OM v R - [2009] NSWCCA 267

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: OM v R, MH v R, AA v R, AS v R [2009] NSWCCA 267

HEARING DATE(S): 22 October 2009

JUDGMENT DATE:
16 November 2009

JUDGMENT OF: Basten JA at 1; Fullerton J at 20; McCallum J at 20

DECISION: In respect of AA:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 30 January 2009 and will expire on 29 October 2009.
(4) The Court directs that the applicant serve his sentence in a juvenile detention centre.
In respect of AS:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 24 January 2009 and will expire on 23 October 2009.
(4) The Court directs that the applicant serve his sentence in a juvenile detention centre.
In respect of MH:
In respect of count 2:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 29 January 2009 and will expire on 28 October 2009.
In respect of count 1:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 29 April 2009 and will expire on 28 January 2010.
(4) The Court directs that the applicant serve his sentence in a juvenile detention centre.
In respect of OM:
(1) The non-parole period is quashed.
(2) In lieu of the non-parole period of 12 months, a non-parole period of 9 months is imposed.
(3) The non-parole period will be taken to have commenced on 30 January 2009 and will expire on 29 October 2009.
(4) The Court directs that the applicant serve his sentence in a juvenile detention centre.
We note that the orders of the sentencing judge with respect to release on parole and the conditions of parole stand.

CATCHWORDS: SENTENCING - parity - sexual assault offences - four offenders sentenced prior to two other co-offenders being sentenced by different Judges - later offenders given lesser sentences - whether disparity in sentences imposed gave rise to a justifiable sense of grievance

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Ellis (1993) 68 A Crim R 449
Jones v The Queen (1993) 67 ALJR 376
Lowe v The Queen [1984] HCA 46; 154 CLR
Postiglione v The Queen [1999] HCA 26; (1997) 189 CLR 295
R v Armstrong [2001] NSWCCA 77
R v Do [2005] NSWCCA 209
R v Ismunandar [2002] NSWCCA 477; 136 A Crim R 206
R v Jones (unrep, 16 April 1992, NSWCCA)
R v Kairouz [2005] NSWCCA 247
R v Li [2005] NSWCCA 154
R v LLM [2005] NSWCCA 302
R v Pan [2005] NSWCCA 114
Reardon (1996) 89 A Crim R 180 at
South West Africa Cases (Second Phase) [1966] ICJR 6
Stanton v Regina [2008] NSWCCA 326
Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461
Tatana v R [2006] NSWCCA 398
Truong v R [2009] NSWCCA 122

PARTIES: OM, MH, AA, AS (Applicants)
Regina

FILE NUMBER(S): CCA 2008/10599; 2008/10600; 2008/10601; 2008/10602

COUNSEL: A Haesler SC (OM, MH, AS)
J Flood (AA)
P A Leask (Respondent)

SOLICITORS: Legal Aid Commission (Applicants)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):
2008/10599
2008/10600
2008/10601
2008/10602

LOWER COURT JUDICIAL OFFICER: Cogswell DCJ

LOWER COURT DATE OF DECISION: 27 February 2009

- 20 -

2008/10599
2008/10600
2008/10601
2008/10602

BASTEN JA
FULLERTON J
McCALLUM J

16 NOVEMBER 2009

R v OM

R v MH

R v AA

R v AS

Judgment

1 BASTEN JA: Although the four applicants in this proceeding sought to challenge their respective sentences on the basis that they were manifestly excessive, those challenges should be rejected for the reasons given in the joint judgment. There remained a question as to whether their respective sentences involved a degree of disparity, when compared with the sentences of one or both of their co-offenders. In substance, the argument turned upon a comparison with the sentence imposed on one particular co-offender, KD. (Although each of the offenders is now an adult, the publication of their names is prohibited by the Children (Criminal Proceedings) Act 1987 (NSW), s 11.)

2 Disturbing a sentence on the basis of disparity with another sentence or sentences is a fraught process. This might appear surprising, given the justification for intervention explained by Mason J in Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610-611:

“Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”

3 Fundamental principles may more readily lend themselves to expression than to practical application. In the present case, four sentences which were appropriate at the time they were passed have supposedly become inappropriate, so as to breach the fundamental principle noted above, because a fifth co-offender was later, and arguably without sufficient justification, given a lesser sentence. Accepting, as was conceded by counsel for the Director, that the later sentence was not so low as to be properly appellable, one may doubt whether either the administration of justice or public confidence therein requires intervention with the other four sentences to reduce the degree of disparity. Nevertheless, the obligation to intervene appears to follow from the principles stated in Lowe and applied in subsequent cases by various intermediate courts of appeal. Some of the authorities which arose in the 12 years following Lowe were considered by the High Court in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 and need not be revisited.

4 Nor is any distinction to be drawn between circumstances where an applicant in this Court was sentenced before, rather than after, the co-offender with whom a comparison is sought to be drawn. In the matter of R v Jones (unrep, 16 April 1992, NSWCCA) Sully J stated:

“It cannot be the case, in my view, that a sentence otherwise unappealable becomes somehow transformed into a sentence contingently appealable merely by reason of the fact that it is imposed at a time when there are outstanding sentence proceedings against some co-offender or co-offenders. A sentence which is imposed is then either appealable or it is not. If such a sentence is not then appealable, thereafter it must be left, in my view, to stand and to take effect according to its tenor.”

5 That view was rejected by the High Court in Jones v The Queen (1993) 67 ALJR 376. Adherence to that view, in the light of Lowe, may have resulted from the reference in Lowe to public confidence in the integrity of the administration of justice, a consideration which is not only difficult to assess, but distracts attention from the underlying legal principle. Consistently with the approach of Mason J in Lowe, that principle was identified by Judge Tanaka in the South West Africa Cases (Second Phase) [1966] ICJR 6 at 305-306 and referred to by Gaudron J in Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461 at 571, in the following terms:

"... the principle of equality before the law ... means ... relative equality, namely the principle to treat equally what are equal and unequally what are unequal. ... To treat unequal matters differently according to their inequality is not only permitted but required. The issue is whether the difference exists."

6 So understood, the question is whether the intervention of an appellate court is appropriate or required in circumstances where equal treatment has been accorded in respect of offenders of a particular class generally, but not equal treatment with a “co-offender” in the same criminal venture. Reference to the specific co-offender, rather than the general category of similar offenders, requires justification. The principle of unequal treatment, derived from Lowe, was relied upon by Kirby P in a case where the comparator was not a co-offender: Ellis (1993) 68 A Crim R 449 at 451. It is, in a broad sense, by reference to other similar offences and offenders that an appropriate range is established, beyond which a particular sentence may be appellable as manifestly excessive (or manifestly inadequate).

7 The availability of a ground of appeal based on disparity operates, however, in respect of sentences within the appropriate range. That raises a question as to when the principle can be relied upon. In Lowe (at 609) Gibbs CJ noted that it was desirable that “persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence”. Hunt CJ at CL stated in Ellis at 461:

Lowe

his co-accused

8 Although Hunt CJ at CL referred to the remarks of Gibbs CJ in Lowe, and referred to the principle as applicable to “co-offenders”, his Honour did not comment on whether the principle applied only to those who were put on trial together, to those who were charged with the same offence, or (more broadly) to those who were involved in a common criminal enterprise, whether or not they were charged with the same offence or tried together.

9 It is clear that the question of disparity need not arise only where offenders are tried (or sentenced) together. Indeed, most cases involving complaints of disparity arise in circumstances where the offenders are sentenced by different judges or at different times. In Lowe, the co-offenders were jointly indicted for the one offence (an armed robbery). However, in Jones, although both offenders were charged with supply of the same cannabis, the offences were not technically the same, one offender having supplied the drug to the other. Nevertheless, the judgment of the Court, delivered by Brennan J, used the term “co-offenders”.

10 The distinction between the comparison with a co-offender and the comparison with other offences in which the applicant played no part is a matter of critical importance in determining the limits of the application of the principle of parity. In R v Armstrong [2001] NSWCCA 77, the language of disparity was used in relation to an applicant who was one of a number of “runners” employed by an organisation distributing drugs in the Kings Cross area. The Court did not intervene to reduce the applicant’s sentence, but not because it concluded they were not co-offenders.

11 In Stanton v Regina [2008] NSWCCA 326, the applicant was sentenced on a number of counts involving the supply of prohibited drugs. The question of parity arose in relation to another person sentenced in respect of what appear to have been similar drug offences arising out of the same “controlled operation” conducted by police over a period of one month with respect to a motorcycle gang. The Court did not seek to identify whether the applicant and the co-offender were knowingly concerned in the same particular offences.

12 It thus appears that the disparity principle operates with respect to persons who may not have committed the same offence, but have been involved in a course of criminal activity through some kind of association over a limited period of time. It would require a departure from that approach (for which the Director did not contend) to avoid the application of the principle in the present case.

13 There are three broadly identified sets of circumstances where parity will not apply or will apply only in a qualified form, namely where:

14 It is not, of course, necessary that all the circumstances of the offence and the offender be identical; similar sentences for disparate circumstances are equally unwarranted, as are disparate sentences where the disparity, though justified in part is not fully justifiable.

15 The test of relevant disparity has been variously described as a disparity “such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done” (Gibbs CJ in Lowe at 610), a “marked disparity” (Mason J at 611) a “manifest discrepancy” (Mason J at 614 and 615), a “manifest”, “patent” or “marked” disparity (Brennan J at 616 and 617) or a “manifestly excessive” difference between sentences (Dawson J at 624, Wilson J agreeing). These variations in language have been held not to be significant, the test being whether, in an objective sense, the disparity gives rise to a “justifiable sense of grievance”: see Postiglione at 301 (Dawson and Gaudron JJ) and 301 (Gummow J). It is clear from this language that “mere disparity” is not sufficient: Kirby J at 338. Intervention should only occur in clear cases, as explained by Howie J in England v R; Phanith v R [2009] NSWCCA 274 at [61]-[67] (McClellan CJ at CL and Fullerton J agreeing).

16 In circumstances where, in order to eliminate the disparity, the sentence under consideration would need to be reduced to a point where it was manifestly inadequate, this Court has noted that the existence of a relevant disparity does not compel intervention, but merely gives rise to a discretionary power: see R v Pan [2005] NSWCCA 114 at [35] (Johnson J) and Truong v R [2009] NSWCCA 122 at [39]-[42] (Adams J). However, refusal to exercise the power of intervention appears to have occurred only where the result would be a manifestly inadequate sentence: see Reardon (1996) 89 A Crim R 180 at 191; R v Ismunandar [2002] NSWCCA 477; 136 A Crim R 206 at [38] (Heydon JA, Sully and Levine JJ) and R v LLM [2005] NSWCCA 302 at [80]-[81] (Hulme J, Grove and Simpson JJ agreeing). The Director did not suggest that removing the disparity in the present case would give rise to manifest inadequacy. Accordingly, once a relevant disparity is identified, no discretionary reason was advanced rendering intervention inappropriate.

Conclusion

17 In the circumstances of the present cases, there are clearly points of distinction between the offending and the subjective circumstances of KD, as compared with the applicants. However, as explained in the joint judgment, those distinctions do not warrant the disparity in sentencing which has occurred.

18 In reaching that conclusion, it is necessary to note that in sentencing KD, Coorey DCJ was conscious of the need to take into account the sentences imposed on MH and on the applicants by Cogswell DCJ. In relation to the level of seriousness of the offending, he expressly stated that he had formed the same view as Cogswell DCJ. It was therefore a result of the subjective circumstances of KD that a lesser sentence was imposed. Whilst his Honour gave reasons for the approach he adopted, he did not expressly address the question of parity with the applicants.

19 Given the state of the law, as set out above, I agree with the joint judgment that the relevant disparity requires the intervention of the Court, for the reasons their Honours give.

20 FULLERTON AND McCALLUM JJ: On 22 October 2009, the Court allowed the present appeals but reserved its reasons. These are our reasons for the orders made that day.

21 The appeals were brought against the sentences imposed upon the applicants in the District Court after they pleaded guilty to offences of aggravated sexual intercourse with a child under 14 years of age contrary to s 66C(2) of the Crimes Act 1900. That offence carries a maximum penalty of 20 years imprisonment. The circumstance of aggravation in each case was that the offences were committed in company.

22 The applicants are four of a group of six teenage boys charged as a result of the same series of events. The offences were committed against a single complainant, when she was 13 years of age. Five of the offenders were then 15 years of age, while the other was 16. A seventh offender has, it appears, not been identified (or located) by police.

23 Five of the offenders (including all of the applicants) entered pleas of guilty at the earliest opportunity in the Children’s Court andwere committed to the District Court for sentence. The sixth offender entered his plea at a later stage but was still treated as having “pleaded guilty at an early stage”. The four applicants were sentenced by Cogswell DCJ on 27 February 2009. A fifth offender, EC, was sentenced by Marien DCJ on 15 May 2009 and the sixth, KD, was sentenced by Coorey DCJ on 28 May 2009.

24 In each case, the sentencing judge proceeded on the basis that the relevant offender should be dealt with according to law, rather than summarily under the Children (Criminal Proceedings) Act 1987: see s 18(1) of the Act.

Grounds of appeal

25 The principal ground of appeal maintained at the hearing was that there was disparity between the sentences imposed upon the applicants and those subsequently imposed upon EC and KD such as to give rise to a justifiable sense of grievance on the part of the applicants. Each offender was sentenced to a term of imprisonment. However, EC’s sentence was shorter than that imposed on the applicants and was wholly suspended, while KD’s sentence included a non-parole period that was shorter than those fixed in respect of the applicants.

26 On behalf of three of the applicants (AS, OM and MH), the parity ground was originally articulated as a ground that the sentence imposed was manifestly excessive. The ground was expressed in that way in order to overcome the perceived hurdle of statements in this Court which were thought to hold that disparity between sentences of co-offenders is not itself a ground for appellate intervention.

27 At the outset of the hearing, however, counsel for those applicants ventured the view, after closely reviewing the relevant authorities, that disparity is a discrete ground on which this Court can interfere with a sentence that is otherwise appropriate and within the permissible range of sentencing options. In our view, that is a correct statement of principle, provided that it is understood that the term “disparity” comprehends a complaint that the difference between the relevant sentences is such as to engender a justifiable sense of grievance by giving the appearance to an objective observer that justice has not been done: Postiglione v The Queen [1999] HCA 26; (1997) 189 CLR 295 per Gummow J at 323.3; see also per Dawson and Gaudron JJ at 301.9; per McHugh J at 313; per Kirby J from 335 to 338, especially at 338(6).

28 The decisions that were thought to stand as authority for the contrary view are R v Li [2005] NSWCCA 154 at [44] and R v Kairouz [2005] NSWCCA 247 at [42]-[45]. In Li at [44], Barr J said:

“What these authorities make clear is that disparity between sentences is not of itself a basis of appellate intervention but a factor to be weighed when the Court considers whether the sentencing process has been attended by error and, if so, whether the Court should intervene.”

29 Those remarks must be considered, however, in the context of his Honour’s earlier discussion at [40] of the objective, on appeal, of the attainment of “even-handedness” of sentencing. His Honour said:

“There remains in this Court a power to modify a sentence which conforms with the general pattern, and thus does not offend the concept of general even-handedness, so as to bring it into or towards conformity with another leniently disparate sentence in order to achieve particular even-handedness as between individual sentences which ought to be equivalent or at least comparable.”

30 In Kairouz, Wood CJ at CL cited Barr J’s remarks in Li at [44] as authority for the following statement: “Disparity of sentence is not itself a ground for appellate intervention. Rather it is a matter to be weighed when considering whether there is sentencing error.” However, in the same discussion, his Honour also referred to the observations of Dawson and Gaudron JJ in Postiglione at 301, where their Honours observed, among other things, that a sentence should be reduced where there is a marked disparity which gives rise to a justifiable sense of grievance, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

31 It is accordingly apparent that the statements made in Li and Kairouz to the effect that disparity between sentences is not of itself a basis for appellate intervention were directed to the proposition that it is not enough for an offender to point to the fact that his or her sentence is not the same as that passed upon a co-offender. What must be established is that the two sentences entail a marked disparity such as to give rise to a justifiable sense of grievance on the part of one offender.

32 Whether or not such disparity is properly termed an “error”, it is an accepted ground for appellate intervention: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 per Gibbs CJ at 609-610; per Mason J at 611.9; per Brennan J at 618.6; per Dawson J at 623-624; Postiglione in the passages already cited.

33 In Postiglione, Gummow J, while noting that different views were expressed in Lowe as to the rationale for intervention, stated that the principle for which that decision is authority appears to be:

“the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.”

34 Further, it is well-established that disparity in sentencing of co-offenders may call for intervention by a Court of Criminal Appeal even where the impugned sentence is otherwise appropriate: see eg Postiglione per Dawson and Gaudron JJ at 301.9; per Gummow at 322.2. Indeed, in Tatana v R [2006] NSWCCA 398, this Court expressed the view that parity is a ground that only needs to be considered if there is no error in the exercise of sentencing discretion: at [15] per Howie J, Sully and Latham JJ agreeing.

35 Accordingly, it was appropriate to determine the present appeals on the basis that this Court can interfere with a sentence that is otherwise appropriate and within the permissible range of sentencing options where the difference between the sentences imposed on co-offenders is such as to engender a justifiable sense of grievance on the part of the applicant for leave to appeal by giving the appearance, in the mind of an objective observer, that justice has not been done.

36 Mr Haesler, who appeared in the hearing of the appeal for OM, MH and AS, faintly maintained, as a separate ground of appeal, the contention that the sentences were manifestly excessive but there was no merit in that ground. The offences were serious and plainly warranted the relatively short terms of imprisonment imposed, even having regard to the youth and other circumstances of the offenders.

Circumstances of the offences

37 KD (the offender sentenced by Coorey DCJ) met the complainant at a shopping centre. They exchanged telephone numbers and she told KD that she would call him a few days later, which she did. They arranged to meet at the Bankstown bus depot.

38 The complainant believed that she was going to meet KD alone, but he arrived with MH and AA. They travelled together to a park in Yagoona where more boys were waiting on the stairs outside a toilet block, including EC and AS. KD asked the complainant to give his friends “head jobs”. When she refused, KD pressed her, asking, “Why not?” The complainant felt threatened and intimidated and was unable to articulate a reason as to why she did not want to perform oral sex on the young men. Eventually, she said: “Yeah, whatever”.

39 The complainant then went into a cubicle in the toilet block. She was followed in by AS and performed fellatio on him. As observed by the sentencing Judge, the circumstances of that and the following offences, committed in a public toilet on a young girl in the presence of a group of males, were offensive and demeaning to the complainant. AS was charged with one offence under s 66C(2) of the Crimes Act.

40 The next offence was committed by MH, who entered the cubicle after AS had left and had penile vaginal intercourse with the complainant, which continued for about two minutes. That act formed the basis of one of two counts against MH under s 66C(2). The complainant then got dressed.

41 The group was disturbed by council workers and moved to another park, where AA and the complainant went into a cubicle in the female toilet block together with the seventh offender (who appears not to have been brought before the courts). The complainant performed fellatio on the unnamed offender and then on AA. AA was charged with one offence under s 66C(2).

42 The complainant was then taken to a change room, still with the seven young men. In the change room, KD asked the complainant to remove her clothes. She complained that it was freezing and he told her not to worry, as he would keep her warm. He removed some of her clothes and she remained standing in the middle of the room in only her underwear. EC then placed his penis in the complainant’s mouth but was unable to achieve an erection.

43 After a short time, KD approached them and said to EC: “You have to turn her on”. KD then inserted two fingers into the complainant’s vagina, thrusting them in and out vigorously and causing her to feel pain. While that was occurring, the complainant continued to perform oral sex on EC. EC was charged with one offence under s 66C(2) in respect of that act. MH then took the complainant to a massage table located within the change room and penetrated her vagina with his fingers. That act formed the basis of the second count against MH.

44 The complainant left the park with KD and AA. They went to a building in Bankstown where they caught a lift to the rooftop. KD had a conversation on his mobile phone and, shortly afterwards, the offender OM arrived. After some objection, the complainant performed oral sex on OM. Shortly afterwards, the complainant left the building on her own. That evening, the complainant was informed that video footage of her performing oral sex on one of the males in the group had been sent to other people. She contacted KD by telephone to confront him. After a short argument, the conversation ended. The complainant reported the offences the following day.

Sentences imposed

45 The Judge who sentenced the applicants noted that the complainant had been unable to articulate her reason for not wanting to perform oral sex on the young men because she felt threatened and humiliated. His Honour was satisfied beyond reasonable doubt that the complainant did not in fact consent to any of the acts of sexual intercourse. However, it was not put on behalf of the Crown that the any of the offenders knew that she was not consenting. The Judge recorded that position and stated that he was not satisfied that any of the offenders knew that she was not consenting. The Judge found that KD (who was sentenced later by Coorey DCJ) was “obviously the ringleader”. His Honour was not satisfied of any aggravating features of the offences under s 21A of the Crimes (Sentencing Procedure) Act 1999. His Honour also noted that the complainant was nearly fourteen, that is, towards the top of the age range for an offence under s 66C(2).

46 The Judge concluded that the offences were at the lower end of the range of objective seriousness, but near the top of that range, owing to the size of the group in whose company the offences were committed. His Honour expressed the view that, although there were differences in the kind of offending behaviour, they were not sufficiently distinct as to warrant a finding that one was in any different category of seriousness from another. That finding extended to MH.

47 As to the factors personal to the applicants, the Judge noted that all came from “good, stable families and backgrounds”, lived at home and had a job or an apprenticeship. None of the offenders had any prior problems with drugs or alcohol and none had any prior convictions.

48 The Judge indicated that an appropriate sentence would be in the range of five years imprisonment for each offence but, taking into account the factors relevant to sentencing young offenders including the matters referred to in s 6 of the Children (Criminal Proceedings) Act, regarded three years as an appropriate starting point for each offence except in the case of MH. The Judge determined that for MH, the appropriate starting point was three and a half years due to the different form of intercourse engaged in by him (penile penetration). The Judge allowed a discount of about 25% to reflect the utilitarian value of the pleas and found that there were special circumstances warranting an adjustment to the statutory ratio of the non-parole period to the balance of term required by s 44 of the Crimes (Sentencing Procedure) Act.

49 The Judge imposed sentences on AA, AS and OM (each of whom was being sentenced for an act of oral intercourse) of 27 months with a non-parole period of 12 months.

50 As to MH, the Judge imposed a sentence of 27 months with a non-parole period of 12 months for the act of digital vaginal penetration and a sentence of 30 months with a non-parole period of 12 months for the act of penile vaginal penetration. The sentences were accumulated by 4 months, giving a total term for MH of 2 years and 10 months (7 months more than the others) and a total non-parole period of 16 months (4 months more than the others).

Sentence imposed on EC

51 EC was sentenced by Marien DCJ on a later date. His Honour referred to the remarks on sentence of Cogswell DCJ and, after giving careful consideration to those remarks, came to the view that the case of EC could be distinguished from the cases of the applicants. The principal features which distinguished EC’s case were a finding that EC played the least active role in the events and evidence before the Judge that EC had long-standing mental health issues.

52 His Honour also had regard to the fact that EC had been subject to very strict curfew bail conditions for a much longer period than his co-offenders. His Honour also found that EC was genuinely remorseful and had very positive prospects of rehabilitation. The other factors relied upon by Marien DCJ as reasons for affording leniency to EC were factors common to the cases of the present applicants.

53 EC was sentenced to a term of imprisonment for 18 months. However, pursuant to s 12 of the Crimes (Sentencing Procedure) Act, his Honour ordered that the execution of the sentence be wholly suspended upon EC’s entering into a good behaviour bond for the term of the sentence.

Sentence imposed on KD

54 KD was also sentenced after the applicants. He was given a discount of 25% for his plea of guilty together with a further discount for an offer of assistance to authorities. The total discount was one third.

55 The Judge indicated that he had formed the same view as to the objective seriousness of KD’s offences as was formed by Cogswell DCJ, namely, that the offences were at the lower end of the range of seriousness but towards the top end of that range. His Honour found, however, that the level of objective seriousness of KD’s offences was “just below” the level of seriousness of the offences committed by MH, since they included penile vaginal intercourse.

56 As to the question whether KD was properly classed as “the ringleader”, there was evidence before Coorey DCJ (which was not before Cogswell DCJ) from a juvenile justice councillor, Mr Robinson. He stated that he did not believe that KD was “the primary cause of the others being at the scene”. The Judge accepted that evidence.

57 Unlike the present applicants, KD had two serious prior convictions, one for armed robbery and one for assault occasioning actual bodily harm. KD was sentenced for two offences under s 66C(2), with an additional offence being taken into account on a Form 1. Count 1 related to his digital penetration of the complainant whilst she was performing oral sex on EC. The second count related to KD’s presence while the complainant performed oral sex on OM. The offence on the Form 1 related to KD’s presence while MH performed penile vaginal intercourse on the complainant.

58 The Judge sentenced KD on count 2 to a fixed term of 8 months imprisonment. On count 1, the term of imprisonment imposed was 30 months with a non-parole period of 9 months. The sentences were wholly concurrent.

Disparity between the sentences

59 Counsel for the applicants noted that the sentence of 18 months imposed on EC for an act of oral sex, even leaving aside the fact that the sentence was wholly suspended, was substantially shorter than the sentences of 27 months imposed on each of the three applicants whose charges related to an act of oral sex. The applicant’s submissions otherwise focussed principally on the obvious disparity between the non-parole period of 9 months fixed in relation to “the ringleader”, KD, and the non-parole periods of 12 months fixed in respect of each of the applicants.

60 All of the sentences entailed an adjustment to the prescribed ratio between the non-parole period and the balance of term. Section 44 of the Crimes (Sentencing Procedure) Act provides that the balance of the term of the sentence must not exceed one third of the non-parole period unless the Court decides that there are special circumstances for its being more.

61 In the case of KD, the balance of term on count 1 was 70% of the total term, whereas in the case of AA, AS and OM it was 55%. In the case of MH, the balance of term on count 1 was 60% of the total term and on count 2 it was 55%.

62 As already noted, the existence of difference is not in itself a basis for intervening with the sentences imposed on the applicants. The task is to determine whether the differences between the sentences can be justified by a difference in the degree of culpability of the offenders or in their personal circumstances: R v Do [2005] NSWCCA 209 at [18].

63 There was no difference in the degree of culpability of the applicants (apart from MH) or in their personal circumstances such as to justify their spending three months longer in custody before being released to parole than KD. As to the degree of culpability, plainly KD’s culpability was higher. As to the circumstances personal to the offenders, KD had two prior convictions for serious offences, while none of the applicants had any prior convictions whatsoever.

64 There is no difference in the findings of either sentencing Judge as to whether special circumstances existed such as to justify the different non-parole periods fixed. Cogswell DCJ made an express finding of special circumstances in the case of the applicants. Coorey DCJ did not expressly make such a finding in relation to KD, but it was implicit in his Honour’s remarks on sentence. In particular, his Honour observed that the Crown had conceded that it would be within the Court’s discretion to make such a finding, for reasons including the youth of the offender. His Honour also noted the need for a longer period of supervision and counselling, but that was a feature common to all offenders.

65 In those circumstances, the Court was of the view that, although the sentences imposed by Cogswell DCJ were otherwise appropriate and within the permissible range of sentencing options, the difference in non-parole periods after KD was sentenced was not warranted and was such as to give rise to a justifiable sense of grievance. On that basis, it was appropriate to intervene so as to reduce the non-parole periods fixed in respect of AA, AS and OM to 9 months. The Court saw no reason to interfere with the total sentences imposed.

66 In the case of MH, the objective seriousness of the offences was arguably more serious than in the case of KD. MH’s personal circumstances, however, invited more leniency. In particular, MH had no prior convictions. Further, there was evidence from a psychiatrist that MH was in an extremely low range of intelligence which may have adversely affected his ability to make appropriate decisions. In addition, as a consequence of the reduction of the non-parole periods of AA, AS and OM, the sentence imposed on MH would, if left to stand, mean that he would spend almost twice as long in custody as any of his co-offenders.

67 On that basis, the Court formed the view that it was appropriate to reduce the non-parole periods fixed for MH from 12 months to 9 months on each count and also to reduce the degree of accumulation between the two sentences from 4 months to 3 months in proportion with the reduction to the two non-parole periods.

68 At the end of the hearing on 22 October 2009 the Court varied the non-parole periods for each of the applicants but stated that “otherwise the sentences, subject to variation as to the dates…indicated, remain the same”: T17(26). The reduction of the non-parole periods had the effect of increasing the balance of each sentence and the proportion of the sentence to be served on parole. The total length of each sentence was unaffected. In the case of AA, AS and OM, the termination dates remain as follows:

(a) AA’s sentence will expire on 29 April 2011;

(b) AS’s sentence will expire on 23 April 2011;

(c) OM’s sentence will expire on 29 April 2011.

69 In the case of MH, the commencement date of the sentence on count 2 has been brought forward, with the result that his sentence will expire on 28 October 2011.

70 For those reasons, the Court allowed the applications and made the following orders:

In respect of AA