JE v R

Factual background

1. On 26 July 2017, the complainant, the applicant and NA were all in year 9 at Rooty Hill High School. The complainant was aged 14. The applicant was aged 15 years and 4 months and NA was aged 14 years and 7 months. The applicant and the complainant had dated in years 7 and 8 and had remained friends.
2. On the previous evening the three had arranged to meet at the Mt Druitt Bus Interchange on the morning of 26 July instead of going to school.
3. At about 7.30am, the complainant dressed in her school uniform, caught a bus to the Interchange and met the applicant and NA. She and NA travelled to NA's home in Minchinbury. The applicant stopped on the way to go to his house and joined the others at NA's home some time later.
4. In the kitchen at NA's house, NA poured a small glass of whisky for the complainant and one for himself, which they drank. The complainant went into the bedroom with NA. He offered her marijuana and she took two puffs from a bong.
5. Back in the kitchen, the applicant and NA encouraged the complainant to drink more whisky. NA went to the toilet and the applicant had a drink with the complainant. She then had approximately three more glasses and began to feel a bit dizzy and sick.
6. Leaving the complainant and the applicant, NA went into his bedroom and set up an iPad to make a recording from the top corner of his bedroom wardrobe. An 18 second test clip recovered from NA's iPad showed NA setting up the iPad at 8.56am (this recording was tendered on sentence).
7. NA returned to the complainant and she was led into his bedroom. The applicant also entered the room and sat on the bed. The bedroom door was closed. The complainant sat on the edge of the bed and leaned on the applicant's shoulder. She told the applicant and NA that she felt dizzy, and they told her to lie back on the bed. She did so, leaning against the applicant. She felt the applicant's hands touching her cheek and face.
8. NA began to place his hand inside the complainant's underwear and inserted his fingers into her vagina, causing her pain (Count 2). While NA continued to insert his finger inside her vagina the applicant began to kiss her mouth, and the applicant's hand went under her top and bra, touching her breast (Count 3). The complainant said she felt like she was falling asleep, her arms and legs were like jelly and then everything was "gone, like I was dead asleep".
9. After a period of time, the complainant managed to push both young persons away, pull up her pants, and tell them they "had to go to school". She started to get up and put her school bag on her back. As she did this, NA pulled her back by her waist. The complainant was feeling weak, dizzy and scared.
10. At some point, NA inserted his penis into the complainant's vagina (Count 4). The complainant stated that the applicant was in the room "not right behind me; but like kind of next to NA but not real close, just like, yeah, so like there".
11. The complainant woke up and saw that her pants were down. She pushed herself away from NA and the applicant. She went to leave and one of the young persons touched her to try and turn her around. She reacted by grabbing the applicant around the throat and saying, "Youse need to get ready for school".
12. The complainant tried to walk to the bathroom but fell. The applicant picked her up and walked her to the kitchen. He was carrying her because her legs felt weak and she was having to put her weight on him. Her eyes were shut and things began to go black again.
13. The next thing the complainant remembered was being on a bus near Mt Druitt. She had apparently been left at the bus interchange.
14. After the complainant left NA's house, a mutual friend arrived. NA showed him the video recorded on his iPad, which showed NA digitally penetrating the complainant while the applicant was "making out" with her and "stuff" (Count 1). At this time, the applicant was playing a computer game. The friend was not shown the whole recording, but believed it went for about half an hour. NA told him that he had hidden the iPad.
15. The complainant's parents were notified by the school of her absence. Later that morning, a member of the public notified the school that a student was behaving erratically on a bus travelling towards Mt Druitt. The complainant's parents found the complainant at Mt Druitt, visibly intoxicated. She was driven to Mt Druitt Hospital and admitted at 11.30am. She disclosed to doctors that she had been sexually assaulted by the young persons. When examined, the complainant was found to have purplish-red bruising of the hymenal fold, blood in her underpants, and to be sore and tender. Semen was detected, and a DNA profile matching NA's was subsequently found on the sperm fraction of swabs taken from the complainant's vaginal area and underpants.
16. According to the opinion of a forensic pharmacologist, at 9.45am the complainant's blood alcohol level was 0.12 grams per 100 millilitres. She was naive to alcohol, 14 years old, 49.9kg in weight and 165cm tall. The alcohol she had consumed probably caused sedation, impaired cognition and impaired psychomotor function. It was an agreed fact that the complainant was unable to consent to the sexual and indecent assaults due to her level of intoxication.
17. That afternoon, messages were exchanged between NA and the complainant's brother on Messenger. NA and the applicant were still with their friend. NA told the friend that he thought he may have broken the wall of the complainant's vagina. NA and the applicant told their friend that they had dropped the complainant at the bus stop because she was tipsy or drunk and kept falling down. The friend told NA he should delete the recording from his iPad.

Subjective cases

1. No oral evidence was given by or on behalf of the applicant at the sentence hearing. His subjective case was contained in a Juvenile Justice report, a psychological report of Emma Collins, various documents regarding programs undertaken by the applicant and a letter of apology by the applicant to the court.
2. NA was sentenced at the same time as the applicant. NA's subjective case included a Juvenile Justice report, a psychological report from Dr Zoran Protuipac and letters written by NA's parents. NA and NA's mother each gave evidence on sentence. While NA asserted a number of matters adverse to the applicant, that evidence was not admissible in the applicant's case.
3. The applicant had a stable family background until his mother passed away from cancer in June 2016. After that, there was a change in his behaviour, leading to difficulties at school and truanting. Following his arrest, he spent 78 days in custody. After his release, he left school and took up an apprenticeship in carpentry.
4. NA and the applicant had been close friends since primary school. In July 2017, NA's parents were in the midst of a separation that would prove to be temporary. NA was living mainly with his father and his attendance at school had declined. After spending 84 days in custody following his arrest, he left school and commenced working with his father in carpentry.
5. Neither the applicant nor NA had any record of criminal conduct.
6. A victim impact statement was read in court. The complainant said that her life had never been the same since the events of that day. She spoke of being unable to move to defend herself and of being helpless and powerless and at the mercy of whatever they wanted to do to her. She described it as being "like a horror movie" and that she was "a jelly fish being attacked". It was an experience she found to be confronting and confusing because it involved school friends, with whom she had "hung out" and whom she thought she could trust and have fun with. Nothing prepared her for what happened. She had four brothers and had always enjoyed the company of boys. She was something of a tomboy in primary school. She spoke of the applicant having been her boyfriend and she his girlfriend in the past. Thereafter, he became what she described as a "guy friend' with whom she shared feelings and it appears he did the same.
7. She said that she did not trust people easily but she trusted him. She was aware that he had a girlfriend at the time and so she did not think anything sexual would happen between them. After the event she was angry, even with her parents and her brothers. She over-reacted to everything, isolated herself, and lost her appetite for food. She found it difficult to trust males with the perception that they were focused upon sex, out to get what they wanted without respect for women. Her belief in equality and taking personal responsibility and not judging others was her mantra but because of what befell her and the gossip that followed these events among school friends and on social media she was left feeling that people had judged her wrongly, judging her the victim rather than placing the responsibility for what had happened on the two people who were responsible for it.
8. The complainant has been fighting depression. There were two moments where she felt she was suicidal. She had lost motivation, she suffered nightmares and she had recurrent dreams of the event. She had performed poorly at school since these incidents, and had difficulty facing school. She preferred to stay home and her marks at school have suffered. She wanted to rebuild her life and regain her confidence, develop independence and self-respect but she did not feel that she would ever be able to develop the level of trust she might otherwise have enjoyed with her friends.

Sentence proceedings

1. His Honour found that NA had not completely accepted responsibility for the misconduct upon which he engaged, blaming his predicament on the applicant and to some extent, on the victim. His Honour noted that the applicant had made representations similar to those of NA, attributing his participation to the actions of NA. His Honour noted that he would have to consider each case individually and assessed them accordingly.
2. His Honour assessed the seriousness of the offending on the part of both NA and the applicant as mid-range. His Honour found that it involved the violation of the victim by friends whom she had trusted. His Honour was critical of the fact that the complainant was taken from the premises and abandoned at a bus stop after the offending. His Honour noted that the complainant's humiliation had been increased by the fact of the recording and that it had been shown to at least one other person besides NA and the applicant.
3. The key findings by his Honour were: "The Crown acknowledges that NA played a greater role in the offending; the incidents occurred in his house, he engaged in two separate instances of sexual intercourse, he provided the alcohol, he made the recording. Thereafter they were both equally complicit of course in what followed when she was abandoned at the bus stop. The Crown points to the vulnerability of the victim, noting that authorities are not entirely consistent upon that point. I take the state of intoxication and the extent to which it impaired her capacity to resist as part of the factual matrix but not as a circumstance of aggravation. There was planning but it was of modest proportion in the material I have and upon the material I have the use of the iPad is confined to the conduct of NA. Thus insofar as JE is concerned the degree of planning to the extent that there was any on his part is more limited in my view, but even so in the case of NA I could not conclude that the planning arose other than at some point before the placement of the iPad but within the period when the three were all together at the premises. General deterrence as the Crown points out is given less weight with more emphasis upon rehabilitation; however the misconduct in this case is of such moment in my view that general deterrence must be given some weight. It would be inappropriate not to denounce this behaviour. I accept that this was not impulsive, youthful or opportunistic behaviour. Both of these offenders behaved as adults in this misconduct. I accept that they have demonstrated prospects for rehabilitation and to that extent the risk of reoffending is more limited, and thus the application of the decision of IE v R [2008] 103 A Crim R 150 at 16 which points out that the amelioration of sentence, including the extent to which special circumstances might be found, is informed by the circumstances of the particular offender which in these cases has before the Court two young men who have demonstrated that they have the capacity to lead worthwhile lives. I have not overlooked the extent to which their contrition and remorse is qualified by their endeavours to attribute blame to each other for the decision that they made in each case to take advantage of this young girl in her intoxicated state. I am reminded by the Crown of the impact of the offending described as catastrophic as outlined in the victim impact statement and I have already dealt with that." (Sentence judgment 29.2-30.5)
4. In summary, his Honour concluded: "I am satisfied that having regard to the seriousness of the offences, the nature of the offences and the age and the maturity of the offenders at the time, notwithstanding that they were children between the ages of 14 and 16, were such that these matters are to be dealt with according to law. When I sentence juvenile offenders or children I am obliged to have regard to s 6 of the Act, and these include that I must note and accept that the children have rights and freedoms under the law equal to those enjoyed by adults, they have the right to be heard and the right to participate in the processes. They must bear responsibility for their actions but because of their state of dependency and maturity they will need guidance and assistance. It is desirable wherever possible to allow education or employment to proceed without interruption. It is desirable wherever possible to allow a child to reside in his home. The penalty imposed should be no greater than that imposed on an adult who commits the same offence. It is desirable that a child be assisted with reintegration into the community so as to sustain their family and community ties and it is desirable that they accept responsibility for their actions and wherever possible make reparation. And subject to other principles, as I have described them, consideration must be given to the effect of the crime upon the victim. This has not been an easy matter I must confess but ultimately I have come to the view that there must be custody imposed in these cases. The structure of the sentence I am about to announce will see the custodial component expire I believe before these offenders reach the age of 21. I propose to make an order in accordance with s 19(1) of the Children (Criminal Proceedings) Act 1987 that the whole of the sentence of imprisonment be served as a juvenile offender." (Sentence judgment 31.7-32.5)

Applicant's submissions on appeal

1. The applicant noted that there were clearly features which were similar as between him and NA. Both entered pleas of guilty at a late stage and as a result, the sentences were in each case reduced by 15 per cent. Both had served a period of pre-sentence custody before the grant of bail and received a backdate to account for the agreed periods of custody. A further discrete backdate in sentence was allowed in each case for the time spent subject to stringent bail conditions. Neither the applicant nor NA had any previous or subsequent criminal antecedents.
2. The sentencing judge said that both had demonstrated prospects of rehabilitation and to that extent the risk of reoffending was limited. The sentencing judge noted that both attempted to place blame for their offending on each other and to a degree on the victim herself.
3. Both offenders were experiencing some emotional disturbance in their family home at the time of offending. In the applicant's case, he was dealing with the loss of his mother through cancer in the previous year. NA's parents had separated at the time of offending and there had been some evidence from his mother in which she expressed her own regret for not having provided sufficient care to him during that time.
4. The applicant was prepared to accept that both his and the subjective case of NA were similar. The applicant submitted that although NA was younger than him by nine months, they were both in the same class at school so that the age differential in that context should not be seen as significant. In any event, the sentencing judge was not prepared to accept that NA looked up to the applicant.
5. The applicant submitted that of greater significance was an analysis of the respective roles of NA and himself in the offending. He noted that each of them was to be dealt with for the conduct contained in Counts 2, 3 and 4, albeit in the applicant's case Count 2 was taken into account by way of a Form 1. The applicant submitted, however, that their roles were not equal. He submitted that Count 3 involved actions committed by him whereas the physical elements in the more serious offences in Counts 2 and 4 were committed by NA.
6. The applicant submitted that the physical acts performed by NA were much more significant than those performed by him. The applicant referred to NA's involvement in initially providing alcohol and cannabis to the complainant which precipitated her intoxication and in turn left her unable to consent.
7. The applicant submitted that the additional count which applied to NA involved serious offending and elevated the culpability of NA by comparison with that of the applicant. Count 1 involved the production of child abuse material via the recording of sexual and indecent assaults on the complainant. The applicant submitted that it was clear that the complainant was not aware of and so did not consent to the recording nor did she consent to its subsequently being shared with others. The applicant submitted that it was clear that the recording was intended to be done covertly as evidenced by the test recording that occurred. The applicant characterised this as a serious example of the offence in question and that this conduct was to be attributed to NA alone.
8. The applicant further noted that NA set up the device for the purpose of recording and did so in his absence. The applicant submitted that this involved an element of planning which did not apply to him. The applicant noted that there was no evidence that he was aware that the recording was planned or that it was recording what happened. This level of additional planning was acknowledged by his Honour.
9. In answer to the Crown's submission that no parity error had occurred because the sentencing principle behind a joint criminal enterprise is that each participant is equally responsible or liable for all of the acts which occur in the course of carrying out the enterprise, the applicant relied upon KR v R [2012] NSWCCA 32. There, Latham J (with whom Whealy JA and Harrison J agreed) having reviewed the authorities said: "19 What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct. 20 Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process. 21 Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. "The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability." : R v O'Connor [1980] HCA 17 at [20] ; 146 CLR 64 at 72, per Barwick CJ. 22 Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment : R v Merritt [2004] NSWCCA 19; R v Henry & Ors [1999] NSWCCA 111 at [254]; 46 NSWLR 346; 106 A Crim R 149."
10. Relying upon that statement of principle, the applicant submitted that it was true to say that he was criminally responsible for each of Counts 2, 3 and 4. However, his lesser role in the two most serious offences (Counts 2 and 4) and allowing for his greater role in respect of Count 3, meant that overall his culpability was significantly less than NA. The applicant submitted that the difference in culpability between him and NA was only magnified once the additional facts amounting to Count 1 are considered.

Crown submissions on appeal

1. The Crown accepted the applicant's submission that there is a distinction to be drawn between the concepts of criminal responsibility and culpability in that a participant in a joint criminal enterprise is equally criminally responsible when compared with other members of the enterprise, but may not be equally culpable depending upon the actions actually carried out by him or her. The Crown submitted, however, that because the same judge had sentenced both the applicant and NA, it was open to his Honour to exercise his discretion and to attribute almost equal responsibility for the offending to them.
2. The Crown submitted that this was because there was no requirement that the applicant's sentence should be significantly lower than that of NA.
3. To substantiate that position, the Crown relied upon a number of findings which were common to both the applicant and NA: 1. Each received a 15 per cent discount for their plea; 2. each had his sentence backdated; 3. for each the victim impact statement was taken into account but not treated as an aggravating feature; 4. for each the sentencing judge agreed with the Crown submission that "objectively the misconduct sits at least at mid-range"; 5. the conduct of each was found to be "not impulsive, youthful or opportunistic and that both of the offenders behaved as adults in the offending"; 6. each had demonstrated good prospects of rehabilitation; 7. for each it was determined that all offences were to be dealt with at law; 8. each was ordered to serve their sentence as a juvenile offender; and 9. special circumstances were found in each case.
4. The Crown submitted that his Honour was evidently of the view that the respective roles of the applicant and NA did not require a substantial differentiation. This was because it was open to his Honour to impose aggregate sentences which were almost identical.
5. In support of that proposition, the Crown relied upon the following: 1. the offences were committed jointly; 2. the applicant was older than NA by 9 months; 3. the sentencing judge could not conclude that the offending was planned, even by NA, other than at some point before the placement of the iPad; 4. while NA had the additional charge in relation to the filming of the encounter, that offence was taken into account on a Form 1; 5. although the applicant was not present when NA gave the complainant the first glass of whisky and the two puffs of marijuana, he did later join in encouraging her to consume alcohol; 6. the applicant's breach of the complainant's trust was more serious than NA's; 7. the applicant's kissing of the complainant while she was being digitally penetrated by NA showed his enthusiastic participation in the offending; and 8. the applicant demonstrated the same lack of care for the complainant as did NA.
6. In summary, the Crown submitted that when all those factors are taken into account, it was open to his Honour in exercising his sentencing discretion to impose the sentence that he did.

Consideration

1. There is a problem for the Crown in his Honour's indication of sentences for the offending which the Crown did not address. Although it is appreciated that the appeal is against the aggregate sentence imposed on the applicant and not the indicated sentences, the indicated sentences may themselves reveal error in the aggregate sentence which may not otherwise be apparent. In this case the indicated sentences for NA amount to a total of 7 years and 10 months. For the applicant, the indicated sentences amounted to 4 years and 6 months. At no time in his reasons did his Honour ever indicate why when moving from the indicated sentences to the aggregate sentence there would be such a level of concurrency in the aggregate sentence imposed on NA, but which did not apply in the case of the applicant. This discrepancy is simply left unexplored and unexplained.
2. It is as a result of that discrepancy that I have reached the conclusion that disparity error has occurred in relation to the aggregate sentence imposed on the applicant. It will therefore be necessary to re-sentence the applicant. This will involve an independent exercise of the sentencing discretion by the Court.
3. That exercise is made easier by the fact that there have been no factual challenges to his Honour's findings, both of fact and the objective seriousness of the offending. There have, however, been identified by the applicant matters which render the moral culpability of NA significantly greater. These matters have already been identified in the applicant's submissions. The submissions have identified actions by NA which render his offending more serious than that of the applicant. In the re-exercise of the sentencing discretion, however, it is necessary to consider whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which had there been no disparity would be regarded as erroneously lenient. In this case, it is possible to adjust the sentence imposed on the applicant so that it satisfies the parity principle without being erroneously lenient.
4. Accordingly, in the independent exercise of the sentencing discretion I would not interfere with the sentences indicated for the applicant but would impose an aggregate sentence of 3 years with a non-parole period of 1 year and 6 months.
5. Accordingly, the orders which I propose are: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The aggregate sentence imposed on JE by his Honour Judge Bennett SC on 24 January 2019 is quashed. 4. In lieu thereof, JE is sentenced to an aggregate sentence of 3 years to commence 7 August 2018 and expire 6 August 2021 with a non-parole period of 1 year and 6 months to expire on 6 February 2020.
6. BRERETON J: I agree with Hoeben CJ at CL.
7. FULLERTON J: I agree with Hoeben CJ at CL. Count Offence Maximum penalty Sentence indicated: Applicant Sentence indicated: NA 1 s 91H(2) 10 years - Form 1 2 S 61J(1) 20 years (SNPP of 10 years not applicable) Form 1 3 years (taking into account Form 1) Aggravated sexual assault - in company 3 S 61M(2) 10 years (SNPP of 8 years not applicable) 1 year 6 months 1 year 4 months Aggravated indecent assault - victim under 16 4 S 61J(1) 20 years (SNPP of 10 years not applicable) 3 years (taking into account Form 1) 3 years 6 months Aggravated sexual assault - in company

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