State of WA v DMS - [2004] WASCA 255

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: STATE OF WA -v- DMS [2004] WASCA 255

CORAM: MURRAY J
STEYTLER J
TEMPLEMAN J

HEARD: 8 SEPTEMBER 2004

DELIVERED : 10 NOVEMBER 2004

FILE NO/S: CCA 78 of 2004

BETWEEN: STATE OF WESTERN AUSTRALIA
Appellant
AND
DMS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
File No  :IND 665 of 2003

Catchwords:

Criminal law and procedure - State appeal against sentence - Multiple prolonged aggravated sexual assault within family - Serious nature and circumstances of offences - Disparity with co-offender - Whether emphasis on personal factors against the evidence - Whether individual terms reflected criminality - Whether some cumulation of sentences necessary

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr D Dempster
Respondent: Mr B Kearney

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Rattigan Kearney & Bochat

Case(s) referred to in judgment(s):

EJP v R [2004] WASCA 86
Pearce v R (1998) 194 CLR 610
R v Suarez-Mejia (2002) 131 A Crim R 577
Woods v R (1994) 14 WAR 341

Case(s) also cited:

Dempsey v R, CCA SCt of WA; Library No 960059C
Poole v R [1999] WASCA 46
R v "G" [2001] WASCA 160
R v Cooksley [1982] Qd R 405
R v Hough [2002] WASCA 42
R v Ward (1999) 109 A Crim R 159
R v White [2002] WASCA 112

MURRAY J: I have had the advantage of reading in draft, the judgment of Templeman J. I agree that, for the reasons given by his Honour, the appeal should be allowed. I agree that the sentences proposed by his Honour, in aggregate a term of 7 years imprisonment, should be imposed in lieu of those imposed in the District Court, with eligibility for parole, and to date from 2 December 2002.
STEYTLER J: I have had the advantage of reading the judgment of Templeman J. I agree with it. There is nothing I wish to add.
TEMPLEMAN J: This appeal against sentence brought by the State of Western Australia against the respondent provides a stark illustration of the dilemma faced by a Judge when required to sentence a sexual offender who has herself been the victim of the kind of offences for which she has been convicted.
The respondent pleaded guilty in the District Court to four counts of sexual penetration of a lineal relative under the age of 16 years and five counts of indecent dealing with a lineal relative under the age of 16 years. The complainant in each case was the respondent's daughter. The offences were committed over a two year period when the complainant was aged between 13 and 15 years.
The respondent was charged on an indictment containing 22 counts, all involving sexual offences against the complainant and another daughter. In relation to each count, the respondent was charged together with EJP, her de facto husband. He pleaded guilty to 19 counts on the indictment at an earlier stage than the respondent and was sentenced by a different Judge.
The respondent pleaded guilty to nine counts on the indictment at or shortly before the commencement of the trial. The State accepted the pleas in full satisfaction of all the charges on the indictment on the basis that they were representative counts of a course of conduct (AB 52).
It is necessary to set out the facts relating to each count, all of which charged the respondent and EJP ("the co‑offender") on the basis that the respondent knew the complainant to be her lineal relative and that the co‑offender knew her to be his de facto child. I take the relevant dates from the facts as given to the sentencing Judge, rather than from the indictment.

Count 1

Between 28 June 1999 and 28 June 2000, the complainant was at the family home in Parmelia with her brothers and sisters. In their presence, the respondent and the co‑offender engaged in sexual intercourse on the hall floor, knowing that all the children were watching.

Count 2

On an occasion between 1 January 2000 and 31 December 2000, when the complainant was aged 13 years, she was awoken by the respondent while asleep in bed. The respondent told the complainant to go into her bedroom. When the complainant refused, she was made to go into the respondent's bedroom. Once in the bedroom, the respondent removed the complainant's pants and made her sit on the bed. The co‑offender then told the complainant to lie down on the bed next to him.
While she was in that position, the respondent lay on the co‑offender's other side. The co‑offender then inserted his finger into the complainant's vagina causing her to complain. The respondent told the complainant to be quiet. After a short time, the co‑offender removed his finger from the complainant's vagina.

Count 3

Immediately following the offence charged in count 2, the co‑offender asked the complainant to spread her legs. The co‑offender then moved down the bed and engaged in cunnilingus with the complainant. This continued for a short time during which the respondent was still lying in the bed but facing away from the complainant and the co‑offender.

Count 4

Immediately following the offences charged in counts 2 and 3, the co‑offender positioned his knees between the complainant's knees. He used his hand to push his penis into the complainant's vagina and commenced to have sexual intercourse with her. He continued for some minutes until her screams for help were heard by her younger sister, who entered into the room and told the co‑offender to stop. The complainant ran to her own room and returned to her bed.

Count 5

On an occasion between 28 June 2000 and 28 June 2001, the complainant, then aged about 14 years, was sitting at the kitchen table of the family home in company with the respondent, the co‑offender, the complainant's grandmother and her brothers and sisters.
The respondent went to her bedroom and returned with a vibrator. The respondent and the co‑offender positioned themselves underneath the kitchen table where the co‑offender switched on the vibrator and inserted it into the respondent's anus. This act was done in full view of the complainant and the other children.

Count 9

On the evening of a day between 28 June and 1 October 2001, the complainant, then aged 15 years, was asleep on the lounge room floor at the family home when she was woken by the co‑offender pulling her pants down. The co‑offender then removed his own pants and underwear. The co‑offender moved on top of the complainant and placed his penis inside her vagina and moved it in and out for a short time. While the co‑offender was so engaged, the respondent said "Do it harder, do it harder".

Count 10

Immediately following the offence charged in count 9, the co‑offender removed his penis from the complainant's vagina and rubbed it up and down the inside of her leg for a short time.

Count 11

On an occasion between 28 June and 31 October 2001, when the complainant was aged 15, she was at home watching television while lying on a lounge. The respondent was lying on another lounge. The respondent asked the complainant to come over to her. The complainant left the lounge on which she had been sitting and moved so as to stand in front of the respondent. The respondent, who was drinking from a beer bottle, asked the complainant to lay with her on the lounge which she did. The respondent then pulled down the complainant's pants and knickers. Having done so, the respondent placed the beer bottle between the complainant's legs and inserted it into her vagina. The respondent moved the bottle in and out of the complainant's vagina for a short time. The complainant told the respondent to stop but she said "No". The complainant started to cry. After a time, the respondent removed the bottle from the complainant's vagina and told the complainant not to tell anyone. The complainant ran away to her bedroom.

Count 12

On an occasion between 28 June and 31 December 2001, when the complainant was aged 15 years, and asleep in her bed, she was woken by the respondent and told to come to her bedroom. The complainant went to the respondent's bedroom under protest. On entering the bedroom, the complainant saw the co‑offender lying on the bed wearing a t-shirt but no pants. He was holding his erect penis in one hand. The respondent asked the complainant to suck the co‑offender's penis but she refused.
The respondent then pushed the complainant's head towards the co‑offender's penis but the complainant called out "No, no". Despite her objection, the complainant was forced to suck the co‑offender's penis. The respondent said to the complainant "If I do it, you have to do it". The co‑offender said, " … don't make her do it if she doesn't want to". The complainant then ran from the bedroom and returned to her own bedroom.

The sentencing process

Following the respondent's plea of guilty on 9 March 2004, there was a delay to enable presentence, psychiatric and psychological reports to be obtained. The respondent was sentenced on 7 May 2004.
Counsel for the respondent made a plea in mitigation to the learned sentencing Judge. Counsel told his Honour that while the respondent had initially had difficulty in accepting that she could have played any part in the offences, she was now able to accept her part but remained unable to offer any excuse or explanation for her conduct.
Counsel went on to inform his Honour that the respondent drank beer and Bacardi daily to the extent that her children had said she was drunk each day. Counsel submitted further that as well as being under the influence of alcohol at the material times, the respondent had been under the influence of the co‑offender to a significant degree throughout their 14 year relationship and throughout the commission of the offences. As the presentence and other reports disclosed, the respondent had been sexually abused by her stepfather and also by the co‑offender between the ages of about 10 to 12 years, the co‑offender being some 10 or 11 years older than the respondent.
Counsel submitted to his Honour that on five of the six separate occasions during which the nine offences had been committed, the co‑offender had been involved: and that his criminal conduct was more serious than the respondent's. It was submitted that there was some degree of control by the co‑offender and that the respondent was in fear of him.
Counsel then referred to the respondent's remorse. The respondent had told counsel on a number of occasions that by her behaviour she had sentenced the complainant "to effectively a life sentence of the memories of this".
Counsel referred to the complainant's victim impact statement, from which it was clear that the offences had a severe and significant impact. Having read the victim impact statement myself, I am in no doubt that the complainant has been traumatised by the commission of these offences.
The author of the psychiatric report said the respondent had given her a long history of sexual abuse by her stepfather between the ages of 4 and 16 years, which the respondent described as "terrible". The respondent told the psychiatrist that the abuse was initially perpetrated by her stepfather but that later "others were involved", including family members and friends. Then, the co‑offender had become involved in the abuse. The respondent claimed to have reported sexual abuse to welfare services when she was 16 years old. Although her stepfather was never in prison, she was placed in foster care until she was 18 years old. Those years were described as "reasonably happy".
The respondent was married when 22 years of age. The complainant was born out of that marriage which the respondent described as "violent and abusive". It was in 1984, when that relationship ended, that the respondent commenced her relationship with the co‑offender, by whom she had four more children.
The psychiatrist's opinion was that the respondent had been:
"brought up in a family environment characterised by extensive physical, sexual abuse and emotional neglect, marked by a significant sense of abandonment, lack of an appropriate father figure, lack of stability and affection. This is a woman with a very damaged psychological development, who developed a long term de facto relationship with one of her abusers.
The [respondent] has a vulnerable personality, with marked dependent traits to the extent that she not only stayed in this relationship but also became herself a sexual predator towards her children. It also appears that her alcohol use contributed to her disinhibited behaviour, which unfortunately she continues to minimise.
1.The [respondent] in my view, does not suffer from a major treatable psychiatric disorder, which may explain her offending behaviour.
2.The [respondent] has a very damaged psychological development, due to her life long physical, sexual abuse and emotional neglect, with lack of an appropriate father figure. These have contributed to her underlying vulnerable personality structure, with anti-social and dependent characteristics. These, in combination with her damaged development and alcohol abuse, I believe, contributed to her offending."
In the course of the plea in mitigation, the learned sentencing Judge said that assuming sexual behaviour has as its goal a desire for sexual gratification, it was difficult to see how the respondent would have obtained any such gratification. The psychiatric report therefore suggested strongly to his Honour that it was highly likely that the respondent's behaviour was affected significantly by the co‑offender.
It was submitted ultimately that the respondent should be sentenced to a lesser term of imprisonment than the co‑offender, due to the fact that the offences did not involve any penile penetration and because the respondent had pleaded guilty to fewer counts. It was submitted that the co‑offender was involved in all of the counts except that involving the beer bottle. In respect of that offence, the respondent had been unable to offer any explanation for her conduct or what she had been thinking about at the time.
As the Judge was aware, the co‑offender had been sentenced to 15 years' imprisonment, reduced to 10 years' imprisonment by reason of the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003. The co‑offender had appealed against that sentence. However, his appeal had been dismissed by this Court a few days before the respondent was sentenced.

The sentences imposed on the respondent

In his sentencing remarks, the learned sentencing Judge first summarised the offences although he did not refer to them in detail. His Honour continued:
"The damage to your daughter that your conduct contributed to seems to me to be incalculable and the victim impact statement shows that. In some ways your conduct is so gross and bizarre and in a sense unspeakable that it's difficult to comprehend how a mother could have done these things to her teenage daughter. Indeed I think the inference is open, indeed compelling that your behaviour is evidence of the disintegration of your maternal instincts and a sign of the severe damage to your psychological and emotional state of health that aspects of your own life and history brought about.
The aspects to which I refer seem to me to be as follows: firstly, your 14‑year relationship and cohabitation with [the co‑offender]. He was a man that you had known from childhood when you were both young. I think you both grew up in the country …. And he abused you when you were both young, sexually and yet you formed a relationship with him later which was ongoing at the time of your arrest." (AB 23)
His Honour then referred to the fact that the respondent had herself suffered sexual abuse. In that context, his Honour referred to and quoted from the psychological and psychiatric reports to which I have referred above.
His Honour then noted that the sentence of 10 years' imprisonment imposed on the co‑offender resulted from a starting point of 18 years' imprisonment "under the old regime". This was reduced to 15 years for co‑operation and a plea of guilty and then reduced to 10 years as a result of the amendments to the sentencing legislation.
His Honour noted also that the co‑offender had been convicted on his guilty plea to 15 counts on the indictment whereas the respondent stood convicted on her plea to 9 counts.
His Honour said:
"Your behaviour, it seems to me, is the result of the collection of environmental and developmental factors that have been identified. It was the influence of [the co‑offender] and his powers over you I think that caused you to commit these offences. His influence was such that your natural maternal instincts disintegrated such that to gratify him sexually you provided your own daughter. That you could do such things strongly shows, I think self-evidently, how dysfunctional you were and how damaged you are.
Looked at like that I think your criminality is significantly less than [the co‑offender's]. It is true that on one occasion you sexually penetrated your daughter with a bottle in the absence of [the co‑offender]. Though that is a serious matter and different in its circumstances and facts to the other counts it does not make me change my fundamental view. You also on some occasion or one occasion urged [the co‑offender] on whilst he was having intercourse with your daughter." (AB 26)

The sentence

The Judge said he had been pondering for some weeks about the appropriate sentence. His Honour thought a sentence of the order of 9 years' imprisonment would have been appropriate before the amendments to the sentencing legislation came into force. This would translate to a post‑amendments sentence of 6 years' imprisonment. His Honour took note of the respondent's plea of guilty and her remorse. Although it was a late plea, his Honour thought that such plea should be given special recognition in sexual cases because even when given at the last minute, such a plea will relieve the complainant from having to give evidence. Further, even a late plea facilitated the justice system because a Judge would thereby become available to deal with another matter.
Ultimately, his Honour came to the view that a sentence of 5 years' imprisonment would be:
"the sentence that is fair and square, reasonable for you, a fair sentence for you in all the circumstances … taking into account all the factors I have identified." (AB 27)
His Honour structured the sentence in the following way:
•Count 1 – 3 years' imprisonment
•Count 2 – 3 years' imprisonment
•Count 3 – 2 years' imprisonment
•Count 4 – 5 years' imprisonment
•Count 5 – 3 years' imprisonment
•Count 9 – 5 years' imprisonment
•Count 10 – 2 years' imprisonment
•Count 11 – 5 years' imprisonment
•Count 12 – 2 years' imprisonment
All the sentences were ordered to be served concurrently and were backdated to 2 December 2002. The respondent was made eligible for parole.

The appeal

The State appeals on the following grounds:
"1.The learned sentencing Judge erred in imposing an aggregate sentence which failed to adequately reflect the very serious nature and circumstances of the offences.
PARTICULARS
The sentencing failed to adequately reflect:
(a)that the nine offences were a representative sample of a continuous course of conduct over a considerable period of time;
(b)the gross breach of trust involved in the commission of the offences;
(c)the detrimental effect the offending had on the victim;
(d)the extreme nature of the offences which involved active encouragement by the Respondent towards her co‑offender to commit serious sexual offending upon her natural daughter.
2.The learned sentencing Judge placed too much emphasis on matters personal to the Respondent.
3.The learned sentencing Judge erred in finding that the Respondent's criminality was significantly less than her co‑offender's.
4.The learned sentencing Judge erred in ordering that each of the terms of imprisonment be served concurrently.
PARTICULARS
(a)the learned sentencing Judge did not expressly consider the totality principle, or whether any of the counts warranted a cumulative sentence;
(b)the offence in Count (11) was of a completely different character from those offences in the other eight counts and a cumulative or partly cumulative sentence should have been imposed in respect of that count.
5.The head sentence of five years was manifestly inadequate having regard to the sentence of 10 years imprisonment imposed on the co‑offender and taking full account of the different degrees of criminality.
PARTICULARS
(a)the learned sentencing Judge was aware that the Court of Criminal Appeal had determined that a sentence for her co‑offender of 10 years imprisonment properly reflected the seriousness of the offence and the co‑offender's early plea of guilty and willingness to cooperate with the prosecution of the Respondent;
(b)the sentence for the Respondent (from whom the plea of guilty came late and without any promise of cooperation) in the order of half the term imposed on her co‑offender reflected such an inconsistency in approach as to reveal error and require correction.
6.The learned sentencing Judge erred in failing to fix an appropriate sentence for each offence before proceeding to consider cumulation, concurrency and the totality principle.
7.The individual terms imposed do not adequately reflect the criminality.
8.The learned sentencing Judge erred in giving a discount for the pleas of guilty after first applying the legislative changes to sentencing terms."

The principles to be applied in Crown appeals against sentence were summarised conveniently by Parker J in R v Suarez-Mejia (2002) 131 A Crim R 577 at [64] – [67] as follows:
"There are clearly established principles which apply to Crown appeals of this nature. A convenient statement of them may be found in the decision of Charles JA in R v Clarke [1996] 2 VR 520 at 522 – 523. In particular, it is established that an appeal by the Crown should only be brought in a rare and exceptional case and to establish a point of principle. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle, (b) where it is necessary to lay down principles for the governance and guidance of the exercise of the sentencing discretion, (c) to establish and maintain adequate standards of punishment, (d) to correct idiosyncratic views of individual judges, (e) to correct a sentence which is so disproportionate as to shock the public conscience, and (f) to ensure uniformity. A Court of Criminal Appeal is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive; it may only interfere if there is manifest inadequacy or the sentencing judge fell into material error of law or fact.
The proposition in the last sentence in the preceding paragraph was underlined by the High Court in Lowndes v The Queen (1999) 195 CLR 665 at 671 – 672 where it was said that:
" … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion … The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
It has also been observed in a number of decisions that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time. Because this is an unfortunate effect of a Crown appeal against sentence it is normal for the Crown to be required to demonstrate clearly that the sentence is so manifestly inadequate as necessarily to demonstrate error. Even where such error is demonstrated it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences.
These matters have been the subject of further elaboration and consideration in recent decisions. A convenient example is to be found in the observations of Kirby J in Dinsdale v The Queen (supra) at 339 – 341, [57] – [62]. As was observed by McHugh J in Everett v The Queen (1994) 181 CLR 295 at 306:
"Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence."
With these principles in mind, I turn to consider the individual grounds of appeal.
It must be acknowledged that, as this Court held in relation to the co‑offender, the offences committed on the complainant were "a series of horrifying sexual offences" and involved conduct which put the offences in the worst category of offences of that kind. It was "one of the worst examples of intra‑familial sexual abuse that could come before the Court". I take these observations from the judgment of Miller J with whom Steytler and Wheeler JJ agreed, in EJP v R [2004] WASCA 86 at [7] and [40].
As Anderson J said in Woods v R (1994) 14 WAR 341:
"Multiple prolonged aggravated sexual assault by an adult upon a young child within the family environment involving the taking advantage of a position of trust is, of course, very serious and the law demands the protection of young children from it. The dominant sentencing considerations are punishment and general and personal deterrence." Malcolm CJ and Seaman J agreed.
In the present case, the maximum penalty for each offence of indecent dealing prescribed by the Criminal Code was 10 years' imprisonment. The maximum penalty for each count of sexual penetration was 20 years' imprisonment. I put it that way, because the amendments to the sentencing legislation referred to above, have, in effect, reduced those maximum penalties by one‑third.
As counsel for the State pointed out, although counts 3 and 12 charged indecent dealings, the offences actually involved sexual penetration. If count 12 did not involve sexual penetration, then it at least involved the offence of procuring the complainant to engage in sexual behaviour contrary to s 329(3) of the Criminal Code, an offence for which a maximum penalty of 20 years' imprisonment is there prescribed.
Although, of course, the maximum penalty of 10 years' imprisonment applied, these additional factors demonstrate the seriousness of the offending.
With all respect to the sentencing Judge, the proposition he accepted - that the respondent had been in some way under the influence of or dominated by the co‑offender – was not, I think, supported by the evidence. In relation to count 2, it was the respondent who woke the complainant from sleep and compelled her to go to her bedroom where she was digitally penetrated by the co‑offender. When the complainant protested, it was the respondent who told her to be quiet.
In relation to count 9, when the co‑offender was engaged in sexual intercourse with the complainant, it was the respondent who urged him to "do it harder, do it harder".
In relation to count 12, it was the respondent who forced the complainant to engage in fellatio on the co‑offender and it was the respondent who forced her to continue even though the co‑offender would have allowed her to cease that activity.
Finally, it was the respondent alone who was involved in the vaginal penetration of the complainant with a beer bottle.
There is no doubt that the sentencing Judge was influenced to a very considerable extent by the respondent's personal circumstances. It is matters of this kind which make sentencing an extremely difficult exercise.
A person such as the respondent, who had suffered extensive physical and sexual abuse and emotional neglect, leading to considerable psychological damage, is undoubtedly deserving of sympathy. That is a mitigating circumstance. However, it is, I think, now recognised that people who have suffered abuse of that kind as children are more likely to abuse their own children in a similar way.
It must also be recognised that offences of this kind are so abhorrent and unnatural that people who commit them are quite likely to have some personality disorder, often, through no fault of their own. And yet the criminal law, with the intention of protecting children from abuses of this kind and deterring potential offenders, nevertheless provides substantial maximum penalties because of the seriousness of such offences.
Applying the principles applicable in appeals of this kind, I consider that, with respect to the sentencing Judge, the sentence of 5 years' imprisonment did not maintain an adequate standard of punishment and was a sentence so disproportionate to the criminality involved in the respondent's conduct as to shock the public conscience. Furthermore, the sentence was so much lower than that imposed on the co‑offender, that it failed to ensure an appropriate level of uniformity.
The sentence was, as counsel for the respondent submitted, a merciful sentence. While I accept that there is a place for mercy in the sentencing process, I think that the sentencing Judge was too merciful having regard to all the circumstances, including the effect of the offending on the complainant.
I am therefore driven to the conclusion that the aggregate sentence imposed on the respondent was inadequate and that the appeal should succeed on grounds 1, 2 and 3.
In my view, grounds 4, 6 and 7 should succeed also. That is because the Judge did not have regard to the approach prescribed by the High Court in Pearce v R (1998) 194 CLR 610 at [45] per McHugh, Hayne and Callinan JJ. It is as follows:
"To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of totality."
Ground 5 should succeed also: at least in part. For the reasons given above, I consider that the lack of parity between the co‑offender and the respondent does manifest error in the sense that the respondent's personal circumstances and the smaller number of offences should not have resulted in so great a disparity between the sentences imposed on the co‑offender and the respondent.
I do not regard the lateness of the plea by the respondent as being of any great significance. As the sentencing Judge said, the late plea still had a beneficial effect. And the plea did indicate remorse, resulting as it did, from the respondent's ultimate acceptance of the seriousness of her conduct following psychological and psychiatric intervention.
Because I would allow the appeal, it is not necessary to consider ground 8.

Re-sentencing

Having allowed the appeal, the Court must now re‑sentence the respondent.
In all the circumstances, including the respondent's plea of guilty and matters personal to her, I consider the appropriate sentences (before adjustment) would be sentences of imprisonment, as follows:

•	Count 1	5 years
•	Count 2	8 years
•	Count 3	8 years
•	Count 4	8 years
•	Count 5	5 years
•	Counts 9	8 years
•	Count 10	8 years
•	Count 11	9 years
•	Count 12	9 years

Because the offences charged in counts 2, 3 and 4 were committed on the same occasion, and followed on from each other, as did the offences charged in counts 9 and 10, on a different occasion, it would have been appropriate to make the sentences imposed for each of those offences concurrent with each other. However, even if this were done, the total sentence of imprisonment would be 44 years which is obviously unacceptable, having regard to the need to achieve an appropriate level of parity with the co‑offender and to ensure, by the application of the totality principle, that the total sentence is not crushing.
I would have accepted the State's original submission that a total sentence in the range of 7 to 9 years' imprisonment (under the new sentencing regime) would have been appropriate. That would previously have represented a range from 10 years 6 months to 13½ years. But because this is a State appeal, I think the appropriate sentence would now be at the lower end of that range.
I would achieve an appropriate result by ordering that the sentences imposed in respect of all counts other than 12 be concurrent with each other, and the sentence in respect of count 12 to be served partly cumulatively, pursuant to s 88(3)(d) of the Sentencing Act 1995.
The first step is to reduce each of the sentences by one‑third so as to give effect to the recent changes in the legislation. Thus, each sentence of 5 years' imprisonment would be reduced to 3 years and 4 months, each sentence of 7 years' imprisonment would be reduced to 4 years and 8 months, each sentence of 8 years' imprisonment would be reduced to 5 years and 4 months and each sentence of 9 years' imprisonment would be reduced to 6 years.
Pursuant to s 88(4) of the Sentencing Act, I would specify that one year of each of the terms of imprisonment to be imposed in respect of counts 1, 2, 3, 4, 5, 9, 10 and 11 (which are to be served concurrently) are to be served before the 6 year term of imprisonment imposed in respect of count 12 is to begin. Thus, the total period of imprisonment would be 7 years.
I would therefore allow the appeal and substitute sentences aggregating 7 years' imprisonment.
I would not disturb the order for parole eligibility nor the order backdating the sentences to 2 December 2002.