Count 8: Terms of imprisonment of nine years and seven months commencing on 3 October 2001 and expiring on 2 May 2011 with a non-parole period of seven years and two months commencing on 3 October 2001 and expiring on 2 December 2008.
Facts
7 The facts of the offences were presented to His Honour in a statement prepared by the Office of the Director of Public Prosecutions. His Honour stated that he had read the statement but did not recite the facts. They may be summarised as follows.
8 The applicant was born on 11 April 1948. She is now 55 years old. She is the mother of five children. Three of them, R, the elder daughter born 15 April 1975, J, a son born 27 June 1979, and F, the younger daughter born 4 October 1980, were victims of the offences for which she was sentenced. There are two older sons with whom the present proceedings were not concerned.
9 The applicant separated from her husband, the father of the children, in about 1980 and went to live with her brother in suburban Sydney. There she met a neighbour, KS, with whom she formed a relationship. They maintained separate households. From time to time KS would stay at the house of the applicant and from time to time the children would sleep over at the house of KS.
10 The offences occurred over a period of some three years and six months. The children were subjected to sexual abuse in episodes in which both the applicant and KS participated. The offence on count 1 was committed at the applicant's home some time in 1986 when the elder daughter was 10 or 11 years old. The applicant woke the child and took her into the bedroom where she was placed on the bed. KS penetrated the child with his penis and performed other acts of sexual assault on the child while the applicant lay naked on the bed.
11 The offences on counts 2 to 4 were committed between mid 1988 and mid 1990 when the boy was under the age of 16. The applicant took him from the bed in the house belonging to KS and into the main bedroom where she removed his clothes. KS and the applicant were also naked. KS performed fellatio on the boy (count 2). The applicant kissed the boy in the mouth with her tongue (item 2 on form 1) and with her encouragement, the boy performed fellatio on KS (count 3). On another occasion when the boy was 11 or 12, there was a similar incident where KS performed fellatio on the boy (count 4). The boy was required to reciprocate (count 5) with the applicant kissing the boy in the mouth with her tongue (item 3 on form 1).
12 When the younger daughter was six or seven years old and staying at the house of KS, she woke up in the study to see the applicant performing fellatio on KS. She was instructed to do the same and did so (count 6). KS then penetrated the child with his penis. She was on the couch at the time. The applicant was also on the couch, naked and watching (count 7). The applicant told the child to stop crying. The child went to the bathroom and cleaned herself. On a similar occasion in 1987 or 1988, when the child had been asleep in the lounge room, she saw the couple on the floor naked. She was told to join them. She touched the penis of KS (item 4 on form 1) whilst the applicant performed cunnilingus on her (count 8).
13 The incidents were not reported to police until June 2001 by which time the elder daughter was 26 years, the son 22 years and the younger daughter 20 years.
14 On 26 September 2001, the applicant was arrested on the North Coast. She participated in a recorded interview on 21 November 2001. When the allegations were put to her, her response was that whatever the children said was correct. At the Local Court on 29 July 2002, she indicated that she would plead guilty and did so when first arraigned on 7 November 2002.
Applicant's History
15 The applicant spent her early years in modest circumstances in the eastern suburbs of Sydney. She left school early and after sporadic employment married at age 20. After 13 years of marriage, during which she claims to have been the subject of violence, she returned to Sydney with the children. After some further years she commend the relationship with the co-offender. It was also marked by violence on his part. It came to an end in about 1993.
16 She has a history of convictions going back to 1993 for various offences of a relatively minor nature, but including at least one non-sexual assault on one of the children. At the time of the offences under consideration she had no convictions at all. His Honour expressly referred to the long history of prior offences but made no reference to the absence of history prior to 1993. The relevance of the offences committed in recent years is that they are illustrative of deterioration in her ability to control her own life and the continuing, if not increasing, addiction to alcohol and even, as the evidence suggests, brain damage. By 2001 she was living on and off the streets in a coastal town.
17 By 1991 the applicant and the children had come under the notice of the Department of Community Services. It was remarked that "their poverty sticks out amongst the affluence". Complaints of sexual abuse by the children were noted but not considered sufficiently strong to justify reporting to police. It was considered that there was need for professional intervention in a very dysfunctional family but that experience over the previous four years suggested that the family would not allow appropriate intervention. No such intervention appears to have been attempted.
Co-offender
18 KS was tried on indictment alleging offences corresponding broadly with the offences in counts 2 to 5 on the indictment presented against the applicant in relation to the child J. The jury found him guilty on the four counts. He was also tried on a further indictment corresponding with counts 6, 7 and 8 in relation to the child F and found guilty on all counts. Judge Graham, who presided over both trials, sentenced KS for all offences on 25 July 2001. KS received a total effective sentence of eight years imprisonment with a non-parole period of five years and six months. He had a record of drink driving offences and minor offences committed previously, but was able to rely on evidence of steady employment and charitable work in the community.
19 Following the sentencing of KS, the Director of Public Prosecutions declined to proceed further in relation to the elder daughter. In the result, KS was not convicted of an offence corresponding to that in count 1 on the indictment presented against the applicant.
20 The applicant, as had been indicated to Judge Gibson, gave evidence on oath in the prosecution case against KS. Her willingness to tell the whole truth and the extent to which she was of assistance to the prosecution case was the subject of some dispute in the present application. That is a matter which in my view does not require precise resolution by the Court. The fact is that she gave evidence and the man was convicted. He might not have been convicted of one or more offences if she had not. I do not accept the submission on behalf of the respondent that she must have been dissembling when she claimed in the witness box not to remember certain events which were the subject of her own pleas of guilty. This aspect is discussed further below.
21 KS has appealed against his conviction and applied for leave to appeal against the severity of the sentences imposed on him. That does not make the task of this Court any easier. There was no application by either party to postpone the hearing of the present application until after the KS appeal or to have the matters regarding sentence of both offenders heard together in this Court.
22 It will be necessary to go to the considered reasons of Judge Graham in the sentencing of KS, since disparity with that sentence is proposed as a ground of the appeal by the present applicant.
Further evidence before the Court
23 An affidavit sworn by the solicitor for the applicant on 3 November 2000 was admitted into evidence for the purposes of the application. The basis of its admission was limited. In so far as it was relevant to the ground of disparity with the subsequent sentences imposed on KS, it did not constitute new evidence and was admitted without the need to satisfy the usual tests in that regard. Otherwise its relevance is limited to the matters this Court should take into account in the event of re-sentencing the applicant, should that become necessary.
Excessive sentence on count 8
24 The first and fifth proposed grounds of appeal may be dealt with together, as they raise the same or similar issues.
25 In sentencing for the offence in count 8 (cunnilingus on the younger daughter), His Honour said:
"Count 8 is the count which I take into consideration, the matters in the schedule, and to which I allot the total criminality in the overall consideration of these matters. "
26 It was submitted on behalf of the applicant that this remark indicated that His Honour was in breach of the principle enunciated in Pearce v The Queen [1998] 194 CLR 610 where McHugh, Hayne and Callinan JJ said at [45]:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
27 That statement has been accepted and acted upon by this Court, not as advice only, but as "imperative and authoritative direction from the High Court to sentencing judges": R v Musso [2002] NSWCCA 487 at [31].
28 As counsel for the applicant submitted, and counsel for the respondent seemed to agree, it follows from the principle in Pearce, that it is an error of law for a sentencing judge, having notionally fixed individual sentences for each of the offences charged in the indictment, to then increase the sentence on any one or more of the offences in order to reflect the overall criminality of the offender's conduct. The proper course is to allow the overall criminality to be reflected in accumulation of one or more sentences on another.
29 It may be noted that elsewhere in Australia, Pearce has not been interpreted as laying down so strict a principle as appears from the words quoted: see for instance R v Nagy [2002] QCA 175; R v Henderson [1999] 1 VR 30, R v El-Kotob [2002] VSCA 109. Further, the High Court judgments say nothing about how a sentencing court is to take into account further offences, not charged on the indictment, which have been admitted by the offender in written form and which the court may take account under statutory provisions such as those in s33 of the Crimes (Sentencing Procedure) Act. These provisions were the subject of a guideline judgment of the Court, post Pearce, in Attorney-General's Application No. 1 [2002] 56 NSWLR 146 where Spigelman CJ said at para 42:
"The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence."
30 Thus, Judge Gibson, when sentencing the applicant and requested by her to do so, without opposition by the prosecution, had no option but to assign to the one of eight offences in the indictment the four further offences which the applicant admitted and asked to be taken into account. He had to weigh up the criminality of that offence in the light of the four further matters, in contemplation of increasing the sentence that would otherwise have been appropriate, giving particular consideration to personal deterrence and what Spigelman CJ described as the "community's entitlement". There was also, one might add, the position of not one, but several, victims to be considered. See R v El-Kotob, at [47] per Callaway JA.
31 No complaint is made that His Honour was in error in choosing count 8 for this purpose and nothing turns on this aspect. In fact the relevant portion of His Honour's remarks may have been intended to be restricted to the aggregate criminality in relation to the offence on count 8 in conjunction with the matters on form 1 (and not the total criminality involved in the course of conduct involved in all eight counts in conjunction with the matters in form 1). That is consistent with the sentence in fact imposed in the count 8, namely nine years and seven months imprisonment which is well below the maximum sentence of 20 years and compares with sentences of six years for counts 6 and 7 where the form 1 matters were not relevant.
32 Whilst it may have been preferable for His Honour to have ordered some of the sentences to be served by partial accumulation on one or more of the others (if only to make it clear that His Honour had Pearce in mind), it has not been shown that His Honour was in breach of the Pearce principle by increasing the sentence on count 8 (or on any count) by reason of the offences the subject of any other count, or that he simply took a global view of the overall criminality on all counts and fixed the sentence on the count 8 accordingly.
33 It may be implicit in what has already been said that the sentence on count 8 was not excessive. However, the other issues raised on the application need to be considered. They are matters to which the sentencing judge was not able to give attention since they arose only after the date of sentence.