R v JP

[2015] NSWCCA 267

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v JP [2015] NSWCCA 267
Hearing dates:	24 September 2015
Decision date:	09 October 2015
Before:	Hoeben CJ at CL at [1] Price J at [75] Button J at [86]
Decision:	Crown appeal dismissed.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – one count of sexual intercourse with child under 10 under authority contrary to s 66A(2) Crimes Act 1900 – two further offences of production and dissemination of child abuse material under s 91H(2) of the Crimes Act 1900 on a Form 1 – victim aged 6 weeks – offender mother of victim – offender suffering from intellectual disability – offender isolated and vulnerable at time of offending – whether open to sentencing judge to characterise the objective seriousness of the offending as “at the very bottom of the range of crimes of this nature” – assessment of objective seriousness of offending by sentencing judge in error – offending objectively very serious – subjective case important but error in sentencing judge not imposing a custodial sentence – suspended sentence manifestly inadequate – residual discretion should be applied – Crown appeal dismissed.
Legislation Cited:	Crimes Act 1900 – s 66A(2), s 91H(2), Crimes (Sentencing Procedure) Act 1999 – s 3A(f), s 32 Criminal Appeal Act 1912 – s 5D, 5E(1) Criminal Procedure Act 1986 – ss 165 - 167
Cases Cited:	Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413 Attorney General’s Application under Section 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 Hoskins v R [2015] NSWCCA 245 Markarian v R [2005] HCA 25; 228 CLR 357 Mulato v R [2006] NSWCCA 282 Muldrock v R [2011] HCA 39; 244 CLR 120 EG v R [2015] NSWCCA 21 R v Dinsdale [2000] HCA 54; 202 CLR 321 R v Muldrock; Muldrock v R [2012] NSWCCA 108 Williams v R [2012] NSWCCA 172
Category:	Principal judgment
Parties:	Regina – Applicant JP - Respondent
Representation:	Counsel: Ms T Smith – Applicant Crown Ms B Rigg SC - Respondent   Solicitors: Solicitor for Public Prosecutions – Applicant Crown Legal Aid of NSW – Respondent
File Number(s):	2014/69737
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 April 2015 Before: Haesler SC DCJ File Number(s): 2014/69737

Judgment

1. HOEBEN CJ at CL:

Offence and sentence

The respondent pleaded guilty in the Local Court to one count of sexual intercourse with a child under 10 and under authority, contrary to s 66A(2) of the Crimes Act 1900. This offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years.

2. Two further offences of production and dissemination of child abuse material under s 91H(2) of the Crimes Act were taken into account on sentence, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. This offence carries a maximum penalty of imprisonment for 10 years.

3. On 17 April 2015 Haesler SC DCJ sentenced the respondent to imprisonment for 1 year and 9 months, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 on condition that she be of good behaviour and accept the supervision and all directions of Community Corrections, particularly regarding accommodation, sex offender programs and psychological treatment. The respondent had spent three months in pre-sentence custody and this was taken into account.

4. A Notice of Appeal was signed by the Deputy Director of Public Prosecutions on 29 May 2015. The Director appeals pursuant to s 5E(1) of the Criminal Appeal Act 1912 against the sentence on the basis that it was manifestly inadequate.

Factual Background

5. His Honour described the circumstances of the offending as sad and unique. At the time of the offences, the respondent was in a de facto relationship. The pair had two children, a boy who was 2 years old and a daughter who was born in April 2013 and was 6 weeks old. Although the de facto partner may not have been aware of this at the time, this child was not his biological daughter. The respondent had been having a sexual relationship with another man, her co-offender. She had come to know him through internet contact.

6. On 19 May 2013 the respondent engaged in a Skype chat with this man. The chat extended over a day until 1am on 20 May. During this internet conversation the co-offender referred to requests made earlier for the respondent to send him pictures of her participating in sexual acts with either of her children. The respondent resisted these requests but agreed eventually to take a sexual picture of her daughter. At about 10.30pm she asked the co-offender what he wanted her to do. He replied, “Lick her pussy” while she played with herself. He asked for picture of the act. A short time later at about 11pm, the respondent performed cunnilingus on her daughter. Two images of this were sent to the co-offender. She later created a Word document on her computer, where she saved the message conversation she had had with the co-offender. His Honour concluded that the act was performed not for any sexual gratification on the part of the respondent, but at the request of the co-offender, for his sexual gratification.

7. His Honour was satisfied that the offence was brief and that the child would not have understood or appreciated what had happened. His Honour nevertheless characterised the action of the respondent as “a gross violation of the child’s bodily integrity and performed by the one person upon whom a child so young was entitled to rely for protection, her mother”.

8. In about September 2013, a friend borrowed the respondent’s laptop. She came across the saved message conversation. The friend spoke to the respondent and her de facto, about what she had seen. She said that if the respondent did not report the matter then she would do so.

9. On 1 October 2013 the friend mentioned the conversation to someone from the Wesley Mission. This information was conveyed to a Family and Community Services (FACS) worker. On 1 October 2013, the respondent and her de facto attended Liverpool FACS for a previously arranged meeting relating to another subject matter. During the interview the question of the daughter’s paternity came up. During the conversation, the respondent was asked if she were fearful of the child’s actual father. The respondent replied, “We need to tell them; we can’t not tell them.” She then told her partner that she would disclose what happened. She told the FACS worker, “I don’t want to say ... all I ask is you not see me as a bad person. He had me in this little child mind for a while and I did something I regret every single day of my life.” She was asked, “What was that?” She replied, “He asked me to lick her out and I did it.” She was in tears. She told FACS the name of the co-offender, that she understood that he lived in England and that she was no longer in contact with him.

10. Her two children were removed from her later that day.

11. The following day her friend provided a printed version of the conversation with the co-offender to FACS. It was eventually given to police. Attempts to locate the co-offender have not been successful. In August 2014, the Children’s Court made orders that her two children be placed in the custody of the de facto partner. There is a condition of that custody that he not allow the respondent unsupervised contact with her daughter or disclose the offences to the child.

12. On 6 March 2014 the respondent was arrested. She remained on remand, bail refused, until 4 June 2014 when she was granted conditional bail. At the time of sentencing (17 April 2015), the respondent was living at Batemans Bay with her boyfriend with whom she had been in a relationship for eight months.

Sentence proceedings

13. When considering the objective seriousness of the offence, his Honour noted that every act that involved the sexual exploitation of a child was serious and that this was the reason for the high maximum penalties and high standard non-parole periods fixed for such offences. His Honour stated that the courts had a duty on behalf of the community to do what they could to protect children from sexual abuse. In that regard, his Honour took into account the need for denunciation and the maximum penalty and standard non-parole period for this offence.

14. His Honour found that the purposes of the respondent’s action were objectively relevant, i.e. to allow the dissemination of images of the activity. He found that because of the child’s age, there could have been no psychological harm and there was no physical harm. His Honour noted that efforts had been taken to date to ensure that the child was never told of what occurred. His Honour concluded that if those efforts were successful, the child would suffer no psychological harm as a direct consequence of the offence.

15. His Honour did, however, take into account the indirect consequences of the respondent’s actions. He noted that because of what the respondent did, the child would never have the benefit of a mother’s care on a close personal basis and that this might well become a factor in her future development. His Honour took into account that the very actions taken by society to protect the child would have the consequence that the child would not benefit from a mother’s care and attention as she grew.

16. Despite these matters and by reference to observations in Muldrock v R [2011] HCA 39; 244 CLR 120 at [227] his Honour found that the objective facts put the matter at the very bottom of the range of crimes of this kind.

17. His Honour then took into account the respondent’s subjective case. By reference to the pre-sentence report his Honour noted the following. As a child the respondent suffered from epilepsy with consequent brain injury. This caused the development of an intellectual disability. She was aged 25 at the time of sentence. She had never been in custody before and was a person of prior good character. The report recorded that she felt sick when she thought about what she had done to her daughter, was fearful of returning to custody and was assessed to be at low to medium risk of re-offending.

18. The respondent was assessed by Forensic Psychology Services. She was found suitable for low to moderate intensive treatment but there were no sex offender group based programs available either in custody or in the community. The only treatment program available was through Forensic Psychology Services at Surry Hills Sydney and because of where she lived, it was unlikely that the respondent would ever be able to access that service. In the community she would need to be referred to a private practitioner with experience and training in the management and treatment of sex offenders. The report repeated her expressions of considerable remorse.

19. By reference to a substantial quantity of medical material which had been placed before him, his Honour took into account that the classification “intellectual disability” referred to substantial limitations in functioning. It was characterised by a significantly sub-average intellectual function and limitations in regard to adaptive skills, communication, capacity to care for oneself and other important matters.

20. His Honour observed:

“Although terms such as mild, moderate and severe are used, those are terms relative to levels of intellectual disability. They relate to people whose intellectual capacity falls into the very bottom percentage of the community. People with moderate intellectual disabilities require considerable support. While they may have some capacity to interact and carry out normal community tasks there are a number of significant deficits which they suffer. Comparisons with those who have the normal advantages of ordinary intellectual functioning should not and cannot be made.” (ROS 11.2)

21. His Honour took into account a comprehensive document from FACS which reported that the respondent at the time of the commission of the offence felt quite vulnerable and isolated and that those feelings continued. At the time of sentence, however, she was receiving support and had available to her an Ageing and Disability Homecare support plan.

22. His Honour referred to other medical material before him which confirmed that the respondent was still suffering seizures because of her epilepsy, that she was going to special skills classes but that she had only moderate supported employment. The document recorded that over time she had gone to FACS with cries for help for being suicidal and not being able to cope following the birth of her son and later following the birth of her daughter. His Honour noted that there was a gap in the FACS records between February 2013 and August 2013 when the respondent was being supported by Anglicare but that program terminated just before the birth of her daughter. His Honour said:

“She was, at the time of the birth, seeing Karitane and also receiving some other assistance. But it would appear, tragically and unfortunately, because no-one can be blamed for this, that the bulk of her support arrived after the commission of this offence on 19 May and that in the immediate aftermath of her daughter’s birth on 1 April, she was forced to rely on her own very limited resources.” (ROS 12.1)

23. His Honour referred to the report of Dr Susan Hodgkinson, a neurologist. She confirmed the respondent’s significant intellectual disability. She confirmed the opinion offered by other doctors that by virtue of her intellectual disability, the respondent presented as a vulnerable individual, prone to exploitation and that her difficulties “will impact on her judgment, problem solving, impulse control and capacity for perseverance and consistency”. His Honour observed that all of those matters were relevant to the commission of the offence.

24. His Honour referred to a report from her teacher, Ms Taylor, who dealt with her as a young girl when she went to high school. Ms Taylor reported that “at school [the respondent] appeared more intelligent than her decision making capacities displayed”. Ms Taylor found that the respondent experienced extreme emotional highs and lows and that her inability to manage and problem solve and think through her actions in stressful situations was defining as the most significant impact of her intellectual disability. His Honour observed:

“This incapacity was noted well before the commission of this offence. It is a striking feature of the offence that she did commit.” (ROS 12.9)

25. His Honour referred to a comprehensive report of Dr Susan Hayes AO, Professor of Behavioural Science, Department of Medicine, University of Sydney. Dr Hayes set out in a comprehensive way the background of the respondent. The test results from Dr Hayes placed the respondent in the mild to borderline range of intellectual disability. The tests placed the respondent at or below the bottom 1% on most testing scales, which was fully within what is called the “mild” intellectual disability range.

26. Dr Hayes considered that the respondent was fit to be tried and to plead. She noted the respondent’s dysfunctional family background. She postulated that the relationship with the co-offender brought her some attention, a feeling of being wanted and some excitement. Dr Hayes found:

““There is a causal connection between the offences and [the respondent’s] mental conditions of mild intellectual disability, panic anxiety disorder and chronic depression with associated low self-esteem. Her mild intellectual disability limits her ability to foresee the long term outcomes of her actions”.

Dr Hayes recorded other impaired decision making impairments in high level executive functions and found that “although able to cope with custody, it would be a significant detriment to her”. She noted that Justice Health had failed to pick up the fact that she had a disability when she went into custody.

27. His Honour sought to synthesise the objective elements of the offending and the respondent’s subjective case and to apply established sentencing principle. His dilemma was starkly stated as follows:

“A combination of factors, including intellectual disability, chronic depression and the particular circumstances of this offence require a sensitive discretionary decision which focuses on the circumstances, objective and subjective, of this case and this offender and close attention to the purposes to be served by the sentencing process …

Here all of the material before me indicates the offender’s capacity to fully comprehend the wrongfulness of her actions and make reasonable judgments and control her emotions were seriously impeded at the time of the offence. It is also important to note that with help from friends, family, carers and medication and the assistance of a comprehensive treatment plan prepared by the Ageing and Disability section of FACS, she is unlikely to ever offend again.

It is also clear that with that support and having broken the hold apparently held on her by her co-offender, she fully recognises the wrongfulness of her actions and is truly contrite and remorseful. It is an unfortunate fact that such is her remorse that, to quote from the pre-sentence report:

“Although granted access to her children she expresses ongoing grief and at times suicidal ideation that she is not able to have continuous contact with her children.”” (ROS 7.1)

“What then is to be done in a matter such as this? The relevant principles which apply to a person suffering a mental illness or what is described as an intellectual handicap or other mental problems were very succinctly summarised by the Chief Judge at Common Law McClelland in DPP v De La Rosa [2010] NSWCCA 195 at [177]. … Summarising in brief form what Justice McClelland set out:

“(1)    Principle recognises that where a state of a person’s mental or intellectual health contributed to the commission of the offence in a material way the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in sentence”.

Those principles are particularly applicable here.

“(2)    The condition may also have the consequence the offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed”.

[The respondent] is not and should never be a vehicle for general deterrence. I note in particular that the maximum penalty and standard non-parole periods are set so high because of this important sentencing principle.

“(3) It may mean that the custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person, the length of the prison term or conditions under which it is served may be reduced”.

Again, the evidence before me, particularly what is said by Professor Hayes is important in this matter.

“(4) It may reduce or eliminate the significance of specific deterrence”.

Here, there has been specific deterrence. The periods in custody have had an effect, mainly negative, but also positive. The realisation of the enormity of what the offender did is also significant. All of the material before me indicates that there is simply no need for further specific deterrence to be incorporated into any sentence which I fix.” (ROS 14.1 – 15.1)

28. His Honour noted that these matters were factors in the re-sentencing of Mr Muldrock (R v Muldrock; Muldrock v R [2012] NSWCCA 108 (Allsop P with whom Hoeben JA and Beech-Jones J agreed)). His Honour found:

“All the material before me indicates that there is, with the appropriate programs being put in place, no prospect that this offender will ever reoffend, the child is not at risk at all from her mother, to the contrary. Her remorse and the impact of this offence upon her means that this offender is punishing herself more than any court could do.

I also have to have regard to the fact that she pleaded guilty at an early opportunity. She would receive the full benefit for the utilitarian value of that plea which is significant. As important however, is the fact that she chose, albeit prompted by her friend’s finding of the material on her computer, to make a full and complete disclosure of this matter to FAC’s and the Police. Without her disclosure it is highly unlikely that the specific offence could ever have been successfully prosecuted. She chose to do that, partly because of the fear that the matter would be disclosed, but more, I accept, because she realised the fundamental wrongness of what she had done.” (ROS 15.3)

29. His Honour expressed his conclusion as follows:

“[The respondent] was particularly vulnerable to exploitation. She committed an offence, brief in nature, which thankfully had no physical, and to date is unlikely to have any psychological impact on her child. [The respondent] has suffered greatly and will continue to suffer for the rest of her life. Her offence will have implications for both of her children. For reasons they may never know, her access to them will be restricted. The community, I believe, would recognise that. No penalty of this Court could punish her more than she has and will punish herself. There are programs in the community to ensure that she is assisted, that her child is assisted and that there would be no repetition of this matter.

Matters which generally attract sentence of imprisonment and fulltime imprisonment so far as general and specific deterrence do not weigh as heavily in this sentencing exercise. In all the circumstances I do not believe it

is necessary, despite the seriousness of what was done, for a fulltime custodial sentence be imposed.” (ROS 16.9 – 17.5)

CROWN SUBMISSIONS

Ground of Appeal: The sentence imposed is manifestly inadequate

30. The Crown submitted that it was not open to his Honour to characterise the objective seriousness of the offence as “at the very bottom of the range of crimes of this nature”. It submitted that his Honour’s error in this regard resulted in a sentence which failed to reflect the true gravity of the respondent’s criminal behaviour. The Crown submitted that his Honour’s findings as to objective seriousness could not properly lead to a conclusion that the objective seriousness was at the “very bottom of the range”. The Crown submitted that sexual interference of a particularly intimate nature with a helpless infant by her own mother at the request of another for the purpose of producing child abuse material involved criminality of a very high level.

31. The Crown submitted that his Honour’s findings as to lack of psychological harm suffered by the child were contradictory. While accepting that it was open to find that a six week old baby had no capacity to understand, appreciate or remember events, the Crown referred to the risk identified by his Honour that the child would suffer psychological harm if she later found out what her mother had done. The Crown also referred to the photos, the subject of the Form 1 charges, which had not been retrieved from the co-offender. Finally, the Crown referred to the inevitable psychological harm which the child would suffer as a result of the removal of her mother’s care.

32. The Crown submitted that when those matters were properly taken into account, without any consideration of the respondent’s subjective case, the most favourable assessment from the respondent’s point of view of the objective seriousness of the offending would be that it was either below the mid-range of offending or towards the bottom of the range. The Crown submitted that it was erroneous to assess the objective seriousness as “at the very bottom of the range” and that this had led to error in the sentence imposed.

33. The Crown submitted that his Honour’s approach to the Form 1 offences was erroneous.

34. The Crown accepted that the two s 91H(2) offences on the Form 1 were also the subject of a s 166 Certificate as indictable offences capable of being dealt with summarily in the Local Court in accordance with the provisions of Chapter 5 of the Criminal Procedure Act 1986 and transferred to the District Court’s jurisdiction as “related offences” pursuant to ss 165 – 167 of that Act. The Crown accepted that as a result there would have been a jurisdictional limit on the sentence or sentences to be imposed had the matters been the subject of conviction. The Crown submitted that despite those considerations, the maximum penalty at law, i.e. 10 years imprisonment, was a relevant factor to be taken into consideration by the sentencing judge when assessing the impact of the Form 1 matters on the appropriate sentence for the principal offence.

35. The Crown took issue with the following observation of his Honour at ROS 1 – 2:

“It is clear … that the offence was committed so that the photographs could be taken and disseminated. It is clear from the agreed facts that the elements to be considered in determining the sentence for the primary offence, relate to and are impinged on, by the commission of these other offences, for which no conviction will be recorded. Generally matters on a Form 1 increase the penalty required for the principal offence because of the greater weight needed to be given to personal deterrence and retribution. Here, the matters on the Form 1, while they add something, are also intrinsic to my consideration of the objective circumstances of the offence before me for sentence. It is impossible to parse the Form 1 acts and the offence for sentence in any meaningful way. I do take into account the matters on the Form 1 as required, but as will become clear, no significant additional penalty needs to be included in the penalty fixed for the principal offence because of the Form 1 matters.”

36. The Crown submitted that his Honour’s approach in not imposing any “significant additional penalty” in relation to the Form 1 matters was erroneous. The Crown submitted that in accordance with Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413 regard must be had to the additional criminality in the Form 1 offences as one of many relevant factors when formulating an appropriate sentence for the primary offence. It submitted that the important matter here was that the respondent was well aware that the co-offender wanted images which could be saved. The respondent and the child had no control over what would happen to these child abuse images once they were sent to the co-offender. The Crown submitted that this fact was at the heart of the seriousness of the Form 1 offences and was not properly accounted for in his Honour’s remarks on sentence or in the sentence which he imposed.

37. The Crown submitted that it was incorrect for his Honour to treat the Form 1 matters more as “context” or “aggravating circumstances” for the sexual assault offence rather than acknowledgements of guilt by the respondent to additional charges to be taken into account when sentencing for the principal offence. The Crown submitted that the fact that the images were created and sent constituted discrete and serious additional offending which should have led to an increase in the sentence for the principal offence.

38. While the Crown accepted that in the case of an intellectually disabled person, personal deterrence and retribution had little part to play, there remained “the community’s entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed” as a remaining consideration in this case, even though diminished due to the respondent’s mental condition: Attorney General’s Application under Section 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 per Spigelman CJ at [42].

39. The Crown accepted that where there was a causal connection between an offender’s intellectual disability and the offending, it operated to reduce the offender’s moral culpability. It also accepted that in such circumstances the offender was an inappropriate vehicle for general deterrence and that the purposes of sentencing, such as specific deterrence, denunciation and punishment assumed less significance. The Crown submitted, however, that his Honour erred in not properly balancing those considerations against the seriousness of the offending in its totality. The Crown submitted that the suspended sentence (i.e. the mode of serving the sentence imposed) was incapable of reflecting the grave criminality of the respondent’s crime.

40. The Crown submitted that the leniency extended by his Honour to the respondent by imposing a sentence which was unduly lenient in how it would be served, went beyond that which the concept of individualised justice could properly allow, given the objective criminality of the offending conduct.

41. The Crown relied upon a comparison with this Court’s decision in R v EG [2015] NSWCCA 21 where the offender was re-sentenced to imprisonment with a non-parole period of 1 year and a balance of term of 1 year for a very similar offence. The distinguishing features were that the child in EG was aged 2, the offender was the grandfather and may have been suffering from early dementia at the time. The Crown submitted that this offence, even allowing for the respondent’s subjective case, was more serious, because of the younger age of the child, the grosser violation of trust by a mother and the involvement of the co-offender.

42. The Crown acknowledged that the Court retained a residual discretion in the exercise of the s 5D jurisdiction to refuse to interfere in a sentence, even if error had been demonstrated, and manifest adequacy established. The Crown accepted that it must negate any reason why the residual discretion not to interfere should be exercised (CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407 at [36]). Despite the limiting principles which apply to appeals brought by the Crown, it submitted that the Court should intervene in this matter because not only was the sentence indicative of manifest inadequacy but it was inconsistent with sentencing standards expected by the community and inconsistent with the need for a strong denunciation of child sexual exploitation offences. The Crown submitted that there had been no delay in either the institution of the appeal, nor in bringing the matter to Court. The Crown submitted that the respondent was only at an early stage of her post sentencing regime. It submitted that concerns about interfering with the respondent’s rehabilitation should diminish once it was accepted that any sentence imposed on the respondent would of necessity involve a substantial parole period during which supervision and treatment could occur.

Consideration

43. A claim of manifest inadequacy requires the party advancing that complaint to establish that the sentences imposed were unreasonable or plainly unjust. In a sentencing environment where there is no single “correct” sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (R v Dinsdale [2000] HCA 54; 202 CLR 321 at 325; Markarian v R [2005] HCA 25; 228 CLR 357 at [25]); Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at 538 [58]).

44. The High Court has stated on a number of occasions that the primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons and that the court in the exercise of its jurisdiction under s 5D Criminal Appeal Act 1912 retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 at [1].

45. The primary judge in this matter was confronted with a very difficult sentencing exercise. Looked at objectively, the facts of the offending appear damning, particularly the breach of trust and the transference of the two images to the co-offender. But as is so often the case in sentencing matters, the objective facts of the offending do not tell the whole story. When one takes into account the respondent’s subjective case, in particular her intellectual disability which made her susceptible to the domination and pressure exerted by the co-offender, and apply proper sentencing principles which make due allowance for mental disability of this kind, the result when sentencing is complex and difficult to arrive at.

46. The first challenge by the Crown is to the assessment of objective seriousness by the primary judge. There is an initial difficulty with that challenge in that cases such as Mulato v R [2006] NSWCCA 282 and Hoskins v R [2015] NSWCCA 245 make it difficult to challenge such an exercise of the sentencing discretion. In Mulato, Spigelman CJ said at [37]:

“37   Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion, it was open although I have some hesitation in deciding so and find it to be at the lower of the range which could reasonably be held to be so characterised.”

47. In the same case, Simpson J who agreed with Spigelman CJ added:

“46    The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

48. When assessing the objective seriousness of the offending, there were matters which the primary judge had to carefully balance. A major consideration was the harm caused to the victim. In this case, there was no actual harm either psychological or physical. That was a product of the very young age of the child. The other matters of harm which the primary judge took into account involved a risk of future harm, rather than harm which had actually occurred, e.g. that someone might later tell the child what had occurred and the possible detriment she would suffer by being deprived of a mother’s care.

49. The breach of trust consideration was a matter of considerable seriousness, particularly when one had regard to the subject matter of the Form 1 offences. Looked at in isolation, there was little to be said by way of mitigation of that consideration. Other matters relevant to objective seriousness were the brief duration of the act and that its commission was brought about by the persistent pressure and persuasion by the co-offender. It is when assessing that matter that the distinction between objective considerations and subjective considerations becomes blurred and is difficult to maintain. It is an important consideration that the act which constituted the offence was not something instigated by the respondent but was the product of a long period of pressure on a susceptible person by the co-offender.

50. Taking those matters into account, and being particularly mindful of the special position of the primary judge in assessing objective seriousness, I still have a concern about the conclusion that objectively this offence was at the very bottom of the range of offences of this kind. My own assessment would be that, looked at objectively, a more appropriate characterisation would be that it was towards the bottom rather than at the bottom of the range for such offending. Of course that assessment runs the risk of the appellate court substituting its own view of objective seriousness for that of the primary judge. Even so, I am of the opinion that the primary judge’s assessment of objective seriousness was too low. In that regard, there is considerable force in the Crown’s submissions.

51. The Crown submission in relation to the offences on the Form 1, however, are less convincing. In that regard, I find the analysis of the primary judge to be insightful and convincing (see [35] hereof). Although constituting separate offences, in the unusual facts of this case, they provide the essential background to the offending in the principal offence. The principal offence is otherwise without rational explanation. That being so, they impact directly on the seriousness of the principal offence and have the effect of increasing its seriousness. That is the approach followed by the primary judge and that is the effect of s 32 of the Crimes (Sentencing Procedure) Act 1999, as explained in The Attorney General’s Application case and in Abbas Bodiotis Taleb and Amoun v R.

52. The Crown submissions on this issue were tantamount to inviting the court to sentence for the Form 1 offences rather than taking them into account as increasing the criminality of the principal offence.

53. The approach followed by the primary judge was consistent with that of this Court in Williams v R [2012] NSWCCA 172 at [42] where Price J (with whom Allsop P and Campbell J agreed) said:

“42 The objective seriousness of an offence is to be determined wholly by reference to the "nature of the offending". I do not think that the nature of the offending is to be confined to the ingredients of the crime, but may be taken to mean the fundamental qualities of the offence. In my view, where provocation is established such that it is a mitigating factor under s 21A(3)(c) Crimes (Sentencing Procedure) Act, it is a fundamental quality of the offending which may reduce its objective seriousness. It seems to me, that in those circumstances, there cannot be a realistic assessment of the objective seriousness of the offence unless the provocation is taken into account. The absence of provocation is not a factor of aggravation and does not increase the objective seriousness of the offence.”

54. It follows and I am not persuaded that the primary judge erred in his approach to the Form 1 matters in the particular circumstances of this case.

55. The Crown’s reliance upon the decision in EG is also somewhat problematic. As with most cases in this area, the sentencing outcome was very fact specific. An important consideration in EG was that the victim was aged 2 and had an awareness of the wrongness of the conduct. Moreover, there were accepted adverse sequelae in the behaviour of the victim (albeit not to the level set out in the victim impact statement). This was an important distinction between that case and the matter presently under consideration insofar as objective seriousness is concerned. There was also an important difference in the subjective case of the offender in EG and of the respondent here.

56. The concessions by the Crown in relation to the respondent’s subjective case were appropriate. Her intellectual disability was substantial. A vivid illustration of this was the fact that it was necessary for the person from Anglicare who was assisting the respondent before the offence, to telephone her in order to remind her to take meat which she was intending to cook from the freezer. Her other intellectual detriments and their contribution to the offending were comprehensively set out by Professor Hayes in her report.

54. The effect of the respondent’s subjective case is that little weight was to be given to specific deterrence. Principles such as denunciation, general deterrence and in a general sense retribution, were also to be given less weight. In Muldrock v R the Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) said:

“53   … Young CJ, in a passage that has been frequently cited, said this :

"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."

In the same case, Lush J explained the reason for the principle in this way :

"[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."

54   The principle is well recognised . It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”

58. Despite those appropriate concessions, the thrust of the Crown’s submission is that when it came to synthesising and balancing all relevant considerations, i.e. the objective seriousness, the effect of the Form 1 offences and the subjective case, the primary judge erred. This was not so much in fixing the length of the sentence (although this was not conceded by the Crown) but rather in his determination of the mode in which the sentence should be served. The Crown submitted that a suspended sentence in the circumstances of this case was manifestly inadequate and that this Court should re-exercise the sentencing discretion.

59. As already indicated and with some hesitation, I am of the opinion that his Honour’s assessment of the objective seriousness that the offending was “at the very bottom of the range for offences of this kind”, was in error. There was, however, no error in his Honour’s approach to the Form 1 offences and no error has been asserted in his Honour’s approach to the respondent’s subjective case. The sentence imposed by his Honour involved an instinctive balancing of all those matters. It is also of significance that the difference in the assessment of objective seriousness, between that which I have suggested and that found by his Honour, is not particularly great, i.e. my assessment was that the objective seriousness was towards the bottom of the range rather than at the very bottom. Despite that difference in the assessment of objective seriousness, I am not satisfied that the sentence is manifestly inadequate. The respondent’s compelling subjective case reduced the respondent’s culpability in a very substantial way and had a profound effect on the weight which should be given to objective seriousness in this sentencing exercise. This is particularly so when the sentence took into account 3 months of pre-sentence custody.

Residual discretion

60. Even if the Crown were successful in making out this ground of appeal, there are persuasive discretionary reasons for why this Court should not intervene to re-sentence the respondent.

61. At the hearing of the appeal, the Court had before it a report from a Senior Community Corrections Officer based at Batemans Bay, dated 31 August 2015 which provided information as to the supervision of the respondent from the date of sentencing. The Court was also provided with affidavits from the respondent’s father and stepmother and two affidavits from Ms Towagi from Legal Aid. No objection was taken to the Court seeing these documents.

62. The report from the Senior Community Corrections Officer showed that the respondent had been favourably responding to the supervision of Community Corrections and she continued to follow directions relating to her good behaviour bond. Her presentation was described as “that of a young woman who has a mild intellectual disability, suffers from depression, epilepsy and reports she continues to take her prescribed medications”.

63. The respondent had also registered with the Child Protection Registry at the Narooma Police Station, which was a consequence of her conviction. She continues to reside with the same partner as when she was sentenced. In June 2015 the respondent was assessed by a forensic psychologist on behalf of Corrective Services as part of her supervisory obligations. The assessment and recommendations of the psychologist were:

“[The respondent] would benefit from psychological intervention with a private psychologist focusing on managing any intimacy deficits and her diagnosed depression. [The respondent’s] sexual offending treatment needs are being addressed by participation with Forensic Psychological Services, supervising Community Corrections Officer (CCO) to monitor [the respondent’s] current relationship stability and if CCO has any concerns regarding [the respondent’s] risk of sexual re-offending [the respondent] can be referred to the Corrective Services NSW Senior Forensic Psychologist for further risk management and advice.”

64. The FACS case worker at Liverpool confirmed to Corrective Services that the respondent was attending supervised access visits with her two children on a bi-monthly basis in Sydney. The relative infrequency of these visits was largely due to the relatively isolated nature of the respondent’s residential address on the far south coast of NSW. Steps were being taken between Corrective Services and FACS to increase the level of contact between the respondent and her children.

65. The affidavit of Ms Towagi of 11 September 2015 set out the contents of a conversation which she had with Ms Taylor, the former teacher of the respondent, who had provided a detailed report for the Court in the sentence proceedings and to which specific reference was made by the primary judge. Ms Towagi deposed:

“16   Ms Taylor informed me she had a conversation with the respondent not long after the notice of appeal had been served. Ms Taylor informed me that during that conversation she formed the view that the respondent was depressed. Ms Taylor informed me that the respondent was expressing negative views and also questioned whether she wanted to live anymore. Ms Taylor informed me that the respondent sounded frightened and emotional and “was beside herself about the prospect of going back to prison”.

66. In an affidavit of 17 September 2015 Ms Towagi annexed the respondent’s mental health care plan prepared by her GP and also noted that the respondent had been to see Mr Tim Goulding, a psychologist practising in the Batemans Bay area.

67. The affidavit of the respondent’s father was dated 11 September 2015. In it he confirmed how upset the respondent was when she was served with the notice of appeal by the police in June 2015. He described the respondent as sounding “hysterical” and saying words to the effect:

“Dad I can’t go back there Dad, I can’t go back”.

Later in the affidavit he said:

“11   I was worried about my daughter’s mental health and was concerned she may try to take her life. She has threatened to take her life on at least two occasions during the period from 1 October 2013 when the children were removed and 6 March 2014 when she was charged with the offences. On those occasions I telephoned the police. On one occasion [the respondent] was taken to hospital to be assessed.”

The respondent’s father said that he was regularly in contact with the respondent and that she frequently expressed her sorrow and remorse at what she had done.

68. The respondent’s stepmother’s affidavit was dated 11 September 2015. She said that she spoke to the respondent on a fortnightly basis by telephone and had done so since the sentence proceedings in April 2015. She said that the respondent frequently told her how sad and unhappy she was about what she had done to her daughter about her inability to be a proper mother to her children and about her fear of returning to prison.

69. The Crown carries the onus of establishing that the residual discretion to refrain from resentencing a respondent should not be exercised by this Court. I am not satisfied that this onus has been discharged.

70. The evidence concerning the respondent following her release on bail in June 2014 and after sentence in April 2015 has made it clear that the respondent’s life has settled down since her release from prison and is relatively stable. The relationship with her present partner appears to be reasonably strong. The respondent has complied with her supervision obligations to Corrective Services and has sought and is receiving medical and psychological assistance.

71. It is clear from the evidence of her father, stepmother and Ms Taylor that notification of the appeal has caused very significant distress and anxiety to the respondent. This has to be assessed in the light of her mental disability and pre-existing and continuing depression.

72. Supervised visits with her children now occur on a bi-monthly basis and ongoing collaboration between Corrective Services and FACS is occurring which should enhance the respondent’s contact with her children. Quite clearly, a return to custody would adversely affect any progress in the relationship between the respondent and her children.

73. For these reasons, in the exercise of the residual discretion I would not have been prepared to re-sentence the respondent even if the Crown had made out its ground of appeal.

74. The order which I propose is that the Crown appeal be dismissed.

75. PRICE J: Having had the advantage of reading the judgments of Hoeben CJ at CL and Button J, I find myself in agreement with Button J that the sentence imposed was manifestly inadequate.

76. I do not agree with the primary judge’s assessment that this offence was at the very bottom of the range of objective seriousness of an offence of this kind. Furthermore, I respectfully disagree with the Chief Judge’s characterisation at [50] above that the offence “was towards the bottom rather than at the bottom of the range of such offending.”

77. The cunnilingual abuse of a 6 week old baby by her mother is a crime of the vilest nature. The depravity of the respondent’s offending is enhanced, in my opinion, by her intention to send pictures of her sexual acts to the co-offender for his sexual gratification.

78. The degree of responsibility of a mother to keep her baby safe is of the highest order. The respondent breached her position of trust towards her daughter in the grossest way.

79. When offences of this kind are considered, it is often submitted on behalf of an offender that as the young child would not have been in the position to understand or even appreciate what occurred, there could be no evidence of psychological harm. Indeed, the primary judge made such a finding: (ROS 5). I do not understand how the fact that a child was unknowing can be seen to reduce the objective seriousness of the offence. An unknowing child is a vulnerable victim, who is unable to take any action to protect him or her self from abuse of any kind, let alone the sexual abuse of a mother. A 6 week old baby is helpless and dependant on the care and protection of his or her parent or guardian.

80. The gross breach of trust and utter vulnerability of the respondent’s baby constitute serious aggravating factors on sentence.

81. Section 3A (f) of the Crimes (Sentencing Procedure)Act 1999 provides that a purpose of sentencing is “to denounce the conduct of the offender.” The principle of denunciation looms large in the present case, notwithstanding the strong subjective circumstances of the respondent.

82. In my opinion, this was a very serious offence.

83. I agree with Button J that no sentence other than a period of full time imprisonment was open to the primary judge.

84. The question remains whether this Court should refrain from resentencing the respondent in the exercise of the residual discretion. I am grateful for the Chief Judge’s careful consideration of this issue and agree with his Honour’s reasons that residual discretion should be exercised.

85. Accordingly, I agree with the order proposed by Hoeben CJ at CL.

86. BUTTON J: Although I agree in the order proposed by Hoeben CJ at CL, I arrive at that destination by way of a different path of reasoning. Because of the comprehensive discussion of all relevant aspects of the matter in the judgment of the Chief Judge, I can be brief.

87. To my mind, in the circumstances of this case, featuring as it did the performance of cunnilingus on a six-week-old baby by her mother so that images of that act could be transmitted to another person for his repeated sexual gratification, no sentence other than a period of full-time imprisonment was open to the discretion of the learned sentencing judge.

88. It follows that, in my opinion, and with great respect to the sentencing judge – whose eminence in the field of criminal law is well-known – the sentence imposed was manifestly inadequate. And I say that bearing firmly in mind the very powerful subjective case, to which the intellectual disability of the respondent was central; the extra curial punishment; the period already spent by her in prison bail refused; and the fact that two offences were dealt with by way of a Form 1.

89. One need hardly embark upon an exercise of seeking to discern community standards with regard to such conduct: the Australian community would react to the deplorable crimes of the respondent with abhorrence. And in any event, the community has expressed its response to penetrative sexual contact with children under the age of 10 years: Parliament has prescribed a maximum penalty of imprisonment for life without possibility of parole, and a standard non-parole period of imprisonment for 15 years.

90. In short, I respectfully disagree with the Chief Judge. I consider that the Crown has established the ground of appeal: the sentence imposed was indeed manifestly inadequate.

91. Having said that, however, I respectfully agree with the Chief Judge that, in the compelling circumstances of this case, the Crown has failed to establish that this Court should refrain from exercising its discretion not to intervene in the matter. To express that concept more concisely and comprehensibly, the respondent should not now be returned to custody.

92. It is for the foregoing reasons that I agree that the order proposed by Hoeben CJ at CL should be made by this Court.

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Decision last updated: 09 October 2015