matters, and concluded that, at p.21 of the Remarks on Sentence:-

“These are all matters that the court must take into account in coming to what has to be a conclusion that is a balanced one that represents both the objective seriousness of the offence and the substantial subjective matters relevant to the offender. I have come to the conclusion, however, that the commission of this offence, together with the need for deterrence is of such an order that only a sentence of imprisonment is appropriate. The sentence, of course, will be subject to the discount that has already been announced.”

Principles

57 In Regina v Zamagias [2002] NSWCCA 17, Howie J (with whom Hodgson JA and Levine J agreed) re-stated the principles as to how a court should approach the imposition of a sentence of imprisonment under the provisions of the Crimes (Sentencing Procedure) Act. His Honour emphasised that in each step which a sentencing judge is required to take before finally determining the appropriate sentence, the objective gravity of the offence balanced against the subjective circumstances of the offence must be considered:-

“… but it is the first of those considerations that will principally determine which of the available sentencing alternatives the Court should adopt. This is because at the end of the day, the sentence must be commensurate with the seriousness of the crime: Regina v Geddes (1936) 36 SR (NSW) 554; Regina v Rushby [1977] 1 NSWLR 594.”

58 As Howie J also observed at [24] – [25], a sentencing judge is required to address a preliminary question and, depending upon the answer to that question, two further steps may have to be undertaken before the ultimate sentence is imposed. The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the Act prohibits a Court from imposing a sentence of imprisonment unless it is satisfied, having considered all possible alternatives, that no other penalty other than imprisonment is appropriate. Howie J observed at [25]:-

“… it should be noted that at this stage in the process the only consideration is whether a sentence of imprisonment should be imposed and not whether the sentence should be suspended. Notwithstanding that s.12, which provides the power to suspend a sentence, is contained in Division 3 of Part 2 of the Act under the general heading ‘Non-custodial Alternatives’, a suspended sentence is not an alternative to which s.5 relates … That is because a sentence cannot be suspended until it has been imposed: it is the execution of the sentence that is suspended, not its imposition.”

59 If it is determined in answer to the preliminary question that no other penalty is appropriate other than a sentence of imprisonment, the next step to be taken is to determine what the term of that sentence should be: Regina v Foster [2001] NSWCCA 215 at [30]; Regina v Blackman & Walters [2001] NSWCCA 121 at [50] to [52]; Regina v JCE [2000] NSWCCA 498 at [17]. According to Howie J in Zamagias (supra) at [26] – [27]:-

“The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s.6 (periodic detention order), s.7 (home detention order) and s.12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention: R v Wegener [1999] NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T (NSWCCA, 19 June 1995).
The fact that a term of a sentence is to be determined without regard to the fact that it is to be suspended is consistent with the approach adopted in other jurisdictions where that sentencing alternative has been available for many years, see R v Percy [1975] Tas SR 62 at 73; Stevens v Giersh (1976) 14 SASR 81 at 82; Dinsdale v The Queen (2000) 202 CLR 321 at 346 per Kirby J.”

60 On the question of whether an alternative to full-time imprisonment is available for the term of a sentence, Howie J in Zamagias (supra) observed at [28] – [29]:-

“The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s.77 of the Act with respect to home detention. But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The Court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment: Regina v Jurisic (at 250B).
So in the second step, where, for example, the term chosen is one of 18 months or less the alternatives generally available would be, in escalating order of severity: an order suspending the sentence; a home detention order; a periodic detention order; full-time custody: R v LRS [2001] NSWCCA 338 per Sully J at [65]. Of course the court has a discretion as to which of the available alternatives is chosen, but that discretion must be exercised according to established sentencing principles.” (emphasis added)

61 In relation to the level of specificity required of a sentencing judge in the delineation made, if any, of steps taken in the sentencing procedure, Howie J stated in Zamagias (supra) at [30]:-

“Having determined the appropriate sentence, the court must explain the sentence imposed and this may require in an appropriate case some discussion of the alternatives available and why a particular alternative has been chosen: JCE at [19]. But it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed: R v Foster at [33]. In particular, merely because a court has not expressly indicated that it has taken the two-step approach to the determination of a sentence of imprisonment it does not follow that it has failed to carry out the sentencing exercise in this manner: R v Saldaneri [2001] NSWCCA 480 at [14]. However, the nature of the sentence imposed and the failure to record that a two-step approach has been taken may lead this Court to examine carefully the findings made by the sentencing judge to determine whether the sentence is erroneous: R v Foster at [35].”

62 Over time, courts have attempted to set guidelines by which to impose suspended sentences. In Wood v Samuels [1974] 8 SASR 465, Walters J at 468 stated that:-

"A suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and is most likely to benefit from an exercise of the court's clemency.

Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of a particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigors of a custodial sentence to be avoided."

63 In Regina v Percy [1975] Tas SR 62, Green CJ said that the purpose of suspending the whole or part of a sentence is "primarily rehabilitative" and went on to observe that a sentence of imprisonment should not be suspended unless there was a reasonable prospect of the suspended sentence having sufficient deterrent effect or being likely to result in the "reformation" or rehabilitation of the offender. In Regina v Causby [1984] Tas R 54, Cox J followed the approach in Percy (supra).

64 The approach to be taken has been clarified by the High Court’s decision in Dinsdale v Regina (2000) 202 CLR 321. Gleeson CJ and Hayne J expressed the view at 329 that, "the discretion to impose a suspended sentence is not confined by considerations relating to rehabilitation". At 330, Gaudron and Gummow JJ said that they agreed with Kirby J that, "the power to suspend given by s 76(1) of the Sentencing Act, which is limited by the criteria specified in s 76(2), (3) [the latter not presently relevant], is not confined by reference wholly, mainly, or specially to the effect the suspension would have on the rehabilitation of the particular offender". Kirby J noted at p.345, that the power to suspend a sentence of imprisonment exists in the federal jurisdiction and in every State and Territory jurisdiction and stated at pp.345-346:-

“Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified.

…
The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without re-offending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.
A number of attempts have been made to resolve this tension and to provide guidance concerning the circumstances in which a sentence of imprisonment should be suspended. There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis.”

65 Kirby J further stated, at p.348:-

“In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so.”

66 In relation to the imposition of a suspended sentence, the remarks of Howie J in Zamagias (supra) at [31] – [32] are apposite:-

“As s.5 of the [Crimes (Sentencing Procedure) Act] recognises, the imposition of a sentence of imprisonment is a grave step for a court to take whether or not the offender’s liberty is immediately removed or curtailed. … A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended: JCE at [25], R v Foster at [36] where reference is made to statements to that effect in other jurisdictions. That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order even though it may appear on its face to be less punitive.
Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender.”

67 In Regina v Swan [2006] NSWCCA 47, the Court of Criminal Appeal determined that where the motivation for an offence is retaliation for prior sexual abuse and to prevent abuse of others, the need for personal deterrence and protection of the community is considerably lessened, unless prior offences indicate that the behaviour is not isolated. Spigelman CJ observed at [33]:-

“Where the stated motive for the offence was retaliation for prior sexual abuse and to prevent the abuse of others, it would be relevant if this was the only such offence committed by the Applicant. Then it could be said that the need for personal deterrence and protection of the community was considerably lessened, because the act of retaliation was unlikely to be repeated against the particular victim and also because of the fact that it was the crime now under consideration that led to the victim eventually being charged in the manner set out above.”

68 In Regina v Mitchell; Regina v Gallagher [2007] NSWCCA 296, the Court of Criminal Appeal, in accepting that it was a relevant factor that the respondents believed that the victim had been guilty of sexual activity in relation to one of them, observed the following, per Howie J at [30] – [32]:-

“… But a grievance with the conduct of another, whether justified or not, cannot be a license to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case the motive of the respondents for assaulting the victim was of limited mitigating value.

The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan , the existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding that he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence.
…
It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence.”

69 It is apparent from his Honour’s Remarks on Sentence that the preliminary question of whether there were any alternatives to the imposition of a term of imprisonment, as referred to by Howie J in Zamagias (supra), had been determined by his Honour. It is also clear that his Honour carefully considered what the term of the sentence should be.

70 The sentencing judge, as noted above, referred on two occasions, to the applicant’s counsel seeking that any sentence be suspended. However, beyond these two references, his Honour did not, in terms, refer to particular matters relied upon in determining that a suspended sentence was not appropriate.

71 The contention made on behalf of the applicant is that his Honour failed, after having set the length of the term of the sentence, to consider whether that sentence could properly be suspended.

72 It was also submitted that his Honour erred in effectively treating the suspension of sentence as out of range, as had occurred in Kutchera v Regina [2007] NSWCCA 121, wherein Rothman J (James and Harrison JJ agreeing) stated at [42] – [43]:-

“To describe, as did his Honour [the sentencing judge], the suspension of the custodial sentence imposed as being ‘an erroneous exercise of my sentencing discretion’ and as ‘outside a proper exercise of sentencing discretion’ is to treat a suspended sentence in his case as outside the range available. As I have made clear, it was not outside the range, as the Crown conceded.

To preclude consideration of an available outcome is an error of law. To treat a suspended sentence as an unavailable result, when it is within range, is an error capable of being remedied on appeal.”

73 In Kutchera (supra), the sentencing judge made statements that clearly established a conclusion by him that a suspended sentence was unavailable in the circumstances. That is not the case in the present proceedings, where it is apparent that his Honour was mindful of the submissions that had been made on the question of a suspended sentence.

74 It is for this Court to examine carefully the findings made and the conclusions reached by the sentencing judge in order to determine whether there was, having regard to the particular circumstances of the case, proper consideration given to a suspended sentence as a possible sentencing outcome.

75 The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender: Zamagias (supra) per Howie J at [32], with whom Hodgson JA and Levine J agreed. His Honour added:-

“… it is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case, a suspended sentence may be particularly effective and appropriate.”

76 The Court in JCE re-affirmed (at [20]) that an appeal court is not entitled to intervene unless a specific error is identified or the sentence is so manifestly unjust or unreasonable that an identifiable error must have occurred.

77 The Judicial Commission statistics reveal, of course, that the majority of offences of this kind result in terms of imprisonment and suspension of such sentences may be considered to be rare.

78 The sentencing judge gave close attention to the matters that were relevant to the objective seriousness of the offence and to the subjective factors in determining the sentence to be imposed.

79 The “appropriateness” of an alternative to full-time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment: Zamagias (supra) at [28]. As observed earlier, the Court, in choosing an alternative to full-time custody, cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment.

80 In the present case, the alleged sexual assault by the victim upon the applicant at the age of 15 was, on the facts established in evidence in the present application, both a serious one and one that severely impacted upon the applicant. In that respect, the following matters are noted:-

(i) The applicant was at a very vulnerable stage of her development (15 years of age) when the alleged sexual assault occurred.

(ii) The effects of the sexual assault were almost immediate, with a change in the applicant’s behaviour at school marked by truanting, rebellious behaviour and abuse of alcohol.

(iii) A history of depression and self-harm followed with suicidal thoughts and presentation to hospital for treatment on more than one occasion. On one such occasion, the applicant presented with lacerations to one of her wrists.

(iv) Specialist medical diagnosis established that consequent upon the assault on her, the applicant suffered from the condition of dysthymia (chronic low grade depression associated with low self-esteem and self-worth: see report of Dr Wilcox dated 2 February 2007 at p.6).

(v) The offence for which she was sentenced was found to be “directly related to the sexual assault in combination with alcohol intoxication” : Dr Wilcox’s report at p.7.

(vi) The sentencing judge was satisfied that there was very little likelihood of the applicant re-offending. That conclusion was no doubt based on Dr Wilcox’s assessment that such a risk was “very minimal” .

(vii) Dr Wilcox’s opinion was that it is “probable” that the applicant would experience a considerable set back in her progress if she received a custodial sentence.

81 I have considered at length whether the combination of matters (i) to (vii) above were such that the sentencing judge was required to state in express terms that they were matters that had been taken into account in determining the question as to whether the sentence should be suspended or not. A reading of the remarks on sentence leads, in my opinion, to the conclusion that the learned sentencing judge was mindful of those matters in making his decision not to suspend the sentence and that that was a decision well within the sentencing discretion available to him: Markarian v The Queen (2005) 228 CLR 357, 376-377. Accordingly, I do not consider that Grounds 2 and 3 have been made out.

Ground 4: His Honour failed to properly take into account the applicant’s youth

82 The applicant was aged 19 years at the date of the commission of the offence. At the date of sentence, she had, as earlier observed, no prior criminal convictions.

83 The applicant’s submissions acknowledge that the principles stated in relation to young offenders in Regina v GDP (1991) 53 A Crim R 122 are subject to the qualification that, where a youth conducts himself (or herself) in the way an adult might conduct himself (herself) and commits serious crimes, then the deterrence and retribution remain significant elements in sentencing: Regina v Pham (1991) 55 A Crim R 128, 135 (applicant’s written submissions, paragraph [71]).

84 In Regina v AEM Snr & Ors [2002] NSWCCA 58, this Court stated:-

“… there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must, in the public interest, give way.”

85 The submission for the applicant was that the sentencing judge “did not pay proper regard to the applicant’s youth, nor did he refer to these principles in the sentencing exercise” (paragraph 72 of the applicant’s written submissions). It was further submitted that the applicant’s youth and immaturity “contributed very significantly towards the commission of this offence. The offence should also be seen in the context of a perceived sexual assault upon her as a juvenile”.

86 It is clear from the terms of the sentencing remarks that his Honour was aware of the applicant’s youth and the fact that she had no prior convictions and that she had been a person of good character prior to the offence (see remarks on sentence, p.10.7).

87 I consider that the Crown submission that the imposition of a non-parole period of five and a half months, having regard to the serious nature of the offence, does suggest that the sentencing judge had regard and took into account the applicant’s youth and her background circumstances.

Ground 5: His Honour erred in not finding that the applicant had good prospects for rehabilitation

88 In his remarks on sentence (p.11), the sentencing judge observed:-

“The circumstances of the commission of this offence are both very particular and personal – the context is the allegation of prior sexual assault by a cousin. The offender has now been involved in the criminal justice system. Dr Wilcox assesses this risk of re-offence as ‘very minimal’. I am satisfied there is very little likelihood of re-offending because the matter is now in the hands of the police. A finding in relation to prospects of rehabilitation, however, is not so favourable. Whilst the successful prosecution of the cousin will provide justification to Ms Barlow for her allegations, no attention has been given to the consequences of a verdict of acquittal. In such circumstances, if they develop, it is not a hard task to imagine Ms Barlow will feel even more aggrieved. This highlights the need for counselling – and Ms Barlow is clearly resistant to such assistance. Dr Wilcox reported ‘she has been reluctant to engage in any ongoing treatment in part because of pride and a belief that she should be able to get by without any help and because of lack of trust in counselling due to past experiences …”

89 As the sentencing judge explained, the applicant’s past experiences refer to her sense of betrayal by a counsellor when, as a 16 year old, her confidences to a counsellor involved in Family Court proceedings were disclosed in open court.

90 It was by reason of the applicant’s evidence that she thought she could handle the problem without counselling and the judge described her attitude as “disturbing”.

91 Whilst there may be said to be some inconsistency between the finding that the applicant was not likely to re-offend and her prospects of rehabilitation were not so favourable, it is, on the facts of the present matter, possible to reconcile the two.

92 In both the Probation and Parole Service pre-sentence report dated 7 November 2006 and in the report of Dr Wilcox, there are strong statements that the applicant required a significant degree of counselling. In the former report, this was said to be necessary “… to address issues related to the alleged sexual assault and resultant self-harm presentations”.

93 The report of Dr Wilcox, although stating that the risk of re-offending was very minimal, nonetheless acknowledged that it could be further reduced if the applicant participated in appropriate counselling. In other words, a professional opinion on the matter is that counselling would assist the applicant’s rehabilitation and that without it there is a degree of vulnerability which could, in circumstances such as those identified by the sentencing judge, re-ignite. At the end of the day, I consider that the sentencing judge’s finding on the question of the applicant’s prospects of rehabilitation to have been open to him on the evidence.

Ground 6: The sentence is manifestly excessive

94 The sentencing judge, with respect, correctly emphasised the objective seriousness of the offence and that individual and general deterrence was an important element in determining an appropriate sentence.

95 The overall term of 15 months and three weeks (commencing on 6 March 2007 and expiring 20 June 2008) was not, in my opinion, manifestly excessive. It was, as the Crown submitted, towards the bottom of the sentencing range for this offence, having regard to the objective seriousness of the offence and relevant subjective circumstances. The maximum penalty for the offence is 25 years.

96 The particular facts of the offence, as set out in the Agreed Facts and as recorded by the sentencing judge, have been referred to above.

97 I do not consider that the overall term of 15 months and three weeks imposed could be regarded as manifestly excessive or as “unreasonable or plainly unjust”: Dinsdale (supra) at 235. Nor do I consider that the non-parole period of five months and two weeks was in any way unreasonable or unjust.

Affidavit evidence

98 Before proposing orders to give effect to the conclusions which I have stated above, it is necessary to refer to affidavit evidence which Ms Cox of counsel for the applicant sought leave to rely, at least in part, on the basis of it constituting “fresh evidence”.

99 In an affidavit of the applicant sworn on 21 November 2007, she referred to the history of having been sentenced at Wollongong District Court on Tuesday 6 March 2007 and of being granted bail by this Court on 18 April 2007 pending the hearing of the appeal proceedings. Accordingly, the applicant has served approximately six weeks and two days of the non-parole period of five months and two weeks.

100 The applicant stated in her affidavit that she gave birth on 20 September 2007. On that basis, her child is presently aged approximately seven months. The affidavit refers to the fact that the baby has required medical attention for a urinary tract infection and has been placed on an extended medication regime for that condition administered by the applicant.

101 The applicant also relied upon the affidavit of Mr Troy Edwards, senior solicitor of the Aboriginal Legal Service, declared and affirmed on 20 November 2007. In that affidavit, Mr Edwards annexed a copy of a document (Annexure A) which outlined a number of matters concerning the Mothers’ and Children’s Programme operated with respect to female offenders who have the care and custody of children. The evidence in that respect establishes that each particular programme has minimum entry criteria and requirements and that there exists an application process, which involves the preparation and consideration of submissions made in relation to a particular application for admission into the programme. Those submissions are tabled at the monthly Mothers’ and Children’s Programme Committee.

102 The evidence indicates that there is a period of unavoidable separation between mother and child when women with young children come into custody. The separation is the time between incarceration and an application being approved. As at the date of Annexure A, 19 July 2007, it was recorded therein that it took approximately eight to 12 weeks depending upon the complexity of the case for an application to be determined.

103 By reason of the opinions expressed by Dr Wilcox in her report of 2 February 2007, the limited term of the non-parole period yet to be served by the applicant and the tender age of her child, it is plainly desirable in the circumstances of this case that the relevant authorities, to the extent possible, expedite any application made for the applicant’s admission into the Mothers’ and Children’s Programme.

104 On the making of the orders which I propose below, the applicant would be immediately liable to be taken into custody. Given the very young age of her child, it would, in my view, occasion undue hardship were she to be immediately separated from her child. I am, accordingly, of the view that the Court’s orders should be formulated on a basis that will have the effect of deferring their operation so as to provide a short period to facilitate any necessary interim arrangements for the care of the applicant’s child before she is taken into custody.

105 By Rule 50A of the Criminal Appeal Rules, an appeal or application for leave to appeal is determined on the making of orders disposing of the appeal or application. However, by Rule 50B, it is open to this Court to make an order that orders disposing of an appeal not be entered when recorded in the Court’s computerised record system, but are to be only entered by the Registrar in accordance with Rule 50B(3). Accordingly, I consider that, in order to provide the applicant with the short period of notice to which I have referred an order should be made under Rule 50B(3) requiring the Registrar to sign and seal a minute of the proposed orders 10 days from today’s date, namely, on 15 May 2008, on which date the applicant will be liable to be taken into custody.

106 Accordingly, I propose the following orders:-

(a) Leave to appeal be granted.

(b) Appeal dismissed.

(c) That the above orders pursuant to Rule 50B(3), be entered by the Registrar by signing and sealing a minute of the proposed orders on and not before 15 May 2008.

107 PRICE J: I agree with Hall J.

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