SGJ v R; KU v R

Court of Criminal Appeal (NSW)|2008-11-11|Before: Hodgson JA, Kirby J, Hislop J

CITATION: SGJ v R; KU v R [2008] NSWCCA 258

JUDGMENT OF: Hodgson JA at 1; Kirby J at 2; Hislop J at 119

In respect of the appeal by SGJ: (1) Leave to appeal granted. (2) The appeal in respect of Count 4 of the 2nd indictment dismissed and the sentence confirmed. (3) The appeal allowed in respect of the remaining counts on the 1st and 2nd indictments and the sentences quashed. (4) In lieu thereof, SGJ sentenced as follows: 1st Indictment Count 1: A NPP of 9 years commencing on 8 October 2005 and ending on 7 October 2014; with an additional term of 3 years expiring on 7 October 2017. Count 2: A NPP of 10 years commencing on 8 October 2006 and ending on 7 October 2016; with an additional term of 4 years expiring on 7 October 2020. Count 3: A NPP of 10 years commencing on 8 October 2006 and ending on 7 October 2016; with an additional term of 4 years expiring on 7 October 2020. Count 4: A fixed term of imprisonment of 2 years commencing on 8 October 2006 and ending on 7 October 2008. Count 5: A fixed term of imprisonment of 5 years commencing on 8 October 2006 and ending on 7 October 2011. Count 6: A NPP of 3 years commencing on 8 October 2006 and ending on 7 October 2009; with an additional term of 1 year expiring on 7 October 2010. 2nd Indictment Count 1: A NPP of 3 years commencing on 8 October 2007 and ending on 7 October 2010; with an additional term of 1 year expiring on 7 October 2011. Count 2: A fixed term of imprisonment of 2 years commencing on 8 October 2007 and ending on 7 October 2009. Count 3: A fixed term of imprisonment of 6 years commencing on 8 October 2009 and ending on 7 October 2015. Count 4: Taking account of the matters on the Form 1, a NPP of 11 years commencing on 8 October 2009 and ending on 7 October 2020; with an additional term of 7 years expiring on 7 October 2027. Count 5: A fixed term of imprisonment of 3 years commencing on 8 October 2008 and ending on 7 October 2011. Count 6: A NPP of 9 years commencing on 8 October 2008 and ending on 7 October 2017; with an additional term of 3 years expiring on 7 October 2020. Count 7: A NPP of 9 years commencing on 8 October 2008 and ending on 7 October 2017; with an additional term of 3 years expiring on 7 October 2020. Count 8: A fixed term of imprisonment of 2 years commencing on 8 October 2008 and ending on 7 October 2010. DECISION: Count 9: A NPP of 9 years commencing on 8 October 2008 and ending on 7 October 2017; with an additional term of 3 years expiring on 7 October 2020. In respect of the appeal by KU: (1) Leave to appeal be granted. (2) The appeal be allowed. (3) The sentences in respect of KU quashed. (4) In lieu thereof, KU is sentenced as follows: 1st Indictment Count 1: A NPP of 9 years commencing on 8 October 2005 and ending on 7 October 2014; with an additional term of 3 years expiring on 7 October 2017. Count 2: A NPP of 9 years commencing on 8 October 2005 and ending on 7 October 2014; with an additional term of 3 years expiring on 7 October 2017. Count 3: A NPP of 9 years commencing on 8 October 2005 and ending on 7 October 2014; with an additional term of 3 years expiring on 7 October 2017. Count 4: A fixed term of imprisonment of 2 years commencing on 8 October 2005 and ending on 7 October 2007. Count 5: A fixed term of imprisonment of 5 years commencing on 8 October 2005 and ending on 7 October 2010. 2nd Indictment Count 1: A NPP of 3 years commencing on 8 October 2006 and ending on 7 October 2009; with an additional term of 1 year expiring on 7 October 2010. Count 2: A fixed term of imprisonment of 2 years commencing on 8 October 2006 and ending on 7 October 2008. Count 3: A fixed term of imprisonment of 6 years commencing on 8 October 2007 and ending on 7 October 2013. Count 4: Taking account of the matters on the Form 1, a NPP of 11 years commencing on 8 October 2007 and ending on 7 October 2018; with an additional term of 7 years expiring on 7 October 2025. Count 5: A fixed term of imprisonment of 3 years commencing on 8 October 2006 and ending on 7 October 2009. Count 6: A NPP of 9 years commencing on 8 October 2006 and ending on 7 October 2015; with an additional term of 3 years expiring on 7 October 2018. Count 7: A NPP of 9 years commencing on 8 October 2006 and ending on 7 October 2015; with an additional term of 3 years expiring on 7 October 2018. Count 8: A fixed term of imprisonment of 2 years commencing on 8 October 2006 and ending on 7 October 2008. Count 9: A NPP of 9 years commencing on 8 October 2006 and ending on 7 October 2015; with an additional term of 3 years expiring on 7 October 2018.

CATCHWORDS: Criminal Practice & Procedure - failure to fix non parole period in standard non parole period offence - indictment with Form 1 - multiple victims - preferable to have Form 1 for each victim - whether sentences child sex offences excessive - parity - no lesser sentence warranted (s 6(3)) - need to restructure sentence.

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse & Trafficking Act 1985

R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 De Simoni v The Queen (1981) 147 CLR 383 Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 Attorney General's Application under s 37 of Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146 CASES CITED : XY v The Queen [2007] NSWCCA 72 Rolfe v The Queen [2007] NSWCCA 155; (2007) 173 A Crim R 168 Clare v The Queen [2008] NSWCCA 30 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 Lowe v The Queen (1984) 154 CLR 606

SGJ (App) PARTIES: KU (App) Regina (Resp)

SGJ (App) - A Haesler SC COUNSEL: KU (App) - Ms J Manuell Regina (Resp) - D Arnott SC

SGJ (App) - S O'Connor (LAC) SOLICITORS: KU (App) - S O'Connor (LAC) Regina (Resp) - S Kavanagh (DPP)

LOWER COURT FILE NUMBER(S): 06/41/0190 06/41/0069

IN THE COURT OF CRIMINAL APPEAL 2007/5015 2007/4551

HODGSON JA KIRBY J HISLOP J

Tuesday 11 November 2008 SGJ v R KU v R Judgment 1 HODGSON JA: I agree with Kirby J. 2 KIRBY J: Application is made by SGJ and KU for leave to appeal against sentence. The sentences were imposed on 27 August 2007 by English DCJ at the Penrith District Court. They related to multiple sexual and other offences. 3 SGJ and KU are, respectively, de facto husband and wife. At the time of these offences they had lived together for about 20 years. They had two children, a son aged 19 at the time of sentence and a daughter aged 10. 4 There were differences between the charges which each faced. SGJ, the husband, ultimately pleaded guilty to 15 counts, 6 on the first indictment and 9 on the second. He also asked her Honour to take account of a further 18 offences on a Form 1, when sentencing in respect of Count 4 on the second indictment. 5 SGJ's wife, KU, pleaded guilty to 14 counts, 5 on the first indictment (that is, one less than her husband) and the same 9 counts on the second indictment. She also signed a Form 1, to be taken into account when sentencing in respect of Count 4. In her case, the Form 1 included 16 further offences, that is, 2 less than her husband. 6 SGJ's offences related to seven victims, whereas KU's offences related to six. The police were able to identify four of those victims (who became complainants). The remaining three victims were unknown, their images having been recovered by police from a computer hard drive seized from the home of SGJ and KU. 7 The charges faced by KU on the first indictment were as follows: Count 1: On or about 26.11.04, sexual intercourse (fellatio) with a child under the age of 10 years, namely Victim A a child 7 years 9 months, contrary to s 66A of the Crimes Act 1900; (maximum penalty: imprisonment for 25 years with a standard non parole period of 15 years). Count 2: On or about 7.10.05, sexual intercourse (fellatio) with a child under the age of 10 years, namely Victim A a child 8 years and 8 months, contrary to s 66A of the Crimes Act 1900. Count 3: On or about 7.10.05, sexual intercourse (fellatio) with a child under the age of 10 years, namely Victim A a child 8 years and 8 months, contrary to s 66A of the Crimes Act 1900. Count 4: On or about 7.10.05, commit an aggravated act of indecency towards a child under the age of 16 years, namely Victim A a child 8 years 8 months, contrary to s 61O(1) of the Crimes Act 1900; (maximum penalty: imprisonment for 5 years). Count 5: On or about 7.10.05, use a child under the age of 14 years, namely Victim A a child aged 8 years and 8 months, for pornographic purposes, contrary to s 91G(1) of the Crimes Act 1900; (maximum penalty: imprisonment for 14 years). 8 The first indictment in respect of SGJ was in the same terms except that it included the following additional count relating to a separate victim (Victim B): Count 6: On or about 7.10.05, aggravated indecent assault (rubbing vagina) of a child, namely Victim B a child 10 years and 5 months, contrary to s 61M(1) of the Crimes Act 1900 (maximum penalty: imprisonment for 7 years with a standard non parole period of 5 years). 9 The second indictment was the same in respect of each offender. There were nine counts: Count 1: On or about 14.12.04, aggravated indecent assault of a child under the age of 10 years, namely Victim E (unknown child no. 1) being a child aged between 3 and 5 years, contrary to s 61M(2) of the Crimes Act 1900; (maximum penalty: imprisonment for 10 years with a standard non parole period of 5 years). Count 2: On or about 14.12.04, using a child under the age of 14 years (namely Victim E , a child aged between 3 and 5 years) for pornographic purposes, contrary to s 91G(1) of the Crimes Act 1900; (maximum penalty: imprisonment for 7 years, the offence having been committed before 1.1.05 when the penalty was increased). Count 3: On or about 12.03.05, used a child under the age of 14 years, namely Victim C , a child almost 8 years, for pornographic purposes, contrary to s 91G(1) of the Crimes Act 1900; (maximum penalty: imprisonment for 14 years). Count 4: On or about 12.03.05, sexual intercourse (penile vaginal intercourse) with a child under the age of 10 years, namely Victim C , a child almost 8 years, contrary to s 66A of the Crimes Act 1900; (maximum penalty: imprisonment for 25 years and standard non parole period 15 years). Count 5: On or about 8.04.05, using a child under the age of 14 years, namely Victim D . a child aged about 5½ years, for pornographic purposes, contrary to s 91G(1) of the Crimes Act 1900; (maximum penalty: imprisonment for 14 years). Count 6: On or about 8.04.05, sexual intercourse (digital penetration of vagina) of a child under the age of 10 years, namely Victim D , a child aged about 5½ years, contrary to s 66A of the Crimes Act 1900; (maximum penalty: imprisonment for 25 years and standard non parole period 15 years). Count 7: On or about 8.04.05, sexual intercourse (digital penetration of the anus) of a child under the age of 10 years, namely Victim D , a child aged about 5½ years, contrary to s 66A of the Crimes Act 1900; (maximum penalty: imprisonment for 25 years and standard non parole period 15 years). Count 8: Between 13.12.04 and 7.10.05, using a child under the age of 14 years, namely Victim F (unknown child no. 2) being a child between 5 and 8 years, for pornographic purposes, contrary to s 91G of the Crimes Act 1900; (maximum penalty: imprisonment for 7 years where offence committed before 1.1.05, or 14 years if committed after that date). Count 9: On or about 12.03.05, sexual intercourse (cunnilingus) with a child under the age of 10 years, namely Victim F , a child aged between 5 and 8 years, contrary to s 66A of the Crimes Act 1900; (maximum penalty: imprisonment for 25 years and standard non parole of 15 years). 10 The Form 1 offences were themselves serious. As explained, there were two additional offences in the case of SGJ. The following offences were common to both: Form 1 - # 1: On or about 26.11.04, aggravated indecent assault (removal of underwear) of a child under the age of 10 years, namely Victim A aged 7 years 9 months. Form 1 - # 2: On or about 26.11.04, aggravated indecent assault (rubbing victim's vagina) of a child under the age of 10 years, namely Victim A aged 7 years 9 months. Form 1 - # 3: On or about 7.10.05, aggravated indecent assault (removal of clothing) of a child under the age of 10 years, namely Victim A aged 8 years and 8 months. Form 1 - # 4: On or about 7.10.05, aggravated indecent assault (rubbing victim's vagina) of a child under the 10 years, namely Victim A aged 8 years and 8 months. Form 1 - # 5: On or about 7.10.05, assault of Victim A (aged 8 years 8 months) by hitting her on her left arm. Form 1 - # 6: On or about 7.10.05, inciting a person under 10 years to commit an act of indecency (to rub her vagina), namely Victim A aged 8 years and 8 months, Form 1 - # 7: On or about 7.10.05, using a child under 14 for pornographic purposes (photographing while she performed fellatio on SGJ), namely Victim A aged 8 years and 8 months. Form 1 - # 8: On or about 12.03.05, aggravated indecent assault (using fingers to spread of the lips of victim's vagina) of a child under the age of 10 years, namely Victim C , almost 8 years. Form 1 - # 9: On or about 12.03.05, sexual intercourse (digital penetration) with a child under the age of 10 years, namely Victim C , a child almost 8 years. Form 1 - # 10: On or about 12.03.05, sexual intercourse (cunnilingus) with a child under the age of 10 years, namely Victim C , a child almost 8 years. Form 1 - # 11 : On or about 8.04.05, aggravated indecent assault (using fingers to expose genitals) of a child under the age of 10 years, namely Victim D , a child aged 5½ years. Form 1 - # 12: On or about 8.04.05, aggravated indecent assault (using fingers to expose genitals) of a child under the age of 10 years, namely Victim D, a child aged 5½ years. Form 1- # 13: On or about 8.04.05, sexual intercourse (cunnilingus) with a child under the age of 10 years, namely Victim D , a child aged 5½ years. Form 1 - # 14: On or about 8.04.05, sexual intercourse (further cunnilingus an hour and a half later) with a child under the age of 10 years, namely Victim D , a child 5½ years. Form 1 - # 15: Between 13.12.05 and 6.10.07, aggravated indecent assault (using fingers to expose genitalia) of a child under the age of 10 years, namely Victim F (unknown victim no. 2), a child between 5 and 8 years. Form 1 - # 16: Between 13.12.05 and 6.10.07, sexual intercourse (cunnilingus) of a child under the age of 10 years, namely Victim G (unknown victim no. 3), a child aged between 8 and 10 years. 11 The two additional offences on the Form 1 in respect of SGJ were as follows (the numbering being somewhat different from that adopted in respect of KU): Form 1 - # 8: That on 8.10.05, he cultivated cannabis. Form 1 - # 9: That on 8.10.05, he possessed cannabis. 12 Her Honour ultimately imposed the same aggregate sentence upon both offenders, that is, a total term of 22 years consisting of a non parole period of 15 years (8.10.2005 to 7.10.2020) with an additional term of 7 years (expiring 7.10.2027). She determined that "on the issue of parity, except for Count 6 on the indictment of 18 October 2006 in respect of (SGJ), I find their respective degrees of culpability to be equal" (ROS 36). The sentences imposed on both offenders in respect of Counts 1 to 5 of the first indictment were as follows: Count 1: Fixed term of imprisonment for 8 years to date from 8.10.2005 and expire on 7.10.2013. Count 2: Fixed term of imprisonment for 8 years to date from 8.10.2010 and expire on 7.10.2018. Count 3: Fixed term of imprisonment for 8 years to date from 8.10.2010 and expire on 7.10.2018. Count 4: Fixed term of imprisonment for 2 years to date from 8.10.2010 and expire on 7.10.2012. Count 5: Fixed term of imprisonment for 5 years to date from 8.10.2010 and expire on 7.10.2015. 13 In respect of Count 6 (which was exclusive to SGJ), her Honour imposed a concurrent term as follows: Count 6: Fixed term of imprisonment for 3½ years to date from 8.10.2010 and expire on 7.4.2014. 14 The terms of the second indictment were the same for both. Her Honour imposed the following sentences in each case: Count 1: Fixed term of imprisonment for 3 years to date from 8.10.2006 and expire on 7.10.2009. Count 2: Fixed term of imprisonment for 2 years to date from 8.10.2006 and expire on 7.10.2008. Count 3: Fixed term of imprisonment for 6 years to date from 8.10.2009 and expire on 7.10.2015. Count 4: Taking account of the Form 1 matters in respect of each offender, a non parole period of 11 years to date from 8.10.2009 and expire on 7.10.2020. Balance of term of 7 years to expire on 7.10.2027, making an overall term of 18 years. Count 5: Fixed term of imprisonment for 6 years to date from 8.4.2010 and expire on 7.4.2016. Count 6: Fixed term of imprisonment for 9 years to date from 8.4.2010 and expire on 7.4.2019. Count 7: Fixed term of imprisonment for 9 years and 9 months to date from 8.4.2010 and expire on 7.1.2020. Count 8: Fixed term of imprisonment for 2 years to date from 8.10.2006 and expire on 7.10.2008. Count 9: Fixed term of imprisonment for 8 years to date from 8.10.2009 and expire on 7.10.2017. 15 Both applicants relied upon a number of grounds of appeal, which are set out below. Before identifying the grounds, and the arguments in support of each, I should describe the circumstances giving rise to each charge.

The first indictment. 16 SGJ was born in January 1964. KU was born in March the same year. They had lived together as de facto husband and wife since about 1985. They occupied a house in a small town on the south coast of New South Wales. The offences occurred in a 10 month period (between late November 2004 and October 2005). Their son, at that time, was aged about 16 years and their daughter less than 8 years. 17 SGJ had a brother who was diagnosed with multiple sclerosis. In 2000, or thereabouts, he died, aged 39 years. In November 2003, that is, before these offences, the offenders' son noticed numbness in certain limbs and problems with his eyesight. These were the symptoms of multiple sclerosis which was later diagnosed. His parents, naturally, regarded this development as catastrophic. 18 Both SGJ and KU were long term users of cannabis, smoking the drug daily. After their son's diagnosis and before these offences, they began experimenting with methamphetamine ("ice"). It was a costly drug for which they paid about $100 a week in the beginning, and about $200 a week as time went by. At about this time, SGJ introduced his wife, KU, to "mainstream pornography", that is, not involving children. 19 On 7 October 2005, KU drove to the home of SGJ's late brother. Arrangements had been made with his widow for her daughters (SGJ's nieces) to visit their cousin and sleep over. One of the daughters (Victim A) was 8 years 8 months, a few days younger than her cousin. The other (Victim B) was aged 10 years 5 months. 20 On returning home the next day, Victim A complained to her mother that her uncle had been "rubbing my private parts". She added that her uncle had also touched her on a previous occasion. Arrangements were made at once for Victim A to be interviewed by the police. Victim A provided an account of what had occurred in the course of the sleep over. Her description became the foundation for the offences charged in the first indictment against both offenders. 21 Ultimately, there were pleas of guilty to both indictments. The matter proceeded before the sentencing Judge upon an agreed Statement of Facts. Neither offender gave evidence. According to the agreed facts, Victim A told the police that, having gone to bed in the loungeroom of the offenders' home, SGJ woke her up. She was directed to accompany him to the bedroom. Once in the bedroom, her uncle asked her to get onto the bed. KU was present at that time, standing next to the television. However, KU left the bedroom once Victim A sat on the bed. SGJ then asked Victim A to "take your pants off please". She refused. He then removed her pants himself. Having done so, he rubbed Victim A's vagina for 30 minutes. Whilst he was doing so, KU re-entered the bedroom. 22 SGJ then said to Victim A: "Suck my doodle". Again she refused. He then hit her on the left arm. She got off the bed and went to leave the bedroom. He stopped her, saying: "Come back onto the bed and suck my doodle." Victim A then did so. She placed her mouth on SGJ's penis and, for about 15 minutes, moved her mouth up and down. 23 The events of that evening and the abuse of Victim A continued, as I will shortly describe. However, before I do so, I should advert to a problem. It made the sentencing task immeasurably more difficult. The conduct I have described was a sequence, where each event was related to the one that followed. Each aspect concerned the same victim, and occurred within a relatively short time, such that collectively they may be regarded as the one episode (a matter relevant to issues of concurrence and accumulation) (R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66, per Simpson J at 67). Some aspects of SGJ's conduct did not amount to criminal conduct, such as waking Victim A from her sleep and directing her to go to his bedroom. Such circumstances were, nonetheless, relevant to the primary offence committed a short time later, fellatio (being Count 2 of the first indictment, sexual intercourse with a child under the age of 10 years). Other aspects of SGJ's conduct were separate crimes, such as rubbing Victim A's vagina (aggravated indecent assault of a child under the age of 10 years) or hitting Victim A when she refused to co-operate (which was an assault). 24 However, the prosecution artificially broke up the sequence by placing certain offences upon the Form 1, which then became relevant to the sentence on Count 4, second indictment, which related to a different complainant, Victim C. The result in the sequence already described, for instance, was as follows:

Form 1 - Count 3: SGJ removes the pants of Victim A. Form 1 - Count 4: SGJ rubs the vagina of Victim A. Form 1 - Count 5: SGJ hit Victim A on the left arm. Count 2 (1st Indictment): Fellatio (sexual intercourse with a child under the age of 10 years). 25 The sequence should not have been broken up in this way. By doing so, there was the risk of double counting, were the sentencing Judge to take account of the acts making up the sequence when sentencing the offenders for the major offence (fellatio), and at the same time, use such offences on the Form 1 when sentencing for Count 4, second indictment. The only conduct that permissibly provided context for Count 2, in these circumstances, was waking Victim A up, removing her from bed to the loungeroom, and the absence of consent to what then occurred. Such conduct was not an aggravating feature of the offence charged in Count 2, such as to give rise to a more serious offence (De Simoni v The Queen (1981) 147 CLR 383). They were, nonetheless, the circumstances relevant to an understanding of the criminality in Count 2, together with the fact that this was not an isolated incident. 26 Of course, it is permissible to have unrelated offences on a Form 1, such as the drug offences (Counts 8 and 9) in respect of SGJ. But where the offence to which the Form 1 attaches (Count 4, second indictment) related to Victim C, it was illogical to include crimes relating to Victim A. It made it difficult for the sentencing Judge, without double counting, to give such offences any real weight when sentencing on the count relevant to the Form 1 (Count 4). 27 Related conduct amounting to a crime may be dealt with either by separate charges or on a Form 1. Where there are separate charges, and they form part of the same episode, the sentencing Judge will determine issues of accumulation and concurrence in the context of the principle of totality, as set out by Howie J in Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at 47: "[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (emphasis added) 28 If the matter is dealt with on a Form 1, it has the advantage, from the viewpoint of the offender, that he is not subject to a separate sentence, and the sentence imposed in respect of the count to which the Form 1 attaches cannot exceed the maximum. The Form 1 offences, of course, must be evaluated in the context of the particular crime to which they attach. A longer sentence may be imposed than if the primary crime stood alone, reflecting the need for personal deterrence and the community's need to extract retribution for serious criminal conduct for which no punishment has in fact been imposed (Attorney General's Application under s 37 of Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146). 29 Here, if the prosecution wished to limit the charges against SGJ, and place some on a Form 1, there ought to have been a separate Form 1 for each victim, drawing together lesser offences relevant to that victim. The Form 1 relating to the most serious offence, Count 4 in the second indictment, could then have collected the miscellaneous additional offences (such as SGJ's drug offences and the offences against the unidentified victims) which did not concern complainants who were the subject of specific counts. 30 Returning to the events of the evening of 7 October 2005, after the sequence which has been described, SGJ asked Victim A to "roll over and rub your vagina and smile" (the offence of inciting a child to commit an indecent act). That offence was likewise placed on the Form 1 (Count 6). Victim A did as she was told. KU then photographed Victim A in the presence of SGJ (Count 5, first indictment: using a child under the age of 14 years for pornographic purposes). 31 The photograph having been taken, SGJ again asked Victim A to "can you please suck my doodle again", which she did (Count 3, first indictment). KU photographed Victim A performing that act (Form 1: Count 7). KU then lent over Victim A and herself performed oral sex on SGJ (Count 4, first indictment: commit an act of aggravated indecency towards a child under the age of 14 years). 32 Following the interview of Victim A on 8 October 2005, a search warrant was executed upon the home of SGJ and KU. The police located three digital cameras and a computer, which were seized. They also found 10 cannabis plants being grown hydroponically (Form 1: Count 8: cultivate cannabis, concerning SGJ only.) Cannabis leaf was located in the garage (Form 1: Count 9: possess cannabis, concerning SGJ only.) SGJ and KU were arrested. Bail was refused and they remained in custody until sentenced. 33 On 10 October 2005, Victim A was again interviewed. It will be remembered that, when she first complained to her mother, she said that her uncle had touched her on a previous occasion. In the second interview the police asked about the earlier occasion. Victim A described what happened on 26 November 2004, when she slept over at her cousin's home. A number of other children had also slept over. They all went to bed in the loungeroom. After she was asleep, SGJ woke her up. He held her hand and led her to his bedroom. He told her to get onto the bed. As she did so, KU stood alongside the bed. 34 SGJ then placed a red blanket over her head. He removed her underwear (Form 1: Count 1: SGJ/KU). Victim A asked whether she could put her underwear back on. She was told that she could not. SGJ then sat beside her. He said: "Can you suck my doodle?" Victim A did so (Count 1, first indictment: SGJ/KU). Whilst she did so, SGJ masturbated her with his hand (Form 1: Count 2: SGJ/KU). 35 Victim A later removed the blanket from her head. She asked to return to her bed. Permission was refused. Eventually she was told to go back to her bed. At the time of these events Victim A was 7 years and 9 months. 36 On 10 October 2005, the police also interviewed Victim A's sister (Victim B). She was somewhat older (10 years 5 months). She, likewise, recounted an episode on the evening of 7 October 2005. However, the offence which she identified related only to SGJ and became Count 6 upon the first indictment concerning SGJ. When she was asleep in the loungeroom, she became aware of SGJ lying next to her. She woke up. He then rubbed her vagina, both on the inside and the outside of the clothing she was wearing. He also placed his hand underneath her bikini top, rubbing her chest, saying words to the effect: "It feels so good." 37 Committal proceedings in respect of the first indictment were held on 3 March 2006. Both SGJ and KU were committed for a trial which was to take place in October 2006. Both, at that point, insisted that they were innocent.

The second indictment. 38 Meanwhile, the two hard drives of the computer were examined. Images were retrieved which corroborated the account of Victim A. Other images were retrieved which revealed additional victims and additional offences. A second indictment was then framed against each offender. It contained nine counts. 39 The photographic evidence obtained from the computer was incontrovertible. There were 81 images in data stored in the computer. They had been taken with a Kodak Eazy-Share CX7200 digital camera, such as that seized by police in their search. Some images depicted SGJ (or his tattooed fingers) and KU involved in sexually explicit acts with young children. Most images showed the time and date each photograph was taken. The agreed facts included the following: "These pornographic images depict 5 separate child victims. The faces of 4 of the victims are either out of shot or covered during the assaults; however police have been able to identify 2 of the children depicted." 40 Dealing with the counts in chronological order, Count 2 related to a series of six photographs taken on or about 14 December 2005 (s 91G(1) Crimes Act, using a child under the age of 14 years for pornographic purposes). They showed a young female (Victim E) in her underpants with her vagina and bottom exposed. Images 1.1 to 1.3 showed the hands of SGJ pulling at the girl's underwear, exposing her genitals (Count 1). The image displays his tattoo on the left index finger. The photographs were taken between 10.51 pm and 11.10 pm, a period of approximately 20 minutes. According to a paediatrician, the child (Unknown Victim 1) was aged between 3 and 5 years. 41 The next series of photographs concerned Victim C, who was a school friend of the offenders' daughter. She used to sleep over from time to time at their home. A series of images of Victim C were taken between 9.45 pm on 12.3.05 and 5.30 am on 13.3.05, a period of almost 8 hours. Victim C, at the time, was 7 years old, approaching her 8th birthday. The images revealed 5 offences. Two, Counts 3 and 4, were included in the second indictment, and the remaining three, appropriately, were dealt with on the Form 1. Count 3 in the second indictment was a general count that, on or about 12 March 2005, SGJ and KU had each used a child under the age of 14 years for pornographic purposes, contrary to s 91G(1) of the Crimes Act 1900. Count 4 was based on an image showing SGJ engaged in penile/vaginal intercourse with Victim C. It will be remembered that the Form 1 matters were to be taken into account when sentencing on this count. 42 There was an image of Victim C showing her lying in bed with her underpants pulled across, exposing her vagina. Other images in the same sequence showed KU spreading the lips of Victim C's vagina to further expose it (Form 1: Count 8: KU/Form 1: Count 10: SGJ; aggravated indecent assault of a child under the age of 10 years). There was a further image showing SGJ digitally penetrating Victim C's vagina (Form 1: Count 9: KU/Form 1: Count 11: SGJ; sexual intercourse with a child under the age of 10 years). Yet another image depicted KU performing cunnilingus upon Victim C (Form 1: Count 10: KU/Form 1: Count 12: SGJ; sexual intercourse with a child under the age of 10 years). 43 The photographic images depicted a further child (Victim D). She was aged 5½ years at the time the images were taken. KU had placed an advertisement in a local newspaper seeking employment as a baby sitter. The mother of Victim D read that advertisement and arranged for KU to baby sit her child. Her child was dropped at the home of SGJ and KU, where she spent the night. Twenty-two images were taken of Victim D over an 8 hour period between 6.36 pm on 8.4.05 and 2.35 am on 9.4.05. The images revealed a number of serious offences. Some were made counts in the second indictment (Counts 5, 6 and 7). Others, again inappropriately for the reasons given, were made counts on the Form 1, relevant to the sentence to be imposed on Count 4 (which related to a different victim, Victim C). Count 5 related to images of Victim D in sexually explicit poses, giving rise to the charge of using a child under the age of 14 years (namely a child aged 5½ years) for pornographic purposes, contrary to s 91G(1) of the Crimes Act 1900. Count 6 charged sexual intercourse with a child under the age of 10 years and was based upon an image showing KU inserting her finger in Victim D's vagina (image 3.17). Count 7 charged the same offence and was based upon a digital photograph showing KU's finger in Victim D's anus. 44 It will be remembered that there were four offences relating to Victim D included on the Form 1 of each offender. Form 1: Counts 11 and 12, KU and Counts 13 and 14, SGJ, were charges of aggravated indecent assault of a child under the age of 10 years and, in each case, were based upon images of Victim D showing both offenders using their fingers to expose the genitalia of the victim as photographs were taken. Form 1: Count 13, KU/Count 15, SGJ, were based upon a photograph taken at 1.05 am on 9 April 2005, being the first of two images showing KU performing cunnilingus upon Victim D (sexual intercourse with a child under the age of 10 years). The final charge relating to this victim, Form 1: Count 14, KU/Count 16, SGJ was a second image of KU again performing cunnilingus upon Victim D, taken one and a half hours later (2.35 am) (sexual intercourse with a child under the age of 10 years). 45 Count 8 related to Victim F, who was the second child who could not be identified, whose image appeared in this material. Count 8 charged that, between 13 December 2004 and 7 October 2005 the offenders had used a child under the age of 14 years for pornographic purposes (s 91G(1) of the Crimes Act 1900). There were a series of 10 images, although the date did not appear. One image showed KU performing cunnilingus upon the victim, which became Count 9 (sexual intercourse with a child under the age of 10 years). In the opinion of the paediatrician, the child was within the age range of 5 to 8 years. 46 The remaining images form the basis for the Form 1, Count 15 KU/Count 17 SGJ. They depicted the victim in sexually explicit poses with KU using her fingers to further expose the child's genitalia. 47 There was one further image which showed KU performing cunnilingus upon yet another unknown child (Victim G). The image did not display the time and date it was taken. The child was estimated to be less than 12 years of age and most likely between 8 and 10 years of age. That image formed the basis for the charge in Form 1, Count 16 KU/Count 18 SGJ, being sexual intercourse with a child under the age of 10 years.

The subjective case of SGJ. 48 SGJ, as mentioned, did not give evidence on sentence. He had a minor criminal record. In 1982, he was ordered to serve 150 hours community service for taking a motor vehicle. In 1990, he was convicted of assault and malicious damage and was fined. He had no convictions for offences of a sexual nature. Her Honour said this: (ROS 28) "Those matters do not aggravate the offences, and nor does his record disentitle him to leniency, having regard to the years which have passed since he last came to the notice of the authorities." 49 The evidence tendered on SGJ's behalf on sentence was a medical report (15.4.07) prepared by Dr Allnutt, a forensic psychiatrist. SGJ had a history of psychiatric illness, associated with drug taking. He had spent time in various psychiatric hospitals, the last occasion being approximately ten years before. The probable diagnosis was drug induced psychosis. He had made three attempts at suicide, the last being one week before his arrest, when he took an overdose. He experienced panic attacks and depression. After taking methamphetamine ("ice"), he also experienced voices, although they never directed him to do things. 50 Dr Allnutt asked SGJ about his offending behaviour. He acknowledged a recollection of one or two occasions. He remembered that one involved his niece. He added that, when the police told him what he had done, he "thought 'no way'". Dr Allnutt expressed the view that SGJ's drug taking of methamphetamine would not have affected his memory to the extent revealed by these answers. Dr Allnutt reached the following conclusion on this aspect: (p 8) "Your client engages in minimisation of his offending. Your client has minimised the memory of the extent of the offences. It is not uncommon for offenders to engage in minimisation, at this stage of the proceedings. Often this is an attempt to protect either themselves, a relationship, or a third party. It should be noted that minimisation and denial of sexual offending has not been found to be strongly associated with future risk of recidivism, but might relate more to capacity to engage in treatment." 51 In terms of diagnosis, Dr Allnutt stated that SGJ met the criteria for the paraphilia, paedophilia and sexually deviant behaviour. He had displayed a Conduct Disorder from childhood. He met the criteria for an Antisocial Personality Disorder of a mild nature. 52 SGJ expressed himself to be remorseful. He said he was disgusted by his behaviour. He added he: "should have his balls cut off", and that there were no excuses for what he had done. His Honour, however, was not persuaded. She said this: (ROS 29/30) "(SGJ) wishes to blame his ingestion of illicit substances. He referred to one victim, a niece aged nine. He was not sure when he began offending and he estimated that it happened on one or two occasions only. He acknowledged taking 'a couple of photographs'. When pressed by Dr Allnutt, he could recall offending on two days." 53 Her Honour added (dealing in similar terms with KU, whose subjective case I will describe in a moment): (ROS 30) "Neither offender chooses to explain truthfully why they chose to offend as they did, and nor do they appear to me to have any real insight into the impact their offending behaviour has had and will continue to have upon these extremely young innocent victims. Certainly (SGJ) continues to minimise the extent of his criminality. Any expressions of remorse or contrition are nothing more than as a result of the position in which they find themselves now facing lengthy custodial sentences. (SGJ's) actions in attempting to remove images from his computer hard drive demonstrates an acknowledgement on his part that what he was doing was very very wrong." 54 Returning to Dr Allnutt, he dealt with the question of the risk of SGJ reoffending upon release. He said this: (p 8/9) "Your client has a tendency to utilise substance abuse, when exposed to significant stressors. There is in general an increased risk of sexual and general recidivism in individuals who abuse substances. Your client requires assistance in developing more appropriate stress management responses." 55 SGJ told Dr Allnutt that he was keen to engage in sexual offender rehabilitation. Dr Allnutt then made reference to an actuarial tool developed in Canada and the United Kingdom, called Static 99, which can be used to make a prediction as to the risk of sexual recidivism. The prediction must be approached with caution. Within the psychiatric profession there is some controversy concerning its accuracy, although it is generally thought useful. SGJ, on this test, fell within the moderate to high risk group. However, Dr Allnutt added the following comment: (p 10) "There is no evidence of prior sexual offending preceding October 2004. The offending seemed to have occurred in the context of significant life stressors, depression and an increase and change in substance of abuse, namely methamphetamines. These are dynamic factors that could change. Thus, while he might fall into a moderate to high risk group for sexual recidivism in the future, in my view, in the absence of substance abuse, treatment of his mood disorder and engagement in sex offender rehabilitation, this risk could be significantly reduced." 56 Her Honour, somewhat charitably to SGJ, made the following comment referable to both him and his de facto wife, KU: (ROS 30) "Hopefully they do have good prospects for rehabilitation, and will be unlikely to re-offend if they … undergo appropriate drug rehabilitation and sex offending counselling. Only time will tell, although I note the concern that Doctor Allnutt places (SGJ) in the category where the risk of re-offending is high, unless he addresses his illicit drug problem."

The subjective case of KU. 57 KU did not give evidence. She, like her husband, was examined by Dr Allnutt, who provided a report dated 14 February 2007. She told Dr Allnutt she had not been abused as a child (p 5). She added that there were no "interpersonal violence or significant interpersonal issues" between herself and SGJ. She confirmed that she and her husband used cannabis almost daily throughout their married life. They began using ice after their son was diagnosed with MS on 4 November 2003 (report Dr Iain Stewart). When asked about her offending behaviour, KU said that she was reluctant to discuss it. She found it too distressing. She expressed strong feelings of remorse. She said she had done wrong and deserved to be in prison. 58 Dr Allnutt recorded the following explanation for her behaviour: (p 3/4) "When I enquired as to what she thought had contributed to her offending, she stated that she thought the drugs had affected her and led her to experimentation. She again said, 'I accept it was wrong and I take responsibility'. She voiced motivation to attend a treatment program. She believed she had been influenced by her husband to offend. She also again explained that the offending had occurred on weekends, when they were using ice. She said that her husband wanted to try something different. She thought she would 'see what it was like'. At the time she did not believe that it would harm the children." 59 Dr Allnutt expressed the following view concerning KU's responses: (p 4) "Your client does not engage in extreme minimisation or denial of sexual violence. Although she is reluctant to speak about it, she accepts the Facts. Her reluctance to discuss her experience of the offending, in my view, is a consequence of her distress and shame with regard to her behaviour, rather than an attempt to minimise or deny her offending." 60 Dr Allnutt's diagnosis was as follows: (p 5) "Your client has been involved in behaviour of a paedophilic nature, over a period of a year. … However, having said this, it is my view that underage children [are] not her preference and do not manifest as a primary sexual interest for her. Rather, this behaviour appears to have manifested in the context of a heterosexual, adult relationship with her husband and in the context of substance abuse, influenced by her husband and 'experimentation'." 61 KU had no history of mental illness. She was, in Dr Allnutt's view, suitable to participate in a sex offenders treatment programme and was anxious to do so. Unfortunately, as will emerge below, there is no such programme for female offenders. On the Static 99 actuarial test, assessing the likelihood of future offending, KU scored zero, signifying that she was within the low risk category. Dr Allnutt's conclusion was expressed in these terms: (p 6) "Having regard to both a clinical and actuarial assessment, it is my opinion that your client falls into a low risk group of sex offenders for future sexual recidivism." 62 As stated in the context of her co-offender, her Honour was not persuaded on the question of remorse. She made the following comment in respect of KU: (ROS 29) "Neither offender gave evidence on sentence as I have said, and in those circumstances it is always difficult to assess just how remorseful and contrite they truly are, despite the opinions contained and the reports tendered. (KU) wants to lay the blame either upon her drug addiction or upon her partner's influence over her. She told Doctor Allnutt 'her husband had wanted to try something different'. That could perhaps be understood if it was on one occasion only, but she was an active participant in multiple acts of sexual assault upon very young children. Quite extraordinarily, she stated at the time she committed these offences upon them that she did not believe it would harm the children." 63 As with SGJ, her Honour believed that expressions of remorse by KU were no more than "a result of the position in which they find themselves now facing lengthy custodial sentences" (ROS 30).

Remarks on sentence. 64 Having set out much of this material, her Honour said this: (ROS 24) "The offences carry very considerable criminality. The actions of both co-offenders are outrageous and disgusting. They involve gross breaches of trust of very young children left in their care, be they nieces or children left to be cared for whilst their parents were otherwise engaged. Their conduct is nothing short of evil. The photographs which unfortunately have to be viewed by the legal representatives and this court can only be described as stomach churning. It is almost incomprehensible that a mother of a child of approximately the same age as some of these victims would engage in such behaviour. In one such instance, the offences included an act of violence, albeit of a minor nature and in others coercion was used. They were offences committed in company. Certainly the emotional harm suffered by the two victims who provide victim impact statements is substantial. These children were extremely vulnerable in every sense of the word." 65 Her Honour, in this passage, was dealing with matters which were aggravating features of these crimes (s 21A(2) Crimes (Sentencing Procedure) Act 1999). Care was necessary when determining whether the vulnerability of the victim was an aggravating feature (s 21A(2)(l)), where the crime included, as an element, the age of the child. In the context of the s 91G(l) offences (use of a child for pornographic purposes), the age limit of the child under the section is 14 years. Here all victims who had been photographed were very young indeed (from approximately 3 years to 8 years) (apart from Form 1, Count 16, where the child was between 8 and 10 years). In that context the age of the child can be regarded as aggravating the offence. In respect of the s 66A offences (sexual intercourse with a child under the age of 10 years), the ages of the victims varied. The youngest victim (Victim D) was 5½ years which, of course, is very young and is an aggravating feature. Victim A in Count 1, first indictment, was 7 years 9 months. In the context of the abuse (fellatio where the child had protested), there is, I believe, a real difference between a child that age and a child almost 10, such that it is capable of being characterised as an aggravating feature. 66 Her Honour also referred to an aggravating feature under the Crimes (Sentencing Procedure) Act 1999, s 21A(2)(n), namely, there was planning. The children were woken from their sleep. They were taken to the offenders' bedroom. The camera was on hand. The heads of the victims in some cases were covered, or excluded from the photographs. The photographs were downloaded onto the computer. The offences took place late at night, when detection was less likely. 67 Her Honour then dealt with matters in mitigation. Each offender had pleaded guilty to both indictments. She generously allowed each a 20 percent discount in respect of the 1st indictment. The allowance in respect of the second was 25 percent, which was appropriate, the pleas having been entered soon after the charges were laid. SGJ had a minor criminal record, which her Honour regarded as irrelevant for the purposes of sentencing. KU was a person of prior good character. Her Honour found, generously to SGJ, that he, as well as KU, had good prospects of rehabilitation once they had completed sexual offenders rehabilitation. 68 Her Honour noted that some offences were subject to a standard non parole period. In that context, she said this: (ROS 27) "Penile vaginal penetration of a child has been held to be significantly more serious than other forms of penetration encompassed within s 66(A) of the Crimes Act . That having been said, it is to be borne in mind that it is the facts and circumstances of each case which need to be valued … when assessing the objective seriousness of the offence. It is also to be kept firmly in mind that whilst penile vaginal penetration might be taken to be more serious than enforced fellatio for example, that does not mean that fellatio necessarily falls somewhere below the mid point of objective seriousness. The same must be said about the act of cunnilingus. Similarly there are grades of seriousness of aggravated indecent assault, involving the touching on the outside of the clothing as opposed to the touching of the skin, or more particularly the genitalia." 69 The standard non parole period, of course, represented an offence in the middle of the range of objective seriousness (s 54A(2) Crimes (Sentencing Procedure) Act 1999). In that context, her Honour said this: (ROS 31) "There is no need for me to further amplify the objective seriousness of these offences, they are offences which fall at the upper end of the scale for objective seriousness for the reasons to which I have already referred. Counsel for the Crown and both offenders has submitted that these offences fall well beyond the mid range of objective seriousness and I would not disagree." 70 Her Honour did not elaborate by reference to the individual offences. However, sentences of differing lengths were then imposed with different commencing dates, as set out above.

The Notice of Appeal. 71 The Notice of Appeal filed on behalf of SGJ identified the following grounds: "1. The sentencing judge erred by failing to set non-parole periods in respect of counts 1, 2, 3 and 4 on the Indictment dated 19 September 2006 and counts 1, 6, 7 and 9 on the Indictment dated 2 March 2007; 2. The sentencing judge erred in her application of the totality principle; 3. The sentencing judge erred in finding that the applicant was not contrite; 4. The sentencing judge erred in her application of Crimes (Sentencing Procedure) Act 1999 s 21A(2)(l); 5. The sentence imposed in respect of count 4 on the Indictment dated 2 March 2007 was manifestly excessive; and 6. The total sentence imposed was manifestly excessive." 72 The notice in respect of KU relied upon the same grounds (with different numbering), together with the following additional grounds: "3. The sentencing judge erred in her application of a parity principle; 5. The sentencing judge took irrelevant material into account on sentence." 73 Ground 5 of KU's notice was a reference to a slip made by her Honour, when dealing with Count 6 on the first indictment. Count 6 concerned Victim B and was exclusive to SGJ. Her Honour inadvertently (when describing the effect upon Victim B) referred to KU. However, it is plain from her Honour's analysis, and the rest of her remarks, that she well understood that KU had not been charged with Count 6. There is no substance in Ground 5. The grounds relied upon by the applicants are therefore the same, apart from the additional ground raising parity in the notice filed on behalf of KU. 74 I therefore turn to the arguments in respect of the Grounds of Appeal.

Ground 1: Failure to set non parole periods in standard non parole period offences. 75 Her Honour was faced with a complex sentencing task, where the following offences specified standard non parole periods: · s 66A (sexual intercourse with a child under the age of 10 years) 7 counts (1st Indictment, Counts 1, 2 and 3; 2nd Indictment, Counts 4, 6, 7 and 9) (maximum penalty: 25 years imprisonment; standard non parole period 15 years). · s 61M(1) (aggravated indecent assault of a child (SGJ only)) 1 count (1st Indictment, Count 6) (maximum penalty: 7 years imprisonment; standard non parole period 5 years). · s 61M(2) (aggravated indecent assault of a child under the age of 10 years) 1 count (2nd Indictment, Count 1) (maximum penalty: 10 years imprisonment; standard non parole period 5 years). 76 Fixed terms with various commencement dates were imposed in all but Count 4, second Indictment. Indeed, counsel then appearing for the applicant SGJ invited her Honour to take that course. However, it was said on behalf of the applicants on this appeal, that her Honour was obliged, by the terms of s 45 of the Crimes (Sentencing Procedure) Act 1999, to set a non parole period. In respect of offences which specify a standard non parole period, the Act takes away the discretion to decline to set a non parole period. Section 45(1) of the Act is in these terms: "45(1) When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the office if it appears to the court that it is appropriate to do so: (a) because of the nature of the offence to which the sentence relates or the antecedent character of the offender, or (b) because of any other penalty previously imposed on the offender, or (c) for any other reason that the court considers sufficient." 77 The Crown acknowledged error, characterising that error as "highly technical". The error, according to the Crown, had not disadvantaged the applicants. The applicants argued, although not persuasively, that they had, in various ways, been disadvantaged by her Honour's approach. 78 Nonetheless, there was error. Non parole periods should have been fixed in respect of those offences which were subject to a standard non parole period. There was no discretion. There is therefore a need to re-sentence the offenders. The real issue, on this appeal, is whether under s 6(3) of the Criminal Appeal Act 1912, some lesser sentence is warranted in law and should have been passed. That in essence raises the same issues as Grounds 5 and 6 in the SGJ appeal (and the companion grounds in KU's appeal), that is, whether the sentences imposed, in total, and especially in respect of Count 4 (second indictment), were manifestly excessive. 79 Let me therefore turn to that issue. I will later deal with the parity argument raised on behalf of KU, which is a separate issue.

Grounds 5 and 6: Were the sentences (including Count 4) manifestly excessive? 80 It may be helpful to restate briefly the circumstances giving rise to Count 4. The victim (Victim C) was a school friend and contemporary of the offenders' daughter. She was 7 years old, although only a few weeks away from her eighth birthday. She had been invited to sleep over at her friend's house. She was photographed over about eight hours (Count 3, second indictment). One photograph (taken by KU) showed vaginal penetration by SGJ (Count 4). The Form 1 offences were to be taken into account when sentencing for Count 4. As described, some of these offences concerned the same victim (Victim C) and were therefore appropriate to include on the Form 1. Using the numbering relating to KU, Form 1, Count 8 charged aggravated indecent assault of a child under the age of 10 years, based upon a photograph taken by SGJ showing KU spreading the lips of Victim C's vagina. Form 1, Count 9 was a charge under s 66A (sexual intercourse with a child under the age of 10 years) and was based upon a photograph (taken by KU) of SGJ digitally penetrating Victim C. Form 1, Count 10 was again a charge of sexual intercourse with a child under the age of 10 years, based upon a photograph taken by SGJ of KU performing cunnilingus on Victim C. 81 The sentence in respect of Count 4 was 18 years with a non parole period of 11 years. Her Honour noted that penile vaginal penetration had been held to be a more serious form of sexual intercourse (ROS 27). The offences were "at the upper end of the scale for objective seriousness" (ROS 31) and they "ranked high on the scale of criminality". 82 The applicants had, in each case, entered early pleas. As mentioned, her Honour acknowledged that each was entitled to a 25 percent discount in respect of the charges on the second indictment. It follows that her Honour's starting point was 24 years, compared to a maximum under the section of 25 years. Her starting point for the non parole period was slightly less than the standard non parole period of 15 years. 83 The submission that the sentence on Count 4 was excessive was based upon statistics from the Judicial Commission and a comparison with other cases, where the offending behaviour was comparable or worse, and yet the sentences lower. 84 The statistics in relation to s 66A related to forty offenders for the period after 1 February 2003, being the commencement date of the amendments introducing standard non parole periods. They demonstrated that the sentences imposed on Count 4 were equal to the highest given for this offence. The non parole periods were within the top 12.5 percent. The Crown submitted, however, that the sample was very small. It, no doubt, included offenders who were themselves teenagers, where the criminality was utterly different. 85 The applicants also drew attention to a number of cases, including XY v The Queen [2007] NSWCCA 72; Rolfe v The Queen [2007] NSWCCA 155; (2007) 173 A Crim R 168; and Clare v The Queen [2008] NSWCCA 30. Each, in my view, was materially different from the present case and of limited assistance. XY v The Queen involved the digital penetration of a two year old female. The penetration occurred in the course of disciplining the child when the offender, a very young man, was intoxicated. The sentencing Judge accepted that the motive was not sexual gratification. That finding was not challenged. A fixed term of 4 years was imposed, concurrent with other terms in respect of additional counts. 86 Rolfe v The Queen concerned charges which included two counts under s 66A of the Crimes Act. The offender was the stepfather of the complainant, who was abused between the ages of 5½ and 8 years. The total sentence after trial was 8 years. There was no Crown appeal. The appeal was against conviction, with an application for leave to appeal against sentence. The offender, understandably, did not press the appeal against sentence. Giles JA remarked, when dismissing the appeal against sentence, that the total sentence was "well open to the Judge" (at 207). 87 The case which was pressed as best illustrating the injustice to the applicants was Clare v The Queen. Two children, brother and sister, were left in the care of William Clare. The boy was aged 3 years and the girl 6 years. Clare sexually assaulted both children on successive days. In the case of the boy, he caused injuries which proved fatal. An autopsy revealed anal tears and rectal bruising. Clare was charged with two counts, sexual intercourse with a child under the age of 10 years (s 66A) and with murder (s 18). He pleaded guilty in the District Court to sexual assault of the female child and was sentenced. He had previous convictions for offences of a similar nature for which he had served a term of imprisonment. The sentence imposed by the District Court Judge was 16 years with a non parole period of 12 years and 1 month. Clare was to be eligible for parole on 17 October 2015. 88 Clare then stood trial in the Supreme Court in respect of the offences relating to the male child. He pleaded guilty to sexual intercourse with that child (then aged 3 years). He pleaded not guilty to murder. After trial, he was convicted of manslaughter. The sentencing Judge in the Supreme Court was acutely aware that Clare had already been sentenced under s 66A in respect of the victim's sister. The principle of totality had to be applied. His Honour imposed a fixed term of 14 years imprisonment (reduced from 16 years to reflect the plea of guilty) in respect of the s 66A count (cf s 45(1) Crimes (Sentencing Procedure) Act 1999). The sentence was cumulative upon that imposed in the District Court (to commence on 17 October 2015). In respect of manslaughter, the sentence imposed was the maximum under the section (25 years), the crime having been characterised as "within the worst class of case". The sentence commenced on 17 October 2015, with a non parole period of 18 years and 9 months. The manslaughter sentence and the sentence on the s 66A count were therefore concurrent. On appeal, the non parole period was adjusted because the sentences imposed in the Supreme Court were cumulative upon the sentence imposed in the District Court. 89 Here, it is said on behalf of SGJ and KU that the criminality of Clare was significantly greater than SGJ or KU. The victims were younger, there were injuries, the offender was a convicted paedophile, and his pleas of guilty were entered much later. Yet the head sentence was less in respect of both victims. According to counsel for the applicants, one must assume that the principles in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, "were applied in respect of each sentence and that the sentences were all, in the circumstances, within range". 90 However, in Clare's case the sentences were not fixed by this Court. The original sentence in respect of the 6 year old girl was fixed by a District Court Judge in the exercise of his discretion. There was no Crown appeal. In the unusual circumstances of the offences having been divided between the District Court and the Supreme Court, the sentence in the District Court on the s 66A offence was clearly relevant to the sentence to be imposed in the Supreme Court in respect of the second offence under the same section. The sentences do not, however, determine the appropriate sentence on a charge under s 66A. 91 Section 66A is an offence which is subject to a standard non parole period of 15 years for an offence determined to be in the mid range of objective seriousness. The maximum penalty is 25 years. Accordingly, if an offence is determined to be in the mid range, and the usual ratio between head sentence and non parole period is applied, the sentence can be expected to be 20 years with a non parole period of 15 years. Adams J, in the context of these amendments (whilst questioning their logic), said this in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575: (at 590) "[52] This suggests that, so far as objective circumstances are concerned, the difference between a middle range case and a case in the worst category is not very great, a view which the severity of the standard non parole period rather suggests." 92 Against that background, statistics and other cases are of less importance than the characterisation of the offending behaviour in relation to a mid range offence. Here, her Honour determined, appropriately, that the offending behaviour in Count 4, second indictment (ignoring for the moment the Form 1), was worse than mid range. Indeed, she made that determination at the invitation of the parties, who were in agreement. The offence may not have been in the worst category, but it was most serious. When sentencing, her Honour was also obliged to take into account the Form 1. The principles to be applied (as she acknowledged) were restated in Attorney General's Application under s 37 of The Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (supra). The Chief Justice said this: (at 159) "[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 other 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. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 93 Spigelman CJ also made the following comment: (at 155) "[18] A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See, eg, R v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179, per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.) 94 The offences on the Form 1 concerning Victim C (quite apart from the other counts) were serious. Having regard to the criminality in Count 4, and taking account of the Form 1 offences, the starting point of 24 years was not outside the range. For my part, I believe no lesser sentence was warranted on Count 4. 95 Was the aggregate sentence on all counts manifestly excessive? It will be remembered that the total sentence imposed upon each offender was 22 years with a non parole period of 15 years. It can be seen at once that, since the sentence imposed upon Count 4 was 18 years imprisonment with a non parole period of 11 years, the total sentence involved the accumulation of a further 4 years imprisonment in respect of the head sentence as well as the non parole period. The remaining counts (14 counts in the case of SGJ and 13 in the case of KU) were themselves serious. There were a further six counts of sexual intercourse with a child under the age of 10 years (s 66A of the Crimes Act), apart from Count 4. The maximum penalty under that section, as stated, is 25 years with a standard non parole period of 15 years. In many cases, the offences occurred on separate days and involved different victims. A number of these offences involved an unwilling child being forced to fellate SGJ, whilst KU looked on and photographed what was occurring. Such offences were at least in the mid range. There were other offences besides, involving lesser penalties but nonetheless serious. In short, there was significant criminality involved in each indictment. It was entirely appropriate that there be partial accumulation in respect of many of these offences. The accumulation, adding 4 years to the total term and to the non parole period was certainly more than justified. 96 I, therefore, do not believe that a lesser sentence, in aggregate, was warranted and should have been passed in respect of SGJ. SGJ's appeal against sentence should be dismissed. 97 However, before reaching a conclusion in respect of KU, it is necessary to consider the separate issue of parity raised in her notice of appeal.

Ground 3 (KU): Parity. 98 Her Honour's remarks on sentence included the following: (ROS 36) "On the issue of parity, except for count 6 on the indictment [of] the 18th October 2006 in respect of [SGJ], I find their respective degrees of culpability to be equal." 99 That finding, according to counsel for KU, gives rise to a justifiable sense of grievance on the part of KU, for the reasons identified by Brennan J in Lowe v The Queen (1984) 154 CLR 606, where the following was said: (at 617) "The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case." 100 Here there were, according to counsel for KU, real differences between KU's position and that of SGJ. Yet the same sentences were imposed. First, SGJ faced six counts on the first indictment, whereas KU faced five. Although her Honour acknowledged that difference, the additional charge could not, it was submitted, be so lightly dismissed. It involved an additional victim (Victim B) and a separate and additional aspect of the abuse on the evening of 7 October 2005. Further, the Form 1 in respect of SGJ included two additional offences, both carrying a maximum penalty under the Drug Misuse & Trafficking Act 1985 of 10 years imprisonment (ss 23(1)(a) and (1)(c) and s 32(1)). One offence involved the cultivation of marijuana. 101 Secondly, KU was a person of good character, as her Honour acknowledged. SGJ, on the other hand, had a criminal record, although the offences were relatively minor, and were some time ago. Nonetheless, according to KU's counsel, his record was "indicative of a continuing pattern of anti-social behaviour under the influence of drugs and alcohol". 102 Thirdly, there were differences in respect of their prospects of rehabilitation. SGJ, but not KU, had been diagnosed as having an antisocial personality disorder of a mild nature. He had minimised his offences. His prospects of reoffending, according to the actuarial test, Static 99, suggested he was in the "moderate to high risk group". KU, according to the same test, scored zero. She was within a low risk group in terms of reoffending. She had not sought to minimise her offences. 103 The Crown, in response, emphasised that the sentences were imposed by the same Judge at the same time. Caution should be exercised before determining there was unfairness as between offenders. Her Honour was conscious of the additional count faced by SGJ and the Form 1 offences. It was open to her to make the sentence on Count 6 of the first indictment concurrent, as she did. Although the drug offences were included only in the Form 1 of SGJ, they concerned the drug cannabis. The undisputed evidence was that both offenders used cannabis daily. 104 The second issue, character, had limited relevance in the context of the offences charged, as her Honour recognised. SGJ's offences were minor and were well in the past. Her Honour said this: (ROS 29) "(KU) has no prior criminal antecedents. The fact that she is a person of otherwise good character is of little assistance to her. All too often those who have no prior criminal antecedents are convicted of such offences. The fact that they are of otherwise good character enables them to commit these types of offences and hide behind the façade knowing that if their victims were to complain, it is unlikely that they will be believed because the person is known to be a person of good character and therefore unlikely to offend in such a heinous way. The same can be said about the offender (SGJ), who has not re-offended for many many years." 105 On the third issue, rehabilitation, her Honour was entitled, according to the Crown, to take a cautious approach. KU had used drugs. She was an active participant in multiple offences involving very young children. She had made the "quite extraordinary" statement to Dr Allnutt, that she did not believe at the time that her conduct would harm the children. 106 Before dealing with these arguments, I should refer to one other matter. It was lightly touched upon in argument, although relevant to the issue of parity. Dr Allnutt recorded, in his report concerning KU, her statement that "she believed she had been influenced by her husband to offend". SGJ "wanted to try something different". Her Honour commented upon that aspect in these terms: (ROS 20/21) "In the opinion of Doctor Allnutt, there is insufficient evidence to suggest overt physical coercion on the part of the co-offender although the circumstances would suggest that there was perhaps psychological coercion. … Doctor Allnutt is of the opinion that under aged children are not (her) sexual preference but rather the behaviour manifested itself in the context of a heterosexual relationship combined with substance abuse. The introduction of methamphetamine may have resulted in her being dis-inhibited and led to the offending behaviour. She is regarded as being suitable to engage in a sex offenders program, she is regarded as being at low risk of re-offending." 107 When the appeal was heard, material was tendered on behalf of KU upon the basis that it may be taken into account in the event that this Court finds error and there is a need to resentence. Here, in my view, there has been error and there is a need to resentence, if only to restructure the sentences imposed in order to conform with s 45(1) of the Crimes (Sentencing Procedure) Act 1999. The material is relevant to KU's assertion that she was under the influence of her husband, SGJ. On 2 October 2008, KU saw Ms Anita McGregor, a psychologist. Her interview lasted five hours. The history she provided departed from the account she had given Dr Allnutt before sentence. She told Dr Allnutt that she had neither been abused as a child, nor as a wife. However, to Ms McGregor, she described in detail sexual abuse by her brother before the separation of her parents when she was 13 years old. After the separation, she went to live with her father. He then began sexually abusing her. That abuse continued until she left home at the age of 18 or 19 years. She met SGJ soon after. Within a short time they began living together. 108 KU also described to the psychologist her life with SGJ. He permitted her few friends, he was extremely jealous and he physically abused her repeatedly. Twice her ribs were broken. On other occasions her eyes were blackened, and bruises inflicted. He forced sexual behaviour upon her when she was not consenting, and verbally abused her. The level of violence escalated as his drug taking increased. She thought about leaving him several times. She did not so because she did not believe that financially or emotionally she could have coped alone. 109 Ms McGregor administered various tests designed to evaluate KU's personality. She concluded that KU sees the world as a frightening and dangerous place. She added the following: (report 2.10.08, p 7) "The main coping mechanism displayed by individuals with this profile appear(s) to be self sacrificing, their poor self image and focus on past painful experiences tend to reflect their often finding themselves in difficult and humiliating situations." 110 Statistically, female sex offences account for less than 7 percent of all sex crimes in Australia. The recidivism rate is less than 1 percent. Ms McGregor described various types of offending by female sex offenders. Her conclusion in respect of KU was as follows: (p 8) "(KU's) index offences can be identified within the second category of female coerced/accompanied. Her cycle of offending was based on (SGJ's) request for her to engage in this behaviour. It is unknown, but unlikely, that (KU) would have engaged in this behaviour on her own." 111 Ms McGregor's conclusion was as follows: (p 9) "Subsequent to a life, beginning in childhood, of abuse by her brother and father, and later by her de facto partner, (SGJ), (KU) displays many of the characteristics of an abused woman. Her standardized testing shows a woman who lacks self esteem and tends to engage in self defeating and humiliating situations in her life. She is an abused woman who herself became an abuser. Was her tendency towards submissive, passive and self defeating behaviours a predisposing set of factors or the result of the abuse and emotional neglect? As she stated many times during the interview, she felt that she deserved much of the abuse she encountered throughout her life. She sees herself as an evil person who engaged in heinous and unforgivable acts. She does not believe herself worthy of anything positive in her life." 112 An affidavit was also filed by KU, in which she affirmed the truth of the history she had provided to the psychologist. She added: (aff: 10.10.08) "2. It has been very stressful and very liberating getting these things off my chest. I am referring to the abuse within my family when I was growing up and to the fact that my partner (SGJ) was violent to me for years. I have never spoken to anyone about these things before. … " 113 KU added: "4. I believe I will never again commit offences against children because: (a) I no longer think like I did before. I now see that what I did was evil and I recognise how bad it is to do things like this. I would not want any other children to suffer. (b) I do not want my family and in particular my children to suffer like they have had to do. (c) Gaol is a terrible place. I never want to come back here. (d) I realise the use of drugs and alcohol had a role in committing these offences. I will stay drug and alcohol free after I am released from gaol. (e) When I am released I will be on parole and on the sex offenders' register. I will co-operate with the authorities and do whatever they think I need to do. (f) If the authorities say I should not live or have contact with (SGJ) then I will not. If they say nothing about it then I will need to think about what is best for me and the children as I approach the time of release. I really need help sorting through many of the issues I have started talking about." 114 Unfortunately there is no sex offenders' programme in gaol for females, no doubt because their numbers are so small. There are, nonetheless, courses which cover many of the same issues, some of which KU has already undertaken. Because of the nature of her crimes, involving children, she has been threatened since entering gaol. She is obliged to serve her sentence in protection. Indeed, in the early stages of her incarceration, she spent 23 hours out of 24 in her cell. She is anxious to work. However, the opportunities for work and for further education when on protection are limited. 115 On this material, including that gathered since sentence, I believe that there are real differences between SGJ and KU which, if not reflected in a lesser sentence, give rise to a justifiable sense of grievance. That said, KU's criminality was significant. She was not simply a passive by-stander. She was actively involved in many offences. It was KU who placed the advertisement in the newspaper seeking work as a baby sitter. People entrusted their children to her, although a stranger, because she was a woman and a mother, in circumstances where it may be inferred they would not have done so to a man. KU's sentence, I believe, should be 2 years less for the non parol period (15 years reduced to 13) and the overall term (22 years reduced to 20 years).

Resentence. 116 Giving effect to these reasons, in summary, the position in respect of the two offenders is as follows:

(i) The aggregate sentence of 22 years, consisting of a non parole period of 15 years, and an additional term of 7 years, should be confirmed in the case of SGJ.

(ii) Sentences in respect of both SGJ and KU which were fixed terms, in respect of offences where there was a standard non parole period, must be quashed and the applicants resentenced (cf s 7(1A) Criminal Appeal Act 1912).

(iii) In respect of SGJ, the sentence in respect of Count 4 (in aggregate 18 years) will stand and there will be accumulation in respect of the remaining counts. This Court, nonetheless, is constrained. There was no Crown appeal. The overall sentence cannot exceed the aggregate sentence of 22 years with a non parole period of 15 years imposed by her Honour. This Court is therefore not dealing with the matter as though it were sentencing at first instance, in terms of accumulation and concurrence. There will be accumulation in respect of SGJ, not exceeding the upper limits set at first instance.

(iv) In respect of KU, the approach will be similar, reflecting as well the finding of lesser criminality in the case of KU, justifying a lesser accumulation. The aggregate sentence will include a non parole period of 13 years with an additional term of 7 years.

Orders. 117 In respect of the appeal by SGJ, I propose the following orders:

The appeal in respect of Count 4 of the 2nd indictment dismissed and the sentence confirmed.

The appeal allowed in respect of the remaining counts on the 1st and 2nd indictments and the sentences quashed.

Count 1: A non parole period of 9 years commencing on 8 October 2005 and ending on 7 October 2014; with an additional term of 3 years expiring on 7 October 2017.

Count 2: A non parole period of 10 years commencing on 8 October 2006 and ending on 7 October 2016; with an additional term of 4 years expiring on 7 October 2020.

Count 3: A non parole period of 10 years commencing on 8 October 2006 and ending on 7 October 2016; with an additional term of 4 years expiring on 7 October 2020.

Count 4: A fixed term of imprisonment of 2 years commencing on 8 October 2006 and ending on 7 October 2008.

Count 5: A fixed term of imprisonment of 5 years commencing on 8 October 2006 and ending on 7 October 2011.

Count 6: A non parole period of 3 years commencing on 8 October 2006 and ending on 7 October 2009; with an additional term of 1 year expiring on 7 October 2010.

Count 1: A non parole period of 3 years commencing on 8 October 2007 and ending on 7 October 2010; with an additional term of 1 year expiring on 7 October 2011.

Count 2: A fixed term of imprisonment of 2 years commencing on 8 October 2007 and ending on 7 October 2009.

Count 3: A fixed term of imprisonment of 6 years commencing on 8 October 2009 and ending on 7 October 2015.

Count 4: Taking account of the matters on the Form 1, a non parole period of 11 years commencing on 8 October 2009 and ending on 7 October 2020; with an additional term of 7 years expiring on 7 October 2027.

Count 5: A fixed term of imprisonment of 3 years commencing on 8 October 2008 and ending on 7 October 2011.

Count 6: A non parole period of 9 years commencing on 8 October 2008 and ending on 7 October 2017; with an additional term of 3 years expiring on 7 October 2020.

Count 7: A non parole period of 9 years commencing on 8 October 2008 and ending on 7 October 2017; with an additional term of 3 years expiring on 7 October 2020.

Count 8: A fixed term of imprisonment of 2 years commencing on 8 October 2008 and ending on 7 October 2010.

Count 9: A non parole period of 9 years commencing on 8 October 2008 and ending on 7 October 2017; with an additional term of 3 years expiring on 7 October 2020. 118 In respect of the appeal by KU, I propose the following orders:

Count 1: A non parole period of 9 years commencing on 8 October 2005 and ending on 7 October 2014; with an additional term of 3 years expiring on 7 October 2017.

Count 2: A non parole period of 9 years commencing on 8 October 2005 and ending on 7 October 2014; with an additional term of 3 years expiring on 7 October 2017.

Count 3: A non parole period of 9 years commencing on 8 October 2005 and ending on 7 October 2014; with an additional term of 3 years expiring on 7 October 2017.

Count 4: A fixed term of imprisonment of 2 years commencing on 8 October 2005 and ending on 7 October 2007.

Count 5: A fixed term of imprisonment of 5 years commencing on 8 October 2005 and ending on 7 October 2010.

Count 1: A non parole period of 3 years commencing on 8 October 2006 and ending on 7 October 2009; with an additional term of 1 year expiring on 7 October 2010.

Count 2: A fixed term of imprisonment of 2 years commencing on 8 October 2006 and ending on 7 October 2008.

Count 3: A fixed term of imprisonment of 6 years commencing on 8 October 2007 and ending on 7 October 2013.

Count 4: Taking account of the matters on the Form 1, a non parole period of 11 years commencing on 8 October 2007 and ending on 7 October 2018; with an additional term of 7 years expiring on 7 October 2025.

Count 5: A fixed term of imprisonment of 3 years commencing on 8 October 2006 and ending on 7 October 2009.

Count 6: A non parole period of 9 years commencing on 8 October 2006 and ending on 7 October 2015; with an additional term of 3 years expiring on 7 October 2018.

Count 7: A non parole period of 9 years commencing on 8 October 2006 and ending on 7 October 2015; with an additional term of 3 years expiring on 7 October 2018.

Count 8: A fixed term of imprisonment of 2 years commencing on 8 October 2006 and ending on 7 October 2008.

Count 9: A non parole period of 9 years commencing on 8 October 2006 and ending on 7 October 2015; with an additional term of 3 years expiring on 7 October 2018. 119 HISLOP J: I agree with Kirby J. **********

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Judgment (61 paragraphs)

Cases Cited (14)