R v Radburn (a pseudonym)

SANTOW JA: The Director of Public Prosecutions has brought an appeal pursuant to s5D of the Criminal Appeal Act 1912 against eight sentences imposed by His Honour Acting Judge Moore on Radburn (the respondent) on 31 May 2004 following her trial at Campbelltown District Court. The appeal is against the asserted inadequacy of eight non-custodial sentences then imposed. The ground is that the sentences were “ manifestly inadequate because they do not adequately reflect the objective seriousness of the offences ”, in particular because “ His Honour erred in that he gave too much weight to the subjective features of the respondent, including her age and the fact that she acted under ‘duress’ ” and because “ His Honour erred in giving a discount for assistance to the authorities ”. The sentencing judge described the case as “ among the most extraordinary and complex that I have heard in over 20 years as a judge ”; RoS at 1. When the facts are elaborated, why he made that observation becomes clear.

The sentencing judge added “I have thought long and hard about this matter, giving it far more time than is normally allowed to a sentencing judge. The matter was adjourned for two weeks after the sentencing hearing otherwise concluded as that delay was needed to obtain a transcript of the District Court, in good time to consider it. The sentence is far less than the objective material requires, isolated from duress, and [Radburn’s] personal features”. It is clear that the latter features weighed heavily with him. They need to be considered against the salient facts.

The respondent’s trial, commencing on 3 November 2003, related to two counts of making a false accusation pursuant to s314 of the Crimes Act 1900 and six counts of perjury with intent to procure conviction, pursuant to s328 of the Crimes Act 1900. There were six alternative counts of perjury pursuant to s327 of the Crimes Act 1900.

On each of the two charges of making a false statement the respondent was ordered to perform 300 hours of community service. On each of the six charges of perjury with intent to procure a conviction she was ordered to perform 500 hours community service. All sentences were to be served concurrently. She had substantially commenced her community service when the Crown appeal interrupted that.

The maximum penalty for making a false statement (or accusation) is seven years (s314 Crimes Act 1900) and that for perjury with intent to procure a conviction of a serious indictable offence is fourteen years (s328 Crimes Act 1900). This reflects the seriousness of those crimes.

The sentences were imposed following a trial which her confession instigated, albeit a confession four years after the offences were committed, when she finally escaped her stepfather’s influence. The only defence raised by the respondent was one of duress by her stepfather. She did not give evidence at the trial but did so before her sentence. The sentencing judge recognised that ordinarily a full time custodial sentence for perjury was required. Nonetheless he concluded that in the present case there were extraordinary and compelling factors which justified departure from the ordinary course. In the draft judgment of Smart AJ, which I have had the advantage of reading, Smart AJ likewise concluded that “there is no doubt that extraordinary, compelling and complex circumstances existed”. Smart AJ stated the issue as I would. It is “whether [those circumstances] were such as to entitle the judge in exercising his wide sentencing discretion not to impose any kind of custodial sentence of any length.”

I agree also with Smart AJ that the sentencing judge had a wide sentencing discretion. But I would more strongly emphasise that the strictures upon interfering with the discretion of a sentencing judge apply with special stringency in Crown appeals recognising that “an appeal against sentence should be exercised only in the rare and exceptional case”. This is because it puts “in jeopardy for the second time the freedom beyond the sentence imposed” (Everett v R (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ). That is a factor of special significance given her fragile psychological state and risk of self-harm. Here the rare and exceptional character of the case derives from the very factors that led the sentencing judge to apply the leniency he did. Moreover, an appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process.

Turning to extraordinary and compelling factors which Smart AJ as also the sentencing judge emphasise, I start with the fact that all of the respondent’s crimes related to her false allegations that her brother, ST, had sexually assaulted her. Her first two crimes concern two formal statements given to the police on 30 January 1997 and 20 February 1997 giving details of these allegations. When she made these statements, she was just over the age of 15 years having been born on 4 December 1981. When she gave evidence at her brother’s trial she was aged 16. This was when she falsely alleged that her brother had sexually assaulted her with different acts being alleged.

What was extraordinary is that while it was true that she had been sexually assaulted, the assaults had been by her stepfather who coerced her by threats of violence against her and her family into falsely blaming her brother. The sentencing judge made the following findings: “I am satisfied that [Radburn] was under repression and confinement from [name redacted] enforced by his threats he uttered to her, being threats of violent reprisal on her, her nephew, nieces, mother and grandmother” (RoS, 12) and that, “… Radburn committed the crimes because of intimidation and coercion by [name redacted] being just short of such as would have driven a person reasonably equivalent to her in the sense used in the legal definition of duress, in her circumstances, to have committed the crimes” (RoS, 13-14).

The latter finding reflected the fact that Radburn gave no evidence at her trial so that not surprisingly, the jury rejected the defence of duress. But she did give evidence at her sentencing. The sentencing judge essentially accepted that evidence noting that:

The sentencing judge emphasised her youth and vulnerability at the time and while she remained in her stepfather’s house, while still at school, only feeling able to escape that influence at the age of 20. As to her vulnerability and youth, I quote below from the written submissions on behalf of the respondent (para [14]):

That vulnerability would tend to explain why she chose not to give evidence at her trial. I agree with Smart AJ that the materials available suggested that she was unlikely to be able to handle cross-examination.

It is important to be clear about the extent of the tyrannical control that the sentencing judge found that [name redacted] exerted over a continuing period. Thus he found that [name redacted] was tyrannically controlling both of his wife and of the respondent. From about age 14 he regularly assaulted the respondent, being frequently physically violent to her, sometimes quite severely and at times inflicting injuries, for example cigarette burns. He threatened the respondent that if she did not comply with his sexual demands he would kill and harm various members of her family and she believed him. She was constantly fearful of him. He was observed by witnesses at the trial to be improperly sexually familiar with her in public. He rarely let her out of his company, apart from her going to school. She believed he had people watching her when he was not with her, and statements he made about her movements when away from her tended to confirm this. She felt completely trapped and watched as though she were in a fishbowl.

The sentencing judge found that [name redacted] coerced her into making false allegations. He wrote them out, coached her in them and over a lengthy period rehearsed her evidence with them. He punished her when she went wrong in rehearsal. His coercion extended throughout ST’s trial and she gave into him then, even though at one stage her desire to relent was so strong that she had to obtain an adjournment to compose herself. She set out to make mistakes in her evidence about matters that [name redacted] would not have known but ST would have known. These mistakes were not picked up. The sentencing judge observed that even now, when she asked herself how she could have done what she did, she believed at that time there was no other way.

What she felt about being constantly observed does help to explain that whilst the sexual assaults by [name redacted] ceased when he developed a heart condition and had bypass surgery in 1997 enabling her to get out of his hands more frequently, I would still accept, as did the sentencing judge, that she did not feel free of the intimidation he exerted till she finally left home at the age of 20. Her mother, MT, described relationships within the respondent’s family at trial. Thus the immaturity of the respondent was such that she had stayed at school until she was aged 20. Her stepfather dominated her and the family. Even though her grandmother (T, 27 [30] and following 4/11/03) had told the respondent’s mother that it was “[name redacted]” and not “ST” who had “raped the respondent”, there was no support within the family for any attempt by the respondent to confront the lie.

Thus I would accept, as did the sentencing judge, that it was only when she felt able to physically move herself from the possibility of [name redacted]’s violent retribution at the age of 20 that she felt free to start undoing the enormous harm done at his instigation to her brother.

Smart AJ refers to the following passage in her cross-examination (T, 18 CCA transcript 12/3/03):

I would draw from the passage that she was totally distrustful of her stepfather, knew there was no guarantee that whatever she did she would not be harmed or others, but placed her faith that he would not carry out his threats so long as she complied fearing that otherwise he certainly would. What is clear from the sentencing judge’s findings is that at a level just short of legal duress, she felt herself under repression and confinement, intimidated and coerced right up until she left home at the age of 20.

It is important to bear in mind the significance of the sentencing judge’s finding that the tyranny over the offender and the household by [name redacted], reinforced as it was by threats of violence, continued up until she escaped and confessed four years later in October 2002. This she did as soon as she found the fortitude to escape from [name redacted]’s household when she confessed to her crimes against her brother knowing the consequences for her. That finding is highly material in assessing whether the delay in her doing this, with its tragic consequences for her brother who remained in gaol for over four years, should warrant appellate intervention in this Crown appeal against sentence, in order to substitute the custodial sentence which the Crown submits should have been imposed.

The Crown submitted that the sentences were manifestly inadequate because:

It is convenient to deal with the last matter first. The sentencing judge deals with that matter in these terms (RoS, 21):

I agree with Smart AJ that the passage he extracted from the above evinces error, namely that “she should obtain close to the maximum benefit for that [assistance] in accordance with the principle expounded in Cartwright (1989) 17 NSWLR 243 esp. at 252-3”

R v Cartwright (supra) pre-dated s23 of the Crimes (Sentencing Procedure) Act 1999. Section 23(2)(b) makes clear that mere potential to assist the authorities in their investigations or in the prosecution of other offenders does not suffice to justify a discount. This is because the court must consider, inter alia, “the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered”. [emphasis added]

One can assume that the Director of Public Prosecutions, even if he assured the court that the level of her assistance was not the reason for not launching a prosecution against [name redacted], naturally took into account the evident difficulty of obtaining a conviction based upon her evidence, given Radburn’s earlier perjury,. That is not inconsistent with accepting her later truthfulness as an objective fact. There is of course one sense in which, using the language of s23(1) of the Crimes (Sentencing Procedure) Act 1999, the offender “has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings related to, the offence concerned …”. There is no doubt, as the sentencing judge concluded, that but for her confession and in that sense assistance, her brother would not have been released from gaol. However, I do not consider that s23 is directed at that kind of assistance as distinct from assistance in prosecuting the person truly responsible for the relevant offence. Moreover, the assistance she was giving was to undo the effect of her earlier perjury, albeit well after its tragic consequences for her brother had resulted in his being incarcerated for over four years.

That, however, still leaves the first two matters of challenge. In particular there is the question whether the sentencing judge failed adequately to reflect the objective seriousness of the offence, giving too much weight to the subjective features of the offender including her age and to the fact that she acted under “duress”. In so doing, I need also to deal with the evidence of Dr Lennings and other relevant matters pertaining to the sentence.

There is no doubt that the trial judge was manifestly conscious of the objective seriousness of the offence in terms of factors of that character bearing upon it. The following brings that out (RoS 14-15):

That led the sentencing judge to consider first general deterrence. This he described as “an extremely important feature in sentencing for crimes against s 328 of the Crimes Act”. He correctly described the crimes as “premeditated and prolonged, occurring between January 1997 and September 1998”. He emphasised that Radburn “was coached vigorously by [name redacted]” adding that “although the fact of the coaching is an element in accepting her claim of coercion, her lengthy rehearsal of the testimony is also an objective feature taken into account in assessing the gravity of the crimes”.

In discussing general deterrence he referred to a number of cases epitomised by Letteri (Martin John) (NSWCCA, 18 March 1992, unreported). There Badgery Parker J articulated the relevant principle in a passage adopted by Gleeson CJ in Engert (1995) 84 A Crim R 67:

Having done so, the sentencing judge concluded “I think I would be going too far into new ground if I allowed for any reduction of the importance of general deterrence because of the factor of coercion in the present matter.”

One can understand the reluctance of the sentencing judge to give coercion any countervailing weight of itself. However, when coercion is accompanied by the circumstance that it was applied to a young person just over 15 years of age and reinforced with threats of violence not only to her but to her immediate family, it is clear that considerations of deterrence should be regarded as subordinate to the need to foster the rehabilitation of the offender. This is more especially so with an offender whom the sentencing judge concluded was of fragile mental health, who had suffered abnormal stress exacerbated by her own feelings of guilt and concern for her brother and the wrong she has done to him. In these extraordinary circumstances, while at one level it might be said that a custodial sentence would be effective in reflecting society’s abhorrence of perjury with the consequences it had for her brother, at another level it would disregard the very factors which the sentencing judge emphasised as properly justifying a lesser sentence. Thus I would not agree that the sentencing judge gave too much weight to those subjective factors of the offender including her age at the relevant time and to the fact that she acted under a level of duress just short of that which would have constituted a defence at law. As to personal deterrence, the sentencing judge was satisfied that she showed acute remorse and did not doubt her rehabilitation prospects or consider that she was in any way a positive danger to the community; RoS, 24.

I come now to a matter with which the sentencing judge did direct his attention at some length. I refer to Radburn’s fragile mental health and propensity to self-harm including possible suicide. He did however state that “I have not permitted that to influence my decision not to administer a gaol sentence”. But whether or not this had any great weight, one might assume that these matters legitimately played some role in the “intuitive synthesis” of the sentencing judge in ordering a non-custodial sentence.

I would adopt as the cardinal consideration what was said by Mahoney ACJ in R v Lattouf ((1996) NSWCCA, 12 December 1996, unreported). He emphasised in these terms the importance of appellate restraint in interfering with the ability of sentencing judges, properly applying principle, to arrive at occasionally unusual but not impermissible results within their discretion:

The principles inherent in the above passage were reflected most recently by this Court in R v Way [2004] NSWCCA 131 at [58]:

In reviewing the evidence as to Radburn’s psychological state, Dr Lennings relied on an assessment of Radburn in interview and the various tests including Personality Assessment Inventory (“PAI”) that Dr Lennings administered. I should quote some significant parts of Dr Lennings’ report:

Dr Lennings’ final conclusions reinforce concern about Radburn’s vulnerability at the least to severe depression were she incarcerated:

Moreover, the sentencing judge emphasised that “the effect of the likelihood of a gaol sentence on Radburn … has been a grave one” (RoS, 17). Thus “her fear of a gaol sentence is material in that that fear has caused her to suffer a form of punishment, since her confession – not the equivalent, it is true, of gaol itself, but one which is a real punishment leading to her abnormal psychological condition” (RoS, 18).

He added his observations of Radburn in these terms:

Insofar as in law deterrence is given less weight in the case of an offender suffering from a mental disorder, Dr Lennings’ report, while it does not distinguish between her condition at the time she committed her offences and subsequently, concluded that:

That observation of itself detracts from her sentence being such as to contribute to general deterrence. The sentencing judge referred to this diagnosis in his Remarks on Sentencing at 19.

I finally come to the way in which the sentencing judge used the evidence of the offender’s brother who was the victim of her perjury. He was quoted in that evidence as saying that “he did not think that his sister should go to gaol; nor did he believe that she should be given simply ‘a slap on the wrist’. There must be given some real punishment.” (RoS, 25)

While the sentencing judge did not consider that he need take that into account, this was because the other factors weighed sufficiently heavily in favour of a non-custodial sentence. I agree with what the respondent said in the written submissions on that matter:

This is a Crown appeal involving double jeopardy of a young, immature and vulnerable offender who had herself as a child been raped and sexually interfered with by her stepfather. She committed these offences and failed to correct her false evidence while under duress, just short of legal duress, by the perpetrator of that sexual predation. She did so under threat of violence to herself and immediate family from the perpetrator. While the sentencing judge was in error in giving a discount for assistance to the authorities, and while judicial minds may differ as to whether a custodial sentence should have been imposed or at least a suspended sentence, I consider that this Court should decline to intervene notwithstanding error shown in the original sentencing process, as the proper administration of justice in this extraordinary case does not warrant appellate intervention. Moreover, I would have grave concerns for her psychological and physical wellbeing were she now to suffer an increased sentence substituting a custodial sentence for a non-custodial one.

I therefore propose the following orders:

HISLOP J: I agree with Santow JA.

SMART AJ: The Director of Public Prosecutions has appealed against the sentences imposed upon the offender contending that they were manifestly inadequate. On each of two charges of making a false statement she was ordered to perform 300 hours community service. On each of six charges of perjury with intent to procure a conviction she was ordered to perform 500 hours community service. All sentences were to be served concurrently. The maximum penalty for making a false statement (or accusation) is 7 years (S 314 Crimes Act 1900) and that for perjury with intent to procure a conviction of a serious indictable offence is 14 years (s 328, Crimes Act ).

The sentences were imposed following a trial in which the only defence raised by the offender was one of duress by her step-father [name redacted]. The sentencing judge recognised that ordinarily a full time custodial sentence for perjury is required but held that in the present case extraordinary and compelling factors existed which justified departure from the ordinary course. There is no doubt that extraordinary, compelling and complex circumstances existed. The issue is whether they were such as to entitle the judge in exercising his wide sentencing discretion not to impose any kind of custodial sentence of any length. The judge gave the matter extensive consideration and published detailed reasons. He remarked, “The sentence is far less than the objective material requires, isolated from duress and Radburn’s personal features. Thus it appears lenient at first blush.” The judge faced a difficult sentencing exercise.

All the offender’s crimes related to her false allegations that her brother, ST, had sexually assaulted her. Her first two crimes concerned two formal statements given to the police on 30 January 1997 and 20 February 1997, giving details of these allegations. When she made these statements she had recently attained the age of 15 years, having been born on 4 December 1981. When she gave evidence at her brother’s trial she was aged 16 and falsely said that her brother had sexually assaulted her, different acts being alleged.

The trial of all charges took place between 9 and 12 September 1998. Different acts of sexual assault were alleged. ST, then aged 29, was convicted of all but one of the charges. Her evidence was virtually, but not entirely, the only evidence against ST. He was sentenced to concurrent terms of 8 years imprisonment with a minimum term of 5 years. He served 4 years 2 months and 6 days before being released by order of the Court of Criminal Appeal on 12 March 2003 as a result of his successful appeal based on the evidence of the offender and the unacceptable evidence of [name redacted].

On 18 October 2002 the offender, very shortly after she escaped from the dominating clutches of [name redacted], went to the police and confessed that she had told a number of lies against ST. He had not sexually assaulted her as she had alleged. Instead, [name redacted] had assaulted her.

The offender did not give evidence at her trial. The materials available suggested that she was unlikely to be able to handle cross-examination. However, she did give evidence at her sentencing, describing her emotional state, her state of mind, and covering other matters. This and some of the more serious objective matters were not put before the jury. The judge said that a good deal of the following came from independent witnesses’ evidence at the trial.

The judge found that [name redacted] was tyrannically controlling of his wife and the offender. From about age 14 he regularly assaulted the offender, being frequently physically violent to her, sometimes quite severely and at all times inflicting injuries, for example, cigarette burns. He threatened the offender that if she did not comply with his sexual demands he would kill and harm various members of her family and she believed him. She was constantly fearful of him. He was observed by witnesses at the trial to be improperly sexually familiar with her in public. He rarely let her out of his company, apart from her going to school. She believed that he had people watching her when he was not with her, and statements he made about her movements when away from him tended to confirm this. She felt completely trapped and watched as though she were in a fishbowl.

The judge further found that [name redacted] coerced her into making false allegations. He wrote them out, coached her in them, and over a lengthy period rehearsed her evidence with her. He punished her when she went wrong in rehearsal. His coercion extended throughout ST’s trial and she gave into it then, even though at one stage her desire to relent was so strong that she had to obtain an adjournment to compose herself. She attempted to make mistakes in her evidence about matters that [name redacted] would not have known but ST would have known. These mistakes were not picked up. Even now, when she asks herself how she could have done what she did, she believes at that time there was no other way.

The offender was cross-examined in the Court of Criminal Appeal proceedings by the Crown and counsel for her brother. She agreed that she told the police in October 2002 that about three or four times per week from the time she was about 15 years of age until January 2002 [name redacted] had been sexually assaulting her. She insisted it was true that [name redacted] had stood over her to make the complaint in 1997 giving rise to the trial of her brother in 1998.

The offender said that what stopped the sexual assaults by [name redacted] was that he developed a heart condition and had by-pass surgery in 1997. This enabled her to get out of his hands more frequently. She agreed that this was a long time before 2002. She agreed that she told the police officer that what caused the sexual assaults to stop was that [name redacted] got sick and could not chase her anymore and “I wasn’t afraid of him anymore plus I got a boyfriend and he ([name redacted]) did not like it.”

The offender claimed that from the age of 13 [name redacted] threatened her with harm to members of her family including their lives. She took the threats seriously. The offender agreed that when [name redacted] had his heart attack in 1997 he went into hospital for a number of weeks. She said that she did not tell anyone what was happening to her because she was scared of [name redacted].

The offender said that when she gave evidence in her brother’s trial, [name redacted] was sitting outside the courtroom. She said that she did not come forward and tell the police what was going on until 2002 because she was afraid of [name redacted] up to that point. She did not tell her mother. She was one of the people threatened. This passage appears in her cross-examination (at T18 CCA transcript, 12/3/03)

That is a curious passage. It is not easy to accept her assertions. Any jury listening to evidence along those lines would be seriously troubled about her claims of duress. She affirmed that ST had never touched her and that what she told the police on 18 October 2002 was the truth.

[Name redacted] was also cross-examined before the Court of Criminal Appeal. He recalled the police delivering an AVO (Apprehended Violence Order) to him on 18 October 2002. He claimed that he did not recall telling the police at some stage of that day that he gave false evidence against the offender’s brother, nor that her brother was convicted of raping his sister, whereas the intercourse was consensual and that she bribed him to give evidence against her brother. [Name redacted] claimed he did not recall speaking to the police at that stage. He explained that he was affected by medication he had taken and shocking pain. He was very confused. Apparently he had listened to a tape containing conversation along the lines mentioned. His recorded interview with the police during the evening of 18 October 2002 is revealing. [Name redacted] claimed that the offender had blackmailed him into giving false evidence. During his evidence [name redacted] gave details of financial assistance he had given the offender to meet telephone accounts of some size.

[Name redacted] agreed that he did not see any sexual impropriety between the offender and her brother. He said that he was wrong in what he said about such impropriety. He did not know why he said it. He was under the influence of medication. The Crown embarked upon a major challenge to [name redacted]. The transcript shows that this was justified. [Name redacted]’s evidence before the Court of Criminal Appeal lacked credibility and it was critical of it.

The sentencing judge lamented that the Crown had elected not to call [name redacted] either at the trial or on the sentencing hearing as his evidence would have greatly assisted in deciding the duress issue. In response to the judge’s expressed dismay the Crown Prosecutor stated that while she had not had a conference with [name redacted] she (the Crown Prosecutor) had been able to assess his credibility and that the Crown did not intend to call [name redacted] in the Crown case. The Crown Prosecutor declined to give any further explanation. The judge stated:

The offender has not sought any relief in this Court because the Crown declined to call [name redacted]. In R v Kneebone (1999) 47 NSWLR 450 this Court had occasion to consider the situation which can arise when the Crown does not call an important eye witness apparently capable of giving evidence which could have a major bearing on the outcome.

At 470-471 I referred to some well established considerations which bore upon the duty of the Crown Prosecutor to call all available material witnesses. The Prosecutor is not bound to call witnesses whom he concludes, on solid grounds, are not reliable or trustworthy. Also noted was the case where the prosecutor does not wish to lead evidence from a witness able to give material evidence but the defence wishes that person to be called. In such cases it will often suffice if the Crown calls that person so he can be cross-examined by the defendant and then, if necessary re-examined. I added:

[Name redacted] was not devoted to the offender or her cause. He was accusing her of grave misconduct, e.g., blackmail. The judge explained why both he and the jury would have benefited from him giving evidence. The judge had to deal with one further problem. On the sentencing hearing he had considerably more evidence than the jury had at the trial. The judge acknowledged that his findings must be consistent with the jury’s verdict. The judge made the following further findings:

The judge pointed out that he was obliged by s 21A(3)(d) of the Crimes (Sentencing Procedure) Act to take into account “duress” and that this “cannot mean legal duress in the sense that it was considered by the jury as being complete exculpation of the crime. It must have some lesser meaning in sentencing proceedings”. The judge stated:

The judge found that coercion and intimidation falling just short of duress continued throughout and after the crimes until [name redacted] was so incapacitated in October 2002 that the offender left and was able to leave his household and within days went to the police to confess. The judge said:

The judge correctly acknowledged the objective gravity of the crimes. Her brother had spent 4 years 2 months and 6 days in custody as a result of the offender’s crimes. He was separated from his three children at sensitive times in their young lives. He had a hard time in custody. His incarceration had a grave effect upon him and he doubts whether he will ever come to terms with it. The judge commented:

The judge acknowledged that the crimes were premeditated and prolonged, occurring between January 1997 and September 1998 and that general deterrence was an important feature of sentencing for the crimes in question.

The judge emphasised that when the crimes were committed the offender was either 15 or 16 and immature for her age.

The judge held that the offender’s subjective case was an extremely strong one. Her confession was the evidence which procured her conviction. Without it no proceedings would have been commenced and her misdeeds would not have come to official notice. Her conduct entitles her to a significant reduction in sentences. The offender believed at her confession and until she was sentenced that she would be sent to gaol. She had been under much stress for 18 months. She had no previous convictions.

The judge found that her feelings of guilt and concern for her brother showed the true remorse which existed.

In his report of 3 November 2003 Dr Bruce Westmore, forensic psychiatrist, remarked that it was a matter for a court to determine the veracity of her account in relation to her step-father’s alleged behaviour towards her. Dr Westmore wrote:

In the Pre-Sentence Report of 23 January 2004 the Probation and Parole Officer records that the offender enjoyed a happy family life until the age of about 13 when her mother entered into a relationship with [name redacted]. The officer wrote:

The offender’s mother and grandmother remain supportive and expressed their desire to assist in her recovery.

The judge accepted the details of her attempts at self harm which she gave in evidence. They occurred between the ages of 16 and 20.

Dr C Lennings, psychologist, was troubled about the quality of the parenting received by the offender; he was less than happy with her mother’s approach and parenting skills. The mother seemed remote and also to be avoiding [name redacted] and leaving the offender to him. There seemed to be a lack of protection on the mother’s part. Dr Lennings wrote:

The judge commented upon the severe and distressing effects which the proceedings had had upon the offender.

The judge held that the offender had been of considerable assistance to the authorities by giving a statement of [name redacted]’s alleged sexual crimes against her. The judge added:

This passage evinces error. This is not a case where there should be a substantial discount for assistance. The Director of Public Prosecutions has decided not to commence proceedings against [name redacted]. She was prepared to give evidence against [name redacted] but was not called upon to do so. There was an obvious credibility problem with her evidence in view of the evidence previously given by her and the long time it took for her to make her confession.

It was of the essence of her defence and case on sentencing that [name redacted] had coerced her and that he was the person who had had sexual intercourse with her and not her brother. Under s 23 of the Crimes (Sentencing Procedure) Act 1999 the Court is required to consider the usefulness of the assistance, its timeliness and whether it concerns the offence for which the offender is being sentenced, or an unrelated offence.

The offender submitted that if the Court held that her making a statement as to [name redacted]’s acts did not amount to assistance to the authorities in the conventional sense, it was a powerful fact to be considered on the aspect of contrition. I agree.

The Crown submitted that the sentences were manifestly inadequate because:

It was not in issue either before the judge or in this Court that the offences were serious and struck at the very heart of the administration of justice. Further, they resulted in the offender’s brother being convicted of shameful offences, wrongly spending 4 years 2 months 6 days in gaol and not being able to look after his family including his young children for that period.

Taking into account the setting in which the offences occurred, the sentences do not reflect the objective seriousness of the offences. Considerable attention had to be given to the powerful subjective features of the offender. The sentences imposed demonstrate that the judge attached great weight to her subjective features.

As previously indicated this was not a case where any substantial discount or indeed any discount should have been given for assistance to the authorities.

Senior counsel for the offender did not dispute that ordinarily substantial full time custodial sentences would be imposed for the subject offences. The offender’s primary submission was that the matter was of such an extraordinary nature that this Court would not exercise its discretion to intervene.

Senior Counsel for the offender correctly reminded the Court that while the forgiving attitude of the offender’s brother was not determinative of the sentence it should not be ignored. The brother was in a unique position to assess the circumstances in which the offender found herself.

The circumstances of these offences are truly extraordinary. The offender was young when the offences occurred and immature for her age when she was 15 and 16. She probably did not have adequate maternal support. [Name redacted] coerced and dominated her to an extent falling just short of the defence of “duress”. She feared that [name redacted] would carry out his threats of physical harm to members of her family and to her. However, the offender persisted in telling lies from January 1997 to September 1998 with the direst consequences both for her brother and public confidence in the administration of justice. She knew that what she was doing was wrong. After the heavy sentences were passed on her brother she remained mute for a number of years, doing nothing to alleviate the grave effects of what she had done.

A Community Service order for 300 hours for making a false statement is manifestly inadequate. A Community Service Order for 500 hours for her criminality for the offence of perjury with intent to procure a conviction is manifestly inadequate. There is no sufficient reason why this Court should exercise its discretion not to intervene. However, this Court always exercises considerable restraint when re-sentencing consequent upon Crown Appeals. The subjective factors in the present case are unusually powerful and the context in which the offences occurred bears upon their objective seriousness. This is a case where moderation in sentence is required.

For each of the offences of perjury with intent to procure a conviction the offender should be sentenced to a term of imprisonment comprising a non-parole period of 18 months with the balance of the term being 12 months. Each of the sentences should be concurrent as they arise out of the one course of conduct and the one set of proceedings. For each of the offences of making a false statement the offender should be sentenced to a term of imprisonment comprising a non-parole period of 12 months with the balance of the term being 9 months. Those sentences should be served concurrently with each other and with the sentences for the offences of perjury with intent to secure a conviction. These statements formed part of the one course of conduct and were the precursors to the court proceedings.

It will be apparent that special circumstances have been found. These include that this will be the offender’s first time in custody and her need for extended supervision.

These sentences should be served by way of periodic detention having regard to the extraordinary circumstances.

I propose the following orders:

As this is a minority judgment I have deleted the dates from which the proposed sentences should commence and the dates on which the non-parole periods should expire.