Regina v Pearson

Crimes Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Criminal Appeal Act

House v The King (1936) 55 CLR 499 The Queen v De Simoni (1981) 147 CLR 383 R v Astill (No. 2) (1992) 64 A Crim R 289 R v Castles [2005] NSWCCA 79 R v Cocking [1999] NSWCCA 311 R v Cramp [2004] NSWCCA 264 R v Hanslow [2004] NSWCCA 163 CASES CITED: R v Ingrassia (1996) 41 NSWLR 447 R v Johnstone [2004] NSWCCA 307 R v Khouzame [2000] NSWCCA 505 R v Mohamadin [2004] NSWCCA 401 R v Scott [ 2003] NSWCCA 286 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 R v Wickham [2004] NSWCCA 193

J Stratton SC - Applicant COUNSEL: D Woodburn - Respondent

SE O'Connor - Solicitor for the Legal Aid SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2004/3090 CCAP

JAMES J HISLOP J HALL J

Wednesday 20 April 2005 REGINA v Sharon Mary PEARSON Judgment 1 JAMES J: Sharon Mary Pearson applied for leave to appeal against sentences imposed on her in the District Court on 30 June 2004 by her Honour Judge English, after she had pleaded guilty to:-

(1) three counts of aggravated indecent assault, being offences under s 61M(1) of the Crimes Act for which the maximum penalty was imprisonment for seven years, the circumstances of aggravation relied on by the Crown being that the victim was under the age of sixteen years.

(2) one count of using a child under the age of fourteen years for pornographic purposes, an offence under s 91G(1) of the Crimes Act for which the maximum penalty was imprisonment for seven years.

(3) one count of being a principal in the second degree to another person doing something intending to hinder the investigation of a serious indictable offence, an offence under s 315(1)(a) and s 345 of the Crimes Act for which the maximum penalty was imprisonment for seven years. 2 The victim of each of the first four offences, that is the three offences of aggravated indecent assault and the offence of using a child under the age of fourteen years for pornographic purposes was a girl born in September 1989, who I will refer to as "the complainant". The first offence of aggravated indecent assault was committed on an occasion between 1 December 2002 and 23 February 2003. The second, third and fourth offences, that is the other two offences of aggravated indecent assault and the offence under s 315(1)(a) and s 345 of the Crimes Act, were committed on an occasion between 1 March 2003 and 31 March 2003. 3 In sentencing the applicant on the first count Judge English took into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act two further aggravated indecent assaults on the complainant committed on the same occasion between 1 December 2002 and 23 February 2003 and an offence that on 6 April 2003 she knowingly made to a member of the police force a false representation such as called for investigation by a member of the police force, an offence under s 547B(1) of the Crimes Act for which the maximum penalty was imprisonment for twelve months. 4 In sentencing the applicant on the second count Judge English took into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act six further offences, which were all committed on the same occasion between 1 March 2003 and 31 March 2003, consisting of four offences of an aggravated act of indecency towards the complainant, being offences under s 61O(1) of the Crimes Act for which the maximum penalty was imprisonment for five years, and two offences of aggravated indecent assault on the complainant. 5 The last offence for which the applicant was sentenced, of being a principal in the second degree in an offence under s 315(1)(a) of the Crimes Act, was committed on 29 April 2003. The principal in the first degree was a girl born on 5 May 1987, who I will refer to as "SLM". 6 The sentences imposed by Judge English were as follows:-

(1) for the offence charged in count 1 and taking into account the three further offences, a non-parole period of imprisonment for eighteen months commencing on 25 March 2004 and expiring on 24 September 2005, with a balance of the sentence of eighteen months, making a total sentence of three years.

(2) for the offence charged in count 2 and taking into account the six further offences, a non-parole period of imprisonment for eighteen months commencing on 25 March 2004 and expiring on 24 September 2005 with a balance of the sentence of two years, making a total sentence of three and a half years.

(3) for the offence charged in count 3 a fixed term of imprisonment of one year commencing on 25 March 2004 and expiring on 24 March 2005.

(4) for the offence charged in count 4 a fixed term of imprisonment of eighteen months commencing on 25 March 2004 and expiring on 24 September 2005.

(5) for the last offence a non-parole period of imprisonment for six months commencing on 25 September 2005 and expiring on 24 March 2006 with a balance of the sentence of one year, making a total sentence of eighteen months. 7 The overall effect of the sentences was that the applicant was sentenced to sentences totalling three and a half years with non-parole periods or fixed terms of imprisonment totalling two years. 8 The date 25 March 2004 from which Judge English made most of the sentences she imposed commence was the date on which the proceedings on sentence had been conducted and the applicant had gone into custody. 9 The applicant was sentenced at the same time as a male co-offender Robert James Weston, who had pleaded guilty to the same offences and had asked for the same further offences to be taken into account, except that the third offence to be taken into account in sentencing him for the first offence was a separate offence under s 547B(1) of the Crimes Act and the offence under s 315(1)(a) of the Crimes Act was alleged to be an offence under s 315(1)(a) and s 346 of the Crimes Act rather than s 315(1)(a) and s 345 of the Crimes Act. On this application no submission was made on behalf of the applicant that there was any lack of parity or proper proportionality between the sentences imposed on the applicant and the sentences imposed on Weston and there is accordingly no need to set out the sentences which were imposed on Weston. It would appear that Weston has not sought to appeal against the sentences imposed on him. 10 On 30 June 2004 Judge English delivered one set of remarks on sentence for both the applicant and Weston. Her Honour began her remarks on sentence by summarising the offences of both offenders. At p 4 of her remarks her Honour began a long section of her remarks by saying that "the facts and circumstances giving rise to the charges against Robert James Weston are as follows". At p 20 of her remarks her Honour began another section of the remarks by saying that "the facts and circumstances giving rise to the offences committed by Sharon Mary Pearson are as follows". Her Honour did, however, say a number of things between p 4 and p 20 of her remarks which were clearly intended by her to apply to both offenders. 11 The facts of the offences committed by the applicant, as stated by her Honour at pp 20-21 of her remarks, were based on a set of agreed facts and were as follows (substituting the expression "the complainant" for the complainant's real name):- " She and her co-offender have been in a relationship for several years and she regularly visited the co-offender and stayed overnight at his home. The offender met (the complainant) through the co-offender's daughter Clair and she was aware that both girls were aged thirteen. In the early part of 2003 (the complainant) commenced part time employment with the Do-nut King in ….. The offender was the manager of the business during the relevant period. From time to time (the complainant) slept at the co-offender's home overnight when she was required to work with the offender the following day. The offender accompanied the co-offender and his children and (the complainant) to Queensland on holiday in December 2002. On an occasion after that holiday, but before 23 February 2003, the offender Pearson encouraged (the complainant) to strip naked and a digital camera was produced and a number of photos taken. Those photographs included shots of the offender lying naked on top of (the complainant) with their genitals in close proximity. Shots of the offender and (the complainant) kneeling naked together and shots of (the complainant) sitting naked on the co-offender's lower stomach area holding his penis. In each instance two of the three are depicted in the photographs whilst the third person took the photo. After the photos were taken they were burnt onto a compact disk and it was kept in the co-offender's house. During another occasion in March 2003 the offender persuaded (the complainant) to strip naked with themselves in the loungeroom of the co-offender's house. Whilst all three were naked a 35 millimetre camera was produced and a number of photographs were taken. Those photographs included shots of (the complainant) holding the co-offender Weston's erect penis near her mouth, shots of the co-offender Weston with his face near (the complainant's) vagina, shots of the co-offender Weston placing his penis touching the area near (the complainant's) vagina and anus and shots of the offender and (the complainant) in positions where their genitalia were in close proximity." 12 In her remarks on sentence her Honour then referred to what she had said earlier in her remarks in stating the facts of the co-offender's offences. Her Honour had said (substituting SLM and KM for the real names of two of the persons concerned):- "On 6 April 2003 the co-offender Pearson deposited several rolls of 35 millimetre film for processing at Big W. She left her name and the offender Weston's home telephone number with the films. One of the rolls of film was the one containing the nude photographs during March 2003. After the film was developed the nature of the photographs was noticed by the staff of the shop and police were contacted. Later that day police attended the offender Weston's house and spoke to both offenders. Both said the young girl in the photographs was named (giving the first name of the complainant), they did not know her last name or where she lived, and that she was seventeen or eighteen years old. Both accompanied police to … Police Station and signed statements to that effect. Neither was arrested at that time. The police continued their enquiries in an attempt to ascertain the identity of the girl in the photographs. On 28 April 2003 police again spoke with the offender Weston at his house in …. He again told police he did not know the surname of the girl in the photographs or how to contact her. Later on 28 April 2003 the offender (ie Weston) made a telephone call to the mobile phone of SLM and asked her when she was born. She told him her date of birth was 5 May 1987. After several further telephone calls the offenders went to SML's house and met with her and her mother KM. Both offenders asked SLM to go to …….Police Station and say she was the girl in the nude photographs and that she was seventeen years old. After quite a bit of discussion and persuasion both SLM and KM agreed. At about 8am on 29 April 2003 the complainant's mother, attended …..Police Station and was shown the 35 millimetre nude photos. She identified her daughter ….. in those photos and told police that (she) was thirteen years old. At about 8.45am on 29 April 2003 the co-offender Pearson attended ……Police Station with KM and SLM. The co-offender told police that SLM was the girl in the nude photos. SLM and KM were shown the 35 millimetre nude photos and SLM told the police that the young person shown was her. At about 3pm on 29 April 2003 police commenced to interview the complainant at the office of the Joint Investigation Response Team. During the interview the complainant told the police she had participated in making the photos on several occasions. She said that she did not engage in any form of sexual intercourse. She said that she participated in what happened because both co-offenders 'pressured her' into doing it without threats, but by 'nagging' her and 'daring' her. While the interview was being conducted with the complainant, other police were attempting to locate the offenders. At about 3.50pm on 29 April 2003 the offender Weston was seen by police driving a 4-wheel drive …. He was accompanied by the co-offender. A car chase ensued through the streets of ….. Police activated their warning devices and the offender was clearly attempting to evade capture. The vehicle was eventually stopped near a school and both offenders were arrested. At 5.30pm police executed a search warrant at the offender's house. Among a number of items seized by police was the compact disk that contained the photographs of the complainant taken with a digital camera between December 2002 and 23 February 2003". 13 Between p 8 and p 20 of her remarks on sentence her Honour, while mainly dealing with the co-offender Weston, said a number of things which were clearly intended by her Honour also to apply to the applicant. 14 At p 9 her Honour said:- "On 20 June 2003 SLM was interviewed by police. She told police that the co-offenders had pressured her into agreeing to go to the police station and lie about being the girl in the photographs. She said both offenders told her what was in the photographs so that she could describe them to police if necessary. She also told police a copy of her birth certificate was made, with the date of her birth altered by the offenders to indicate that she was born in 1986 when in fact she was born in 1987". 15 In her remarks her Honour noted that the complainant had been interviewed by the police. The complainant had said that it was the applicant who "pressured" and "nagged" her into taking her clothes off and posing with the co-offender and the applicant. The applicant had assured the complainant that the complainant would not be required to do it again but, according to the complainant, "it ends up being all the same again". In the interview the complainant said that she had been frightened that, if she did not comply, she would lose her job. 16 In her remarks her Honour described all of the offences as objectively serious. She accepted that there had not been any acts of violence or threats of violence by the offenders and that there had not been any use of drugs or alcohol to procure the complainant's compliance. Her Honour found that the activities of the two offenders had constituted more than a game. There had not been an isolated act and a single photograph but multiple acts on two occasions. The complainant had been photographed performing degrading and humiliating acts and the photographs had been taken by the applicant for developing. Whether the complainant had consented was irrelevant, having regard to the complainant 's age, but her Honour found that the complainant had not in fact been a willing participant. 17 Her Honour found that the offences committed by both offenders under s 315(1)(a) of the Crimes Act were objectively serious. Her Honour found that the efforts made by both offenders to avoid conviction and punishment contradicted the evidence of both offenders, and particularly that of the applicant, that she had not seen anything wrong in her activities with the complainant. 18 After stating the facts of the offences committed by the applicant and commenting on their objective seriousness, her Honour dealt with the subjective features of the applicant. 19 At the time of sentencing the applicant was twenty-five years old. Until taken into custody she had been living with her parents. The relationship with Weston had been her first and only serious relationship with a man. On the basis of the evidence of the complainant, SLM and KM and of her observations of the applicant giving evidence in the proceedings on sentence, her Honour rejected an opinion expressed in a pre-sentence report that the applicant "does not present as a strong person or a principal in initiating events". Her Honour found that the applicant had displayed "an extraordinary strength of character in challenging both the Crown and myself". Her Honour noted that the applicant had a previous offence of larceny as a clerk, which had been dealt with under s 556A of the Crimes Act (since repealed). The applicant's employer, knowing of the present charges, had continued to employ her up until the time she went into custody. 20 In her remarks her Honour referred to the question of whether the applicant had evinced any contrition and to the discount which would be allowed for the applicant's pleas of guilty. I will return to both of these matters in dealing with the applicant's grounds of appeal against sentence. 21 Her Honour accepted that the applicant had never previously been in custody, that because of the nature of her offences the conditions of her custody under any sentence of imprisonment would be likely to be more than usually onerous and that the applicant would be likely to suffer extra curial punishment from neighbours and the community upon being released from custody. 22 I turn now to the applicant's grounds of appeal against the sentences imposed on her.

The sentencing judge took into account as an aggravating feature of the offence the fact that the complainant was vulnerable having regard to her age, when the complainant's age was an element of the offence 23 The first three offences for which the applicant was sentenced were offences under s 61M(1) of the Crimes Act. The offences which were taken into account in sentencing the applicant for the first offence (apart from the offence under s 547B(1) of the Crimes Act) were other offences under s 61M(1) of the Crimes Act. The offences which were taken into account in sentencing the applicant for the second offence were offences under either s 61M(1) of the Crimes Act or s 61O(1) of the Crimes Act. 24 Section 61M(1) of the Crimes Act provides:- "Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years". 25 Section 61M(3) of the Crimes Act provides:- "In this section, circumstances of aggravation means circumstances in which: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is under the age of 16 years, or (c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a serious intellectual disability". 26 In the prosecution of the applicant and Weston the Crown could have selected any one of the circumstances in pars (a), (b) or (c) of s 61M(3) as being circumstances of aggravation within s 61M(1). However, as is shown by the indictment and her Honour's remarks on sentence, the circumstances selected by the Crown as making each offence an aggravated offence within s 61M(1) were that the victim (the complainant) was under the age of sixteen years. 27 At p 17 of her remarks on sentence her Honour said:- "I am, of course, required for the purposes of counts 2, 3 and 4 to have regard to the aggravating and mitigating factors under Part (sic) 21A and the relevant aggravating features are that the offences were committed in company, that there was an abuse of trust and the victim was vulnerable having regard to her age". 28 The reference by her Honour to "Part" 21A was clearly intended by her Honour to be a reference to s 21A of the Crimes (Sentencing Procedure) Act. Her Honour was also obliged to have regard to s 21A of the Act in its present form in sentencing the applicant for the offence charged in the first count, because although that offence might have been committed before 1 February 2003, when the present s 21A commenced, the present s 21A applies to the determination of a sentence for any offence, whenever committed (except in certain circumstances, which did not apply in the present case). 29 It was submitted by counsel for the applicant that the sentencing judge, in identifying the fact that the victim was vulnerable having regard to her age as a circumstance of aggravation within s 21A (s 21A(2)(l)), had contravened the concluding words of s 21A(2), namely:- "The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". 30 Counsel for the applicant referred to R v Wickham [2004] NSWCCA 193, R v Cramp [2004] NSWCCA 264 and R v Mohamadin [2004] NSWCCA 401, in all of which it was held that the sentencing judge had erred by taking into account as a circumstance of aggravation a matter which was an element of the offence charged. 31 On this application the Crown accepted that, on the face of the remarks on sentence, there had been a breach of the concluding words in s 21A(2). However, the Crown sought to refer to part of the transcript of the argument in the proceedings on sentence as showing that the sentencing judge had taken into account the complainant's age and consequent vulnerability in a permissible manner. No objection was raised by counsel for the applicant to the Crown seeking to supplement her Honour's remarks on sentence by something her Honour had said in argument in the proceedings on sentence. 32 In the part of the transcript of the proceedings on sentence relied on by the Crown the applicant's legal representative in the proceedings on sentence is recorded as having submitted that, if the complainant had been over the age of sixteen, no offence under s 61M(1) would have been committed. Her Honour replied:- "Well she is not, she's thirteen Mr Smyth. It's like saying that sixteen is close to thirteen, it's not, there's three years difference and that's a big three years in the maturity of a young girl". 33 It was submitted by the Crown that her Honour had been entitled to take into account, not the bare fact that the complainant was under the age of sixteen years, but that she was only thirteen years old and more vulnerable than if she had been closer to sixteen. 34 By way of analogy the Crown referred to R v Way (2004) 60 NSWLR 168 in which it was said at pars (106) and (107) that the bare fact that an offence was committed in company (s 21A(2)(e)), where that is an element of the offence, cannot have an additional effect but that nevertheless the nature and extent of the company and the manner in which their presence and behaviour add to the menace of the occasion are relevant to the seriousness of the offence charged. 35 In my opinion, the Crown's submissions should be accepted and I would not uphold the first ground of appeal in relation to the first three counts. I would, however, add that if, as I have been persuaded that her Honour did, her Honour took into account the complainant's age in the way submitted by the Crown on this application, her Honour should have explicitly said so in her remarks on sentence. 36 The fourth offence for which the applicant was sentenced was an offence under s 91G of the Crimes Act. Section 91G was amended, after March 2003 when the fourth offence was committed and before the applicant was sentenced by her Honour. At the time the offence was committed s 91G(1) of the Crimes Act was in the following terms:- "(1) Any person : (a) who uses a child for pornographic purposes, or (b) who causes or procures a child to be so used, or (c) who, having the care (but not necessarily entitled by law to have the custody) of a child, consents to the child being so used or allows the child to be so used, is liable to imprisonment for 5 years or, if the child is under the age of 14 years, to imprisonment for 7 years". 37 In both the indictment and at pp 1-2 of the remarks on sentence the fourth offence was described as being an offence of using the complainant, a child under the age of fourteen years, for pornographic purposes, that is to say the circumstance of aggravation that the child was under the age of fourteen years was included as an element in the offence charged. Her Honour included the offence charged in the fourth count in the offences for which she said that a circumstance of aggravation was that the victim was "vulnerable having regard to her age". It may be that her Honour was misled by the amendments which had been made to s 91G by the time she came to sentence the applicant and by some submissions which were made to her by the Crown' representative in the proceedings on sentence. However, in my opinion, it is clear that in sentencing the applicant for the offence charged in the fourth count, which included as an element of the offence charged that the child was under the age of fourteen years, her Honour, in contravention of the concluding words of s 21A(2), took into account as a circumstance of aggravation that the complainant (who was then thirteen and a half) was under the age of fourteen. The argument by the Crown which I have held should succeed in relation to counts 1, 2 and 3 is not available in relation to count 4. I uphold the first ground of appeal in relation to the offence charged in count 4.

The sentencing judge gave insufficient weight to the applicant's pleas of guilty 38 The applicant pleaded guilty to all of the offences for which she was sentenced. At par 24 of her remarks on sentence Judge English said:- "I have allowed a 20 per cent discount for her pleas. Her pleas, as do the pleas of Mr Weston, show both utilitarian value and demonstrate some contrition". 39 In the proceedings on sentence the Crown's legal representative had expressly conceded that both offenders had pleaded guilty "at the first available opportunity". 40 As to contrition, I have already quoted what her Honour said at p 24 of her remarks to the effect that the applicant had shown some contrition. However, elsewhere in her remarks on sentence, her Honour unfavourably compared the applicant with the co-offender, who she found was truly contrite. At p 18 of the remarks her Honour said:- "Whilst I find that the offender Mr Weston is truly remorseful and contrite, the same cannot be said for Miss Pearson". 41 At pp 23-24 of her remarks on sentence her Honour found that "the deep regret for her actions", which the applicant had expressed to the Probation and Parole Officer who prepared a pre-sentence report, arose from the situation in which the applicant found herself, rather than being a true expression of contrition. 42 On this application counsel for the applicant submitted that the applicant had pleaded guilty at the first available opportunity, yet the sentencing judge had allowed a discount of only 20 per cent for the applicant's pleas of guilty and had not given any reasons for not allowing a discount of 25 per cent simply for the utilitarian value of the pleas of guilty. 43 Counsel for the applicant referred to R v Johnstone [2004] NSWCCA 307 (a decision handed down on 10 September 2004, after Judge English had sentenced the applicant), a case in which the sentencing judge had allowed a discount of 15 per cent for the offender's pleas of guilty, in which Sully J, with the concurrence of the other members of the Court, said at par 28:- " In my opinion, her Honour's approach to the quantification of the particular discount to be allowed in recognition of the applicant's pleas of guilty is attended by error; but for my own part I would not find the error, either explicitly or implicitly, in the bare figure of 15 per cent upon which her Honour settled. It seems to me, rather, that the error lies in the total absence of any explanation of the decision to set the figure at 15 per cent rather than at a figure of or approaching 25 per cent. That is not to say that there was, in my view, any need for a page or two of discursive argument and analysis. I do think, however, that the thrust of the guideline judgment in Thomson and Houlton does entail that in a case of the present kind a sentencing Judge might well come to the conclusion that there were factors, whether individual factors or a number of factors taken in combination, justifying a discount of less, and even significantly less, than the guideline maximum of 25 per cent; but it seems to me to be in accord with relevant principle that a sentencing Judge who has concluded that a just discount is at the lower rather than at the higher end of the guideline range, ought to give at least a brief, clear and simple explanation of the process of reasoning that has led the Judge to that conclusion".

44 This paragraph in Sully J's judgment in Johnstone was quoted with approval in R v Castles [2005] NSWCCA 79 at par (23) by Santow JA, with whom the other members of the Court agreed. 45 Counsel for the Crown submitted that the 10 per cent to 25 per cent discount for the utilitarian value of a plea of guilty stated in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 (160) was merely a guideline; that it did not create any entitlement to a particular discount in a given case (R v Scott [2003] NSWCCA 286 at (28)); that her Honour had found that the applicant had shown very little contrition; and that the discount of 20 per cent which her Honour had allowed was, unlike the discount of 15 per cent allowed by the sentencing judge in Johnstone, not towards the lower end of the range of 10 per cent to 25 per cent. 46 The Crown referred to what was said by Howie J, with the concurrence of the other members of the Court, in R v Hanslow [2004] NSWCCA 163 at (27). What Howie J said at par 27 does not, in my opinion, lend unequivocal support to the Crown's submissions. His Honour said:- "Before leaving this ground I should remark that, notwithstanding what I have written above, I do not understand why his Honour was not prepared to give the applicant the benefit of a discount of 25 per cent for the utilitarian value of her pleas, particularly taking into account her admissions and ready assistance to police in what otherwise might have been a complex case. Even though Thomson and Houlton (2000) 49 NSWLR 383 makes it clear that the assessment of the discount to be awarded for the utilitarian value of the plea is a matter of discretion, it is a discretion that has to be exercised judicially. In the absence of any reasons for not giving a discount at the top of the range in the circumstances of the present case, I can only assume, with respect, that his Honour has either determined that no case should merit the full discount approved in the guideline judgment or has some misunderstanding of the considerations which are to be taken into account in determining the appropriate discount. However, in the present case I do not believe that the failure to discount the sentence by more than 20 per cent is alone an error vitiating his sentencing discretion". 47 I have come to the conclusion that this ground of appeal should not be upheld. 48 On a fair reading of her Honour's remarks on sentence as a whole, I consider that her Honour should be regarded as having found that the applicant had shown very little contrition, so that the discount of 20 per cent allowed by her Honour was almost entirely attributable to the utilitarian value of the applicant's pleas of guilty. Accordingly, the amount of the discount allowed by her Honour, unlike the amount of the discount allowed in Johnstone and Castles, was not towards the lower end of the range of 10 per cent to 25 per cent. In Castles the sentencing judge had allowed a discount of only 14 per cent. A trial in the present case, unlike in Johnstone and Castles both of which involved a large number of charges of offences of dishonesty, would not have been a complex trial. The complexity of the trial which the offenders' pleas of guilty had avoided was expressly referred to by Sully J in Johnstone and Santow JA in Castles.

Her Honour made a mistake of fact in relation to the applicant's criminal antecedents 49 In the proceedings on sentence the applicant's criminal history was tendered. The document read:- "Crt Date Court Name Charge Date Charge No Status Offence Sentence ____________________________________________________

23/01/1997 Belmont Local Court 21/09/1996 H999992863647 CV 001 1 Larceny as a Clerk Recog S556A $1,000 12 Months" 50 At par 23 of her remarks on sentence her Honour said:- "She has on her criminal record an entry of larceny as a clerk, although she was granted the benefit of s 556A of the Crimes Act, as it then was. She was fined $1000.00 and placed on a good behaviour bond for twelve months". 51 It was submitted by counsel for the applicant that her Honour had misinterpreted the applicant's criminal history. The figure of $1000.00 was not the amount of a fine imposed on the applicant but the amount of the recognisance under s 556A of the Crimes Act. Counsel for the applicant referred to R v Ingrassia (1996) 41 NSWLR 447, in which it was held that a judge or magistrate dealing with an offender under s 556A of the Crimes Act had no power to require the offender to pay a fine as a condition of discharging the offender on a recognisance. Counsel for the applicant submitted that, by supposing that the applicant had been fined $1000, the sentencing judge had regarded the applicant's previous offence as more serious than it really was. 52 The Crown did not contest that Judge English had misinterpreted the document setting out the applicant's previous criminal history. However, it was submitted by the Crown that the error had not played any significant part in her Honour's sentencing decisions. The applicant had given evidence in the proceedings on sentence that the charge of larceny as a clerk had arisen out of the applicant's stealing a set of cutlery. Accordingly, the sentencing judge had been aware of the nature of the offence and the sentencing judge had been aware that the provisions of s 556A had been applied in favour of the applicant, indicating that the offence was not a serious one. In her remarks on sentence her Honour found that the applicant, unlike the co-offender, had no criminal antecedents of a like nature to the offences for which she was being sentenced. 53 This ground of appeal has been made out but I accept the Crown's submission that her Honour's error did not play any significant part in her sentencing decisions.

The sentencing judge erred in making findings of fact which were unsupported by any evidence, namely:

(a) that the offenders were "grooming" the complainant and (b) that the offenders intended to publish the photographs of the complainant 54 I will deal in turn with parts (a) and (b) of the ground of appeal.

As to (a):- 55 At p 15 of the remarks on sentence her Honour said:- "Contrary to the submissions I find they were grooming this young girl". 56 It is not immediately clear what her Honour meant by the word "grooming". 57 Counsel for the applicant submitted that her Honour should be taken as meaning that the offenders were preparing the complainant to participate in more serious offences than the offences for which the offenders were being sentenced. In support of this submission counsel for the applicant referred to question and answer 516 in a recorded interview of the co-offender by the police. The question and answer were as follows:- "Q. Were you grooming … A. No. Q. Were you grooming….this young girl to form a sexual relationship with her - A. No". 58 It was submitted by counsel for the applicant that, although the question and answer in the interview of the co-offender were not admissible in the sentencing of the applicant and the imputation in question 516 had been denied by the co-offender, the question nevertheless threw light on what the sentencing judge had meant by the word "grooming" when it was used by her in her remarks on sentence. 59 The Crown submitted that the word "grooming" at p 15 of her Honour's remarks should be interpreted according to its context. Immediately before the remark which I have quoted her Honour had said "…I find the activities of these two offenders constitute more than just a game". Immediately after the remark which I have quoted her Honour said:- "There is not one isolated act and a photograph taken, there are multiple acts on two separate occasions. Her lack of protestation on the first occasion has clearly been taken by them as encouragement to continue with their illegal activities". 60 The Crown submitted that when the word "grooming" was read in context it should be taken as meaning "grooming the complainant to participate in the kinds of activities in respect of which they (the offenders) were being sentenced. That is the indecent assaults/acts and the posing for and the taking of the photographs". 61 The Crown referred to answers given by the complainant at pp 20, 21, 24, 25, 26, 27 and 28 of an interview of the complainant by the police in which the complainant said that she had been pressed by the applicant to commit or simulate sexual acts. 62 I agree with the Crown that the word "grooming" should be interpreted in the context of the remarks on sentence. I have referred to what immediately preceded and what immediately followed her Honour's remark about "grooming". However, a little later in the remarks on sentence (at p 16) her Honour said:- "It defies logic that the next step would not be for these offenders to engage this girl in their advertised sexual activity. They are, of course, not facing sentence in that regard, but I make mention of it, because it is obvious and open on the evidence to make such a finding". 63 Elsewhere in the remarks on sentence her Honour said at p 10, with reference to the co-offender:- "He denied grooming (the complainant) with a view to having a sexual relationship with her". 64 Her Honour began the sentence in which the word "grooming" appears at p 15 of her remarks by saying "contrary to the submissions". Fairly lengthy submissions were made to her Honour in the proceedings on sentence by both the co-offender's legal representative and by the applicant's legal representative. The submissions made by the co-offender's legal representative included a submission that the acts in which the offenders had engaged had not gone beyond a game of sexual experimentation. The submissions made by the applicant's legal representative included the following submissions:- "The very idea that Ms Pearson would be encouraging an activity which could eventually lead to a sexual involvement of a more traditional sort between the young girl and Mr Weston is something that is obviously, was quite foreign to her thinking. She still loves him. He is almost forty and she is twenty-five, she was twenty-five when this occurred. He is her only boyfriend. He is the only man that she has had physical connection with". 65 In my opinion, her Honour should be taken as having meant in what she said at par 15 of her remarks that, contrary to the submissions which had been made to her, she was making a finding that the offenders were preparing the complainant to participate in more serious offences than the offences for which the offenders were being sentenced. I note that such an interpretation is in accordance with one of the principal dictionary meanings of the verb "groom", that is to "prepare" some person or thing (see the Macquarie Dictionary). I do not consider that there was evidence on which her Honour could have made such a finding to the requisite standard, that is beyond reasonable doubt. In any event, it would be fraught with the risk of error for her Honour, in sentencing the offenders for the present offences, to take into account what "the next step" would be. 66 I consider that this part of ground four has been made out.

This part of the ground of appeal was based on the following passage in her Honour's remarks on sentence:- "Not only was this girl required to perform these degrading and humiliating acts but she was also photographed. Not only was she photographed but the photographs were taken for developing and the digital images were not simply viewed on a computer and deleted but burnt onto a CD for posterity with the potential for publication which, of course, the offender Weston denies". 67 Counsel for the applicant submitted that "there was no evidence that either offender intended to distribute these photographs on the Internet or indeed anywhere else". However, her Honour did not make any finding that either offender intended to distribute the photographs. Her Honour merely found that there was a potential for publication. In my opinion, her Honour was entitled to find as a fact relevant to the objective seriousness of the offences that the activities in which the offenders and the complainant had engaged had been photographed or had had digital images taken of them which had been preserved, so that there was a potential for publication. 68 I would reject this part of this ground of appeal.

The sentence was manifestly excessive 69 It is convenient to consider this ground of appeal at the same time as a submission made by the Crown that, even if there had been an error or errors in the sentencing of the applicant, nevertheless no less severe sentences were warranted (Criminal Appeal Act s6(3)). This submission raises the issue:-

Were less severe sentences warranted 70 Counsel for the applicant submitted that the sentences imposed on the applicant were manifestly excessive. 71 It was submitted by counsel for the applicant that matters lessening the objective gravity of the offences under s 61M, 61O and s 91G were that there had been no actual touching of the complainant's genitalia, that although pressure had been exerted on the complainant to participate in the poses with the applicant or the co-offender no threats had been made to her and that there was no evidence that the applicant, as distinct from the co-offender, had obtained any sexual gratification from the commission of the offences. All of these offences had been committed on just two occasions, that is one occasion between 1 December 2002 and 23 February 2003 and one occasion in March 2003. 72 Counsel for the applicant referred to subjective features of the applicant, including that she was a twenty-four year old woman at the time of the offences, that she had no relevant previous criminal history, that she had pleaded guilty at the first opportunity and that, having regard to the nature of the offences, she would serve any sentences imposed in protective custody. 73 Counsel for the applicant referred to statistics of sentences for aggravated indecent assault kept by the Judicial Commission, showing that only about 40 per cent of offenders had received full-time custodial sentences and that of those offenders who had received full-time custodial sentences only 17 per cent had received longer sentences than the applicant. 74 Counsel for the Crown submitted that for a number of reasons the sentences imposed on the applicant were not manifestly excessive and that no less severe sentences were warranted. 75 In my opinion, the submissions by the Crown should be accepted. 76 It is difficult to determine from the photographs whether there was any actual touching of the complainant's genitalia but certainly her naked genitalia are photographed in close proximity to parts of the body of both the applicant and the co-offender, including the co-offender's erect penis. 77 Although her Honour found in favour of the offenders that there had been no threats made to the complainant, her Honour found that the complainant had been induced to participate by pressure exerted on her by the applicant. In inducing the complainant to participate the applicant had abused a position of authority she had as manager of the business in which the complainant worked and hoped to continue working. 78 The applicant was sentenced for three offences of aggravated indecent assault and one offence of using a child under the age of fourteen years for pornographic purposes. In sentencing the applicant for the first offence of aggravated indent assault three further offences had to be taken into account. In sentencing the applicant for the second offence of aggravated indecent assault six further offences had to be taken into account. 79 The offences were committed by the applicant in company with the co-offender. Her Honour rejected a suggestion in the pre-sentence report that the applicant did not present as a person of strong personality or as a principal in initiating events and found, to the contrary, that the applicant was a person of strong character. This finding by her Honour, who had the advantage of seeing and hearing the applicant give evidence, was open to her Honour and could not be set aside in this Court. 80 In sentencing the applicant for the offences under s 61M and s 91G her Honour made all of the sentences commence from the same date, with no cumulation of sentences. 81 The offences involving interference with the administration of justice, namely the offence under s 315(1)(a) and the offence under s 547B(1) which was to be taken into account in sentencing the applicant for the first offence of aggravated indecent assault, were serious offences. The applicant committed the offence under s 315(1)(a) in an attempt to avoid prosecution and punishment for the offences under s 61M, s 61O and s 91G. The offence included the applicant persuading another girl SLM and her mother to go to a police station and give false information to the police. The applicant accompanied SLM and her mother to the police station. The offence also involved the falsification of SLM's birth certificate. The offence under s 547B involved the applicant making knowingly false assertions about the complainant in a statement the applicant made to the police. 82 I accept that the applicant had some favourable subjective features. On the other hand, I have concluded that the sentencing judge found that the applicant had shown very little contrition. The information placed before this Court about the applicant's conditions of custody shows that, while the applicant is subject to a form of custody known as Limited Association, this form of custody is not the same as Strict Protection. The applicant associates with three other inmates, she has the opportunity of attending classes and she has access to all services provided by the Correctional Centre. 83 The statistics of sentences for aggravated indecent assault kept by the Judicial Commission are largely based on sentences imposed before the introduction of standard non-parole periods. All of the offences of aggravated indecent assault committed by the applicant, apart from the offences committed on the occasion between 1 December 2002 and 23 February 2003, which her Honour accepted might have been committed before 1 February 2003, were committed after 1 February 2003, that is after the introduction of standard non-parole periods. Although the standard non-parole period for offences under s 61M(1) of the Crimes Act was not directly applicable, because the applicant had pleaded guilty, this Court in R v Way commented at 182 (54) and 195 (142) that the likely effect of the introduction of standard non-parole periods is that the sentences for some of the offences for which standard non-parole periods have been set will increase. 84 I have concluded that no less severe sentences than those imposed by Judge English were warranted. Accordingly, while I would grant leave to appeal against the sentences imposed by her Honour, I would dismiss the appeal against those sentences. 85 HISLOP J: I agree with James J. 86 HALL, J: I have read the judgment of James, J. in draft and I agree with the reasons expressed in it and the orders proposed. 87 I would, however, add some additional observations upon Ground Four of the application which asserts that her Honour made findings of fact which were unsupported by evidence. 88 Senior counsel for the applicant, Mr. John Stratton, SC., specifically challenged a finding made by the sentencing judge which was expressed in terms:- "… I find they were grooming this young girl." 89 The submission put on behalf of the applicant was that this finding was intended to suggest that "the offenders were preparing to commit more serious offences upon her, such as sexual intercourse without consent" (written submissions, paragraph 44). 90 As I have indicated, I am in agreement with James, J., in particular, with his Honour's statement:- "… she (the sentencing judge) was making a finding that the offenders were preparing the complainant to participate in more serious offences than the offences for which the offenders were being sentenced …" (paragraph 65) 91 This was a significant finding for her Honour to make without evidence that met the criminal standard of proof. It was particularly significant for her Honour to make such a finding for the purposes of determining sentence. 92 I have additionally been concerned by her Honour's further finding made shortly after the abovementioned finding that:- "… it defies logic that the next step would not be for these offenders to engage this girl in their advertised sexual activity. They are, of course, not facing sentence in that regard, but I make mention of it because it is obvious on the evidence to make such a finding." 93 Firstly, even if it was relevant to determine what might occur as "the next step" that was a matter that could only be determined by evidence, not by the use of logic. Secondly, the supposed "next step" was, however, not either an element or an aggravating circumstance of the offences in question. Thirdly, this matter was not put to the applicant in cross-examination when she gave evidence on 25 March 2004. Fourthly, there is otherwise no evidence that meets the requisite standard to establish "the next step" finding. Fifthly, although her Honour observed that the applicant and her co-offender were not facing sentence on this basis, she nonetheless was influenced enough by it to make it the subject of a finding. 94 Mr. Stratton, SC. contended that the finding made as to "grooming" was in breach of principles enunciated in The Queen v De Simoni (1981) 147 CLR 383. I do not see the principle enunciated by the majority in that case has direct application to the facts of this case, although it does emphasise the importance in determining what circumstances of aggravation may or may not be brought into account. The Court of Criminal appeal had held in De Simoni (supra) that case that it had not been permissible for the trial judge in imposing sentence to have regard to the fact of wounding as a circumstance of aggravation, it not having been charged in the indictment as required by the prescribed form of indictment. 95 Gibbs, CJ. (Mason and Murphy, JJ. agreeing) stated:- "… however the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle …" (at p.389) 96 It was, of course, not an element in any charge brought against the applicant that she and her co-offender committed the various acts the subject of the charges with the intention of committing more serious criminal acts, as for example, an act prohibited by s.66C of the Crimes Act 1900 (Prohibition of sexual intercourse with a person under the age of 14 years). Nor, for example, were they charged with attempting to commit such an offence. 97 There is substance in the submission of senior counsel for the applicant that her Honour did, however, take into account as aggravating circumstances her finding as to preparation or "grooming" by the applicant and her co-offender for a more serious offence or offences. Her Honour made specific findings in terms referred to in paragraphs 88 and 92 above and plainly such factual findings were made for the purpose of determining the appropriate sentence in this case. 98 In these circumstances, the important question arises as to whether or not the errors in sentencing as identified by James, J. in relation to Ground Four of the application warrants the intervention of this Court on the basis that they resulted in a miscarriage of the sentencing process. 99 In order to answer this question, it is not without importance that the errors in sentencing to which I have referred amounted to substantive and not merely technical errors. On the other hand, both the number and seriousness of the offences to which the applicant entered pleas of guilty were central to the sentencing determination. 100 As to the latter, the objective seriousness of the offences is made plain by the evidence before the sentencing judge which was analysed in some considerable detail in her remarks on sentence of 30 June 2004. On the other hand, there is a principle, and it is a fundamental one, that an offender must only be sentenced on the facts and circumstances that fall within the ambit of the charge or charges particularised in the indictment. I have made it clear that the erroneous findings did not lead the sentencing judge to impose a sentence for offences other than those with which the applicant was charged. However, it is clear that her Honour regarded those findings as aggravating circumstances but in circumstances where they had not been proven to the requisite standard and did not in any event arise on the indictment. 101 In accordance with the principles stated in House v. The King (1936) 55 CLR 499, if the judge "mistakes the facts" in the sense there discussed or acts in accordance with wrong principle, then such findings are to be set aside or the error corrected. In that event, the Court may reach the opinion that some other sentence should have been passed and might pass that other sentence, should it be warranted in law: Regina v. Khouzame [2000] NSWCCA 505 [41] per Greg James, J. 102 When error of either kind arises, then it is wholly appropriate to give effect to the relevant provisions of s.6(3) of the Criminal Appeal Act 1912 and for this Court to consider for itself whether or not a different sentence, be it a greater or lesser one is "warranted in law": Regina v. Cocking [1999] NSWCCA 311 [22] per Sully, J. See also Regina v. Stephen Lorne Astill (No. 2) (1992) 64 A. Crim. R. 289 at 303-304 per Lee, AJ. 103 In this regard, I have given close consideration to the facts established by the evidence and the remarks on sentence. Having done so, and not withstanding the observations which I have made, I have been unable to conclude that another sentence is "warranted in law" than that imposed by the sentencing judge. 104 I accordingly agree with the orders proposed by James, J.

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