(4) Whilst the sentencing judge did not accept that the applicant had acted under duress, he stated as noted above "… nevertheless I am satisfied that you were influenced in committing this offence by Mr Iddles and to that extent I do take it into account as an ameliorating factor" (Remarks on Sentence, p.14).
48 The evidence established that the applicant's personal relationship with her co-offender was one in which she occupied a subservient position. This is reflected in the finding made by the sentencing judge:-
"Again it would appear that your relationship has been marked by considerable violence towards you …" (Remarks on Sentence, p.8)
49 Added to this is the finding that the co-offender was the more dominant person in the supply of the drugs and that in relation thereto that she was subjected to pressure from him. In estimating the full impact the relationship had upon the applicant's culpability it is necessary that there be a proper appreciation of the applicant's personal condition. At a critical period, namely, September 2005, she recommenced the methadone maintenance programme. She was by then pregnant with her last child. As the Pre-Sentence Report dated 2 October 2007 recorded (p.2), the applicant commenced on the programme at that time "as a result of her depression and developed dependency to methadone". The author of that report, Terri Roumanous, Probation and Parole Officer, referred to the applicant's personal position in the following terms:-
"Ms Bowden did not dispute the police facts and stated that she takes full responsibility for her behaviour. Conversely, the offender justified and minimised her actions by stating that she was involved in a relationship characterised by domestic violence, therefore she felt that by selling the illicit substances it would prevent an argument from occurring within the relationship. The offender maintains that she did not engage in the current offences for financial gain."
50 A little later in the same report (p.3), Ms Roumanous stated:-
"Ms Bowden presented with significant mental health issues. Whilst admitting her actions were wrong, she continuously justified these given feelings of intimidation by her partner."
51 The applicant gave evidence that she became pregnant in about July 2005 and throughout that that year she remained in an abusive relationship with Mr Iddles and that she had always been intimidated by him.
52 In his detailed report dated 18 September 2007, Mr Henkelman, psychologist, recorded:-
"… Ms Bowden stated that she feared that if she did not co-operate, that the undercover policeman would then contact her de facto and tell her de facto that Ms Bowden refused to co-operate. Ms Bowden was very fearful of ongoing violence if she did not co-operate. She stated that she wanted to do 'anything' to avoid the attacks and the violence. Ms Bowden stated that she received no financial gain from supplying and all the proceeds from this went to her de facto. Ms Bowden stated that her only interest in participating in this activity was quite simply to avoid being assaulted by her de facto. Ms Bowden stated that at the time of the offences she had recommenced on methadone, as indicated, as she was not coping. Ms Bowden stated that in retrospect she can acknowledge that her behaviour was irresponsible and she is extremely remorseful for her actions." (p.6)
53 The effect of the applicant's evidence was that, although she accepted responsibility for her actions, Mr Iddles' drug-affected behaviour and the disturbance it caused was, in the applicant's experience, ameliorated if he had access to drugs. In her evidence in chief, she stated that, at the time she was pregnant "… and going through depression it was easier for me to do what he wanted …" (Remarks on Sentence, p.15). In cross-examination, the applicant was asked about the abusive relationship and she gave evidence that meeting his demand for drugs had the effect of alleviating problems associated with his conduct. She gave evidence on this aspect in cross-examination:-
"Q. If you had refused to help Matthew Iddles with his supply of drugs, what do you say would have been the result? You say you felt intimidated according to the author of the Probation Report, what were you concerned about?
A. It was more if he was on drugs, he was - it was more bearable, it was just easier, you know, if he was racing around trying to get drugs, then I'd have to deal with things like worrying about my kids' PlayStations being hocked or my daughter's friends' phones being stolen which had occurred in the past. You know, like I know that he didn't force me to do it, you know, like I'm not saying he forced me to do it, but it was just easier to deal with than have to worry about the other consequences.
Q. So was it intimidation that he was exerting or was it other pressure because you were worried about him stealing from your children?
A. I've always been intimidated by Matthew, I still am to this day. I'm intimidated by Matthew, but I just don't know why. I - you know that's the part of why I'm receiving counselling, that's the part of why I'm receiving counselling, that's the therapy that I'm receiving from my social worker and my psychologist." (Remarks on Sentence, p.27)
54 The only conclusion to be drawn from the findings made and the evidence to which I have referred is that the applicant was not a fully functioning equal partner with Mr Iddles in their relationship generally or, in particular, in relation to their drug dealing including the offences to which she entered guilty pleas. The assessment by the learned sentencing judge of her culpability as against that of her co-offender clearly had to take into account both the co-offender's more dominant role in relation to the illegal enterprise and the subject offences and his more dominant position in the personal relationship with the applicant in which he meted out violence which the sentencing judge accepted operated to pressure and influence her. On these findings, it is impossible, in my opinion, to conclude that her culpability was similar to that of Mr Iddles. Not only was the co-offender the principal offender in terms of objective culpability, but the applicant's relationship and personal circumstances rendered her vulnerable to his demands. The sentencing judge having found that his conduct had an effect upon her in terms of "pressure" and "influence", there plainly was a marked disparity in the circumstances between them.
55 Apart from those circumstances, the sentencing judge placed the applicant on an equal footing with her co-offender in terms of culpability by taking into account what were said to be counterbalancing factors. These included the financial gain which the applicant supposedly made from the drug supplies. In that respect, he stated:-
"… You were engaged in an enterprise for financial gain, whereas he was engaged in an enterprise in order to finance an illicit habit …"
56 The sentencing judge concluded the passage by saying:-
"… I think the various factors tend to counterbalance each other so that an appropriate sentence is one that is very similar to that of Mr Iddles." (Remarks on Sentence, p.13)
57 On the evidence and the way in which the sentencing proceedings were conducted, in my opinion, it was not open to the sentencing judge to find as a counterbalancing factor that the applicant financially benefited in contrast to Mr Iddles who, it was found, committed the offences in order to finance his illicit habit.
58 The applicant's motivation for engaging in the drug supplies was specifically addressed in two reports tendered before the sentencing judge. I have referred to one of these earlier. In the report by Ms Roumanous of 27 September 2007, under the heading "Attitude to the Offence(s)" (p.3), she recorded, inter alia:-
"… she was involved in a relationship characterized by domestic violence, therefore she felt that by selling the illicit substances, it would prevent an argument from occurring within the relationship. The offender maintains that she did not engage in the current offences for financial gain ." (emphasis added)
59 In Mr Henkelman's report of 18 September 2007 (p.6), it is recorded:-
"… Ms Bowden was very fearful of ongoing violence if she did not cooperate. She stated that she wanted to do 'anything' to avoid the attacks and the violence. Ms Bowden stated that she received no financial gain from supplying and all the proceeds from this went to her defacto …" (emphasis added)
60 The applicant was cross-examined on one particular aspect of Mr Henkelman's second report. However, she was not challenged at all in relation to her statements to Ms Roumanous or to Mr Henkelman that she had not, in fact, gained financially from engaging in the offences but that the financial gains received were for the benefit of Mr Iddles. I am of the opinion that the sentencing judge was in error when he stated, "… you were engaged in an enterprise for financial gain, whereas he was engaged in an enterprise in order to finance an illicit habit …". That finding assumed importance for it clearly operated as a factor, in the sentencing judge's words, that counterbalanced the matters that were favourable to the applicant. The finding as to financial gain was directly material to the sentencing judge's ultimate conclusion that an appropriate sentence for Count 2 was one that was similar to that imposed upon the co-offender by Acting Judge Viney on 4 December 2006.
61 There is a further and separate matter requiring comment. As earlier noted, the applicant was, at the time of the offences, subject to a s.9 bond in relation to shoplifting offences and was on bail in relation to a drive whilst disqualified charge. The sentencing judge found that the offence was aggravated in accordance with the provisions of s.21A(2) by the fact the offences were committed whilst she was on conditional liberty (s.21A(2)(j) of the Crimes (Sentencing Procedure) Act).
62 In Frigiani v Regina [2007] NSWCCA 81, Howie J at [24] observed:-
"It is clear that the prior matter was relevant in two ways. Firstly, it was an aggravating factor because the offence for which the applicant was being sentenced was committed in breach of a good behaviour bond. That is an aggravating factor listed in s.21A(2)(j) regardless of the conduct in respect of which the bond was imposed. However, it is generally considered to be more aggravating when the conduct is similar to that for which the offender is being sentenced. The second paragraph of his Honour's remarks quoted above reflects this fact." (emphasis added)
63 In the present case, the s.9 bond had not been imposed in respect of a drug offence but, as earlier indicated, related to a shoplifting offence. Whilst it was an aggravating factor, it was not, in my opinion, a significant counterbalancing one in determining the applicant's culpability as compared to that of her co-offender.
64 In summary, the evidence established that there was a significant disparity in the circumstances of the applicant and the offender. Those circumstances were central to the assessment of their respective culpability. The applicant's co-offender, by reason of the matters discussed above, was the principal in the enterprise associated with the offences. On the evidence it was not correct for the sentencing judge to find that the applicant derived financial gain in contrast to the co-offender who was offending to finance a drug habit. The applicant openly admitted that she knew what she was doing in committing the offences and they were objectively serious offences. The evidence was, however, that she was influenced and pressured to commit the offences for the benefit of her co-offender. In making her sentence the equivalent of that of her co-offender in respect of the s.25A offence, the sentencing judge erred. The applicant has, accordingly, established Ground 1 of the appeal. The sentence imposed should be set aside and the applicant should be re-sentenced.