Jackson v R

Court of Criminal Appeal (NSW)|2022-05-06|Before: Price J, Adams J, Mr P

Judgment

BASTEN AJA: I agree with N Adams J.
PRICE J: I agree with N Adams J.
N ADAMS J: The applicant, Gwendoline Jackson, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on her by Grant DCJ on 23 June 2020 in the District Court at Griffith.
The applicant pleaded guilty in the Local Court to the following offences committed on 4 and 5 August 2019: 1. Two counts of specially aggravated take and detain in company with intent to commit a serious indictable offence occasioning actual bodily harm contrary to s 86(3) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 25 years' imprisonment and no standard non-parole period ("SNPP"); and 2. One count of reckless wounding in company contrary to s 35(3) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 10 years' imprisonment and a SNPP of 4 years.
The applicant was sentenced to an aggregate term of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). The aggregate sentence was 7 years' imprisonment with a non-parole period of 4 years and 6 months, commencing on 6 August 2019 and expiring on 5 August 2026. Her earliest release date is on 5 February 2024. The indicative sentence for each of the offences contrary to s 86(3) of the Crimes Act was 5 years' imprisonment and for the offence contrary to s 35(3) of the Crimes Act it was 2 years' imprisonment with an indicative non-parole period of 6 months' imprisonment.

Factual background

As was properly conceded by the applicant's counsel at the commencement of the appeal in this Court, the applicant stood to be sentenced in relation to very serious criminal conduct. She was sentenced based on agreed facts from which the following summary is taken.
The offences took place in Griffith. From the evening of 4 August 2019 until the evening of 5 August 2019, the applicant, together with four other offenders, Jake Rushby, Jake Lloyd, Makayla Hopkins-Wyndle and Skye Little, participated in the detention and assault of Roderick Daley and Skye Verrier at the applicant's home in Griffith. The offenders were under the influence of methamphetamine ("ice") at the time of the offending and the motive for the applicant's involvement in the offending remains somewhat obscure.
The offenders were all known to each other. Little is the niece of the applicant. She was also friends and roommates with Hopkins-Wyndle and in a relationship with Lloyd at the time of the offending. Hopkins-Wyndle and Rushby were friends. The two victims knew Rushby and Little but did not know the other offenders.
At some time prior to the offences, Rushby had sent a text message to Verrier which insinuated that she should have sex with him in exchange for drugs. Verrier had showed this text to Daley, who subsequently sent a text message to Rushby confronting him and telling him not to message Verrier again.
On 4 August 2019, the two victims drove to Griffith where they met with Verrier's friend Nathan Brace and another man, Matthew Apps. After spending some time at Apps' home, the victims drove to get some dinner and then to see Verrier's friend, Katie Hannan. During this time with Hannan, Verrier received a call from Brace who asked her to come to meet him in "Parko" (presumably referring to Parkinson Crescent where the applicant lived).
The victims drove to Parkinson Crescent and Verrier saw Brace standing outside a property. She pulled into the driveway; Daley was in the vehicle as was Verrier's dog. Brace told the victims to go into the house.
The two counts of specially aggravated take and detain in company under s 86(3) of the Crimes Act pertain to the detention and assault of the two victims respectively from that point in time.
On entering the house, Verrier and Daley recognised Rushby. Rushby punched Daley to the face causing him to fall to the ground; Rushby continued to punch him. Little, Lloyd and the applicant were in the room at this time. Lloyd told Verrier to "sit down and shut up". Rushby and Lloyd kicked Daley to the head. When Verrier called out to Brace, also standing present in the room, Little told her to "shut her mouth".
Around this time, Verrier was also assaulted including being "smacked" by the applicant. After this, someone threw her to the ground, and she was further assaulted.
At some point, Verrier and Daley were made to "empty their pockets". This was the basis for the two counts of robbery in company contrary to s 97(1) of the Crimes Act taken into account on a Form 1 in relation to both specially aggravated take and detain in company charges.
Lloyd took Verrier's keys to her vehicle (a white Holden utility) and her mobile phone. He passed them to Little and told her to "deactivate iCloud" to avoid the mobile device from being traceable. Verrier also handed over her driver's licence and NAB bank card. Lloyd also took Daley's bag which contained his wallet, cigarettes and a gold taser, as well as Daley's mobile phone and shoes.
The offenders told Verrier and Daley to sign into their mobile telephones and disable any passcodes. The applicant said to Verrier that if she did not divulge certain passwords the applicant would stab her. The offenders also asked the victims if they had any money. Lloyd asked Daley for the PIN to his mother's bank card (which Daley had borrowed) and said, "[d]on't fucking lie to me or I will cave your fucking head in". Daley provided Lloyd with the PIN.
The detention of the victims by the offenders continued for over 24 hours, during which time the victims were not permitted to leave the room and were subjected to numerous assaults.
Rushby and Lloyd restrained Daley with black duct tape over the wrists and mouth and Verrier was made to sit on the floor. At one point, Little and Jackson told Verrier to sit and stare at the ground; Little said, "[y]ou don't deserve to be looking up at us, stare at the ground slut". Periodically, Daley was made to sit in the corner and stare at the wall. During this time, Brace and Lloyd had left the room and Verrier heard her vehicle being used outside. When Lloyd returned about 40 minutes later, he held up money to Daley's face and said, "I could only get $300 the account was over its daily limit you little faggot it was not a savings account it was a cheque". Brace also left around this time and returned to App's home arriving back sometime around 9pm.
At 9.01pm, Daley's mother contacted Westpac bank and was advised that her card had been used to withdraw a sum of $300 from the Commonwealth Bank in Griffith. She attempted to contact Daley a number of times and, when he did not respond, she contacted police and reported him as missing.
Rushby filled up a red plastic bowl with water and Daley was made to drink from it "like a dog" while being filmed by the offenders on their mobile telephones. Further, Rushby, Lloyd, Little and Jackson stayed in the room smoking crystal methamphetamine ("ice") from a pipe. They would use the pipe to burn Daley's face and Verrier's ankle. Lloyd and Rushby used the taser, found in Daley's bag, on both Verrier and Daley on multiple occasions. Daley was tasered to his body, shoulders and head about every 30 minutes.
Around 10pm that night, more people arrived at the applicant's house. One of them was the fifth offender, Hopkins-Wyndle. The other two persons were known to Verrier; these persons were Rebecca Massey, who Verrier believed to be Rushby's sister, and Matthew Williams. Massey was told to punch Verrier in the face. Rushby said to Massey, "this is the girl that got Rod [presumably, Roderick Daley] to message me about something I said to her a few weeks ago and he acted all tough and wanted to fight me and tonight they both just fell into my hands".
The group stayed in the room smoking drugs. Daley was made to sit in the corner and Lloyd told him that if he made a noise his head would be "caved in".
Lloyd and Little told Verrier that they were taking her ute to Wagga Wagga to collect something. Lloyd asked Verrier to sign the registration of the vehicle over to him and when Verrier said that the ute was registered to her mother Lloyd responded, "I will drive you to your mother and make sure that slut transfers it to me". Lloyd and Little left shortly afterwards in Verrier's vehicle; Massey and Williams also left at this time.
At 3.10am on 5 August 2019, a four-door white Holden utility (the same vehicle that Massey drove) and a two-door white Holden utility were captured on CCTV travelling east along Banna Avenue in Griffith.
At 3.47am, a four-door white Holden utility was captured on CCTV travelling west on Banna Avenue in Griffith.
Little and Lloyd returned to the applicant's property to tell Verrier that they were going to punch her head in as there was a problem with her car, that they had left the vehicle on the road, and that Williams and Massey were going to "burn the car out".
At 4.17am, a four-door white Holden utility is captured on CCTV travelling east on Banna Avenue in Griffith. Between 4.30am and 5am, the fire brigade and police attended "Verrier's ute" which was on fire. At some point, Daley heard Lloyd on the telephone asking if they had "done the job yet".
Verrier and Daley remained detained at the applicant's house. They continued to be assaulted. Verrier was tasered, hit with an extendable baton and burned with a hair straightener; Daley was burned with a hair straightener and struck with fists and a golf club. Both of the victims were bleeding. They were made to strike each other, and Daley was made to allow himself to be burned upon threat of harm to Verrier.
The victims were not provided with any water, nor were they permitted to go to the bathroom. Verrier was instructed to "piss in [Daley]'s mouth". The victims offered the offenders anything in exchange for being set free. At one point, the applicant made Verrier remove her t-shirt in front of the group and give it her in exchange for a singlet.
The offending continued into the day of 5 August 2019. Around 12pm, Lloyd told Hopkins-Wyndle to punch Verrier in the face which she did, administering a slap to her right cheek.
Sometime between 5pm and 6pm, Rushby and Lloyd left the room. After the applicant had been showing Verrier various Facebook profiles and questioning her about the persons depicted in them, she picked up a knife and stabbed Verrier just above the left knee. Verrier crawled away and cried; the applicant told her to "get over it". A short time later, the applicant apologised to Verrier, saying that she had stabbed her as Verrier had lied. This incident is the basis of the applicant's plea of guilty to one count of reckless wounding in company contrary to s 35(3) of the Crimes Act.
At around 6.30pm, Little sent her father a text message asking if he could take Hopkins-Wyndle to Woolworths to source First Aid material for Verrier's wound. Hopkins-Wyndle was later seen on CCTV inside the supermarket at which time she stole a First Aid kit. The applicant and Rushby later strapped Verrier's wound.
The offenders told Verrier and Daley that they would not be let go until they could be trusted not to report the matter to police. They were threatened that their families would be harmed, and they would be killed if they did.
At 7.20pm, Rushby called Hannan and asked her to come and pick up the victims. Hannan drove the victims to her house. There, Verrier contacted her mother and told her what had happened. Police subsequently attended Hannan's address as the victims had been reported as missing. They were taken to Griffith Base Hospital: Verrier had a stab wound of 1.5cm in length to her leg, a cigarette burn to her left arm, bruising to her right shoulder and elbow, and a cut inside her mouth; Daley had multiple burn injuries to his body and face, bruising to his eyelids, and a cut inside his lips.
At 1.50pm on 6 August 2019, police executed a search warrant at 62 Parkinson Crescent in Griffith. Rushby, Hopkins-Wyndle and the applicant were present and were arrested.

Proceedings on sentence

All five offenders pleaded guilty. The proceedings on sentence for the applicant, Rushby and Lloyd were heard before Judge Grant at Griffith District Court on 24 April 2020. Those three offenders were sentenced together on 23 June 2020. The proceedings on sentence for the co-offender Little were conducted the following day, 24 June 2020, and she was sentenced that same day.
The co-offender Hopkins-Wyndle was sentenced on 23 April 2020. It was common ground that the co-offender Hopkins-Wyndle was in a separate category to the other four offenders and no complaint is made in relation to any disparity with her sentence.
The four main co-offenders were all charged with two counts of specially aggravated kidnapping, one in relation to each victim. It was only the applicant who had an additional count, being the reckless wounding of Verrier when she was stabbed in the leg.
At the applicant's proceedings on sentence, the Crown tendered, inter alia, a statement of agreed facts, custody records and criminal history. The applicant's criminal history was not included in the application book, but it was common ground that this was her first time in custody and that her only other prior matters were a charge of assault occasioning actual bodily harm in 2003 when she was 18 years old, for which she was placed on a bond, and driving offences in 2017 and 2018 when she was 32 and 33 years old respectively, for which she received fines.
The applicant relied upon a report of Emma Hubner, psychologist, dated 1 June 2020, a letter from the applicant, custodial course certificates, written submissions, and comparable cases.
The report of Ms Hubner set out the applicant's personal circumstances. As at the date of the report, 1 June 2020, she was a 35-year-old Aboriginal woman born in Wagga Wagga. Her mother is Wiradjuri and her father is from the Yorta Yorta tribe. The applicant has three brothers, two half-brothers and a half-sister. Her father was a shearer and her mother worked at the local nursing home. She is close with them, but they drank heavily and smoked cannabis and were involved in physical conflicts which, at times, required police intervention. The family moved around a lot but settled in Griffith when she was 12 years old. She was a shy child who struggled with adjusting to change. She fell into "bad company" when she was 14 years old and started drinking and smoking cannabis. She left school thereafter. When she was 14 years old, she was raped by her cousin's partner. She did not disclose the rape to her family or police.
Soon after she turned 14, she commenced a relationship with the father of her two children. She gave birth to her first daughter when she was 17. After the birth, her partner became verbally and physically abusive. She had another daughter when she was 24 years old. The domestic abuse continued. There were periods of separation. When she turned 31, she commenced using methamphetamines with her partner and became dependent. After that, her partner's violence rapidly escalated and she took the children to live with her half-sister in Wagga Wagga. She spent the next two years travelling between Griffith and Wagga trying to escape her partner's violence. A close friend from whom she sought emotional support died in 2019. This led to a rapid decline in her mental health and further escalation of her substance abuse. It was around this time that the offences were committed.
At the time of the offences, the applicant was unemployed and drinking and smoking ice daily. Her eldest daughter is now aged 18 and living independently. Her younger daughter is 11 and living with her half-sister in Wagga Wagga. She received between five and eight blows to the head when assaulted by her ex-partner in 2016 and lost consciousness. She was diagnosed with postnatal depression after the birth of her first daughter and prescribed antidepressants. She had attempted suicide twice between the ages of 25 and 27 years.
The applicant is blind in her right eye due to injuries sustained in a car accident on her 21st birthday.
She expressed shame and remorse for the offending behaviour.
In Ms Huber's opinion, the applicant suffered from symptoms of major depressive disorder with anxious distress and substance use disorders at the time of the commission of the offences.
In the applicant's letter to the court, she expressed that she was "truly sorry and ashamed" for her reckless behaviour and lack of willpower to stop the trauma sustained by the victims. She described how her time in custody has helped her come to terms with the absence of control she had over her life at the time of the offending. She was self-medicating instead of dealing with the sudden and suspicious death of her close friend. She was planning for a productive future. She was hoping to return to her family upon release and had obtained work with the family business "Ray Jackson Shearing". She acknowledged that she needed to stay on the path of sobriety and family rather than bad company and drugs.
She also provided certificates for courses she had participated in in custody including remand addictions, mothering at a distance, and one from the Enough is Enough Anti Violence Movement.

Remarks on sentence

His Honour set out the facts and noted that although the purpose of the kidnapping was to intimidate the two victims, the reason for the detention was not at all clear. As for the roles of each offender, his Honour could not be satisfied beyond reasonable doubt that any particular offender was the instigator. He was satisfied that Lloyd and Rushby were the dominant participants. He noted that there was no evidence that any one of the offenders was involved to a greater or lesser extent than the others in relation to planning.
His Honour was satisfied beyond reasonable doubt that Rushby and Lloyd inflicted a higher degree of physical violence upon the victims than did Jackson but did not differentiate between the conduct of the three offenders in terms of the degrading and humiliating aspects of the detention. His Honour was satisfied that both Rushby and Lloyd used weapons to inflict injury during the commission of the kidnapping offences, but all four offenders were aware of the existence of weapons and the use of the weapons to inflict corporal violence on the victims. All offenders were present during the commission of the physical violence and use of the weapons.
His Honour was satisfied that the offending fell slightly above the mid-range of objective seriousness.
In relation to the applicant's additional charge, his Honour was satisfied that the offender quickly regretted her actions and attempted to treat the wound with supplies obtained by a co-offender. He found the objective seriousness to fall below the mid-range.
His Honour set out the relevant aspects of the applicant's subjective case summarised above. He noted that the Crown accepted that she had a strong subjective case and also accepted that the Bugmy principles (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37) were enlivened. His Honour stated that he would give "full weight" to her social deprivation. He was also satisfied that the offender has expressed genuine contrition and remorse for her actions, that she had good prospects of rehabilitation and was entitled to some leniency, as she did not have a significant criminal record.
His Honour set out the subjective cases of Lloyd and Rushby. Both had criminal records and Rushby was on parole at the relevant time. His Honour found that neither of them was entitled to leniency because of their criminal records. Bugmy principles applied to Rushby but not Lloyd. His Honour was satisfied that the applicant had experienced greater social deprivation than Rushby. Both Lloyd and Rushby had a history of drug addiction. Rushby raised the issue of self-defence in his assessment which was at odds with his expression of remorse. Due to their prior history and entrenched addiction to drugs, the prospects of rehabilitation for both Rushby and Lloyd were "guarded." As for the question of parity, his Honour observed the following: "I am satisfied that Lloyd and Rushby should not be separated on assessment of their criminality. In my view Jackson is slightly below them. I reject Mr Fokkes' submission that rehabilitation should play a significant role. The major sentencing considerations are general deterrence, specific deterrence and denunciation of conduct. What occurred is contrary to the rule of law and contrary to the manner in which persons within a civilised society should and are expected to conduct themselves."

Co-offenders' outcomes on sentence

Lloyd was sentenced for both counts of specially aggravated kidnapping to an aggregate sentence of 6 years and 6 months' imprisonment commencing on 6 September 2019 and expiring on 5 February 2026. The non-parole period of 4 years and 6 months will expire on 4 March 2024. The indicative sentence on each count was 5 years and 6 months' imprisonment.
Rushby was sentenced for both counts of specially aggravated kidnapping to an aggregate sentence of 6 years and 9 months' imprisonment commencing on 6 October 2019 and expiring on 5 July 2026. The non-parole period of 4 years and 6 months will expire on 5 June 2024. The indicative sentence on each count was 5 years and 8 months' imprisonment.
Little was sentenced the following day on two counts of specially aggravated kidnapping to an aggregate sentence of 3 years' imprisonment to be served by way of an ICO with indicative sentences of 2 years and 3 months.
Unlike the applicant, who was detained in custody from the time of her arrest until her sentence, Little was released on bail after spending some time in custody on remand. She was able to demonstrate rehabilitation during that time, in particular her efforts to regain custody of her three small children. She gave evidence at her proceedings on sentence and stated that she only committed the offences due to fear of her then partner Lloyd.
In sentencing Little, his Honour addressed the question of parity with the applicant in this way: "The Crown in written submissions dated 23 June 2020, forwarded to my associate at 7pm, submitted that there is little difference between Little and Jackson. I disagree. Little is a young offender, Jackson is not. Little has no criminal record, Jackson does. Little has undergone significant self-rehabilitation, Jackson has not. The role played by Little was different to Jackson. Jackson provided the premises for the detain to take place. She assaulted Verrier, she threatened Verrier, she made Verrier strip and remove her t-shirt. Jackson threatened to stab the victims if they did not hand over the passwords to their phones. In my view, save for Hopkins-Wyndle who I placed on a community correction order, the offender that played the most minor role was Little. Little has excellent prospects of rehabilitation, Jackson's prospects were assessed as good. Little was immature, Jackson was not. Little has taken active steps for the return of her children."
His Honour found that Little was neither the instigator nor the dominant participant. She was not involved in the planning. His Honour found that her offending occurred in the context of an unequal relationship between her and her boyfriend, the offender Lloyd, who was a violent man who threatened her on the night.

Applicant's submissions

In support of her contention of disparity, the applicant relied upon the following favourable findings made by his Honour: 1. she had expressed shame and remorse for her involvement in the offending; 2. she did not have any significant criminal record and was accordingly entitled to some leniency; 3. she had good prospects of rehabilitation; 4. as finding of special circumstances was made due to her age and drug addiction; 5. full weight was given to her social deprivation and the principles in Bugmy; 6. she pleaded guilty at the earliest opportunity and was entitled to a discount 25%.
Reliance was also placed on the findings made with respect to the applicant's involvement when compared with the two co-offenders.
The applicant accepted that his Honour specifically dealt with the issue of parity when sentencing Little but submitted that the factors identified by his Honour, as differentiating between the sentences imposed on her and Little, were insufficient to explain the disparity between them. It was submitted that the disparity was so significant as to be unjustified for a number of reasons. I shall consider those arguments further below.

Crown submissions

The Crown produced a helpful table setting out the similarities and differences as between the objective and subjective factors relevant to both this applicant and Little.
Reliance was placed on the fact that the same sentencing judge sentenced both women and that the sentences were only delivered one day apart.
Reliance was also placed on the fact that his Honour expressly differentiated between this applicant and Little in his sentencing remarks.
It was submitted that the applicant must establish that the differentiation made by his Honour between the applicant, and Little was not open to him in the exercise of his sentencing discretion. It was submitted that there were significant differences as between the applicant and Little which I consider below.

Consideration

The applicant does not contend that her aggregate sentence is manifestly excessive. Her sole complaint is that the parity principle has not been complied with insofar as the sentence imposed on her co-offender Little is concerned. The principles pertaining to what has become known as the "parity principle" in sentencing are well known. The High Court has stated them in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. In Postiglione v The Queen, Dawson and Gaudron JJ observed the following at 301: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: in Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610-611 per Mason J. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."
As Gibbs CJ earlier observed in Lowe v The Queen at 610, "the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." The disparity complained of must be "marked" (Lowe v The Queen at 610, Green v The Queen at [31]), "unjustified" (Green v The Queen at [32]) or "manifest" (Lowe v The Queen at 613) to warrant appellate intervention.
The application of the parity principle does not involve a judgment about the "feelings" of the person complaining of disparity with regard to a justified sense of grievance. The test is an objective one: Postiglione v The Queen at 323. A court may reduce a sentence not in itself manifestly excessive "in order to avoid a marked disparity with a sentence imposed on a co-offender": Green v The Queen at [31].
In the present case, all five co-offenders were sentenced by the same sentencing judge on the same agreed facts. Moreover, they were all sentenced over a relatively short period of time. As Button J (with whom Johnson and Fagan JJ agreed) observed in Huckstadt v R [2016] NSWCCA 22 at [90], when the same judge hears both matters simultaneously, "[he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way". Similar observations were made in Tuivaga v R [2015] NSWCCA 145, by Hoeben CJ at CL (with whom R A Hulme and Wilson JJ agreed) at [55]-[56].
Although the focus of the applicant's complaint was based on a comparison of her sentence with that imposed on Little, reliance was also placed in submissions on the lack of differentiation as between her sentence and that imposed on her two male co-offenders. I shall deal with those two discrete aspects in turn.
It was the Crown's position before the sentencing judge that there was not much to differentiate the applicant from Little. The sentencing judge rejected that submission. Although it is to be accepted that there were points of differentiation, the following factors were common to both women: 1. both women were Aboriginal; 2. both women were mothers; 3. both women were actively involved in the detention offences; 4. both women were on methamphetamine at the time of the offending; 5. both women had significantly disadvantaged backgrounds; 6. both women had made steps towards re-engaging with their children; 7. both women were entitled to leniency, albeit to different extents, on the basis of their criminal records; Little had none whereas the applicant's was minor; 8. both women were remorseful; 9. both women pleaded guilty in the Local Court; 10. both women had two robbery offences taken into account on a Form 1; 11. his Honour found that the applicant had "good" prospects of rehabilitation and that Little had "excellent" prospects of rehabilitation. On this factor, it is to be noted that the applicant had the benefit of a family business to work in when released whereas Little did not; 12. Little had engaged with a drug and alcohol counsellor whilst in the community on bail, whereas the applicant had undertaken a remand addictions course in custody; 13. for both women the finding of objective seriousness in relation to the specially aggravated kidnapping offences was that they fell slightly above the mid-range of objective seriousness.
On the other hand, the differences between the two women were as follows: 1. the applicant was 34 years old at the time of the offending whereas Little was only 19 years old; 2. the applicant was being sentenced for an additional offence contrary to s 35(3) of the Crimes Act. An indicative sentence of 2 years' imprisonment with a non-parole period of 6 months was nominated for that offence; 3. contrary to the Crown's submission, his Honour did not accept that the roles of Little and the applicant were similar; 4. his Honour was satisfied that Little acted because she was fearful of Lloyd; 5. his Honour found Little's attempts at rehabilitation to have been striking.
It was well open to his Honour to be impressed by Little's efforts at rehabilitation. She was able to demonstrate her rehabilitation because she had been on bail during the remand period whereas the applicant's efforts to prove rehabilitation were limited by the fact that she was in custody. Despite that, the applicant had undertaken a remand addictions course in custody as well as a "Mothering at a distance" course.
Even accepting that the applicant stood to be sentenced for an additional offence, they shared the two most serious offences in common: the specially aggravated kidnapping offences. For those two common offences and having regard to all of the objective and subjective factors I have just summarised, the applicant received an indicative sentence of 5 years' imprisonment on each count whereas Little received indicative sentences of 2 years and 3 months' imprisonment on each count. The difference between the indicative sentences for both women is significant. The applicant's indicative sentences were more than twice those of Little's. Given the evidence of what both women did during the ordeal, it is difficult to see how the applicant's age and limited efforts at rehabilitation could account for such a significant difference.
Little gave evidence that she only participated due to being fearful of Mr Lloyd. It is to be noted that the agreed facts disclosed that the fifth offender, Hopkins-Wyndle, assisted the authorities and nominated all four offenders as being responsible. It was also an agreed fact that Little had participated in taking the victim's car.
All of the offenders, including Little, were under the influence of ice at the time of the offending. That was not a mitigating factor on sentence: s 21A(5AA) of the Sentencing Act. Although it is to be accepted that his Honour found that Little was under the influence of Lloyd, she was also under the influence of ice. As for the applicant, there is no evidence that she had any role in the planning beyond the fact that the offences were committed at her house. As she expressed in her letter to the Court and to Hubner, she had the power to prevent the events by making them all leave but did not feel able to do so.
As for the two male co-offenders, there were findings that they were more involved, that they inflicted more violence, that they were disentitled to leniency due to their criminal records, that neither had good prospects of rehabilitation and that Mr Rushby was on parole at the time of the offences. Despite all of those matters, the applicant's indicative sentences on the counts in common with those two men were only slightly smaller: 5 years' imprisonment as compared with 5 years and 6 months' and 5 years and 8 months' imprisonment respectively.
It can be a difficult task to achieve equal justice when sentencing multiple co-offenders with differing involvement and subjective factors. It is understandable that his Honour took a very favourable view of Little, and it was open to him to afford her the leniency he did. But it seems to me that in seeking to differentiate as between the four offenders his Honour positioned this applicant more closely with the two more violent male offenders. They were more involved in the offending and had far less favourable subjective cases than the applicant, whose case was closer to that of Little. Both were Aboriginal women with similar backgrounds, including being the victims of domestic abuse. His Honour was clearly entitled to have regard to the fact that Little was the applicant's niece, that she was a much younger offender and that the offences occurred at the applicant's home. A further distinguishing factor was that his Honour accepted Little's evidence that she was fearful of Lloyd, who she claimed kept her a prisoner with the victims and held a knife to her throat. It was necessary to take into account the 5 months and 2 days Little spent in custody on remand and 4 months of quasi custody. Given that his Honour placed Little on an ICO, her sentence could not be backdated to take into account that pre-sentence custody: s 71 of the Sentencing Act; Mandranis v R [2021] NSWCCA 97
There were clearly factors which militated in favour of Little receiving a lesser sentence than the applicant: it is the extent of the allowance made on account of those factors of which the applicant complains. I am satisfied that the applicant has established that she has a basis for a justifiable sense of grievance when her aggregate sentence is compared with that imposed on Little. I would allow this ground and resentence the applicant.

Re-sentence

Two affidavits were filed in the event that Court came to re-sentence the applicant: an affidavit of the applicant affirmed on 13 April 2022 and an affidavit of her solicitor, Steven Rees, affirmed on 14 April 2022.
In her affidavit, the applicant described how difficult it was when she first entered custody. She felt depressed and anxious and could not sleep. She was given two Seroquel tablets by another inmate. She was caught by Correctional Service Officers, cautioned, and reprimanded. She has had no custodial charges since that time. Her dose of Sertraline was increased, and she now feels more stable.
The applicant explained the impact of the Covid-19 pandemic. She has never received an in-person visit from a family member. She had some video calls with her young daughter last year but only one this year. She is incarcerated at Emu Plains Correctional Centre which is six hours drive from where her daughter lives, so she has not been able to see her, although she speaks to her every couple of days. There have been lockdowns. The last one was for 14 days, and she was unable to leave her accommodation cottage during that time.
She works at Milk Pro five days a week from 7am until 1pm. It keeps her busy and she loves the work. She has applied to transfer to the Bolwarra Transitional Centre run by Corrective Services in order to do alcohol and drug rehabilitation programs. She also expressed the desire to be home with her daughter and to be a "better mum".
Mr Rees obtained a bundle of documents in response to an application with the Open Government Information and Privacy Unit of the Department of Communities and Justice NSW under the Government Information (Public Access) Act 2009. The material was annexed to his affidavit. He noted that the applicant was recorded as being a "well-behaved compliant inmate" during a risk assessment for low needs placement on 29 May 2021. Her case notes in relation to her work performance describe her as able to "stay with the tasks that are set for her", state that she "gets on well with the other inmates and is happy to follow directions from Overseers", and that she "always shows a positive attitude" at work and is "always respectful and courteous to staff". In relation to her work at Milk Pro, she was described as a "competent reliable and diligent worker who performed her duties at a very high level and requires very little supervision". She is recognised as an "extremely valuable member of the milk processing team".
In addition to this material, I would adopt all of the findings made by the sentencing judge with the exception that I would accept the Crown submission to the sentencing judge that there was not much to differentiate Little and the applicant. His Honour found special circumstances for the purpose of s 44(2) of the Sentencing Act and imposed an aggregate sentence with a non-parole period comprising 64% of the head sentence. I propose to do the same.
For the reasons I have already provided, it seems to me that the applicant should be sentenced on the basis that although her case was closer to that of Little than the sentencing judge allowed, there are still the factors enumerated above at [78] which justify a sterner sentence for the applicant. Further, there should be a greater degree of disparity as between her and the two male offenders.
No complaint is made in relation to the indicative sentence for the separate offence for which this applicant stood for sentence. In the exercise of my independent sentencing discretion, I have arrived at a slightly lower figure. The question of parity does not arise in relation to that discrete offence.
His Honour found that the objective seriousness in relation to the specially aggravated kidnapping offences was slightly above the mid-range of objective seriousness. He made the same finding in relation to Little. I am satisfied that such a finding is consistent with the aggregate sentence I would impose.
I would apply a 25% discount for the pleas of guilty to the indicative sentences. Following that discount, the indicative sentences are 4 years and 6 months' imprisonment for each of the aggravated kidnapping offences and 20 months' imprisonment with a non-parole period of 6 months for the offence contrary to 35(2) of the Crimes Act.

ORDERS

I would propose the following orders 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed by Grant DCJ on 23 June 2020 is quashed. In lieu thereof, the applicant is sentenced to an aggregate sentence of 6 years' imprisonment commencing on 6 August 2019 and expiring on 5 August 2025. A non-parole period of 3 years and 10 months will expire on 5 June 2023.

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