R v Cooper

[1998] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 282 of 1997

THE QUEEN

v

ALICIA CECILIA COOPER

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JUDGES:	WINNEKE, P., TADGELL and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 1998
DATE OF JUDGMENT:	10 September 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 39

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Criminal law - Sentence - Burglary and armed robbery - Young offender with significant criminal history - Offences committed whilst applicant on probation - Applicant sentenced to three years’ detention in youth training centre and co- offender to three years’ imprisonment - Sentence not manifestly excessive nor manifestly disparate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. D. McArdle	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. R. Bourke

WINNEKE, P.:

1. On 8 December 1997 the applicant pleaded guilty in the County Court at Melbourne to a presentment alleging offences of burglary and armed robbery. The victim of the offences was a middle aged woman who was terrorised in the privacy of her niece’s flat in Fitzroy.

2. The offences were committed in January 1997 when the applicant was 17 years of age. Despite her youth, she had established a significant criminal history, including a number of convictions for theft and assault. The prior convictions had been recorded in the Children’s Court and would appear, from the material before this Court, to have been substantially influenced by drug addiction and poor quality companions. Until she pleaded guilty to these offences, she had been treated leniently by the courts and had not been previously confined in detention centres. It was pertinent that these offences were committed whilst she was on probation. The circumstances in which they were committed reflect no credit upon her, not least because they were committed in company with a violent young man called Lawrence Lovett who had an appalling criminal record. The circumstances were adequately and accurately described by the sentencing judge in the following manner:

   “You both followed the victim into her niece’s flat where she was staying, in a block of flats in Fitzroy. You saw her outside and followed her into a lift and pestered her for cigarettes. As she got out of the lift and got into her flat and locked the door, you screamed at her and you, Mr. Lovett, or perhaps both of you, it does not matter in the circumstances, kicked the door apart and forced entry. You both then terrorised her, making loud demands for cigarettes and threatening death if she did not comply. You, Mr. Lovett, obtained a steak knife and you, Miss Cooper, a pot with which you threatened her.

   At Miss Cooper’s suggestion, you, Mr. Lovett, searched her bodily and you both searched her clothing. You, Miss Cooper, took some cigarettes and Mr. Lovett then pushed Miss Cooper out the door and returned; and refused to let her in again although she was demanding re-entry. You, Mr. Lovett, grabbed the victim and dragged her into a bathroom, putting a knife to her throat and making further threats. You then took some $2 from her purse and some cigarettes and left.

   Although you each played generally similar roles in the episode you, Mr. Lovett, have I think slightly greater criminality because of your later activities after Miss Cooper found herself locked out.”

3. This description itself portrays the gratuitous brutality of the crimes. It is no surprise that the victim, in a statement tendered to the Court, said:

   “I am constantly haunted by the incident. I have sought medical treatment from my local doctor who has prescribed medication for my nerves. The sound of the door being smashed in haunts me. I have trouble sleeping because I have nightmares. Never before in my life have I been involved in such an horrific and terrifying incident and it is something I will not forget.”

4. The applicant and Lovett were jointly arraigned before his Honour and each pleaded guilty to the same offences. After lengthy consideration the judge sentenced Lovett, who was not much older than the applicant, to three years imprisonment with a minimum term of two years; and sentenced the applicant to be detained in a Youth Training Centre for three years..

5. The sentence imposed upon the applicant was authorized by s.32 (1) of the

   Sentencing Act 1991. The sub-section provides, so far as relevant:

   “(1) ... if a sentence involving confinement is justified in respect of a young offender a court may make a youth training centre order ... if it has received a pre-sentence report and -

   (a)       it believes that there are reasonable prospects for the rehabilitation of the young offender; or

   (b)       it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.”

6. Before imposing the sentence which he did, his Honour called for and considered the pre-sentence report contemplated by the section. This he did in compliance with Division 2 of Part 6 of the Sentencing Act. The term of three years for which his Honour ordered the applicant to be confined was the maximum period of detention which he was entitled to order (s.32 (3) of the Act).

7. The applicant has applied to this Court for leave to appeal against the sentence imposed on a number of grounds. Mr. Bourke, who appeared for the applicant, principally relied upon three grounds:

(a)	that the sentence was manifestly excessive. Allied to this ground Mr. Bourke submitted that the learned judge had misconstrued the circumstances of the offence in concluding that he could not find “any evidence of remorse”; had failed to have sufficient regard to the fact that the applicant had never previously been confined in an institution; and had under-valued the applicant’s prospects of rehabilitation.
(b)	that there was a manifest disparity between the sentences imposed upon the applicant and Lovett. Amongst other things it was argued in support of this ground that the judge had erroneously regarded a sentence served in an adult prison as more severe than detention in a Youth Training Centre; and that he had failed to sufficiently differentiate the roles played by the applicant and Lovett in the commission of the offences.
(c)	that his Honour had erred in law in imposing a sentence of detention by reference to the likely time at which the applicant would be eligible for parole.

1. Notwithstanding the very helpful submissions made by Mr. Bourke in support of these grounds, I am not persuaded that any of them has been made out. In support of the contention that the sentence was manifestly excessive, Mr. Bourke referred to a passage in the judge’s sentencing remarks where he said:

   ”You have pleaded guilty to these offences, and I take those pleas into account in reduction of what might otherwise have been the appropriate sentences. I cannot find any evidence of remorse. I cannot have any confidence that you have good prospects of rehabilitation. There are signs that you could be rehabilitated or rehabilitate yourself, but whether you have the will or the resolution or the capacity to avoid succumbing to temptation, or the maturity to do so, notwithstanding the help that is available, remains very doubtful. That is most regretful [sic] and I can only hope that in time and with maturity, you will in effect allow yourself to be rehabilitated. You are still young, that is in your favour, but as I say it is a matter of hope rather than confidence. I lack the confidence that you are serious about drug re-habilitation, and I know that would not be easy.

   I have no confidence that you would comply with a community based order if that was the appropriate disposition. My view is, however, that it would not be. In view of your age and the circumstances I have taken every step I can to be persuaded that it is, but I have formed the firm opinion that the offences require that you be detained in a youth training centre, notwithstanding all the circumstances and the matters put.”

2. It was submitted by counsel that these conclusions were not warranted by the evidence. Mr. Bourke pointed to the applicant’s plea of guilty and to material suggesting that the applicant had not been privy to the level of violence inflicted by Lovett upon the victim but had, at some point during the assaults upon her, sought to restrain Lovett. There was some support for this proposition to be found in the depositions of the victim which, as the parties agreed, formed the basis upon which the plea was conducted. Mr. Bourke also relied upon the applicant’s co-operation with the police and her statements that she was “sorry” for what had happened. All of this, he contended, was evidence which should have driven his Honour to conclude that the applicant was indeed remorseful.

3. There is no doubt that his Honour took into account the applicant’s plea of guilty. When he said he could “find no evidence of remorse”, it should not be assumed that this very experienced judge was unmindful of the matters put to this Court by counsel. All of them had been placed before him by counsel on the plea. This case was, as his Honour mentioned on more than one occasion, a very complex sentencing problem. He was dealing with a young offender who was a sentencing enigma. She had a background of repeat offending notwithstanding a solid support structure from parents and supportive social workers. She had committed these offences whilst still on parole. She had, from time to time, indicated promise of reform, of listening to advice, of giving up drugs and of relinquishing her propensities to fall into bad company; only to disappoint those committed to her welfare by failing to persist. By the time the matter came before his Honour, her parents had decided that they should no longer speak for her, but leave it to the judge to see whether he could succeed where they had failed. The judge’s confidence in her level of remorse and prospects for reform could not have been increased by her failure to attend for sentence at the time when the matter was called on; nor by her apparent condition when she did attend; a condition which, so it would seem, precluded her from being called to say anything on her own behalf. His Honour was told that she had further offended after the commission of the offences for which she was standing for sentence; and that she had again “fallen into bad company”. The judge clearly recognized the complexity of the sentencing problem with which he was confronted by adjourning the matter more than once to receive professional opinion and, ultimately, a report to determine whether the applicant was suitable for a community based order. That report was adverse to the applicant’s interest. That is why his Honour remarked that, because of her age and circumstances, he had taken “every step I can to be persuaded” that the applicant was suitable to be released on a community based order. Indeed the efforts to which the judge went to inform himself of the appropriate sentencing disposition are a firm reminder, if one be needed, that the daily task of sentencing young offenders is no mere “rubber stamp” procedure.

4. A distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds herself (cf. Raftis (1988) 36 A.Crim.R. 362). The degree of true remorse demonstrated by an offender is a question of fact for the judge and I am not prepared to say that it was not open to him to find “no evidence of remorse” in the applicant. He had the opportunity of observing her and hearing the witnesses who spoke about her. It is clear from his remarks that he was looking for evidence of true remorse on the part of the applicant but could not be satisfied that it existed. For similar reasons I would not be prepared to interfere with his Honour’s conclusions that he could not be confident that, unsupervised, the applicant would be capable of rehabilitating herself. However, he clearly had her rehabilitation in mind in imposing the sentence he did. Rehabilitation under supervision is a primary purpose of detention in a youth training centre. Thus the youth and immaturity of the offender may be a significant factor in determining whether, in the case of serious crime, it is appropriate to order a sentence of detention, as distinct from ordering the offender to serve a sentence in an adult prison (cf. R. v. Misokka, Court of Appeal, unreported, 9 November 1995; R. v. Fausett, Court of Appeal, unreported, 23 July 1997). It is clear from his remarks that his Honour was of the view that it would not be appropriate, because of her youth and immaturity, to sentence the applicant to a term of imprisonment but that it was necessary, because of the nature of the crimes which she had committed and her established inability to reform herself, to detain her within a youth correctional system in which her rehabilitation could be appropriately supervised. There was ample material upon which his Honour was entitled to come to that view.

5. It was then submitted that there was manifest disparity between the sentence which his Honour imposed upon the applicant and that which he had imposed upon the co-offender Lovett. In support of this submission, Mr. Bourke contended that his Honour was in error in concluding that the applicant’s criminality in the commission of the offences was only “slightly below” that of Lovett and also in concluding that detention in a youth training centre was a “lesser form of punishment” than confinement in an adult prison.

6. I do not agree that his Honour erred in his categorization of the roles played by the applicant and Lovett in the commission of these offences. True it may be that the applicant was not as overtly aggressive towards the victim as Lovett was; and that a point was reached where the level of violence exhibited by Lovett towards the victim led the applicant to intercede. However, in my view, his Honour was entitled to take the view that this was a joint enterprise in which both participants had engaged in forcibly breaking into the victim’s flat in a concerted endeavour to steal through force and fear. This was not a case where the forcible breaking was carried out in ignorance of the occupant’s presence. Rather it was the evident purpose of both offenders in breaking through the door to increase the level of fear in the victim so that she would submit to their demands. Furthermore it was open to his Honour to take the view that it was the applicant who openly encouraged Lovett to perform a body search of the victim whilst at the same time contributing to the victim’s state of terror by telling her that, if she did not comply, Lovett would “kill her”. The applicant might not have been prepared for the degree of violence which Lovett presented to the victim, and had thus sought to restrain it; but that no doubt was the reason why his Honour was prepared to conclude that her criminality was “slightly lower” than that of Lovett. A comparison of criminality between co-offenders is a matter of degree as to which reasonable minds might differ. However, in this case, the fact that the applicant registered her disapproval of some of the actions of her co-accused during the course of the robbery, cannot render her immune from the inevitable finding that she was a willing participant in a design to reduce the victim to a state of cowering submission. His Honour was entitled to regard the circumstances as a bad instance of the offence of armed robbery and also to regard the applicant’s involvement in it as only slightly below that of her co-accused.

7. However Mr. Bourke’s contention was that the sentences which his Honour imposed upon the applicant and Lovett established the manifest disparity because he sentenced each to a “loss of liberty” of three years. It was fundamental to the submission that, as a matter of principle, no distinction can or should be drawn between a sentence which confines an offender in a youth training centre for three years and a sentence which confines a prisoner in an adult gaol for three years. In each case it is said that the offender suffers the same deprivation of liberty and that, necessarily, there must be a “justified sense of grievance” in the offender whose personal circumstances and role in the offence warranted less harsh treatment. Mr. Bourke sought to support his argument of disparity by reference to the powers invested in the authorities respectively by the Corrections Act 1986 and the Childrens and Young Persons Act 1989 which, he contended, demonstrate that the severity of confinement is indistinguishable.

8. It is apparent from his sentencing remarks that the judge had considered the question of parity between the sentences which he imposed and concluded that the circumstances made the achievement of precise parity between the two offenders “impossible”. He noted that it was his “understanding” that the applicant would be “considered for probation [sic] after approximately twelve months” and continued:

   “I have considered the question of parity of sentence as between the two of you. There are a number of factors which I have taken into account. They include the finding that your criminality, Mr. Lovett, is slightly greater than that of Miss Cooper, your respective ages, your respective prior convictions and background circumstances, the fact that Mr. Lovett’s sentence will be served in an adult prison, which I take to be a more severe penalty than a period of detention in a youth training centre, and which on that account justifies a lesser sentence than otherwise appropriate, the psychological and emotional profile of each of you as appears in the reports tendered, the non-parole period imposed in respect of Mr. Lovett as against the likely time at which you, Miss Cooper, will be eligible for parole, the maximum period for which I may direct detention in a youth training centre, the fact that Mr. Lovett has deprived himself of the availability of youth training centre as an option and therefore the opportunity of parole as early as the opportunity available to you, Miss Cooper, the fact that you, Miss Cooper, still have to be dealt with or may, in any event be dealt with in respect of a breach of one or other of the existing community based orders and, in short, the impossibility of exact parity in all the circumstances.”

9. It was contended that his Honour had made it clear in these comments that he regarded detention in a youth training centre as a less harsh penalty than confinement in an adult gaol and that this was erroneous. Mr. Bourke referred to the decision of the Court of Criminal Appeal in R. v. Graham (unreported, 4 March 1983) where it had been submitted on behalf of an applicant who had received two years six months imprisonment for the offence of “unlawful wounding” that he had been treated in a manifestly disparate fashion from a co-offender who had received 18 months detention in a youth training centre. It would seem, although it is by no means clear from the report, that the Court was asked to treat the disparity between the sentences as greater than the nominal 12 months because of the fact that the co-accused was being detained in a youth training centre. Young, C.J., with whom Anderson and Gray, JJ. agreed, said of the contention made by counsel:

   “I doubt very much, however, whether that can ever be a significant distinction for the purposes of comparing sentences. The statute provides that an offender under twenty one years of age may be given youth training instead of imprisonment, and the Court is obliged to consider that with such an offender. The co-accused ... was nineteen at the time of the offence, and the applicant ... Graham was close to twenty- one. I do not myself think that the disparity between imprisonment and detention in a youth training centre is of significance for present purposes.”

1. It is clear that the learned Chief Justice was confining his remarks to the circumstances of the case with which the Court was dealing. However it does not seem to me that his Honour was intending to lay down any hard and fast rule that when a Court of Appeal was considering the parity of sentences imposed upon two co- offenders the court was required to treat a period of detention in a youth training centre as the equivalent of a period of imprisonment. Rather, it seems to me that the Court was pointing out, as common sense might dictate, that the fact that the Court was imposing sentences designed to achieve different statutory purposes rendered the distinction between the periods imposed of little or any significance when considering parity of those sentences.

2. In my view it would be surprising if a judge who considers an offender suitable for a youth training order so as to achieve one or other of the objects contemplated by s.32 (1) of the Sentencing Act could be frustrated in fixing what he regards as the suitable period of detention needed to achieve those objectives simply because, under a totally different regime of sentencing, he had fixed the same, or even a lesser, period of imprisonment to be served by a co-offender in an adult prison. The reason why a court interferes on the ground of marked disparity is because the court considers the disparity to be such as to give rise to a justified sense of grievance in the offender and gives to the objective observer the appearance that justice has not been done (R. v. Lowe (1984) 154 C.L.R. 606, per Gibbs, C.J. at 610 and per Mason, J. at 613). In my view there can be no justified sense of grievance, nor can there be an appearance of injustice, where the sentences imposed upon the co-offenders are, as here, designed to achieve different objectives and require the judge to take account of different considerations. The objective observer, suitably endowed with an understanding of the relevant facts and procedures, would, I think, sense no injustice.

3. Finally, Mr. Bourke submitted that his Honour had erroneously inflated the period of detention which he ordered the applicant to serve by speculating as to the time at which she might be released on parole. This error, he contended, was to be found in the remarks which his Honour made after imposing sentence. First his Honour said:

   “It is my understanding that depending, of course, on your behaviour,

   you will be considered for probation after approximately 12 months”;

   and, later whilst making his remarks about parity between sentences, he stated that one

   of the factors which made parity unachievable was:

   “the non-parole period imposed in respect of Mr. Lovett against the likely

   time at which you, Miss Cooper, will be eligible for parole.”

4. It is, of course, not open to a sentencing judge to fix a period of imprisonment or detention by speculating as to the time at which the offender is likely to be released on parole (Ex parte Cusmano [1966] V.R. 583 at 587; R. v. Vassallo and Tasioulas (Court of Appeal, unreported, 7 May 1998); Misokka, supra, per Callaway, J.A. at p.4). However I do not discern, from the remarks to which I have referred, that his Honour had fallen into this error. Each of the remarks was made after his Honour had imposed what he regarded as the appropriate sentences upon both the applicant and Lovett. The first remark was clearly provided as encouragement to the applicant; namely that if she behaved herself, she may be favourably considered for parole (although his Honour used the word “probation”) after of period of twelve months. That this was the purpose and effect of this remark was accepted by Mr. Bourke. Nor do I see in the second of the impugned comments any indication that his Honour was setting the period of detention ordered by reference to the time at which the applicant might be released on parole. His Honour was doing no more than indicating why the practical effect of the terms which he had imposed upon the two co-offenders would render the objective of parity between sentences an elusive one.

5. For the reasons stated I would dismiss the application for leave to appeal against

sentence.
TADGELL, J.A.:

1. For the reasons prepared by the President I agree that this application should be

   dismissed.

CALLAWAY, J. A.:

1. The applicant was sentenced to be detained in a youth training centre for three years. The co-offender, Lovett, was sentenced to be imprisoned for three years with a non-parole period of 21 months. In this judgment, which addresses only the questions of parity and manifest excess, I am concerned only with the head sentences. They must be compared on the basis that the applicant and the co-offender may have to serve every day of them. That was the position at common law, which now finds statutory expression in s.5(2AA)(a) of the Sentencing Act 1991.

2. Mr. Bourke contended that the two sentences were equivalent in principle. A number of reasons were advanced. First, both sentences involved loss of liberty, which is the most severe punishment that the law allows. Secondly, s.5(4) of the Sentencing Act drew no distinction between the two species of confinement with which we are concerned and various other statutory provisions equated service of a period of detention with service of the same period of imprisonment. See ss.18, 33 and 35 of the Sentencing Act and Division 10 of Part 4 of the Children and Young Persons Act 1989. Thirdly, the location of para. (d) in s.7 of the Sentencing Act did not imply that detention ranked below imprisonment. It was partly a drafting device and in any case detention came after a term of imprisonment that might be wholly suspended.

3. Counsel explained that his submissions did not entail the consequence either that there could be no sentencing error in imposing a sentence of imprisonment where detention was clearly more appropriate or that a sentence of imprisonment might not bear more heavily in practice on a young offender. He also relied on the decision of the Court of Criminal Appeal in R. v. Graham (unreported, 4th March 1983). In that case the applicant had been sentenced to 30 months' imprisonment and the co-offender to 18 months' detention in a youth training centre. The Court expressly rejected a contention that the disparity was even greater because one sentence was a sentence of imprisonment and the other a sentence of detention.

4. It is important to remember that a sentence of the latter kind may be imposed only in the circumstances described in s.32 of the Sentencing Act. The offender must be under the age of 21 at the time of being sentenced and the court must believe that there are reasonable prospects for his or her rehabilitation or that he or she is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. A parity argument is particularly difficult to sustain where the applicant is sentenced to be imprisoned and a co-offender to be detained and the applicant is not eligible for detention. The applicant may be ineligible because of age or because, by reason of his or her antecedents or other considerations, the court cannot form either of the requisite beliefs to which I have referred. The argument is difficult to sustain because the touchstone is a justifiable sense of grievance that an objective observer would share: see R. v. Taudevin [1996] 2 V.R. 402 at p.404, the passages in Lowe v. R. (1984) 154 C.L.R. 606 to which reference is there made and Postiglione v. R. (1997) 189 C.L.R. 295 especially at pp.323, 338 and 341.

5. In the present case the applicant and Lovett were both eligible for detention in a youth training centre so far as their ages were concerned. At the time of sentence Lovett had just turned 18 and the applicant was nine days short of that age, but it was properly conceded that Lovett could not again be sentenced to detention. He had received such a disposition on ten previous occasions and his 175 prior convictions from 20 court appearances included five convictions for escaping from a youth training centre.

6. Parity requires that like cases be treated alike and that unlike cases be treated differently: see Postiglione v. R. at p.301. A parity argument may therefore take either of two basic forms. On the one hand an applicant may say that he or she has been treated more harshly than a co-offender but that the difference does not reflect, even approximately, the difference in their respective positions. A simple example is afforded by two relevantly indistinguishable offenders one of whom receives a custodial sentence and the other of whom does not. The important words are, of course, "relevantly indistinguishable": they may, for example, have played the same role in the offence but one may have very different antecedents or prospects of rehabilitation. On the other hand an applicant may complain that both offenders have received the same sentencing disposition when differences between them show clearly that the applicant should have been treated more leniently. That is the form of the argument in the present case. Mr. Bourke's contention was that the head sentences were the same in principle but that there were important differences between the applicant and Lovett.

7. Those differences were of two kinds. First, there were differences in the circumstances of the offenders. I have already mentioned Lovett's criminal record. The applicant, by contrast, had 17 prior convictions from six court appearances. They were less serious than Lovett's convictions and less relevant to the sentencing task at hand. She had not previously been incarcerated. She had a supportive, albeit despairing, family and better prospects of reformation. Those differences were significant but, in my opinion, they were sufficiently reflected in the difference between a sentence of imprisonment and a sentence of detention in a youth training centre. Even if three years' imprisonment and three years' detention are equivalent in principle, which need not be decided, the two dispositions have different purposes or at all events the same group of purposes is differently weighted. The applicant can have no justifiable sense of grievance on account of the differences mentioned in this paragraph, because they were adequately reflected in the kind of sentence that was imposed on her in comparison with that imposed on Lovett.

8. Secondly, there were differences in the circumstances of the offences. Down to the point at which Lovett searched the victim at the applicant's direction, there was no material difference in culpability, but thereafter the position changed dramatically. When Lovett unzipped the victim's shorts and started to pull them down along with her underpants, the applicant told him to leave her alone and apologized. He then locked her out of the flat and conducted himself in relation to the victim in a fashion that led her to believe that she was about to be raped. The applicant screamed at him through a window, telling him to stop and saying that they should leave.

9. The victim, whose first language was not English, gave evidence at the committal in the course of which she said:

   "Was that connected, do you say, with the touching of you by the man? ---Nothing is happening inside only with her help I think, because she was screaming, from outside, telling him to leave me alone; 'Leave her alone' she screamed back from outside, 'Don't touch her, don't hurt her'.

   Yes?---'Come out and let's go'.
   Right?---'Don't hurt her.'" (Emphasis added.)

   The words I have emphasized are susceptible of only one interpretation. They meant that, in the victim's belief, it was only with the applicant's help that she was not sexually assaulted.

10. Mr. McArdle, who appeared for the respondent, minimized the applicant's assistance to the victim on the basis that Lovett's threats after he ejected the applicant from the flat were not the subject of a count and the offences to which the applicant pleaded guilty were by then substantially complete. In my opinion that submission does not answer the point of substance. Joint criminal escapades frequently get out of hand. It is very much in the public interest to reward a participant who not only ceases to take part at that stage but also intervenes, to the best of his or her ability, to protect the victim from further harm. If all the perpetrators receive the same or a similar sentence, there may not only be a justifiable sense of grievance but there will also be no incentive to engage in such conduct. Indeed there may be a positive disincentive, because the participant who draws back or goes to the help of the victim often risks reprisals from the continuing offenders, ranging from accusations of cowardice through ostracism to physical injury. If a group of young thugs set upon a stranger, the law should reward a member of the group who tries to prevent escalation. It matters not whether it is escalation of the offence with which he or she is subsequently charged or escalation from one offence to another.

11. If the motive for desisting and attempting to prevent matters getting further out of hand is genuine repentance, that may be a weighty circumstance of mitigation. Sentencing is not, however, solely a matter of individual moral dessert. It is, in part, a hard-headed exercise that has regard to utilitarian considerations. That is why unprepossessing informers are often given substantial discounts and general deterrence may be taken into account subject to the constraints imposed by proportionality and other relevant sentencing objectives. It is in the public interest to make a difference between an offender who desists and tries to help the victim and his or her co-offenders even if the offender's motive was nothing more than fear of the consequences. The difference will not be as great as in the former case, but it must be enough to be effective. The law, which encourages "dishonour among thieves", should not encourage solidarity among violent criminals.

12. It cannot be said that the applicant and Lovett received the same sentence. There was a difference in kind between the two dispositions. It is that difference which, in my opinion, prevents there being any justifiable sense of grievance by reason of differences in the offenders' antecedents and prospects of reformation. The question is whether that difference also makes sufficient allowance for the applicant's withdrawing from the enterprise, calling a halt to the body search of the victim and trying to prevent further harm being inflicted on her. In my view it does not. That conduct required a difference to be made in the length of their respective head sentences, i.e. in the punishment meted out to them as opposed to a greater weighting, in the case of the applicant, in favour of her rehabilitation.

13. The sentence imposed on her was not manifestly excessive, but there can be disparity without manifest excess: see R. v. Bouchard (1996) 84 A.Crim.R. 499 at p.502. I bear firmly in mind that the disparity itself must be manifest, and not merely arguable, but in my respectful opinion that requirement is satisfied. I would therefore grant the application, allow the appeal and re-sentence the applicant to a shorter (although not much shorter) period of detention.