LS v R

The Form 1 requirements

1. Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act sets out the powers of a sentencing judge to take into account additional offences when sentencing an offender for a "principal offence". It also details the procedures and formalities upon which that power is predicated and exercised.
2. Section 32(1) of the Act provides that a prosecutor may file in court a document that specifies other offences with which the offender has been charged (but not convicted) that he or she has indicated are offences they want the Court to take into account when dealing with them for the "principal offence". This document is referred to in the Act as a "list of additional charges", which is defined as meaning a "document filed in a court by the prosecutor", commonly known as a "Form 1". The list of additional charges, or Form 1, must be signed by the offender and by, or on behalf of, the Director of Public Prosecutions, or by a person prescribed by the regulations: s 32(4).
3. Section 33 of the Act is relevantly as follows: 33 Outstanding charges may be taken into account (1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence. (2) The court may take a further offence into account in dealing with the offender for the principal offence-- (a) if the offender-- (i) admits guilt to the further offence, and (ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and (b) if, in all of the circumstances, the court considers it appropriate to do so. (3)…
4. That section requires a court, before taking into account an offence or offences on the list of additional charges or Form 1 when sentencing an offender, to meet a number of criteria or formalities: 1. the sentencing court must ask the offender whether he or she wants the court "to take any further offences into account in dealing with the offender for the principal offence": s 33(1); 2. the offender must admit his or her guilt to the further offences (those on the Form 1): s 33(1)(a)(i); 3. the offender must also indicate that he or she wants the further offence or offences taken into account when being sentenced for the principal offence: s 33(2)(a)(ii); and 4. the court must also consider that such a course is appropriate in all the circumstances: s 33(2)(b).
5. Section 31 of the Act sets out two relevant definitions: "principal offence" is defined as "an offence the subject of proceedings referred to in section 32(1)". Section 32(1) then refers to "any proceedings for an offence (the principal offence)".

Applicant's submissions

1. The sole ground of appeal concerns the way in which the sentencing judge took the Form 1 offences into account when sentencing the applicant. A single Form 1 was presented in relation to the applicant. On the back of the Form 1 are four offences: three offences of aggravated sexual assault and a single offence of aggravated indecent assault. It is not in dispute that two of the offences on the Form 1 relate to the first incident (s 61J(1) and s 61M(2)), one concerns the second incident (s 61J(1)) and one relates to the third incident (s 61J(1)).
2. The Form 1 describes the principal offence in relation to which the listed offences were to be taken into account as an "aggravated sexual assault". It is not further described.
3. The applicant signed the Form 1 on 11 November 2016. It was signed on behalf of the Director of Public Prosecutions on 13 November 2016 and by the sentencing judge on 21 April 2017.
4. The applicant was arraigned on 11 November 2016 before the sentencing judge and entered pleas of guilty. The Crown appearing on that date confirmed on the record that all of the Form 1 offences for the applicant were to be taken into account in relation to Count 3 on the indictment.
5. The sentence proceedings occurred on 7 April 2017. The Crown handed up written submissions in which it proposed that the Court should take into account the applicant's Form 1 offences across Counts 1 and 2 in the following way. The first and second matters on the Form 1 (relating to offence 1) and the third matter on the Form 1 (relating to offence 2) should be taken into account when sentencing the applicant on Count 1 on the indictment. The fourth matter on the Form 1 (relating to offence 3) should be taken into account when sentencing the applicant on Count 2 on the indictment.
6. Later in the sentence hearing the Crown confirmed that, contrary to its written submissions, but consistent with what had been previously indicated to the Court on 11 November 2016, all of the Form 1 offences for the applicant were to be taken into account on Count 3.
7. On 21 April 2017, immediately before commencing his remarks on sentence, Bozic SC DCJ noted that he had not previously sought the consent of the applicant or LY to him taking the Form 1 offences into account. His Honour explained that he needed to do so as a consequence of a recent decision of the Court of Criminal Appeal which "said that the formalities in s 33 are not empty gestures and that Courts should be astute to ensure that they are complied with". (His Honour was presumably referring to Woodward v R [2017] NSWCCA 44 at [25], which was published on 22 March 2017).
8. The applicant submitted that only one offence can satisfy the definition of "principal offence" and accordingly that only one Form 1 document (or list of additional charges) can be filed by a prosecutor that specifies the offences the offender wants the court to take into account when being dealt with for that (singular) principal offence. In summary, a separate Form 1 document is required for each count or principal offence in relation to which the offender wishes to have additional offences taken into account.
9. The principal offence specified in the applicant's Form 1 was described as an "aggravated sexual assault". It was not further described. While there was no way to ascertain from the Form 1 itself which of the three counts it was nominating as the "principal offence", it is clear from the proceedings on 11 November 2016 and 7 April 2017 that the parties and sentencing judge understood it to be Count 3, and that all of the Form 1 matters would be taken into account when the applicant was sentenced on that count. The approach proposed by the Crown in its written submissions, which was contrary to this understanding, was unequivocally disavowed during the sentence hearing on 31 April 2017.
10. In the course of his remarks on sentence, the sentencing judge departed from this agreed position. He purported to take into account the Form 1 offences across Counts 1 and 2, rather than only Count 3. This is contrary to the Act for two reasons. First, the applicant had only agreed, as can be ascertained from the proceedings on 11 November 2016 and 7 April 2017, to the offences on the Form 1 being taken into account on Count 3. This was the intention of the Form 1 document that she had signed and which had been filed by the prosecutor. The applicant had not agreed to them being taken into account on any other offence. Secondly, as there was only a single Form 1 document filed in relation to the applicant, the offences listed on it could only be taken into account on a single principal offence, not across multiple offences.
11. Relevant comparison can be made with Doumit v R [2011] NSWCCA 134, where the sentencing judge attached the offences on the Form 1 to a count on the indictment (ongoing supply) which did not match the description of the principal offence on the Form 1 document itself (supply). This Court found at [16] that consequently the sentencing judge "lacked power to make that attachment" and upheld the ground of appeal.
12. The applicant also submitted that the sentencing judge failed to comply with s 33 of the Act because of the lack of specificity and clarity in his exchange with the applicant immediately before he handed down his remarks on sentence. This exchange was as follows: "HIS HONOUR: You understand that there are a number of offences on what's called a Form 1? APPLICANT: Yes, your Honour. HIS HONOUR: Do you admit your guilt of those offences? APPLICANT: Yes, your Honour. HIS HONOUR: Do you ask that I take those into account in sentencing you for the actual offences on the indictment? APPLICANT: Yes, your Honour I do."
13. The applicant was legally represented at this time and had a conversation with her counsel about the Form 1 process immediately before these questions were asked.
14. No objection or issue was taken with this exchange. His Honour then immediately proceeded to deliver his sentencing remarks. During those remarks, his Honour referred to the offences on the applicant's Form 1 and the way in which he proposed to take them into account on two occasions.
15. It is accepted by the applicant that, unlike what occurred in Woodward v R [2017] NSWCCA 44 where no attention was given to these "basic statutory requirements", here the sentencing judge did turn his mind to the need to comply with the formalities of the Act regarding the taking of additional offences into account. However in the applicant's submission, none of the s 33 requirements are satisfied by the terms of the exchange between his Honour and the applicant when considered in light of the Form 1 document, the indictment and the additional incidents.
16. The sentencing judge makes no reference to any specific offences, charges, facts or incidents when referring to the list of additional offences on the Form 1, describing them only as the "offences on a Form 1". He does not detail how many offences are on the Form 1. He also does not specify, describe or identify which count was the "principal offence", instead describing it in the plural as "the actual offences". While as a consequence of this exchange the applicant may have had a general understanding of the process (ie that some charges were being taken into account when she was to be sentenced for some other offences) she would not have known which offences his Honour was intending to take into account when sentencing her, or which particular count on the indictment was the "principal offence". She did not know the number of offences on the list of additional offences on the Form 1 or on the indictment and she would have been left with the misapprehension that there were in fact multiple principal offences.
17. The applicant submitted that, as a consequence, both her admission of guilt to the further offences and her indication that she wanted them taken into account on the principal offence must "be assessed as being of similarly limited value".
18. The requirement (to ask the applicant whether she wants the Court to take into account the Form 1 offences when she is being sentenced for a principal offence) is a formality which should not be dispensed with because it is important "to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his [or her] freedom or the period during which he [or she] will remain in custody": R v Felton (2002) 135 A Crim R 328; [2002] NSWCCA 443 per Howie J at [3], approved in R v Brandt [2004] NSWCCA 3 per Buddin J at [8]. The objects of these provisions of the Act "include ensuring transparency in the sentencing process".
19. In this particular matter, given the number and similarity of the three counts on the indictment, the further offences listed on the Form 1 and the various indictments to which they related, the only proper conclusion that can be drawn from the exchange that occurred between the sentencing judge and the applicant is that it occurred with such generality that it failed to meet the necessary requirements for compliance with s 33.
20. In response to these matters, the Crown conceded that it would be open to this Court to find error on the basis of Ground 1(a) in this appeal at least. The Crown did not accept that the quoted exchange between the applicant and his Honour necessarily demonstrated error standing alone. However, the Crown did accept that the exchange tended to confirm that his Honour erroneously took the Form 1 offences into account in respect of multiple counts on the indictment rather than in respect only of Count 3.
21. Having conceded error, the Crown did not oppose the application for an extension of time within which to commence this appeal.

Conclusion

1. In my opinion, error having been conceded, the extension of time should be granted and the applicant should be re-sentenced afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Preliminary issue

1. After the filing of the present appeal, and the preparation of her written submissions, the applicant filed a considerable amount of further material as follows: 1. Affidavit sworn by the applicant dated 29 August 2019. 2. Affidavit affirmed by Stephen Eccleshall dated 3 September 2019. 3. Affidavit affirmed by Stephen Eccleshall dated 7 November 2019. 4. Affidavit sworn by the applicant dated 7 November 2019. 5. Affidavit affirmed by Stephen Eccleshall dated 22 November 2019.
2. Included in this material is a psychological report dated 5 November 2019 prepared by Dr Katie Seidler, a forensic psychologist, who interviewed and assessed the applicant on 17 October 2019.
3. The Crown objected to this material to the extent that it relates to matters that occurred before the applicant was originally sentenced. Such material is not admissible on a re-sentence. The Crown relied upon Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [14] in which it is noted that "[e]xceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct". In this respect, evidence of steps taken by an offender after sentencing towards rehabilitation is admissible on the question of re-sentence: Betts at [11], Kentwell at [43]-[44].
4. The High Court has made it clear that "an offender is not permitted to run a new and different case" on a re-sentence: Betts at [2]. Evidence of matters that occurred before sentence is not admissible unless new or fresh evidence is said to be available to support a ground of appeal alleging a miscarriage of justice: Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118; Rae v R [2019] NSWCCA 284. This Court is bound by the sentencing judge's factual findings although not by his or her conclusions concerning objective seriousness and moral culpability: DL v R [2018] NSWCCA 302.
5. In the events that occurred, the Crown ultimately limited its objection to five paragraphs in Dr Seidler's report. The applicant then withdrew her reliance upon two of those paragraphs which were not read. She continued to rely upon paragraphs 50, 51 and 53 which are in the following terms: "50. The applicant reflected on her past relationship experiences as being unhealthy. Specifically, she described becoming 'co-dependent' quickly in her relationships, such that she loses her sense of self and places 'all (her) happiness in that person', such that she will do whatever they ask or expect of her. Further to this, the applicant claimed that she feels as if she cannot be without her partner when she is in a relationship and generally, she 'can't stand being alone' and therefore, will stay in a relationship longer than she should. 51. According to the applicant, she has been involved in three serious intimate relationships. Two of these were with men and one was with a woman. The applicant disclosed that the two relationships with men were abusive, including both physical and verbal abusive, such as punching and hitting, and being the victim of negative, critical and disparaging comments. Even so, the applicant reported that she craves her partners' attention and affection and therefore, she will put up with their behaviour and she will do whatever it is they want from her. For example, the applicant stated that if LY told her to 'jump off a cliff', she would have. […] 53. The applicant was in a relationship with LY for 18 years and she described being very much in love with him and so much so that she 'would've done anything' for him. However, overall, the applicant reflected that the relationship with LY was not a positive or healthy one, which she attributed to the pair using drugs together and to LY being controlling and abusive towards her. For example, the applicant referred to LY ostensibly pressuring her into working as a prostitute. The applicant stated she was so 'used to being treated like that', that she thought 'that was what being in a relationship was'."
6. In my view, these are clearly matters that were known to the applicant when she was sentenced and could have been utilised by her then if she had chosen to do so. These paragraphs potentially raise the suggestion that she was an unwilling participant in the events that give rise to the offences. That was not her position at the sentencing hearing. The applicant should not now be permitted to run a different case. I would reject these paragraphs.

Subjective circumstances

1. The applicant's personal circumstances were set out in the psychological report of Anna Robilliard dated 4 April 2017. Ms Robilliard met with the applicant on two occasions. In addition to the facts and criminal bail report, Ms Robilliard was also provided with an extract from the NSW Department of Family and Community Services regarding the applicant.
2. The applicant was born in January 1974. She was 43 years old when sentenced. The applicant has one brother. Her parents separated when she was 14 years old. Before separation, her father was regularly physically violent towards her mother, who sustained significant injuries. Her father was also an alcoholic. The applicant was terrified of him and still is.
3. Following their separation, the applicant lived between both parents. When she was living with her mother, she was often home alone with her brother. There would be no food. They had parties and got drunk. She described herself and her brother as "off the rails".
4. The applicant reported a history of being sexually abused by family members as a child and teenager. She was sexually abused by her paternal grandfather between the ages of 4 and 6 years. She reported still being disturbed by memories of the abuse. Between the ages of 11 and 13 she was sexually abused by her father. Her parents were nudists and often naked at home. He used to abuse her while she was in the bath and "adopted a seductive style". He also raped her when she was 19 years old and had been sent to live with him. She was "off her face" on heroin at the time. She was raped by her paternal aunt's husband when she was 15 years old. He gave her alcohol. She had a crush on him.
5. The applicant reported other sexual abuse perpetrated by neighbourhood peers to Ms Robilliard but they are not further described in her report.
6. The applicant commenced smoking cannabis at the age of 14. She became heroin dependent in her late teens and used other drugs such as amphetamine, ecstasy and cocaine. She left school in Year 11 and worked in a number of different positions.
7. The applicant had two significant relationships. The first started when she was 15 years old, ending when she was 27. That relationship produced three children, including the victim. It was marked by domestic violence. This violence was described as being well-documented by police. On separation, her partner took the two elder children (including the victim) to his mother's home. The applicant was pregnant at the time with their youngest child.
8. Following her separation, the applicant admitted herself to a residential rehabilitation facility in Cessnock. It is there she met LY and commenced her second significant relationship. This relationship was characterised by domestic violence and drug abuse. On discharge from the facility, LY and the applicant relapsed and used heroin together. LY sent the applicant to work as a sex worker. She described being easily influenced by him and that all the money she earned was spent on drugs. When LY went to prison for having committed domestic violence offences against the applicant, she became clean and sober. On his release, they reunited and she relapsed. As a consequence, their children were taken from their care by the Department of Community Services.
9. In 2007, LY and the applicant began to make significant improvements to their lives. They spent 14 months together at Bennelong's Haven residential rehabilitation facility. They completed courses in domestic violence and parenting. On discharge from Bennelong's Haven, the applicant maintained abstinence from drugs and held a position of responsibility with Narcotics Anonymous. She undertook a TAFE course in Community Services and Welfare.
10. The applicant's children, including the victim, were restored to the care of LY and the applicant in 2010. They had been out of her care for around 8 years.
11. The applicant began to avoid sexual intimacy with LY because of her history of sexual abuse. She reported that LY threatened to leave her unless she became sexually responsive towards him, or he would seek out alternative sexual gratification. The applicant was terrified of being left alone with the children and believed she would not be able to cope. She reported that LY continually told her that she was "damaged goods" and that no one else would want her and she came to believe him.
12. She relapsed when LY bought methylamphetamine home in 2014 to rekindle their sex life, quickly developing a methylamphetamine dependency. She reported being awake for up to 7 days, hallucinating and suffering from the exacerbation of her anxiety. The victim was "like a best friend" to the applicant at such times, rocking and soothing her.
13. The applicant reported being able to tolerate sexual activity with LY when she was drug affected. She reported that the offences occurred as part of a sexual arousal scenario between herself and LY while under the influence of methylamphetamine. She described the offences as "private … seductive".
14. The applicant expressed profound regret and remorse to Ms Robilliard during both interviews. Ms Robilliard observed the applicant in obvious emotional distress initially and at other times during the interviews. Ms Robilliard reported that the applicant expressed insight, guilt and shame about the offences and the impact of them on the victim and their relationship.
15. The applicant was prescribed Seroquel and Pristiq in custody. Before entering custody she had been prescribed antidepressant and psychoactive medications at times for management of anxiety and depression. At the time of the report, the applicant was attending psychotherapy sessions and expressed an intention to seek professional help in relation to her past trauma and abuse.
16. The applicant reported being close to her mother, who she described as giving her unconditional love and support. She maintained to Ms Robilliard that she still loved her father but had no desire to see him or have any contact. When asked, she could not explain to Ms Robilliard what it was she loved about him.
17. The applicant reported not having used illegal drugs while in custody and maintained an intention to stay abstinent and accept ongoing support in relation to substance misuse.

Applicant's submissions

1. The applicant submitted that a re-exercise of the sentencing discretion would lead to the imposition of a lesser aggregate sentence. The correct approach in this case is to sentence the applicant taking the four offences on the Form 1 into account on the sentence for Count 3.
2. The applicant conceded that her conduct was serious. She did not contest the correctness of the views expressed by the sentencing judge with respect to the objective seriousness of the three counts on the indictment or his conclusion that the offences were aggravated by her breach of trust and the commission of the offences in the victim's home.
3. The applicant submitted that her offending and that of LY was comparable: their conduct on incidents 2 and 3 was similar if not identical. Although the applicant committed Count 3 (incident 4) by herself, this was consistent with the course of conduct engaged in by both of them with the victim. LY's act of penile/vaginal intercourse in incident 1 was the most serious of all of the offences.
4. The applicant accepted that a discount of 15 percent for her guilty plea was appropriate.
5. The applicant maintained that a lesser sentence was warranted because: 1. She had a strong subjective case; 2. She had a reduced moral culpability; 3. She demonstrated genuine remorse and insight into her offending; 4. She had good prospects of rehabilitation.

Crown's submissions

1. The Crown submitted that no lesser sentence is warranted in law, principally on account of the objective seriousness of the offences.
2. In assessing the objective seriousness of the offences, the sentencing judge took into account the aggravating features of breach of trust and the fact that the offences occurred in the victim's home. The Crown submitted in this Court that account should also be taken of the fact that three of the offences were committed in company and that the victim was vulnerable: the applicant was a mother who had been convicted after trial of sexual offences against her under-age daughter.
3. Having regard to all of these aggravating factors, together with other relevant matters including the duration of offences 1 and 4 (30-40 minutes), the victim's evident lack of consent (she was crying during offences 1 and 4) and the particularly grave breach of trust involved given that the applicant was a parent (PB v R [2016] NSWCCA 258), the Crown submitted that the offences are at least as objectively serious as found by his Honour and, indeed, it would be open to this Court to find that the objective seriousness is higher than mid-range.
4. The Crown submitted that the following factors also point to the conclusion that no lesser sentence is warranted: 1. The applicant is being sentenced for three offences of aggravated sexual assault that occurred on three separate occasions. These offences were discrete episodes of criminality that were all serious in their own right. A significant degree of accumulation is necessary in order to reflect this. The offences were not isolated occurrences. The same type of offending occurred on 5 or 6 occasions. 2. Each of the offences carries a 20 year maximum penalty and 10 year standard non-parole period. 3. The Form 1 offences were also serious offences. In particular, the first incident was reflected in the Form 1 as far as the applicant was concerned. This offence involved the applicant forcing the victim's legs apart so that LY could have penile/vaginal sex with her. A serious Form 1 offence can significantly increase the otherwise appropriate sentence: DG v R [2017] NSWCCA 139 at [63]-[70]; Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23]. These Form 1 offences were such that they warrant a significant increase in the sentence for the principal offences. 4. The seriousness of the offences can only be reflected in a lengthy sentence, no matter what subjective circumstances can be called in aid by the applicant: R v Dodd (1991) 57 A Crim R 349; R v Amati [2019] NSWCCA 193.
5. The Crown contended that the applicant's situation was markedly different from that of her co-offender. Whilst the first incident was reflected in a Form 1 in the case of the applicant but in a count on the indictment for the co-offender, the applicant was being sentenced for an offence for which the co-offender was not (incident 4). The applicant and LY are therefore objectively indistinguishable. The fact that the applicant was the victim's mother together with the associated breach of trust exacerbated her offences.
6. The Crown specifically disavowed the applicant's submission that her subjective case is significantly more compelling than that of LY. They both had criminal histories, although LY's is marginally worse. They both had similar longstanding addiction issues. They both had a history of abuse, although there are admittedly more details of the applicant's abuse available to the Court. Whilst his Honour did say that "the extent and genuineness" of LY's remorse was "hard to assess", he nevertheless took into account that he had expressed feelings of remorse to Dr Chew and that his plea of guilty was some evidence of remorse. Remorse was therefore not a significant point of differentiation. It must also be recalled that LY's plea was entered earlier than the applicant's and that he received a 20 percent discount for that.
7. The Crown disputed that the applicant's prospects of rehabilitation are "good", or that they are appreciably better than those of LY. His Honour was unable to find that either the applicant or LY was "unlikely to re-offend". His Honour's findings as to the applicant's prospects of rehabilitation were that they were good "if she maintains her current motivation and is able to address her significant drug and personal issues". The Crown submitted that his Honour's assessment was correct and that this Court should make the same qualified finding as to prospects of rehabilitation. The applicant has very longstanding drug abuse and personal issues. It is plainly only if she is able to address these issues that she will succeed at rehabilitation. Although the applicant has clearly taken steps to pursue rehabilitation whilst in custody, it remains too early for any finding to be made that she is likely to succeed at this.
8. The applicant's criminal history disentitles her to leniency.
9. The Crown submitted that when these matters are taken into account, together with the significance of general deterrence and denunciation where sexual offences against children are concerned, this Court would conclude that no lesser sentence is warranted.

Consideration

1. I do not consider that a lesser aggregate sentence is warranted in law or should have been passed. My reasons are as follows.
2. With respect to the first incident, it is also my view that the applicant's complicity in the penile/vaginal intercourse of the victim by LY is particularly serious. A direct physical assault by the applicant upon her daughter in the absence of LY would itself be distressing enough for the victim, presumably having to come to terms with the reality that her mother was performing an act of sexual aggression upon a child (in both senses of the word) who might ordinarily have expected to be beyond the infliction of such indignity. The fact that the victim was also subjected to full sexual intercourse by LY knowing that her mother not only did not protect her from it but apparently encouraged and enjoyed it elevates this conduct to a very serious level of criminality. The aggravated indecent assault consisting of them rubbing the victim's vagina is also in my view, in the circumstances of this incident, objectively serious.
3. With respect to the second incident, consisting of cunnilingus performed by the victim's mother, I consider that this falls above the mid-range of objective seriousness. It is in my view difficult to form any different assessment having regard to the biological relationship between the victim and the applicant and the presence of the applicant's erstwhile sexual partner in the commission of this assault.
4. I consider that the third incident falls into the same category of objective seriousness. The acts of complicity by the applicant and LY again elevate the relevant offence to above the mid-range of objective seriousness.
5. Finally, the act of cunnilingus performed upon the victim by the applicant acting alone, while objectively less serious than incidents 2 and 3, is nonetheless in my opinion still a serious offence of its kind. The absence of LY obviously reduces the objective criminality. The effect upon the victim, and the applicant's moral culpability for this offence, is in my view above the mid-range. I note that the offences on the Form 1 are to be taken into account in considering this principal offence.
6. I would not alter the discount awarded by the sentencing judge for the applicant's plea of guilty. I consider that a finding of special circumstances is similarly appropriate.
7. The applicant's subjective case is strong. This has been thoroughly and adequately detailed in the expert opinion of the psychologists on whom the applicant relies. I acknowledge that the applicant has a well-documented history of victimisation, including sexual abuse, and that this led to her dependency upon LY and to problems with sexual intimacy. These matters were also overlaid by significant historical and enduring issues with drug dependency. I note that the sentencing judge accepted that the evidence of Ms Robilliard about how the applicant's own sexual abuse desensitised her to the impact of sexual abuse on her daughter entitled her to a modest reduction in her moral culpability. Although I would not purport to take a different view, not having had the benefit of seeing the applicant give evidence, I consider the finding to be very generous.
8. I accept that the applicant is genuinely remorseful and I accept that she has prospects of rehabilitation as found by the sentencing judge. It seems to be uncontroversial that specific deterrence is not called for although general deterrence should arguably be of some significance in this particular case.
9. Finally I note that I have had regard to the matters tendered in support of submissions concerning s 23 of the Crimes (Sentencing Procedure) Act. I have had regard to the statements of Michael Cambridge dated 18 and 21 November 2019 respectively, as well as the affidavits of Stephen Eccleshall previously mentioned. I accept that this evidence is admissible on the question of re-sentence.
10. However, in the exercise of my discretion, I do not consider that the applicant is entitled to a significant discount for her assistance. Although it is not fatal to the claim, there is no connection between the assistance provided and the offences being considered here. The level of assistance was in any event low, although I acknowledge that with respect to one of the 37 charges laid against X it was "critical". The extent to which I consider that the applicant is entitled to a discount for her assistance is not such as to lead me to alter my view that a lesser sentence is not warranted.
11. Having regard to all of these matters, in particular my view of the objective seriousness of these offences, the aggregate sentence that I would impose is a non-parole period of 7 years and 6 months with a balance of term of 4 years and 6 months. In accordance with this Court's practice in such circumstances, I would therefore propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
12. BUTTON J: I agree with Harrison J. In particular, I agree that, although there should be some notional discount arising from the matters discussed in the judgment of his Honour at [85] and [86], it should not be a substantial one, and it would not lead, sentencing afresh, to a lesser aggregate sentence than that imposed at first instance.
13. Separately, with regard to the way the error itself arose at first instance, in my opinion, the confusion that developed was at the least partly caused by the Crown at first instance saying one thing in written submissions and something entirely different in oral submissions. A busy sentencing judge is entitled to have a matter such as this - minor, in the scheme of things, but important - made consistently clear, by both parties.
14. Furthermore, when an offender is being substantively sentenced for more than one count of a certain offence, as here (aggravated sexual assault), and other offences are being taken into account by way of a Form 1 with regard to one of those counts, it is advisable - if not necessary - for the parties to make clear on the front of the Form 1 the particular substantive offence to which the offences contained on that document are "attached". That can readily be done by including with the statement of the substantive offence a count number, sequence number, or even charge number (the "H number"). Otherwise, appellable confusion, as here, becomes a distinct possibility.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2020