R v Argyle (a pseudonym)

[2021] NSWDC 267

District Court

New South Wales

Medium Neutral Citation:

R v Argyle (a pseudonym) [2021] NSWDC 267

Hearing dates:

18 May 2021

Date of orders:

18 June 2021

Decision date:

18 June 2021

Jurisdiction:

Criminal

Before:

Whitford SC DCJ

Decision:

Orders at [101]

Catchwords:

Crime – sentence - aggravated sexual intercourse without consent – whether no penalty other than imprisonment is appropriate – exceptional circumstances – whether required before non-custodial sentence imposed – moral culpability – guide to appropriate penalty

Legislation Cited:

Crimes (Sentencing Procedure) Act; s5(1)

Cases Cited:

Markarian v The Queen (2005) 228 CLR 357

Martin, Alexandra Jane v R [2013] NSWCCA 24

Muldrock v The Queen (2011) 244 CLR 120

Parente v R [2017] NSWCA 284

R v Clarke (CCA (NSW) 15 March 1990, unrep

R v Eckersley [2021] NSWSC 562

R v Geddes (1936) 36 SR (NSW) 554

Robertson v R [2017] NSWCCA 205

Wong v The Queen [2001] HCA 64

Category:

Sentence

Parties:

Regina
Ms Argyle (a pseudonym)

Representation:

Counsel:
Prosecution: Ms K Ratcliffe
Offender: Ms A Healey

Solicitors:
Prosecution: Office of the DPP
Offender: Dillon-Smith Lawyers

File Number(s):

2019/179007

Publication restriction:

Suppression order in respect of anything identifying the offender or co-accused and non-publication order in respect of anything identifying the victim

REMARKS ON SENTENCE

1. Following a sentence hearing before me on 18 May 2021, Ms Argyle appears today for sentence in respect of 2 counts of aggravated sexual intercourse without consent. The charged circumstance of aggravation is being in company. Those two offences are nominated respectively counts 1 and 3. They are self-evidently serious offences, as indicated not only by their description, but also by both the maximum penalty prescribed for them by Parliament of 20 years imprisonment and the standard non-parole period prescribed of 10 years imprisonment.

2. There is also another count of the same charge on a Form 1 attaching to count 1 (it was formerly nominated count 2). I will take that matter into account when sentencing Ms Argyle for count 1.

3. Ms Argyle was committed for trial in this court from the Local Court on 8 April 2020. The matter was listed for trial in this court on 8 March 2021. On that day, leave to file a new indictment was granted and Ms Argyle pleaded guilty to the offences described as counts 1 and 3 and the offence described as count 2 was placed on the form to which I have referred. It is common ground that Ms Argyle should have, and I will allow, a discount of 10% for the utilitarian and other value of her pleas.

4. The offences all occurred in a period between 1 June 2006 and 1 February 2007. At that time Ms Argyle was 21 years old, was heavily pregnant with her first child and was living in a defacto relationship with a co-accused, Jason Steadman (a pseudonym) (who was aged 23 years at the time of the offences). The Agreed Facts on Sentence document tendered with the prosecution materials sets out the unusual circumstances of the offending, in which Steadman forced himself upon the victim on the occasion of each offence, in Ms Argyle’s presence, whilst ordering Ms Argyle to assist him or to interact in some way with the victim, in each case in some minor way. The victim, who was then aged 17, is Ms Argyle’s sister. She used to come to stay on the weekends to assist Ms Argyle during her pregnancy.

5. The Agreed Facts on Sentence document reveals the following matters.

6. Ms Argyle was born in 1985. She is the second of four children of her parents, who have lived on a farm in a small, isolated rural town for a number of years. She has an older sister, a younger brother and a younger sister, who is the victim in these offences.

7. The victim was born in 1989. She was about 15 or 16 when Ms Argyle left the family home to move to another town.

8. Steadman was born in 1983. He is the co-accused who is alleged to have perpetrated these sexual offences against the victim.

9. After Ms Argyle met Steadman they moved in together. Ms Argyle became pregnant with her first child in 2006, when she was 21. That child, a boy, was born in February 2007. Steadman is the boy’s father.

10. In late 2006, when she was about 17 years old, the victim began to visit the home of Ms Argyle and Steadman to assist with home duties whilst her sister was pregnant. These visits generally occurred over weekends, and the victim would sometimes spend the night.

11. From when she first began visiting them, the victim found Steadman to be ‘sleazy’, noticing that he would brush himself against her and try to cuddle her from behind. Ms Argyle noticed this was happening and told Steadman to leave her sister alone.

12. On about the fourth weekend that the victim was visiting to help her sister, when Ms Argyle was about 7½ months pregnant, Ms Argyle and Steadman became involved in a heated argument about Ms Argyle not wanting to have sexual intercourse with him. She told Steadman something like “Well how am I supposed to have sex with you – I’m pregnant with your child?”. She refused to have sex with him as she was scared that it would bring on labour and thought it would hurt or kill the baby.

13. While they were in the kitchen, Steadman undid his pants zipper and exposed his penis to Ms Argyle. Ms Argyle kept saying she did not want to have sex and Steadman kept asking her for sex. Ms Argyle was drying the dishes at the time. As she was wiping up a large knife, she held the knife up and took a swipe at Steadman, shouting at him in words to the effect “If you don’t leave me alone, I’ll stab you with this”.

14. The argument resulted in Steadman leaving the premises. A few hours later, Steadman returned, and again asked Ms Argyle to have sexual intercourse with him. She continued to refuse because she was scared of it harming her baby. Steadman then said, “Fine I will just go and have sex with your sister then.” Ms Argyle said words similar to “That’s not right. You shouldn’t do that to my younger sister. She’s not old enough to have you inside her”. At some stage, when it was clear to her that Steadman was not going to change his plan, Ms Argyle said something like, “Fine go and have sex with her. See if I care.”

15. At some point that day Ms Argyle entered the bedroom the victim was in and said to the victim, “Jason has got a question to ask you”. The victim replied, “what is it?” Steadman said, “cause I can’t have sex with [the offender] can I have sex with you?” The victim replied, “no go away.” Steadman left the room and returned to the sunroom.

16. In her ERISP to police Ms Argyle recalled that Steadman asked Ms Argyle to talk to her sister about him having sex with her. Ms Argyle said to the victim something like “Jason wants to have sex with you because I can’t give it to him” and the victim said no, she didn’t want to. Ms Argyle told her sister that she did not want it to happen and told her sister to get out while she could.

17. Shortly after this Ms Argyle wanted to lay down and the victim helped her onto the bed. Ms Argyle asked the victim for a cuddle as she wanted to be cradled. Whilst the sisters were lying next to each other in the bed Steadman entered the bedroom and lay down behind the victim. He began touching her body and placed his hand inside the track pants that she was wearing and touched her vagina, attempting to play with her clitoris. The victim reacted grabbing his hand, removing it from her pants and throwing it back towards Steadman. Steadman responded saying “you know you want it.”

18. The victim then rolled onto her back and attempted to get up, however Steadman pushed her back down onto the bed. Steadman moved himself on top of the victim and used his body weight to pin her down to the bed. He positioned his knees over the outside of her thighs and removed her pants with his hands. Steadman said to the victim something like “I’m having sex with you whether you like it or not”. The victim was unable to fight Steadman off.

19. Steadman told Ms Argyle to take hold of the victim’s hands, and she complied. Steadman then inserted his penis into the victim’s vagina and began moving it in and out. The victim was crying and pleaded with him to stop saying things like, “I don’t want this, please stop.”.

20. After approximately 30 minutes Steadman ejaculated and stopped having intercourse with the victim. He said to her “I’m done now”. Thanks for that you little slut, go and have a shower.” The victim went and showered. This episode is the subject of count 1.

21. On another occasion when the victim was at the home of Ms Argyle and Steadman, she was laying down with Ms Argyle who was sleeping. Steadman entered the bedroom and requested that the victim have sex with him. The victim replied, “No”.

22. Steadman pulled down his pants and put on a condom. He removed the victim’s underwear from underneath her skirt and then commenced having penile vaginal intercourse with her. During intercourse, Steadman told the victim to get on her hands and knees, which she did, and he continued to have intercourse with the victim. The victim was in pain and kept telling Steadman to stop, saying “Stop… You’re hurting me”, however he continued. The victim felt the condom break and she felt Steadman ejaculate inside of her. The victim rolled onto her back and asked Ms Argyle to remove the condom from her vagina, which she did. Once the condom was removed the victim went and had a shower.

23. This incident is the subject of count 2, the matter on the Form 1.

24. In her ERISP with police on 7 February 2018 Ms Argyle says that she remembers her sister coming into the bed when she was asleep and that Steadman had got into the bed, in between them. She recalled that Steadman knelt on the bed and pulled her sister’s pants down and started having sex with her. She said she could not remember her sister asking her to remove a broken condom from her vagina but agreed with police she may have helped her. She agreed that she had said something to Steadman, like “Go on Jason. She doesn’t know what she’s on about. It’s because she’s young. She doesn’t understand”, although she said that she does not know why she said that and also said that “… I wouldn’t like anyone to do that with her”.

25. On another occasion the victim was again staying over at the home of Ms Argyle and Steadman in order for the victim to help her sister in her pregnancy. Steadman had gone to get some DVD’s from the store and had returned with pornographic DVD’s. The three of them were in the lounge room and a pornographic movie was playing. Steadman was masturbating himself. The victim stood up to leave the room and said, “I’m going to bed.”

26. As the victim was walking to the bedroom Steadman grabbed her and pulled her onto his lap. The victim was wearing a nightie and Steadman lifted her nightie up. Steadman then placed his penis inside her vagina. Ms Argyle had her hand on the victim’s knee and said to her: “It’s all right. It’ll be okay.”

27. The victim said, “No. Not again, don’t do this.” Steadman continued to have penile / vaginal intercourse with the victim to ejaculation. The victim then left the room to have a shower.

28. This incident is the subject of the third count.

29. In her ERISP, Ms Argyle told police that although she could not recall, she may have performed oral sex on him in front of the victim. Ms Argyle remembers Steadman pulling her sister, who was wearing a nightie, onto his lap, and starting to have sexual intercourse with her, by putting his penis in her vagina. She told police that she “Tried to pull it away, pull them apart I think”. She agreed with police that it was more than likely that she sat next to her and put her hand on her knee, saying something like “It’s all right. It’ll be okay.” She remembered her sister telling Steadman to “Stop it”.

30. At some stage, after another visit, the victim telephoned her parents and told them that she needed to study and could not cope looking after Ms Argyle and trying to do her school work. The victim’s parents came to collect her, and she returned home with her parents. The victim never again stayed overnight at the house of Ms Argyle and Steadman.

31. In late 2015 Ms Argyle and Steadman separated. At that stage their son was 8 years of age and their daughter, 6 years old. Ms Argyle wanted the children to live with her. Ms Argyle discussed this with the victim, and they discussed what Steadman had done to the victim when Ms Argyle was pregnant with her son. On 11 May 2017 the victim provided a statement to police in relation to this matter.

32. On 7 February 2018 Ms Argyle attended a Police Station where she took part in an electronically recorded interview. In that interview, she made extensive admissions to the victim’s allegations and, among other matters, indicated that they were true. Ms Argyle told the police, in relation to Steadman that:

1. When she was in the relationship with him, she felt like she was imprisoned, and she had to do what he said because, if she didn’t, she thought something bad would happen to her (A51).

2. he’d call her a stupid cunt and things like that and if she didn’t have the house clean when he got home from work, she got yelled and screamed at every day (A55).

3. She finally left the relationship because she was sick of getting verbally abused every day: She said “I had no friends. I had nothing. I couldn’t go anywhere… I felt like I was imprisoned” (A169).

4. She had fears about having intercourse when she was pregnant. She told police “I didn’t want him to because of him being the size … of him, I didn’t want him to because I didn’t want to hurt the baby, ‘cause it was still growing all inside me” (A172). And “… I stopped it the majority of the time because of being pregnant. I was like, no you can’t ‘cause you’re going to kill your baby” (A172).

33. On 30 November 2018 Ms Argyle again attended a Police Station at the request of the police. She read the transcript of her previous interview and told police she had told the truth. She told police she was willing to give evidence in Court as a witness.

34. Indeed, there was tendered on sentence a signed undertaking to that effect. It was common ground that as a consequence of her assistance, past and future, Ms Argyle was entitled to a substantial discount on sentence.

35. In my assessment, the objective gravity of this offending, and certainly Ms Argyle’s moral culpability, is very low. I will return to address this issue shortly.

36. Ms Argyle gave evidence on sentence. She struck me as an entirely credible witness.

37. In addition to her own evidence, her subjective case is articulated variously in a Sentencing Assessment Report (SAR) tendered with the prosecution materials and in three reports tendered on Ms Argyle’s behalf on sentence. In her oral evidence she attested to the accuracy of the histories she had provided to the authors of the various reports.

38. The SAR, dated 21 April 2021, was authored by a Senior Community Corrections Officer.

39. The defence reports comprise two reports from a clinical and forensic psychologist, Ms Jessica Pratley, respectively dated 1 February 2021 and 14 May 2021, and a report from Dr Susan Pulman dated 6 April 2021. Dr Pulman has expertise in the diagnosis of cognitive impairment and intellectual functioning.

40. Although the author of the SAR noted that Ms Argyle demonstrated little insight into the impact of the offending against the victim, she also noted that Ms Argyle’s low cognitive capacity, lack of meaningful insight into her own psychological functioning and difficulty articulating her emotions, would all have impacted on her ability to consider the victim’s experience.

41. In respect of Ms Argyle’s attitude to the offending, the author of the SAR reported remorse expressed by Ms Argyle consistent with the expressions of remorse reflected in the defence reports. Ms Argyle acknowledged that she did not do the right thing and protect her sister and said she regretted her actions. However, she said she was scared of what would happen to her, believing that Steadman would force her sister to have sex no matter what she, Ms Argyle, did, so she may as well try to make it easier for her sister.

42. The SAR indicates Ms Argyle has been assessed as a low-medium risk of re-offending and a supervision plan is outlined in the report.

43. In the SAR, its author states that Ms Argyle is willing to be referred to the CSNSW Senior Psychologist for further assessment and is also willing to be referred to a psychologist in the community to address issues related to her mental health, childhood trauma and offending behaviour.

44. The author of the SAR did not have access to the reports of Ms Pratley or Dr Pulman, which further explain Ms Argyle’s cognitive and other difficulties and limitations as observed by the author of the SAR.

45. Ms Pratley’s report of 1 February 2021 was originally prepared for the purposes of providing information to enable Ms Argyle’s counsel and solicitor properly to advise her of her options regarding her plea.

46. Ms Pratley had the benefit of watching Ms Argyle’s ERISP (dated 7 February 2018) as well as interviewing her, remotely, initially for 2 hours and 15 mins. A psychometric assessment was also completed at a later date. Ms Pratley raised the issue of cognitive capacity, which was then subsequently dealt with by Dr Pulman’s report.

47. The childhood and young adult history obtained from Ms Argyle by Ms Pratley included sexual abuse by two family members in the context of an isolated family living in a rural area. Ms Pratley indicated Ms Argyle’s account raised a concern about a level of isolation, noting her mother struggled with anxiety and that Ms Argyle likely modelled that anxiety. She was also concerned about the blurring of boundaries within the family and the family’s incapacity to manage the complex issues of childhood sexual abuse. Additionally, Ms Pratley had concerns regarding Ms Argyle’s parents’ modelling of avoidance as a primary coping strategy, which had likely contributed to Ms Argyle having limited coping skills throughout her life.

48. Ms Argyle’s medical history is also addressed in Ms Pratley’s report, noting that she is prescribed an anticonvulsant to manage her epilepsy which is monitored by her GP and a specialist. She is also prescribed anti-depressants, which she takes daily.

49. A record of a discussion of the offending is set out in Ms Pratley’s report. Significantly, Ms Pratley observes that Ms Argyle was clear that “she felt intimidated” by Steadman and “that she felt she had limited options for managing the situation”. Ms Pratley added that Ms Argyle’s account suggested a high level of sexual control by Steadman.

50. On Ms Argyle’s meeting with and experience of Steadman, and his influence over her, Ms Pratley observed:

…(her) anxiety and posttraumatic symptomatology meant that she believed she had no choice but to participate in the abuse by Steadman, or face physical or sexual harm herself, which she believed put her unborn child at risk. Ms Argyle’s trauma history and low self-esteem contribute to her lack of agency…and…impaired problem-solving capacity… (which would be intensified with low cognitive capacity).

…(her) account indicates that she was subject to a pattern of ongoing intimidation by Steadman, which constituted coercive control…

51. Ms Pratley’s report included the following significant observation:

Ms Argyle’s trauma history means that she likely minimised the potential impact of the sexual assaults on her sister. She reported that her parents disregarded her own experiences of abuse and she herself minimised them in discussion with me…As such, …(she) likely believed that the sexual assaults by Steadman would not cause her sister significant ongoing harm and this appears to be demonstrated by her own clumsy attempts at reassuring her sister throughout the assaults. This contrasts with her fear that ...(he) may engage in action…that could kill her unborn child.

52. Ms Pratley suggested that Ms Argyle likely meets the diagnostic criteria for an anxiety disorder (most likely generalised anxiety or social anxiety disorder) and/or a major depressive disorder, and/or post-traumatic stress disorder. She also observed that ‘profiles like Ms Argyle’s are indicative of significant impairments in functioning’, and the results (of the testing) ‘suggest she has a trauma history that continues to impact’ her.

52. In summary, Ms Pratley indicated that Ms Argyle presented as an anxious woman of 35 who has poor boundaries, low self-worth and possible low cognitive capacity (which latter observation was later confirmed by Dr Pulman). Her opinion is that her mental state:

… would have been impaired by her psychological conditions at the time of offending, such that she likely had impaired problem-solving capacity, poor consequential thinking, extremely low self-worth and sense of agency over herself and [the] situation, and a degree of learned helplessness… (which would be intensified with low cognitive capacity).

54. It is pertinent to note as an aside to these observations that Ms Argyle was only 21 at the relevant time.

55. The report of Dr Pulman is comprehensive and confirms many of the opinions expressed by Ms Pratley, including confirming the suspicion of a mild intellectual disability. In the opinion of Dr Pulman:

…Ms Argyle has a mild intellectual disability with her level of functioning falling within the Extremely Low to Borderline range and 2^nd percentile…Her history of childhood sexual abuse together with her reduced cognitive capacity and symptoms of psychological distress have impacted her ability to reason, identify appropriate options and to think through the consequences of her actions. Ms Argyle has had minimal psychological support and it is therefore recommended that she engage in long term counselling to address her history of childhood sexual abuse and trauma.

56. Ms Argyle expressed to Dr Pulman her remorse over her actions and was aware of the impact of the offences on her sister. In Dr Pulman’s view, a period of full-time incarceration is most likely to exacerbate Ms Argyle’s level of psychological distress and impact her relationship with her children. Dr Pulman recommended that Ms Argyle be provided with a mental health plan including ongoing sessions with a clinical psychologist to ameliorate her symptoms of psychological distress and to assist her develop more adaptive coping mechanisms.

57. The second report of Ms Pratley also deals with the issue of hardship to Ms Argyle and her children if she were to be incarcerated, and comments on Dr Pulman’s report and further expands upon and confirms her original opinions. She also records Ms Argyle’s need for intensive psychological treatment and support of a kind not typically undertaken in a custodial setting.

58. There is consistency in the account Ms Argyle gave to both report writers (and, where relevant, also to the author of the SAR and to the police), to an extent that I accept that Ms Argyle is truthful and genuine, not only in her expression of remorse, but also in respect of the factors and fears operating on her mind at the time of offending. This conclusion is further fortified by the impression I had of Ms Argyle when she gave evidence before me.

59. The role which the facts reveal was physically played by Ms Argyle in respect of count 1 was minimal and, in all the circumstances, if she had not complied with Steadman’s demands to take hold of her sister’s hands, Steadman easily would have been able to overcome the victim and continue his sexual assault on her.

60. The offence placed on the Form 1 occurred at a different time to count 1, though it appears there cannot be excluded the possibility that it occurred on the same weekend as count 1. Ms Argyle was in her bedroom sleeping and had no role in assisting Steadman to do what he did to the victim. In her ERISP she could not recall assisting her sister by removing the condom but agreed with police that she may have done so. She told the police that she didn’t want anyone to do what was done to her sister.

61. The role Ms Argyle physically played in count 3 was also minimal and was restricted to putting her hand on her sister’s knee. In the circumstances, there was little practical assistance she could have provided to stop Steadman doing what he was plainly determined to do, although she did give him oral sex prior, it seems likely in order to distract his attention from her sister, and it also appears likely she tried to pull them, that is Steadman and her sister, apart.

62. The limited role Ms Argyle played in terms of her physical involvement in each of the offences is such as to justify a finding that, without more, the offences are all towards the lowest end of the spectrum of conduct that sensibly might be caught by this serious offence provision.

63. Ms Argyle’s participation, minor though it was, in Steadman’s visitation of sexual violence upon her sister was made objectively more serious by reason of two related facts external to her direct role or physical participation. Those facts are that the offending occurred in Ms Argyle’s home, where her younger sister was entitled in the circumstances to feel secure and protected, and that the offending was in the nature of a breach of a trust which her sister was reasonably entitled to expect existed whilst as a minor she was staying in her older sister’s home to assist her during her pregnancy.

64. Those factors notwithstanding, the submission on Ms Argyle’s behalf, which I accept, is that the objective gravity of the offending is low.

65. Another matter which bears upon that conclusion is the fact that the offence was not part of a planned criminal activity. There was no planning on Ms Argyle’s part, only spontaneous reaction, within the very real limits of her capacity, physically, cognitively, emotionally and intellectually to do so, to the situation which unfolded on account of Steadman’s actions. To the extent Ms Argyle had any capacity to control the situation it must have been negligible, given their relative size, her pregnancy and her inability to stand up to Steadman.

66. Furthermore, aside from purely objective considerations, there exists a multitude of factors which, likely each individually, but certainly in combination, powerfully diminish Ms Argyle’s moral culpability for this offending. Those factors include the following.

67. First, the deprivations and the enduring trauma of her developmental background, including the untreated trauma of the sexual abuse she herself suffered as a child and young adult.

68. Second, her cognitive impairment and the psychological and other compromises that may or may not be connected in one way or another to her developmental background.

69. Third, her experience of the coercive controlling behaviour of Steadman and the attendant duress and fear that he would harm her unborn child and/or herself. Duress in relation to her fear for her unborn child was clearly raised with police in her interview and there is a foundation, in a combination of the agreed facts and the expert reports, for a reasonable conclusion that she was operating under a form of duress. In the whole of the circumstances, Ms Argyle was under the coercive control of Steadman and was unable to think through the consequences either of her actions or of her failure to respond differently to, and to report, what had happened to her sister.

70. Fourth, the evidence points to a causal connection between Ms Argyle’s impaired intellectual capacity and her offending.

71. The prosecution submitted that Ms Argyle played an important role in restraining the victim and encouraging the victim’s compliance. I think on a number of levels that submission is substantially divorced from the reality of the situation, both objectively and also particularly when account is taken of Ms Argyle’s particular compromises.

72. First, Steadman could have, and I suspect almost certainly would have, done what he did, with or without the physical participation he exacted from Ms Argyle. He was large, he was stronger than both women, he was apparently forceful and determined and he needed no assistance either in terms of restraint or securing compliance.

73. Second, the evidence points to the likelihood that Ms Argyle was herself in genuine fear of Steadman if she failed to be compliant.

74. Third, I think it likely that Ms Argyle, with the deficits in agency and cognitive compromises she suffered, and bearing in mind her own fear, was attempting, albeit in in her own misguided way, to make the situation better for her sister than it otherwise may have been.

75. By reason of what in my assessment is her diminished moral culpability, Ms Argyle is an inappropriate vehicle for general deterrence and all of her circumstances point to the conclusion that the object of specific deterrence has no substantial operation in this exercise.

76. The prosecution’s ultimate submission was that the objective circumstances of this offending warrant the conclusion that absent a finding of exceptional circumstances a full time custodial sentence is warranted.

77. It seems to me that there are a number of levels upon which that submission is deficient, both as a matter of principle and by reference to the particular circumstances of this case.

78. Strange though it be that it apparently requires legislation to articulate the sentiment, s 5(1) of the Crimes (Sentencing Procedure) Act relevantly provides that a “court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”.

79. In Martin, Alexandra Jane v R [2013] NSWCCA 24, at [44], Beech-Jones J, with whom Bathurst CJ and Fullerton J agreed, observed that:

…the command in s5(1) …is an extremely important protection designed to ensure that persons such as the appellant i.e. young adults of good character, are not incarcerated with all the adverse consequences that can flow to them, their families and the wider community unless the objective circumstances of the offence truly require it….

80. His Honour’s reference to objective circumstances certainly reflects the tenor of the decided cases. It is perhaps trite, arguably regrettably, that authorities concerned with questions of proportionality and determination of penalty have tended to focus upon the objective gravity of offending, in a fashion reflected in his Honour’s remarks just recited. Section 5 itself, however, makes no reference to the objective circumstances.

81. It seems to me uncontroversial also to state that the proper exercise of the sentencing discretion demands that full weight be given to all the circumstances both of the offending and of the offender: Muldrock v The Queen (2011) 244 CLR 120, at [26], citing Markarian v The Queen (2005) 228 CLR 357 at [51] per McHugh J.

82. There exists, to my mind at least, a significant tension on the one hand between that fundamental understanding or characterisation of the exercise of the sentencing discretion, which requires advertence to all the facts, and on the other an approach that gives precedence to the objective gravity of offending in determination of penalty.

83. As McHugh J stated in Markarian, at [54], “by concentrating on the objective circumstances of a crime, the judge is giving effect, and ultimately greater weight, to the retributive or deterrent theory of sentencing”. See also the following passage from Wong v The Queen [2001] HCA 64, cited by the plurality in Markarian at [37]:

So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.

84. There is no warrant for giving greater or lesser weight to one object over another in any individual sentencing exercise save as a proper consideration of all the facts demands. “There must be a synthesising of the relevant factors.  In that process, greater and lesser weight will be allocated to some factors depending on their relevance to the person convicted and his or her crime”: Markarian, at [73] per McHugh J. 

85. If it be right as a matter of principle that the proper exercise of the discretion demands considered advertence to all the circumstances, objective and subjective, then the proper touchstone in the assessment of appropriate penalty in any individual case must be, or in my respectful opinion, properly should be, moral culpability, not the objective gravity of offending. To fasten solely, or even predominantly, upon objective features of offending in determination of penalty is to ignore the injunction to weigh all the circumstances of the offending and the offender in the proper exercise of the discretion. The notion of moral culpability is far more apt to operate as a guide to appropriate penalty in an individual case, fixing as it necessarily does upon all salient features, objective and subjective, of the particular offence and the particular offender.

86. As Jordan CJ stated in R v Geddes (1936) 36 SR (NSW) 554, cited by McHugh J in Markarian, at [65] (emphasis added):

The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. 

87. Additionally, in respect of the prosecution’s ultimate submission referred to at paragraph [76] above, the reasons why it is ill-advised to impose fetters upon the exercise of the discretion by prescribing the existence of “exceptional circumstances” before a particular result obtains is amply demonstrated, if any demonstration were necessary, by the jurisprudence reflected in the recent decisions in the area of sentencing for drug trafficking (see in particular Parente v R [2017] NSWCA 284 and Robertson v R [2017] NSWCCA 205, reversing the position that had obtained and developed since R v Clarke (CCA (NSW) 15 March 1990, unrep).

88. It is one thing to observe that particular results or things might occur only exceptionally. It is quite a different thing to impose upon particular situations a requirement that “exceptional circumstances” be established before a broad discretion may be exercised in a particular way in an individual case. Great care should, with respect, be taken to ensure that a discretion difficult enough in its exercise already is not further fettered by obstacles that represent little more than a value judgment which is sought to imposed as a rule of general application.

89. Although not expressly articulated as such, it seems to me, with the greatest respect to his Honour, that an approach giving apparent predominance to moral culpability in determination of penalty is exemplified in the recent remarks of Beech-Jones J in the course of a manslaughter sentencing (R v Eckersley [2021] NSWSC 562, in particular at [91]). There his Honour synthesises, in precisely the way I understand Markarian and the other cases to which I have earlier referred suggest is appropriate, all of the considerations, objective and subjective, to which regard must be had in fixing an appropriate penalty.

90. Adopting and adapting some of his Honour’s remarks in Eckersley, in sentencing Ms Argyle, all the evidence points to there being no necessity to deter her from committing any further crime, rehabilitate her or protect the community from her. In light of her particular intellectual, developmental and psychological compromises, the necessity to deter others, punish her and denounce her are much diminished.

91. She must, of course, be made accountable for her actions. That said, she has accepted criminal responsibility for her conduct. She pleaded guilty. Although it was formally at a late stage, she has always frankly admitted her participation, such as it was, in this terrible offending against her sister by the co-accused. The timing of the plea seems directly connected to complications or delays in advising her properly without first ensuring her intellectual and psychological capacity was properly explored and exposed, rather than as evidencing any reluctance on her part to accept responsibility. She is genuinely remorseful. She has provided assistance without which it appears the co-accused would likely never have faced the prospect of being held to account for his conduct. She has undertaken to faithfully continue that assistance in the future. She was at the time of the offending very young, vulnerable by reason of being heavily pregnant and herself the victim of a coercively controlling partner, even in respect of this offending. She was not fully aware of the consequences of her actions due to her cognitive impairment and by reason of aspects of her personal background that have endured in her psychological makeup. As at the time of the offences, when she was 21 (almost 15 years ago), Ms Argyle had never had any criminal charges or interaction with the police. She has not offended in the many years since. In my assessment she is unlikely to reoffend.

92. Recognition, of course, must be given to the harm done to the victim, and by extension to the community. The victim impact statement tendered with the prosecution materials highlights the sort of enduring harm to which offending of this character is apt to give rise and by reference to which, no doubt, the prescribed penalties are informed.

93. However, in the end result, when proper account is given to all the circumstances of the offending and of the offender in this case, justice is not properly accorded by a negative answer to the necessary enquiry whether there is any penalty appropriate other than imprisonment. Her limited moral culpability does not justify a conclusion that there is no penalty appropriate other than a sentence of imprisonment.

94. If, as the prosecution submissions suggests, exceptionality is required contrary to my view of the proper application of principle, then, as was submitted on behalf of Ms Argyle, I agree that the circumstances of this offence and this offender are exceptional to an extent that justifies the imposition of a non-custodial sentence.

95. There are additional factors which weigh upon that assessment.

96. There is evidence of hardship to Ms Argyle and her two young children, if a custodial sentence is imposed. The circumstances revealed by the evidence demonstrate a not an insignificant risk to the children’s welfare if their mother is incarcerated. Ms Pratley’s opinion is that, if she were incarcerated for a period, Ms Argyle’s parenting capacity would be undermined and her ability to provide for her children’s physical and emotional needs would be significantly impaired. The capacity for hardship that otherwise exists is exacerbated by the combination of facts that the children’s father’s trial in relation to this offending is pending, and fixed for later this year, and that he is, or at least at the time of the sentence hearing was, indefinitely detained in a mental health facility following a recent suicide attempt.

97. Furthermore, as Ms Pratley’s report demonstrates, this offender would find custody more onerous than others due to her physical and intellectual disabilities.

98. In addition, the nature and extent of Ms Argyle’s past and anticipated future assistance to the authorities mandate an extension to her of considerable leniency. Had I come to a different conclusion than I have on the appropriate penalty in all the circumstances of this case, that leniency would have reflected in a substantial discount, likely attributed equally to the past and the future.

99. Finally, the need for future treatment of her past trauma has been set out in the SAR and the psychological reports. That treatment is, realistically, only available in the community. The community’s best interests are ultimately served by ensuring that Ms Argyle is afforded that treatment.

100. For all of the reasons I have outlined, it seems to me that all of the interests of justice, however they might variously be comprehended in an exercise of this nature, are best served by an alternative to a custodial sentence. To my mind, a Community Corrections Order serves all the manifest objects of this sentencing exercise.

Orders

101. For both offences for sentence, the offender is convicted.

1. For count 1, taking into account the matter on the Form 1, pursuant to s 8 of Crimes (Sentencing Procedure) Act, I make a community corrections order for a period of 2 years commencing today.

2. For count 3, pursuant to the same section, I make a community corrections order for a period of 18 months commencing today.

The conditions applying to both orders are that the offender:

1. must not commit any offence;

2. must appear before the court if called on to do so at any time during the term of the order; and,

3. must submit to the supervision of the Community Corrections Service for so long during the term of the order as that service deems necessary.

If the offender fails to comply with the conditions of these orders, further action may be taken against her. This may require her to return to court to be re-sentenced.

I direct the offender attend the court registry today where a copy of this order will be explained and given to her.

I further direct that by 5pm on 23 June 2021 she report to her local office of the Community Corrections Service to commence supervision under these orders and that she provide to that service a copy of the reports of Ms Pratley and Dr Pulman.

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Decision last updated: 22 June 2021