R v KB; R v JL; R v RJB

[2011] NSWCCA 190

Court of Criminal Appeal

New South Wales

Case Title:	REGINA v KB; REGINA v JL; REGINA v RJB
Medium Neutral Citation:	[2011] NSWCCA 190
Hearing Date(s):	12 July 2011
Decision Date:	02 September 2011
Jurisdiction:
Before:	Bathurst CJ at [1];  Buddin J [88];  Harrison J at [89]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW - appeal against sentence - whether sentences are manifestly inadequate - whether sentences reflect the objective gravity of the crimes - whether weight given to principle of general deterrence - whether error in allowing full utilitarian discount for the pleas
Legislation Cited:	Crimes Act 1900, ss 66C(2), 61HA(2), 61HA(3), 51HA(6), 61J Crimes (Appeal and Review) Act 2001, s 68A Crimes (Sentencing Procedure) Act 1999, ss 3A, 9, 12 Criminal Appeal Act 1912, s 5D
Cases Cited:	Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Gore v R; Hunter v R [2010] NSWCCA 330 Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Mirza v R [2007] NSWCCA 248 MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 Mulato v R [2006] NSWCCA 282 R v Agnew, Supreme Court of NSW, Court of Criminal Appeal, unreported 6 December 1990 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Button; R v Griffen [2002] NSWCCA 159; (2002) NSWLR 455 R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 46 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 R v McClymont, Supreme Court of NSW, Court of Criminal Appeal, unreported 17 December 1992 R v NJK [2011] NSWCCA 151 R v Priestley, Supreme Court of NSW, Court of Criminal Appeal, unreported 3 June 1997 R v Rushby [1977] 1 NSWLR 594 R v Schwenke [2004] NSWCCA 289 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 R v T (1990) 47 A Crim R 29 R v Tak Fat Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340 R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Woodland [2007] NSWCCA 29 R v Zamagias [2002] NSWCCA 17 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Texts Cited:
Category:	Principal judgment
Parties:	Regina (Appellant) RJB (First Respondent) KB (Second Respondent) JL (Third Respondent)
Representation
- Counsel:	Counsel D Arnott SC (Appellant) G Corr (First Respondent) D Carroll (Second Respondent) S Kluss (Third Respondent)
- Solicitors:	Solicitors Solicitor for Public Prosecutions (Appellant) MacLean Curtis & Daly Solicitors (First Respondent) Lyons Barnett Kennedy Solicitors (Second Respondent) Vince Boss and Associates (Third Respondent)
File number(s):	2009/236010; 2009/236007; 2009/236008
Decision Under Appeal
- Court / Tribunal:
- Before:	Williams DCJ
- Date of Decision:	11 March 2011
- Citation:
- Court File Number(s)	2009/236010; 2009/236007; 2009/236008
Publication Restriction:	Publication restriction on name of complainant. Publication restriction on names of respondents

Judgment

1. BATHURST CJ: These are my reasons for joining in the order of the Court made on 12 July 2011 dismissing the appeals in these matters.

1. The respondents each pleaded guilty to the offence of aggravated sexual intercourse with a child between 10 and 14 years (in company) on 23 October 2009 in contravention of s 66C(2) of the Crimes Act 1900. The maximum penalty is imprisonment for 20 years.

1. On 11 March 2011, his Honour Judge Williams DCJ sentenced each of the respondents KB and JL to 15 months' imprisonment suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 on them entering into a bond to be of good behaviour for that period and to accept the guidance of the Probation and Parole Service. The respondent RJB was directed to enter into a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of 21/2 years and to accept the supervision and guidance of the Probation and Parole Service.

1. Pursuant to s 5D of the Criminal Appeal Act 1912, the Crown appealed against the sentences imposed on each of the respondents. The grounds of appeal relied on by the Crown were as follows:

1 The sentences imposed failed to reflect the objective gravity of the respondents' crimes.

2 Failure to give weight to the principle of general deterrence.

3 Error in allowing a 25 percent discount for the utilitarian value of the pleas.

4 Error in imposing a suspended sentence for KB and JL.

5 Error in imposing a s 9 bond upon RJB.

6 Error in the imposition of a sentence which is manifestly inadequate.

The Statement of Agreed Facts

1. The parties tendered a statement of agreed facts at the sentencing hearing. These facts disclosed that on 23 October 2009 the child in question, KS, was walking in Peel Street, Tamworth, with her friend, KT, when two men in a van drove past them and yelled out to them. At the time KS was aged 12 years and 9 months whilst her friend was aged 13. The respondent KB was the driver of the van. He was aged 20 at the time. The passenger, RJB, was then 21 years of age.

1. The van pulled over and a conversation ensued in which the girls were asked what they were doing later. RJB asked KS for her phone number and she gave it to him. One of the males opened the side door and the girls saw JL asleep in the back with a beer bottle resting between his legs. The other two respondents asked KS to get the bottle for them and she did. JL woke up. JL was aged 18 years and 11 months.

1. KT told the police that KS informed the respondents that she was 16 years of age although KS had no recollection of this. The girls then proceeded to KS's grandmother's house. At 8.35pm KS received a phone call from RJB saying that he was near Big W and the girls should start walking that way.

1. KS's grandmother and another woman then drove the girls to a Liquorland bottle shop where two or three bottles of Passion Pop were purchased for them. At 9.03pm, the complainant called the respondents from a phone box to arrange to meet. KS and KT then walked down to meet the men. After meeting up, the respondents visited the Diggers Club and the girls waited outside. CCTV footage from the club showed the three men in company with the girls approaching the front door of the club. The men entered and left a short time later. The girls remained sitting on the footpath whilst the men were inside. Subsequently they walked to a bottle shop where JL and the girls waited while the other two men obtained more liquor. The group then walked to the train station and sat on the steps where they continued drinking. There was a discussion as to the possibility of some sexual contact between the men and the girls.

1. KS said that when she was at the train station "I was pretty drunk but I was about to. [sic] I was walking in a straight line for a bit. Like, I was able to walk, I was energetic more than anything". The statement of facts recorded that she was unable to remember anything after walking off following KT. Her next recollection was waking up in a hospital bed.

1. At about 10.30pm, two women who knew KT saw her and KS crossing the road towards the Diggers Club car park. One of them noticed that KT was having difficulty walking so she knew she had been drinking. She called out to KT to get into the car and she did. After the women and KT left, KS called out to the men to wait and she went to where they were.

1. KT told the women who had picked her up what had occurred and they became concerned and drove back to the car park. One of the women walked to the outskirts of the beer garden of the club. She saw a female (the complainant) lying on the ground with three young males surrounding her (the offenders). She observed that KB was sexually involved with the complainant. He was kneeling between the victim's legs, with his pants around his knees. His right hand was in the area of his groin and the complainant's vagina. KB admitted that he digitally penetrated KS's vagina and the plea was accepted on that basis. The woman saw that RJB was in the vicinity of the complainant but she could not make out what he was doing. The woman ran back to the club to get help whilst calling out to the other woman. She returned with a security officer and a supervisor of the club. In the meantime, the other woman had climbed the wall separating the car park and the scene of the crime. She saw RJB sitting on the ground with his legs out straight and his upper body twisted to the right. As she approached she saw JL with his penis in KS's mouth and saw that RJB was touching KS on the shoulders.

1. She told the men to get off KS and they left the scene. She noticed that KS appeared disoriented. Whilst she tried to stand she fell face first into wire mesh at the rear of the club and collapsed. She was taken to Tamworth Base Hospital where a blood test returned a blood alcohol concentration of .29 g / 100 ml.

Additional Evidence at the Sentencing Hearing

1. During the course of the sentencing hearing KB gave evidence. He stated that he went to Tamworth one week in every five to go to TAFE to complete his apprenticeship. He said that on completion of the TAFE course on a Friday afternoon he and JL, who was also doing a TAFE course, used to head back to Ballina. On the day in question they instead decided to stay and have a few drinks with RJB. KB said that he did not know the girls prior to the incidents in question but stated that the girls had said that they were 16. He said that leading up to the incidents in question he had had a number of beers, probably half a bottle of port and four shots.

1. He stated that he recalled the girls saying they wanted to have sex and that they followed the respondents when they walked from the Diggers Club to the train station. He saw one of them get into a car and the other one kept following. He stated that KS demanded that they have sex with her. He stated that he assumed the girls were of legal age and he should not have made that assumption.

1. He was cross-examined and repeated that the girls kept following the respondents. He agreed that the fact they did not go into licensed premises triggered an alarm that their age was between 16 and 18. He was not cross-examined on what he said relating to consent.

Subjective Circumstances of the Respondents

1. The Crown, in its written submissions, set out in an uncontroversial fashion the subjective circumstances of the respondent as they appeared at the sentencing proceedings.

KB

1. KB was 20 years old at the time of the offence on 23 October 2009. He has no prior or subsequent convictions. KB was raised in a supportive family and was educated to year 10 leaving school at the age of 16. At the time of sentence he was employed as a second year apprentice diesel mechanic.

1. KB told the author of the pre-sentence report that "he feels like he's been set up by the victims [sic] as he maintains that the victims [sic] told him that they were sixteen years old and they were led on by the victim". His plea was described by the Prosecution as (at 8):

" ... entered on the basis that there was a belief held at the time as to her age, and it's in the facts that at least the friend heard her tell the boys that she was sixteen, but it's an honest belief, but it's conceded by the defence that it wasn't a reasonable belief in all the circumstances, and that they certainly should not have proceeded with any sort of sexual contact with the young girl in the circumstances that they were in."

1. KB's evidence was that he had not been in a relationship for a period of about 10 months prior to the offence but that he was in a relationship at the time of sentence.

1. A pre-sentence consultation prepared by Jillian Mears, a Senior Specialist Psychologist working in the Sex Offender Programmes, was attached to the pre-sentence report. That three page report contained an actuarial, as opposed to a comprehensive, risk assessment of KB. The actuarial risk assessment used, the "STATIC-99R" produces estimates of future risk based on the number of risk factors present for any one individual. Ms Mears stated it had "moderate predictive accuracy". KB's score on the STATIC-99R was 4. Ms Mears stated (at 2):

"This places him in the Moderate-High risk category. His score reflects the fact he is young, has never been in a relationship for two years and the fact his victim was an unrelated stranger."

1. In her summary of the risk considerations, Ms Mears noted that it is (at 2):

" ... of concern that in the company of his co-offenders he was willing to agree to meet strange young females and later have sexual intercourse with the victim who was 'heavily intoxicated'. Given her age she was unable to consent but in her intoxicated state the offender could not have gained her verbal consent. Consideration must be given to the attitudes and sense of sexual entitlement that may have contributed towards this offence".

1. Four testimonials were tendered on behalf of KB. One, undated, was from his then current employer who stated that should a non-custodial sentence be imposed he would continue to be employed in a full time capacity and supervised: "In the event of his return to [the company], [KB] would be under the direct supervision of either myself, BH who is our supervisor or his father JB who is a senior member of staff."

JL

1. JL was 20 at the time of sentence and was 18, almost 19 years of age at the time of the offence on 23 October 2009, the offence being three weeks before his 19 th birthday.

1. At the time of the offence he had no prior convictions. However, on 18 March 2010, ie, after the offence in 2009 and before sentence on 11 March 2011, he was convicted in the Local Court of driving with the mid-range prescribed concentration of alcohol as well as offences of driving unlicensed and resisting an officer in the execution of his duty.

1. A pre-sentence report by Bruce Allsopp dated 7 March 2011 was tendered. According to that report JL had completed three years of his apprenticeship at a local government organisation where his father was also employed as a heavy diesel mechanic. The report stated that JL (at 2):

" ... said that he met his male friends in the Police facts in the process of attending course work for his apprenticeship at Tamworth TAFE. The offender said that at the time of meeting the victims he had consumed ten to twelve schooners and stubbies but he claims to recall that both victims [sic] have there [sic] age as 16 years. After obtaining more alcohol [JL] said that he and his male friends drank alcohol and discussions of a sexual nature with the victim ensued. After the offence occurred, the offender and his male friends were declined entry to two hotels before being apprehended for the current matter by police at a third hotel."

1. The pre-sentence report in relation to JL stated that (at 3):

"The offender's risk of sexual or violent recidivism was assessed utilising an actuarial risk assessment instrument, the STATIC-99. The STATIC-99 employs static (or historical/unchanging) factors to estimate risk of recidivism amongst adult males who have been convicted of a sexual offence. Based on the sample group the offender's score on the Static-99 places him in medium high risk category."

1. JL was employed as an apprentice heavy vehicle mechanic and one testimonial, from Sharon Greenfield dated 17 November 2010 stated that JL had been an "exemplary employee".

1. A forensic psychologist, Anna Robilliard stated that she interviewed JL on two occasions, first in December 2010 and then in February 2011. She reported that JL had been raised in a stable and supportive family and he had their ongoing concern, love and support. He was in a stable and committed relationship which predated the offence which took place when he was separated from his girlfriend. She reported that he had appeared to have applied himself to his apprenticeship, that he hoped to be fully qualified by the middle of 2011, and that he had talked of plans to go on to continue his studies to become a ship's engineer. Ms Robilliard stated that (at 11):

"With regard to his habits and lifestyle [JL] admitted he had tried cannabis and ecstasy tablets on a very few occasions; behaviour that is probably not unusual for his generation. He described a binge pattern of drinking which commenced in early to mid-teens which is of more concern. His parents tried to monitor and control his drinking however on turning 18 [JL] acknowledged he drank more often and sometimes to excess. He recognised he had an alcohol problem. He further acknowledged the commission of the index offence and the subsequent drink driving charge was indicative of the problematic nature of his drinking. [JL's] scores on the Alcohol Dependence scale of his personality test administered at each of our meetings reflected an apparent change in his attitudes and behaviour with regard to alcohol. At our most recent meeting he said he had not consumed alcohol since his court appearance in November 2010 nor did he intend to recommence drinking and he was continuing to participate in counselling and education with regard to his drinking.

The issue of risk of re-offending is always relevant in the case sexual offences [sic]. Research into risk of sexual re-offending has produced a range of instruments to predict risk of recidivism however using them with young offenders can be problematic and sometimes misleading. Research into juvenile offenders suggest adolescent sex offenders are not necessarily younger versions of adult sexual offender [sic]. Harris et at (2003) stated 'we have reason to believe the people who commit sex offences only as children or young people are a different profile than adults who commit sexual offences' (page 5).

[JL] was having difficulty appreciating the implications of his responsibility for the index offence when he was initially interviewed. At our recent meeting however he spoke with insight and appropriate awareness of the impact on the victim and he did not hesitate to accept responsibility or express regret and remorse for his offence."

1. JL's mother gave evidence that JL resided with his family, namely herself, his father and younger sister and brother. Mrs L stated that the family managed an 800 acre cattle farm for a local doctor and that JL worked with his father on a daily basis both at work, after work and on the weekend on the farm.

1. Mrs L stated that while JL had been remanded in custody time had been spent in protection, they had only been able to visit him on weekends, and that JL had presented to her as "scared". She stated that after he had subsequently been arrested for drink driving he had said to her that he would like to harm himself and "I was gravely concerned and took him to the hospital where he was scheduled overnight, to keep him safe and secure" (at 18). Since then she sated that JL has been regularly seeing a drug and alcohol counsellor at the Ballina Community Centre.

RJB

1. RJB was 21 years old at the time of the offence on 23 October 2009 and 22 years old at sentence. RJB had no prior convictions but after the offence and before sentencing RJB was convicted and sentenced in the Local Court for a number of receiving and related offences. RJB was arrested on 5 April 2010 for those offences and at the time he appeared before his Honour Judge Williams for sentence upon this matter RJB was serving a sentence in relation to those matters. That sentence was subsequently reduced on appeal by the District Court. RJB is therefore now serving a sentence of 2 years and 7 months with a non-parole period of 1 year and 7 months dating from 5 April 2010 and expiring on 4 November 2011 on which date he is presently eligible for release to parole.

1. The pre-sentence report tendered in relation to RJB had been prepared in relation to those other offences. That reported dated 16 November 2010 stated that RJB had grown up in a stable and supportive family and was particularly close to his paternal grandfather who lived with the family for 25 years before his death, an event that had significantly affected RJB. RJB's mother told the author of the report that RJB "regularly went out of his way to assist others, particularly the elderly, in their rural community".

1. It was also stated that he had left school at the age of 14 years in Year 8 but had completed Year 10 as well as a number of courses at TAFE. According to the report RJB had maintained "consistent employment in a range of semi-skilled rural based occupations".

1. According to the pre-sentence report, RJB had reported that he had been in a relationship for six years and was engaged to be married. He had been upset when his partner had a miscarriage while he had been in custody.

1. A report by a psychologist, Mark Howard, dated 20 February 2011, was tendered in the case for RJB on sentence. According to that report RJB had always lived on the family property in the Tamworth area and would return to live there on release.

1. RJB was suspended twice during secondary school causing him to leave school in Year 8. He was then from the age of 15 employed for 12 months in an abattoir which he left as he did not relate well to colleagues or enjoy the work. After that, for the next two to three years RJB worked in 20 different positions and "related his transient work status to difficulties in settling into an enjoyable trade". After that RJB worked towards an apprenticeship in shed building and told Mr Howard that he was employed in that job at the time of the offence in 2009.

1. RJB told Mr Howard that he had no history of substance abuse and could not recall any occasions in the past where he had become severely intoxicated. Nor was there any history of any mental health problems.

1. He claimed (contrary to the first two paragraphs of the agreed facts) that it was his co-accused who initiated contact with the complainant and her friend and that he was the designated driver for the evening. He stated this was why he drank "bugger all" that evening (at 6).

1. The history as recorded by Mr Howard was that:

"[RJB] recalled at the time of the offence he believed he was witness to 'consensual oral sex' between the victim and the co-accused. He stated the victim said she was aged 16 years, and he had reason to believe this was the case 'she looked 16'. [RJB] maintained he had no sexual contact with the victim and referred to a stable relationship with his fiancee which did not include any history of infidelity. [RJB] expressed some distaste regards being witness to sexual activity; he reported making efforts towards being picked up by his fiancee or mother although he was unable to make contact with them."

1. Mr Howard found after interviewing and assessing RJB that (at 7):

"Objective testing of personality revealed a minimum of entrenched maladaptive patterns of behaviour, thinking or approaches to relationships. Assessment of mood indicated some mild symptoms of depression at present. These personality and mood scores are consistent with [RJB]'s presentation at interview and his reports of a history of general psychological stability, notwithstanding some current symptoms of hopelessness and avolition associated with his present incarceration and legal difficulties. The outcomes indicate that [RJB] would not currently meet clinical criteria for diagnosis of mood or anxiety disorder, an there were also few indications of disordered personality features."

RJB's intellectual function was within normal limits.

1. Mr Howard stated that (at 8):

"Despite [RJB]'s account of events surrounding the index offence, he demonstrated retrospective remorse for the events and empathy for the experience of the victim. He showed understanding for the importance of interactions between consent and the age of partners."

1. Mr Howard concluded there was a "low risk of sexual re-offending" (at 9).

Remarks on Sentence

1. In his remarks on sentence the trial judge summarised the statement of agreed facts as I have outlined them above. He stated that he looked at the CCTV footage which showed five young people walking to the entrance of the Diggers Club and the three males entering. He observed that KS seemed to be smoking as well as drinking from a wine sized bottle and sharing both the bottle and the cigarette with one of the offenders. He stated that although it was difficult to judge it was fair to say that the victim looked somewhat older than her actual age. He stated that apart from not knowing how old the victim and her girlfriend were, what was depicted was nothing out of the ordinary and much what one would expect in a group of young people out for a night.

1. His Honour recorded that it was not disputed that JL had oral sex and KB digital sex with KS. He stated that there was no evidence of RJB sexually interfering with her but he was there providing comfort to the others. He stated from the facts it was impossible to work out exactly what RJB was observed to be doing.

1. Importantly, the sentencing judge accepted that the offenders did not force their wishes on the victim. He stated that the suggestion that the girls wanted to be with the offenders was borne out by the CCTV footage. In that context he said that whilst consent is not a defence, the fact that conduct may be consensual can in certain circumstances affect the criminality of the offender. This would seem to imply that his Honour accepted the evidence of KB on this issue, although it was not the subject of comment in the agreed statement of facts.

1. In dealing with the question of general deterrence his Honour made the following comments (at 8):

"I recognise that the rationale behind legislation such as this is to protect the persons that the law regards as children, if necessary even from themselves. Objectively that is a worthwhile sentiment but must be governed by the subjective circumstances. One would have to question how general deterrence in circumstances such as the present is likely to affect like minded young men in any community, once alcohol becomes an issue and, in those circumstances, having consumed alcohol, they uncritically accept what they are told as to a girl's age.

I prefer to look at the matter on the basis that a crime has been committed which, in a worse case scenario, merits 20 years imprisonment. This is a case that, while objectively serious, is also at the lower end of the spectrum for such offences."

1. His Honour recorded that the Probation and Parole Service suggested that a medium to high level of intervention for KB and JL would assist their rehabilitation. He stated that the evidence established that each of them were of prior good character, in settled career paths and in otherwise normal relationships with family and members of the opposite sex. He said they had ongoing support from their partners and families.

1. His Honour did not specify a precise discount he gave for the utilitarian value of the plea. However, he stated that the plea came as soon as the indictment was amended to include the count to which the plea of guilty was made. He said he failed to see why an offender should suffer a practical penalty for declining to plead to an offence which he or she is in fact not guilty (in this case the more serious offence under s 61J of the Crimes Act 1900). He assumed that the change in the indictment occurred because the Crown recognised that it could not prove the more serious offence under s 61J.

The Appeal

1. For the Crown to succeed on the appeal in relation to Grounds 1-3 it is necessary for the Crown to demonstrate error in the sentencing in the sense set out in House v The King [1936] HCA 40; (1936) 55 CLR 499: see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [3], [58]; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. The appellant accepted at the hearing of the appeal that Grounds 4 and 5 were in effect incorporated into Ground 6. As the High Court recently pointed out in Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195, by asserting manifest inadequacy the allegation is that the judge's orders were unreasonable or plainly unjust: see [58]. In these circumstances intervention is warranted only where the difference is such that the appellate court must have considered that in all the circumstances there was some misapplication of principle even though where or how is not apparent from the statement of reasons: see Hili supra at [59]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]; Dinsdale v The Queen supra at [58].

1. It is in that context that the appeal falls to be considered.

Ground 1 - The sentences imposed failed to reflect the objective gravity of the respondents' crime

1. As Howie J pointed out in Mirza v R [2007] NSWCCA 248 at [16] the level of objective seriousness of a particular offence is a matter on which minds might differ. It is an assessment which is classically within the role of the sentencing judge. In Mulato v R [2006] NSWCCA 282 Spigelman CJ stated the position as follows (at [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 that case Spigelman CJ found that the characterisation adopted by the sentencing judge was open, although he expressed hesitation in so finding.

1. In the same case, Simpson J set out the position as follows (at [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."

1. This is particularly so in the case of an offence of this nature which can occur in a very wide variety of different circumstances. That is not to say that appellate courts should not intervene once they have reached a concluded view that the sentencing judge was in error in his or her assessment of the objective seriousness of the offence. However, the approach in Mulato supra, emphasises the need for caution in reaching such a view and the importance of paying due regard to the opinion of the sentencing judge.

1. The Crown in its submissions stated that the sentences failed to mark the seriousness of the offence. It described the offence as a grave example of an offence committed in company particularly having regard to the simultaneous acts of digital/vaginal penetration and fellatio engaged in by KB and JL respectively. It submitted that his Honour failed to refer to this. Further, it is submitted that his Honour erred in failing to take into account the vulnerability of KS due to her gross intoxication as an aggravating factor. It submitted that the fact that KS was aged 12 years was trivialised in favour of the mitigation constituted by each respondent's mistaken belief as to her age.

1. Orally the Crown submitted that the Court should not proceed on the basis that KS consented to the sexual acts, but said that even if she had the offences were serious because of what senior counsel for the Crown described as the degrading circumstances in which the offence occurred, the simultaneous acts and her age. The only additional degrading circumstance identified was that the offences took place in the open.

1. It seems to me that it is relatively clear that the sentencing judge proceeded on the basis that KS consented to the sexual acts in question. That that is so appears from the following remarks he made at the sentencing hearing (at p 7):

"I accept that the offenders did not force their wishes on the victim. Indeed the suggestion that the girls wanted to be with the offenders is borne out by the CCTV footage. Whilst consent is not a defence, the fact that conduct may be consensual can, in certain circumstances, affect the criminality of the offender."

Counsel for the Crown conceded that he could not challenge that finding.

1. It is in that context that the other matters referred to by the Crown must be considered. The fact that the offence was in company does not seem to me to be a matter of grave significance in this case. Although there was participation in a common purpose the common purpose was to have consensual sexual activity with a person who the participants believed to be over 16. There is no suggestion of any threat or coercion arising out of the presence of more than one person at the relevant time: see R v Button; R v Griffen [2002] NSWCCA 159; (2002) NSWLR 455 at [120]; Gore v R; Hunter v R [2010] NSWCCA 330 at [100]-[102].

1. It is plain that the age of the victim is relevant to the question of objective seriousness. This is because the younger the victim the greater the likelihood of exploitation: R v T (1990) 47 A Crim R 29 at [30]; MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 at [22]. However, even that proposition must be considered having regard to the circumstances of the individual case. In the present case the age of the child was not known to the respondents. The agreed facts record that KT said to the police that KS had told the respondents that she was 16 (see at [7] above) and the sentencing judge having reviewed the CCTV footage considered that it was fair to say that KS looked older than her age.

1. Further, any suggestion of aggravation as a result of intoxication must be treated with caution. The Crown abandoned the charge of sexual intercourse without consent in contravention of s 61J of the Crimes Act 1900. In that regard, s 61HA(2) defines consent as free and voluntary agreement to the sexual intercourse whilst s 61HA(3) and (6) so far as relevant provide as follows:

"(3) Knowledge about consent

A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

...

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

...

(e) not including any self-induced intoxication of the person.

...

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, ..."

1. In these circumstances the sentencing judge was not entitled to rely on intoxication as an aggravating factor vitiating consent as such a finding would render the respondents liable to a more serious charge than that to which they had pleaded: see R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 392. The trial judge in his sentencing remarks proceeded on the basis that the probabilities were that the victim was heavily intoxicated.

1. The other circumstances of aggravation suggested by the Crown were the fact that the sexual acts took place simultaneously and that they were in the open. Again, these matters have to be weighed against the issue of consent.

1. In these circumstances the conclusion of the trial judge that the objective seriousness of the case was at the lower end of the spectrum was one which in my opinion, albeit with some hesitation, he was entitled to reach. Although minds might differ it cannot be said that in reaching this conclusion he erred in law.

1. Thus far I have dealt with the position of the three respondents together. RJB was in a different position to KB and JL as there was no evidence that he engaged in any sexual activity. The sentencing judge described his role as being there to give comfort to the others and noted that from the facts it was almost impossible to work out what he was observed to be doing. His Honour, in my view, was justified in reaching the conclusion that his offence was at the lower end of the range.

1. For these reasons, in my opinion, Ground 1 of the notice of appeal is not made out.

Ground 2: Failure to give weight to the principle of general deterrence

1. There is no doubt the sentencing judge was required to have regard to general deterrence in sentencing the respondents. That is well established: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476: R v Rushby [1977] 1 NSWLR 594 at 597-598; R v Tak Fat Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340 at [127]; Crimes (Sentencing Procedure) Act 1999, s 3A. The issue is whether or not his Honour erred in law by failing to have regard to this principle.

1. I have referred earlier (at [46]) to what the sentencing judge said on the question of general deterrence.

1. Although what his Honour meant in this passage with respect is by no means clear, it does not seem to me that he was ignoring the question of general deterrence but rather expressing the view that because of the particular circumstances of the case in question he did not regard it as a factor to which great weight should be given. The failure to give it adequate weight may in particular circumstances lead to a conclusion that the resulting sentence was manifestly inadequate but failure to give it sufficient weight as distinct from not taking it into account, in my opinion, is not an error in the sense required by House v The King supra.

1. It follows, in my opinion, that this ground was not made out.

Ground 3: Error in allowing a 25 percent discount for the utilitarian value of the plea

1. The sentencing judge did not specify precisely what discount he allowed for the utilitarian value of the plea. Whilst regrettable, that does not of itself constitute error: see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [80]-[93].

1. However, it does seem to me that the sentencing judge did grant the respondents a discount of 25 percent for the utilitarian value of the plea, being the maximum discount suggested as appropriate by this Court in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]. That is implicit in the recognition by the trial judge of the fact the plea came immediately after the indictment was amended to include the count on which the guilty plea was accepted as well as the count for the more serious offence under s 61J of the Crimes Act 1900 . In this context, his Honour expressed his views as follows:

"As a matter of logic, fairness and justice it is difficult to see why a person should be penalised for not pleading to a more serious offence that has been charged, if the facts do not justify a plea to that offence. If the prosecution charges as a higher level than is merited, I fail to see why an offender should suffer a practical penalty for declining to plead to an offence for which he or she is in fact not guilty. Where they then plead immediately to a lesser offence, they are in my view entitled to the benefits that follow."

In referring to benefits, his Honour presumably was referring to a full utilitarian discount.

1. The Crown argued that the approach of the sentencing judge was contrary to the decision in R v Thomson & Houlton supra as explained in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 in that it was not appropriate to grant a utilitarian discount of 25 percent when the pleas were only entered immediately before the commencement of the trial.

1. In his judgment in R v Thomson & Houlton supra Spigelman CJ, with whom the other members of the Court agreed, stated that one of the circumstances which would generally affect the appropriate level of discount in a particular case was the time a plea was entered and that a plea entered at committal has a more significant utilitarian value than a plea entered at first listing in the District Court, which in turn has a greater benefit than a plea entered at the beginning of trial: see [154]. His Honour also stated that a discount at the top of the range should not be given, save in exceptional circumstances, after a matter has been set down for trial and that a discount towards the bottom of the range is appropriate for late pleas, for example, on a day fixed for trial: see [155]. However, in his concluding remarks, Spigelman CJ emphasised that whilst the primary consideration was the timing of the plea, what was to be regarded as an early plea would vary according to the circumstances of the case and was a matter for determination by the sentencing judge: see [160] (iii).

1. In R v Borkowski supra the sentencing judge granted a discount of 25 percent for the utilitarian value of a plea to a charge of manslaughter when the plea was entered on arraignment and after a contested committal hearing. The explanation given was that one particular allegation by the Crown was disputed. Howie J pointed out that the respondent in that case could have pleaded guilty to manslaughter whilst denying the specific allegation (failure to stop at a red light). A similar option was not available to the respondents in this case up to the time the indictment was amended immediately prior to the trial.

1. In Borkowski supra Howie J, with whom the other members of the Court agreed stated what he described as the general practice as follows (at [31]):

"As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case."

1. Howie J also set out (at [32]) what he described as general principles on this issue to be applied by sentencing courts. Of particular relevance are the following (citations omitted):

"[32]1 The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount.

...

3 The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse ... nor is it affected by post-offending conduct.

...

8 Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced.

9 The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain; or where the offender is waiting to see what charges are ultimately brought by the Crown; or the offender has delayed the plea to obtain some forensic advantage, such as having matters put on a Form 1.

10 An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value."

1. In the present case the Crown submitted that the respondents had not previously indicated a willingness to plead guilty to a lesser offence at any time other than immediately prior to the commencement of the trial. Equally, there is nothing to suggest that the Crown demonstrated any willingness to accept such a plea at any earlier time. However, having regard to the principles laid down by this Court, particularly in Borkowski supra , it does not seem to me that it was open to the sentencing judge to hold that the circumstances in question constituted special circumstances justifying the grant of the full utilitarian discount. However, they did justify a significant discount. The Crown accepted that a discount of 15 percent would not be outside the appropriate range. I agree. Assuming in the case of KB and JL a total sentence of approximately 17 months (the 15 month suspended sentence together with the two months spent in custody before bail was granted) a variation in the discount from 25 percent to 15 percent would lead to an increase in the sentence of 2.6 months. In these circumstances, I would not interfere on this ground unless I was satisfied that the sentences otherwise were manifestly inadequate.

1. A court should exercise its residual discretion not to impose a substituted sentence where, if the court were to do so, the increase would be so slight as to constitute 'tinkering': Dinsdale v The Queen supra at [62]; R v Woodland [2007] NSWCCA 29 at [53]. To alter the sentence on the basis that the trial judge erred in granting a 25 percent rather than 15 percent discount for the utilitarian value of the plea would, in my view, constitute an increase in the sentence so slight as to constitute tinkering.

Grounds 4, 5 and 6: Manifest inadequacy

1. Much of what I have said in relation to Ground 1 is relevant on these grounds. Once it is accepted that his Honour was entitled to treat the offence as within the lower range of offences of this nature, it does not seem to me that the sentences were unreasonable or unjust or that they demonstrated some misapplication of principle not apparent from the statement of reasons. The nature of this type of offence is such as to admit of a wide variety of sentences, including on occasions, a suspended sentence: See R v McClymont, Supreme Court of NSW, Court of Criminal Appeal, unreported 17 December 1992; R v Agnew, Supreme Court of NSW, Court of Criminal Appeal, unreported 6 December 1990; R v Schwenke [2004] NSWCCA 289; R v Priestley, Supreme Court of NSW, Court of Criminal Appeal, unreported 3 June 1997; R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268; R v NJK [2011] NSWCCA 151. Accepting the wide variety of circumstances in these cases they do, in my opinion, provide a yardstick lending some support to the conclusion that the sentences in the present case were not manifestly inadequate: cf Hili v The Queen supra at [54].

1. The fact that the sentences of KB and JL were suspended does not, in my view, make them manifestly inadequate. I have already indicated why, in my opinion, the sentence imposed (effectively 17 months) was not manifestly inadequate having regard to the objective seriousness of the offence and taking into account the need for general deterrence. For similar reasons, in my opinion, the decision to suspend the sentence in the present case does not lead to the conclusion that the trial judge adopted a course which failed to reflect the objective seriousness of the offence and the manifest purpose of punishment taking into account the subjective circumstances to which I have referred above: See R v Zamagias [2002] NSWCCA 17; R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510.

1. So far as RJB is concerned his limited involvement in the offences and the circumstances surrounding it place his offence plainly at the lower end of the range of seriousness and does not, in my view, lead to the conclusion that the sentence was manifestly inadequate.

1. It follows that Ground 4 is not made out.

1. In these circumstances the only error made by the trial judge was his approach to assessing the utilitarian value of the plea. As I indicated this on its own would not cause me to review the sentences imposed. Although there was prima facie error in sentencing the Court retains a discretion under s 5D(1) of the Criminal Appeal Act 1912 with respect to varying the sentence. As I indicated I do not think that the sentences were manifestly inadequate, nor do I think the error which in fact occurred is such to justify an increase of the sentences in the present case.

1. On the hearing of the appeal affidavits of KB, his mother and a person with whom he has a relationship were read. They disclose that since the time of sentencing KB has lived with his parents in his family home, has regular employment and has entered into a stable relationship. At the direction of the Parole and Probation Service he has had regular contact with a psychologist and has complied with the directions of the Service.

1. Affidavits from JL and each of his parents were read on the hearing of the appeal. These show that JL is also in a stable relationship, has completed his TAFE course and has sought the assistance of drug and alcohol counselling and psychologists engaged with the Probation and Parole Service and has complied with the direction of that Service. Each of JL and his parents deposed to his remorse and the anxiety which he has suffered pending the finalisation of these proceedings.

1. The factors which I have referred to above are all facts relevant to the exercise of discretion, particularly on the issue of personal deterrence: see R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 at [52]; R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 46 at [66]. These factors would have caused me to exercise my discretion against varying the sentence even if I had come to the view that it was manifestly inadequate. Having regard to the provisions of s 68A of the Crimes (Appeal and Review) Act 2001 any question of double jeopardy is excluded from consideration on these issues.

1. So far as RJB is concerned for the reasons I have given particularly his limited role, I would not vary his sentence.

1. In these circumstances I join in the orders of the appeal being dismissed.

1. BUDDIN J: For the reasons given by Bathurst CJ, I joined in the order dismissing the appeal.

1. HARRISON J: I joined the order dismissing the appeal for the reasons outlined above by Bathurst CJ.

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