M O v REGINA

Judgment 1RS HULME AJ: On 8 November 2013 Lakatos DCJ sentenced the offender and a co-offender JB in respect of an offence of, on 10 January 2013 detaining SW without her consent with the intent of committing a serious indictable offence, namely, actual bodily harm in company in circumstances of special aggravation, namely, them being in company with (each other) and PM, and at the time actual bodily harm was occasioned to SW. 2The offence is one arising under s 86(3) of the Crimes Act 1900 and rendered the applicant liable to imprisonment for 25 years. 3At the time, the applicant was aged fifteen and eight months and JB was something under a year older and SW seems to have been aged 19. 4The sentence imposed on the applicant was imprisonment for 18 months commencing on 8 November 2013, including a non-parole period of 9 months. The sentence imposed on JB was imprisonment for 2 years including a non-parole period of 1 year commencing on 1 June 2013. His Honour observed that this date was when JB went into custody for other matters and "there is a large element of leniency involved in making those entirely concurrent". 5The grounds of appeal are: (1)His honour failed to take into account the fact of the applicant having a five month old baby when sentenced (2)The sentence is manifestly excessive (3)There is a marked disparity between the sentence imposed on the applicant and that imposed on her co-offender JB, giving rise to a justifiable sense of grievance of the part of the applicant. 6The circumstances of the offence are that all persons were in PM's flat. PM told SW to leave. When SW did she was pursued by PM. PM, then in company with JB, sat SW down on a brick wall where SW was punched in the face twice by PM and three times by JB. These persons then walked SW back into the flat, in the course of which exercise JB elbowed SW twice in the face. In the flat PM walked SW into a rear bedroom. JB and the applicant followed. 7There PM again punched the victim. JB grabbed the victim's arms while PM continued punching. PM told the applicant to punch SW and the applicant did so once in the face. All three offenders then walked SW to the door of the flat and "shoved her outside". The victim's injuries were described by the doctor who treated her as "undisplaced comminuted fractures to her nose which had healed well" and "terrible facial bruising over the cheek, nose and jaw" and the extent of facial bruising was described as "awful." 8His Honour concluded that PM was the instigator and principal perpetrator and that the applicant was not involved in the initial detention of SW and took a much lesser role in the assaults than did JB. He described the applicant's role as comparatively subsidiary. 9At the time of the offence against SW, JB had committed offences of, in October 2012 shoplifting and in November 2012 assault occasioning actual bodily harm. In May 2013 she committed further offences that included robbery in company and assault occasioning actual bodily harm. In August 2013 she was sentenced for these and other offences committed. One of the sentences then imposed was a control order for two months commencing on 1 June 2013 although it should be noted that this and other (non-custodial) sentences imposed at the same time are the subject of appeals against severity. The Court was told today that it would seem these appeals were not proceeded with but I don't regard that as of significance for the purpose of this appeal. JB was on bail at the time of the offences dealt with by Lakatos DCJ. JB was also itinerant and consuming ice daily and any other drug she could obtain. 10JB had been fostered from an early age due to her mother being unable to care for her. The foster relationship had broken down in 2012 due to JB's erratic and violent behaviour. In early 2013 she was in a refuge where she was found unconscious after taking Xanax, cannabis and alcohol. Lakatos DCJ remarked that JB's inability or lack of commitment at that time to further her rehabilitation was troublesome. 11Earlier JB, who was described as intelligent, had been awarded a scholarship to SCEGGS High School. She left and went to another high school where her time was marked by inconsistent attendance and behavioural issues. She is intelligent and a talented sportswoman and talented student. 12His Honour observed that JB would benefit from a residential drug and alcohol rehabilitation programme and requires anger management and counselling. While recognizing the possibility that JB might lead a lawful and productive life, his Honour was not prepared to find that her prospects of rehabilitation were good. His Honour remarked that he thought that JB's expressions of remorse might reflect more upon her own circumstances than the position of the victim. 13The applicant is the second of eight aboriginal children. Her parents' relationship was characterised by way of frequent fights and alcohol misuse and the applicant and her older brother had most of the responsibility for looking after her younger siblings. She was exposed to domestic violence, financial hardship and substance abuse. She was said to have had no significant behavioural issues until she was 15 although other evidence was to the effect that she was consuming alcohol from age 13 and experimenting with cannabis. She left school midway through year 9. Psychological testing placed her in the borderline to low average level of ability and intelligence. 14She gave birth to a son on 7 June 2013. According to the author of a Pre-Sentence Report that changed her view of life and she has a good relationship with her partner and appears to take responsibility for her actions and has now distanced herself from her peers. 15At the time of the offence against SW the applicant had no criminal record. It is not clear what conclusion his Honour came to as to her risk of re-offending but generally the matters to which his Honour referred argued for her having reasonable prospects of not re-offending. 16JB and the applicant pleaded guilty and were awarded the 25% discount for doing so. In the sentencing of JB an offence on a Form 1 of common assault was taken into account. That offence was JB's punching of the victim in the face. 17A victim impact statement was before his Honour. It is unnecessary for me to quote from it but his Honour recorded that he had little doubt that the victim would carry the psychological impacts of what occurred for a very long time. 18I turn to the grounds of appeal: Ground 1 His Honour failed to take into account the fact of the applicant having a five month old baby when sentenced 19In regards to the applicant's five-month-old baby, his Honour indicated: "I have given long regard to the fact that you are a new mother. It is regrettable that you will be separated from your child. Unfortunately, as I see my duty, I have no option but to impose such a sentence." 20During the course of submissions his Honour quoted a psychologist who examined the applicant: "Ms Hopkins, the psychologist who examined the applicant says, and I accept this, it would be unfortunate if this offender was placed on a control order given the age of her child. It is one matter I have had long regard to." 21In the face of these remarks the first ground as expressed must fail. There was no evidence adduced as to what was to happen to the applicant's baby in the event of the applicant being incarcerated or evidence as to the probable effect on the baby from separation. In these circumstances, there is no error in his Honour failing to find that the impact on the child would have been such as to bring the circumstances within the rare category where the impact of incarceration on an offender's family can go in mitigation. 22It may be accepted that the existence of the baby would be likely to make the applicant's incarceration harsher on her than otherwise but that can most conveniently be dealt with under ground two. Ground 2 The sentence is manifestly excessive 23His Honour properly drew attention to the seriousness of the attack on SW and the need for a sentence to reflect the objective gravity of the offence. Furthermore, it is clear that he recognized the subjective circumstances favourable to the applicant. That said, in my view, he did not give the latter sufficient weight. 24The applicant had no prior record. She had no history of violence. On her part there was no premeditation. She had no part in the initial detention of the victim and only a limited involvement after. She was not an instigator of the attack and administered one punch. She had a background such that she was unlikely to have had inculcated in her, with the strength one would fairly ask of parents, respect for others. The evidence indicated remorse and reasonable prospects of rehabilitation. She had a five-month-old child. In these circumstances, the sentence imposed on the applicant should not have involved full-time custody and the sentence that was imposed was manifestly excessive. Ground 3 There is a marked disparity between the sentence imposed on the applicant and that imposed on her co-offender JB, giving rise to a justifiable sense of grievance of the part of the applicant. 25In light of the conclusion just expressed, it is unnecessary for me to explore this ground. However, it is not inappropriate to observe that I would find in the applicant's favour on this ground also. The difference in criminality between JB and the applicant, together with the difference in the subjective circumstances, demanded that there be a significantly greater difference in their sentences than Lakatos DCJ imposed. Particularly this is so, when account is taken of the concurrency implicit in JB's sentences. In effect JB was given one month more in her non-parole period than was the applicant.