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.