R v MCY[2018] QCA 275

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  The offence of entering a dwelling with intent to commit an indictable offence, threatening actual violence, armed with a dangerous weapon and in company, to which the applicant pleaded guilty, is a serious one.  The applicant was sentenced to 20 months imprisonment with a parole release date of 30 June 2018, which meant that, after taking into account time served on remand, she would be released after serving four and a half months imprisonment.  The applicant applied for leave to appeal against her sentence and, after hearing oral argument, the Court granted her leave to appeal and set aside that part of the order concerning parole and, instead, ordered that she be released on parole on that day.  The result was that she had served 55 days imprisonment.  The Court said that reasons for its decision would be published in due course.
2. [2]
   I agree with the reasons of Ryan J for the orders that were made on 20 June 2018 and would wish to add some brief observations of my own.
3. [3]
   This was a difficult case.  The offence is one that calls for severe punishment.  There is a need to condemn those who commit such offences and there is the allied need for a sentence that will act as a general deterrent against the commission of such offences.  As the complainant's victim impact statement in this case demonstrates, such offences leave more harm in their wake than just physical injury to a single person.  Ryan J has described the facts of the offending fully.
4. [4]
   The applicant's personal circumstances, however, act powerfully to reduce her personal culpability.  They are striking.  Ryan J has dealt with them in detail but I will summarise them.  The applicant is a young woman.  While at school in grade 10 at the age of 16, she became pregnant with her daughter.  The complainant is about the same age and he is the child's father.  He was violent towards the applicant and their relationship broke up at an early stage.  Domestic violence orders were made against him which he has breached.  The applicant has been raising their daughter on her own.
5. [5]
   The applicant had been admitted to hospital and, after her discharge, the complainant, who had temporary care of their child during the applicant's confinement, refused to return custody to her.  Her motive force for the offence was, therefore, a distorted sense that she should engage in an act of self-help to recover her daughter, a child who was being withheld from her by a man who, as I have said, had been the subject of domestic violence protection orders that he breached on several occasions.  One of the aggrieved parties named in one such order was the applicant's daughter.
6. [6]
   It was not the prosecution case that the applicant had herself conceived and procured the commission of the violent attack that constituted the offence to which she was a party.  Nor did she personally commit an assault.
7. [7]
   After her arrest, as Ryan J has described, the applicant was remorseful and gave authorities more than her full cooperation.  She confessed and also implicated herself more deeply in this offence than the police then knew.  She gave information against her co-offenders.  She undertook to give evidence against them.  In addition, she has actively aided police to gain evidence against people who have committed serious drug offences in a way that police have described in fulsome and grateful terms.
8. [8]
   The leniency demanded by these personal factors pulls very strongly against imposing a sentence like those that have been imposed in previous cases.  However, this creates no insoluble dilemma.
9. [9]
   As the Chief Justice of South Australia, King CJ once observed:

“There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.”^[1]

10. [10]
    King CJ’s use of the word “reasonably” in that passage is significant.  The sentencing discretion is to be exercised judicially and that means that the discretion must be exercised according to legal principle.  There will be occasions when the facts of a case, viewed in accordance with relevant sentencing principles, justify a lenient sentence notwithstanding the gravity of the offence itself.  In such a case, although the resulting sentence may be one that is well below the bottom limit of sentences that have previously been imposed for that offence, it will nevertheless be a just sentence because it is not the product of an idiosyncratic emotional exercise but the result of a rational exercise of judicial discretion.  It is in that sense that a judge's sympathies might be “reasonably excited”.  Such cases may be uncommon but sentencing judges ought not be deterred from imposing a just sentence by an unfounded concern that the resulting decision may be precluded by precedent.  Previous sentences are not precedents.  They are important for maintaining consistency in sentencing.  But if, in a sentencing judge's estimation, the proper application of principle to the facts of the case requires a particular sentence to be imposed then previous sentences, having been fully considered and taken into account, must not be permitted to operate as non-statutory limits to the proper exercise of discretion.
11. [11]
    The present case is such a case.  The applicant’s youth; her vulnerability; her particular motivation to commit the offence; her sense of responsibility to her daughter, and her role as carer; the absence of any actual violence perpetrated by her; her remorse afterwards, and her active assistance to police in order to make good her wrongdoing, assistance that she gave despite real danger to herself; and the absence of any concerns about her re-offending are facts that, in combination, justify leniency in sentencing her.
12. [12]
    These, and the reasons given by Ryan J, are the reasons why I agreed with the orders made on 20 June 2018.
13. [13]
    CROW J:  The applicant seeks leave to appeal a sentence of imprisonment imposed in the District Court at Brisbane on 3 April 2018.  The applicant pleaded guilty to one count of entering a dwelling with intent to commit an indictable offence, threatening actual violence, armed with a dangerous weapon and in company.  The act was committed in contravention to s 419(1) of the Criminal Code 1899 (Qld).  The applicant was sentenced to 20 months imprisonment with a parole release date of 30 June 2018.  The applicant was required to serve a period of incarceration of about four and a half months.  The applicant contends leave to appeal ought to be granted as the sentence imposed was manifestly excessive.
14. [14]
    The background of the offending is as follows.  The purpose of the home invasion was to recover the child L.  The applicant is the mother of the child L and the complainant, a 25-year-old male, was the father.  At the time of the offence, L was residing with her father, his new partner and three young children.  At the time of the home invasion, the complainant and his new partner were in the bedroom.  The new partner was breastfeeding an infant.
15. [15]
    The principal offenders were SQ, the new partner of the applicant and his colleague, MJ.  They, whilst both wearing masks, broke into the complainant’s bedroom.  MJ was armed with a large hunting knife and SQ was armed with a wooden bat.  The complainant and his partner were terrified.  In response to the invasion, the complainant grabbed a machete from under his bed.  MJ, who had entered the complainant’s bedroom originally wielding the knife, demanded the complainant’s daughter, L.  The partner of the accused, SQ, carrying the wooden bat also demanded the child L.  It was at this point the complainant yelled “no that’s my daughter, get out of my house.”^[2]
16. [16]
    The complainant’s brother then emerged from a nearby bathroom, there was a scuffle as the men entered into the garage.  There were threats of violence as well as screaming and yelling.  When the child L entered into the garage, the defendant MJ was swinging the knife around and swinging it close to the complainant and his adult sister.  The applicant assisted in the traumatic occurrence by firstly screaming from outside the garage “give me back my daughter”^[3] and then entering the garage door and calling out for her daughter.  The complainant’s sister then grabbed the applicant by her throat and pushed her against the garage door, then the complainant’s sister was attacked by MJ brandishing a knife.  MJ then picked up the child who was screaming and crying and decamped together with the applicant and her new partner SQ.
17. [17]
    In summary, it was a serious home invasion.
18. [18]
    The applicant contends that the sentencing judge failed to give the applicant “adequate discount for the co-operation” resulting in the sentence being manifestly excessive.  The applicant further contends that “[a]n appropriate sentence, taking into account all of the circumstances was a head sentence of 18 months imprisonment with the Applicant released on parole immediately with time served (45 days at the time of sentence).”
19. [19]
    It is apparent from paragraph 7 of the applicant’s written submissions that the applicant seeks to attack both the head sentence in having it reduced from 20 months to 18 months and the parole release date which the applicant contends ought to have been immediate, i.e. on the date of sentence on 3 April 2018, rather than 30 June 2018.
20. [20]
    The applicant was arrested soon after the offence on 4 July 2017 and remained in pre-sentence custody, for 45 days until 17 August 2017 when she received bail (all of which was declared).  Following sentence on 3 April 2018 the applicant spent a further 10 days incarcerated before she was granted bail (pending appeal) on 12 April 2018.

Was the head sentence of 20 months manifestly excessive?

21. [21]
    With respect to the submission that the head sentence of 20 months was manifestly excessive, that argument can be disposed of in a concise manner.
22. [22]
    The issue is whether the primary judge allowed for adequate discount for the s 13A and 13B cooperation of the applicant.  Logically, and also reflecting the proper approach required by s 13A(7)(b)(ii) of the Penalties and Sentences Act 1992 (Qld), in order to determine whether adequate discount was allowed for the cooperation, it is necessary to determine what the appropriate sentence would have been absent the s 13A and s 13B cooperation.
23. [23]
    It is at this juncture that the applicant’s case faces considerable difficulty.  During submissions on sentence before the primary judge and in the applicant’s written submissions on appeal,^[4] it was conceded that the appropriate “undiscounted” head sentence may be as high as three years.  That is undoubtedly correct.  Section 419 of the Criminal Code 1899 (Qld) carries a maximum sentence of life imprisonment.  The applicant has been unable to refer the Court to any cases in which a sentence of less than three years was allowed for such an offence where the dangerous weapon was a knife.  In R v Leu; R v Togia^[5] the Court of Appeal imposed a sentence of three and a half years imprisonment with parole eligibility after 12 months upon Mr Togia.  Mr Togia was 23 years of age and had no prior convictions.^[6]  That case involved a home invasion where Mr Leu was armed with a metal vacuum cleaning pipe and Mr Togia armed with a wooden stake.  To invade anyone’s home in company, particularly where one is armed with a knife, is a serious matter.
24. [24]
    In R v Houghton & Genrich^[7] Davies JA stated the following:

“The importance of deterrence in cases of this kind in my view cannot be over-emphasised.  Judging by the number of cases which come before this Court, offences of this kind appear to be prevalent and, involving as they do the intrusion into the privacy of a person’s home, often at night, involving assault of an occupant in his or her home, they are extremely serious; the more so when there are two or more invaders involved.”

25. [25]
    Several years later in R v Fitzgerald^[8] de Jersey CJ said:

“The court must, through the penalties imposed, take a serious stand against home invasions.  There is a strong need for deterrence in that area.”

26. [26]
    The concession repeatedly made by the applicant, that the sentence may be as high as three years before cooperation is considered, is a correctly made concession; indeed there are numerous authorities which suggest that where a home invasion occurs and one of the assailants brandishes a knife a sentence of three years is moderate.^[9]  I am conscious that the applicant did not brandish the knife and was not a principal offender.  However, this was a child recovery home invasion; a common and potentially dangerous crime.  The applicant was the mother of the child, L, and was the principal beneficiary of the crime, in that the home invasion succeeded and the applicant recovered her daughter L.
27. [27]
    In determining whether the head sentence is manifestly excessive, it can be seen that the primary judge gave effect to s 13A and 13B cooperation by reducing the head sentence of three years by 16 months or 44.4 per cent to 20 months.
28. [28]
    In R v WAW^[10] Muir JA said:

“There is no calculation or yardstick which can be applied to determine a precise discount for cooperation.  It must be discernible and worthwhile, but ‘nevertheless reflect the seriousness of the offence which is being punished’.”

29. [29]
    In R v Webber^[11] McMurdo P and Chesterman J said:

“… a prisoner who provides tangible co-operation in the prosecution of others implicated in the prisoner’s or some other criminal offence should receive a significant reduction in sentence sufficient to afford an inducement to others to provide such co-operation.”

30. [30]
    Whilst it is not a mathematical exercise, this Court in R v Thompson^[12] endorsed a reduction of 40 per cent as a significant reduction.  In R v Gladkowski^[13] the Court of Appeal said with respect to the informer’s discount:

“Discounts of one-third or even one-half of the sentence that would be appropriate are not uncommon, according to the value and risk of the assistance rendered.  In Pang, Wood CJ at CL, without purporting to cover the field, described the discount ‘customarily given’ in New South Wales as ranging between 20 and 50 per cent.  Other decisions including Thompson recognise the possibility of the discount exceeding 50 per cent, but at the same time the court must ensure that the reduction does not result in a sentence that is an affront to community standards.”

31. [31]
    The question in the present case is whether the discount of 44.4 per cent (from three years to 20 months) which is towards the top end of the “common” or “customarily given” range is manifestly inadequate.  This can only be answered according to the value of the information provided and the risk of the assistance rendered.  In assessing the value of the assistance rendered, the primary judge quite rightly placed little weight on the applicant’s cooperation with police in the prosecution of the co-accused MJ and SQ.  As MJ’s mask had fallen from his face in the fracas he was identified and SQ, as the partner of the accused, was undoubtedly a prime suspect.
32. [32]
    The primary judge found the applicant’s assistance in providing information which has led to charges against others under the Drugs Misuse Act 1986 (Qld) much more significant.  The police intelligence officer deposed that she was not aware of any information to suggest that the applicant or her family were compromised as a result of the assistance provided concerning the drug convictions.
33. [33]
    The applicant however has reasonable concern of being at risk of harm from MJ.
34. [34]
    The primary judge described the assistance provided to police as a confidential source.  Just as the primary judge accepted the very real assistance in the administration of justice by providing information, the primary judge also accepted that the information had “been given at a real risk to yourself”.  The primary judge therefore took into account both the value and risk of the assistance rendered in affixing the discount at 44.4 per cent.
35. [35]
    A reduction from a within range head sentence of three years by some 44.4 per cent to 20 months cannot be said to be an insignificant reduction let alone one which is demonstrably or manifestly insufficient or insignificant.  This is so even though the applicant’s cooperation was significant.  Whilst a head sentence of 18 months was in the proper range, so was the sentence imposed of 20 months.

Was the parole release date manifestly excessive?

36. [36]
    In his sentencing remarks the primary judge after proposing a head sentence of 20 months ordered the applicant to be released on parole on 30 June 2018 reflecting that with the time served of 45 days from 4 July 2017 to 17 August 2017 the time actually served was a little under four and a half months (or 22.5 per cent of the head sentence).  In his sentencing remarks, the primary judge said “I do not think any lesser sentence can comprise a just sentence.”
37. [37]
    In his remarks, the primary judge did take into account the considerable mitigating factors in the applicant’s favour namely her relative youth, her prospects of rehabilitation, her remorse, her history of suffering domestic violence and her care responsibilities for her daughter.  Those considerable discounting features were reflected in the primary judge reducing the parole release date to a period of approximately four and a half months.  Again, whilst a lesser period of actual incarceration was open and within the proper range so was the sentence imposed.  The applicant has not demonstrated that the sentence was manifestly excessive.

The residual discretion

38. [38]
    In circumstances where applications for leave to appeal against sentence are to be dismissed which would otherwise necessitate the applicant returning to a period of imprisonment for a short period of time, there remains reposed in the Court of Appeal in “marginal cases” a residual discretion to refuse to have an applicant returned to prison for a “trivial period”.^[14]
39. [39]
    In R v McLean^[15] this Court ordered the return to custody of the applicant for 40 days and in R v Liang^[16] an unsuccessful applicant was returned to custody for 51 days; those periods respectively being considered not to be trivial.  The facts of those cases are materially different from the applicant’s circumstances.
40. [40]
    In the present case the applicant has spent 45 days in declarable pre-sentence custody between 4 July 2017 and 17 August 2017 and then spent a further 10 days in custody between 3 April 2018 to 12 April 2018 at total of 55 days.  Had the applicant not been released on bail on 12 April 2018 and served her sentence to 30 June 2018 the applicant would have spent from her date of sentence a further 88 days incarcerated.  Where the applicant has, since sentence spent 10 days incarcerated the question remains whether the applicant ought to spend the remaining 78 days incarcerated.
41. [41]
    In R v Neivandt^[17] Thomas JA said:

“Since preparing these reasons I have read in draft the reasons proposed by Pincus JA and McPherson JA.  I feel bound to say that I would not regard the factor of sending the applicant back to gaol subsequent to his release on bail pending appeal as a reason for allowing the appeal, let alone the decisive reason.  The criteria for release on bail in such a situation are clear.^[18]  The main reason supporting a grant of bail in such cases is to avoid the risk, in an arguable case, that a short term of imprisonment will have been wholly or substantially served before the appeal can be heard.  In turn, applicants know that if their appeal fails they will have to serve the rest of their interrupted term.  There may be marginal cases where the period already served is so close to the appropriate sentence that the inconvenience of returning an applicant to prison might induce a court to fix that period as the time to be served, in order to avoid the inconvenience of returning an applicant to prison for a trivial period.  But I do not think the present case (36 days served out of four months) is such a case.

In my view the granting of such a benefit as a consequence of an applicant obtaining bail pending appeal would provide an unwarranted incentive to applicants to seek bail pending appeal which does not currently exist.”

42. [42]
    In Neivandt^[19] Thomas JA did not consider the return of the prisoner to custody for approximately 84 days to be trivial, however in determining whether any return to custody is trivial it is necessary to compare the period which has been served with that which is ordered to be served and any personal or mitigating factors.  In Neivandt the applicant served only 36 days out of four months to serve i.e. 30 per cent and absent any special personal circumstances and that was found not to be trivial.
43. [43]
    In McLean^[20] the sentencing judge ordered that McLean should have been released on parole after he had served two months or approximately 60 days.  McLean served 20 days (again a third) before being granted bail pending appeal.  On appeal the Court ordered that McLean was required to serve the remaining 40 days (or two-thirds).  However, in McLean there were no extenuating circumstances and the applicant had a prior criminal history.
44. [44]
    Similarly in R v Liang^[21] Boddice J stated as follows:

“The Applicant was released on bail on 3 July 2013.  He has therefore served nine days in custody.  Whilst requiring him to return to custody to serve the remaining 51 days will result in a significant burden on his family, the remaining period of 51 days is not insignificant.  The principle identified in R v Neivandt, as enunciated by Keane JA (as his Honour then was) in R v Denyer^[22] has no application as the period left to be served is far from trivial.”

45. [45]
    It can be observed that the serving of nine days in custody out of a total of 60 days is a serving of 15 per cent of the sentence and accordingly it could not be said and was not found to be trivial to require the applicant to return to prison for 51 days.
46. [46]
    In R v Denyer^[23] Keane JA (as his Honour then was) stated:

“In this case, however, the balance of the term which the applicant should serve in custody pursuant to what I regard as a proper sentence is not trivial.  In R v Neivandt the offender had served 36 days of four months in actual custody and he suffered serious health problems.  In this case the applicant has served only nine days of the four month period of actual custody required by his sentence.  And that sentence was not rendered unduly severe by any error on the part of the learned sentencing judge.”

47. [47]
    It is observed from the reasons of Keane JA in Denyer^[24] that when exercising residual discretion, the Court of Appeal ought to take into account the actual time served as a proportion of the period of time required by the sentence and any important, new, personal or mitigating factors in the applicant’s favour.  As Keane JA observed, the facts in Neivandt with the service of 36 days out of four months in actual custody coupled with the serious health problems allowed the Court of Appeal properly to exercise its discretion in favour of the applicant.  In Denyer however, having served only nine days out of four months and with no usual extenuating personal or mitigating factors in the applicant’s favour, the residual discretion was not exercised in the applicant’s favour.
48. [48]
    In the present case the applicant has served a total of 55 days in custody out of a total of approximately 133 days or approximately 41 per cent of her sentence.  That considered alone would not be sufficient to conclude that spending the remaining 78 days incarcerated was “trivial”.  However there are several circumstances in the applicant’s favour which may be taken into account in determining whether the Court ought to exercise its residual discretion to relieve the applicant of the necessity to return to prison.
49. [49]
    The first is the applicant is young, aged 24 at the commission of the offence, aged 24 at sentencing and currently aged 25 years.  The second is that the applicant has no prior relevant criminal history.^[25]  The third is that the applicant is the mother of the child L who was first separated from the applicant in the period of 45 days of pre-sentence custody and then again separated in the period of a further 10 days in post-sentence custody.  The fourth is the applicant’s remorse.  The fifth is her extremely high level of co-operation, such that although the sentence was in the proper range, so was a lesser sentence.
50. [50]
    As essentially a first time offender who has now spent two periods incarcerated and twice separated from her infant child, this case is one of the “marginal” cases in which the combination of the facts personal to the applicant together with the periods of time already spent incarcerated, on balance, favour the exercise of the residual discretion to allow the applicant to remain at liberty and care for her infant child.
51. [51]
    I would grant leave to appeal against sentence.  Dismiss the appeal but consider that it is appropriate to exercise the residual discretion in favour of the applicant.  Accordingly, but for reasons different to that of Ryan J, I would agree with her Honour’s proposed orders.

RYAN J: Introduction

52. [52]
    On 3 April 2018, the applicant pleaded guilty to a “home invasion” committed by way of a burglary, with violence, while armed and in company.  She was sentenced to imprisonment for 20 months.  Her parole release date was fixed at 30 June 2018.  Her 45 days of pre-sentence custody were declared as time already served.  That sentence required her to serve, in effect, a little more than 19 weeks (or about four and a half months) of actual custody.
53. [53]
    The applicant applied for leave to appeal against the sentence, arguing that it was manifestly excessive in all of the circumstances.  On 12 April 2018, she was granted bail, pending the hearing of the application.
54. [54]
    On 20 June 2018, the application was heard.  Leave was granted and the appeal was allowed that day.
55. [55]
    The head sentence was not changed.  However, the order fixing 30 June 2018 as the date of the applicant’s parole release was set aside and, in lieu thereof, it was ordered that the applicant be released on parole on 20 June 2018 – the date of the hearing.  Her 55 days of pre-sentence custody, between 4 July 2017 and 17 August 2017, and between 3 April 2018 and 12 April 2018, were declared as time already served under the sentence.
56. [56]
    Having made those orders, the Court indicated that it would deliver its reasons at a later date.  These are my reasons.

Applicant’s antecedents

57. [57]
    The applicant was 24 years old when she offended and at sentence.
58. [58]
    Her plea of guilty to the offence was an early one: she had been committed for sentence.
59. [59]
    Her criminal history consisted of one offence – “permitting use of place” – for which she was convicted on 3 March 2016.  While she was in hospital, her boyfriend grew cannabis in the garage of her unit.  For that offence, she was placed on a $500, six month, good behaviour bond.  No conviction was recorded.
60. [60]
    She is a young mother, having fallen pregnant as a school girl.  At the date of the sentence hearing, she was living with her own mother and daughter.  She has various health issues and other vulnerabilities, which are discussed below.

Procedure at the sentence hearing

61. [61]
    The applicant committed the home invasion offence with two male co-offenders.  She provided a statement to police in which she implicated herself and her co-offenders.  She undertook to give evidence against her co-offenders in accordance with that statement.  Also, she provided police with reliable information about drug dealers, unrelated to the home invasion offence, which enabled police to charge several persons with drug offences.
62. [62]
    By s 9(2)(i) of the Penalties and Sentences Act 1992 (the PSA), in sentencing the applicant, his Honour was required to have regard to (among many other things) how much assistance the applicant had given to law enforcement agencies in the investigation of the offence or other offences.
63. [63]
    Sections 13A and 13B of the PSA are procedural sections which apply when an offender’s sentence is to be reduced because they have undertaken to cooperate with law enforcement agencies in a (future) proceeding about an offence (s 13A); or because they have (already) significantly cooperated with a law enforcement agency in its investigation of offences (s 13B).
64. [64]
    The applicant had given such an undertaking and had significantly cooperated with a law enforcement agency.  Thus, in accordance with the procedural requirements of ss 13A and 13B, her sentence hearing included open court and closed court proceedings.
65. [65]
    During the closed court proceeding, the applicant’s assistance was discussed.  Ultimately, the sentence imposed by his Honour, and stated in open court, was one which reflected all aspects of her co-operation with the authorities.
66. [66]
    Section 13A(7)(b) requires a sentencing court to state, in closed court, the sentence it would have imposed upon an offender had the sentence not been reduced because of the offender’s undertaking to cooperate (the “but for” or the “notional” sentence).
67. [67]
    As well as quantifying for an offender the benefit of their co-operation, this requirement anticipates an offender reneging on their undertaking to co-operate in the future.
68. [68]
    If an offender were to renege, then, under ss 188(2) and (4) of the PSA, their sentence hearing may be “reopened”.^[26]  An offender who has completely failed to cooperate may be resentenced “having regard to the sentence that would otherwise have been imposed if an undertaking under section 13A had not been given”.  An offender who has partly failed to cooperate may be resentenced to an “appropriate” sentence.
69. [69]
    Although his Honour expressly asked counsel for their assistance in s 13A procedure at the commencement of the hearing,^[27] neither counsel drew these provisions to his Honour’s attention.
70. [70]
    In the absence of assistance from counsel, his Honour did not comply with s 13A(7)(b).  Instead, his Honour stated in closed court the sentence he would have imposed were it not for the whole of the applicant’s assistance or co-operation – that is, co-operating to the extent that she implicated herself in the offence; undertaking to give evidence against her co-offenders and acting as a confidential source and providing police with information about drug offending.^[28]  His Honour considered this last form of assistance to have been of “much more significance” than the first two forms.^[29]
71. [71]
    His Honour said that, were it not for the applicant’s co-operation, he would have sentenced her to three years’ imprisonment, with parole after ten months.^[30]
72. [72]
    His Honour did not state, in closed court, the sentence he would have imposed upon the applicant had her co-operation been limited to her self-incrimination and the provision of information to police about drug dealing.
73. [73]
    As R v FAF^[31] explained, it is a matter of “some importance” that the sentence identified under s 13A(7)(b) is the sentence which would have been imposed but for the undertaking to co-operate, and not the sentence which would have been imposed but for all co-operation, including past co-operation.  However, neither counsel drew his Honour’s attention to his error.
74. [74]
    Not only does identifying the sentence which would have been imposed but for the undertaking allow an offender to appreciate the tangible benefit attaching to their promised co-operation; it also provides a tangible incentive to such an offender to adhere to their undertaking, and facilitates the resentencing anticipated by ss 188(2) and 188(4) of the PSA if an offender were to renege on their undertaking.
75. [75]
    Although this s 13(7)(b) issue was raised by counsel for the respondent,^[32] counsel for the applicant did not rely upon it as the basis for an argument that the sentencing discretion had miscarried, or otherwise mention it.^[33]
76. [76]
    A similar error was made in R v Webber.^[34]  In that case, the court (by majority), in resentencing the applicant, stated the sentence it considered appropriate, but for the applicant’s co-operation.^[35]
77. [77]
    Webber was referred to in R v Cockfield,^[36] which his Honour referred to in his sentencing remarks and which is discussed below.
78. [78]
    In Cockfield, McMurdo P, with whom Jerrard and Holmes JJA agreed, said:^[37]

“In Webber the sentencing judge did not state under s 13A(7) what sentence he would have imposed but for Webber’s co-operation with the authorities.  This meant that the judge’s reasons there did not transparently reveal the important factor of the extent of the reduction in the sentence for the co-operation.  It also had the effect that if Webber subsequently failed to co-operate in accordance with his undertaking under s 13A and the prosecution applied to reopen the sentencing proceedings under s 188(2) of the Act (as permitted by s 13A(7)(c)) the court would have difficulty in complying with s 188(4) of the Act as it would not know the sentence that the original sentencing judge would have imposed but for the undertaking.”

79. [79]
    In allowing the appeal in Cockfield, the court stated the sentence it would have imposed but for the applicant’s co-operation.
80. [80]
    While this s 13A(7)(b) error might have been available to the applicant as a basis for contending that the sentencing discretion had miscarried, it could not assist the applicant in her argument that the sentence ultimately imposed was manifestly excessive.  It was not, therefore, taken into account by this court in allowing the applicant’s appeal.  However, it will be dealt with towards the end of these reasons.

Circumstances of the offence

81. [81]
    The complainant was the applicant’s 25 year old ex-partner.  They were in a relationship in high school.  The applicant fell pregnant when she was in year 10 and their daughter, L, was born.
82. [82]
    The following facts are drawn from the agreed statement of facts and the applicant’s police statement.
83. [83]
    L was six or seven years old when the offence was committed.  There were no formal court orders in place for her custody.  It was shared between the applicant and the complainant.  When the offence was committed, L was with her father.  The applicant wanted L back.
84. [84]
    On 3 July 2017, the applicant sent text messages to the complainant, demanding that he give L to her.  Her messages included the following statements –

• You’ve just answered your death wish; and
• Say your goodbyes.

85. [85]
    In response to “say your goodbyes”, the complainant said (by text), “say my goodbyes to who?  The only way L is leaving here is if the Police come to get her”.
86. [86]
    The applicant’s co-offenders were SQ, aged 29 and MJ, aged 31.
87. [87]
    SQ told the applicant that he would “mediate” with the complainant.  He did not mention violence or weapons.  Later, SQ and MJ discussed the matter out of the applicant’s hearing.  They then told her not to worry, they would get her daughter back.
88. [88]
    On the morning of 4 July 2017, the applicant spoke to SQ and MJ about the complainant as they brought up his photograph on Facebook.  SQ and MJ observed that the complainant was a “big boy”.  They “researched” him by looking at his Facebook profile and other photographs.
89. [89]
    The applicant and her co-offenders drove to the complainant’s house at about 9.15 am that day.  She saw a steel bat inside the car when she entered it.
90. [90]
    When they arrived at the complainant’s house, SQ and MJ told the applicant to stay in the car.  She saw MJ with a knife, “like a machete”.  It was 30 – 40 cm in length.  He retrieved it from the front passenger’s footwell.  SQ had the steel bat.  They covered their faces.  They entered the house via the partially open garage door.
91. [91]
    SQ and MJ went to the complainant’s bedroom.  He was in bed with his partner and their eight month old child.  MJ wielded the knife and said, “here for L”.  The complainant grabbed a machete from under his bed and told the offenders to “get the fuck out of my house”.  MJ repeated that he was there for L.  The complainant said, “no, that’s my daughter, get out of my house”.  The applicant heard the complainant from the car.  She got out and went to the garage.
92. [92]
    Meanwhile, the complainant and his brother (who had been in the bathroom when the offenders entered), pushed the offenders into the garage as they waved their weapons and yelled “where the fuck is L?”  MJ’s face covering slipped and his face was exposed.
93. [93]
    By the time the applicant reached the garage, her co-offenders, the complainant, his brother and sister, and the complainant’s partner were there.  The complainant’s partner had her baby in her arms.
94. [94]
    The complainant and MJ swung their knives at each other but there was no contact.
95. [95]
    There was screaming and arguing and the applicant yelled more than once “give me back my daughter”.  SQ and MJ said they would not leave without L.  The complainant left the garage and returned to it with L.  The applicant walked towards L.  She was grabbed by her face and throat, pushed to the ground and held her there by the complainant’s brother and sister.  SQ freed her.
96. [96]
    MJ swung his knife within one centimetre of the complainant and his sister.  The applicant picked up L, who was screaming and crying.  The three offenders left, with L, in their car, a black VW hatchback.  The complainant and his brother followed them but lost them.
97. [97]
    Later, police found SQ and L at a park.  They found the applicant at a unit in Caloundra.  A black VW was out the front.  MJ’s fingerprints were inside the car.  He was also identified by the complainant and his sister and brother on a photoboard.
98. [98]
    The sentence proceeded on the basis that there were at least three other children (apart from L) in the house at the time of the home invasion.  One was the infant held by the complainant’s partner.  The other two were boys who were screaming during the offence.^[38]

Submissions made at the sentence hearing – in open court

99. [99]
    The prosecutor tendered the complainant’s victim impact statement^[39] which revealed the impact of the offence upon him and his family.  He spoke of his fear of the complainant and another home invasion.  He said he was seeking help for panic disorder.
100. [100]
     The prosecutor observed how terrifying an ordeal this would have been for L.  The prosecutor submitted that, while the applicant was not a principal offender, her knowledge that retrieving L would involve violence was revealed by her text messages.  During the open court proceedings, no mention was made of the applicant’s police statement, which made it plain that the applicant was aware that her co-offenders were armed.
101. [101]
     The prosecutor called for a sentence which reflected the community’s denunciation of the applicant’s conduct.  She referred to R v Fitzgerald^[40] and its comments about the need for a “serious stand” against home invasions and the “strong need for deterrence”.  She drew the learned sentencing judge’s attention to paragraphs [25] and [26] of the dissenting judgment of Jerrard JA in Fitzgerald, in which, after referring to other decisions, his Honour said that a custodial sentence was not demanded in every case.
102. [102]
     The prosecutor also referred his Honour to R v Denham; Ex parte Attorney-General (Qld)^[41] and to R v Buckley; R v Ghattas.^[42]  These authorities are discussed below.
103. [103]
     The prosecutor concluded her open court submissions with the following:^[43]

“Ms MCY has, in her favour, a minor criminal history and an early plea of guilty and … past co-operation with the police.  But also bear in mind, it is an offence which is attended with high emotion involving her child.  And it does appear to be out of character.  Which is probably the best thing that could be said for her in this matter.”

104. [104]
     Defence counsel informed his Honour that the applicant and the complainant separated when L was three months old.  Protection orders had been made in her favour – one which expired on 30 January 2014 and the other (a temporary order) which expired six months before the present offence was committed.  Defence counsel told his Honour that the applicant had made three complaints about the complainant’s breaches of those orders.^[44]
105. [105]
     His Honour observed that if the applicant considered the complainant a violent person, going to his house was “all the more reckless”.^[45]
106. [106]
     Defence counsel informed his Honour that the applicant suffered from several medical and psychological conditions.  She has borderline personality disorder, PTSD and anxiety.  She suffers from panic attacks.
107. [107]
     The letter from her GP which was tendered^[46] revealed her to have been anorexic, depressed and a self-harm risk in 2009.  It listed her current medications as diazepam, temaze and Zyprexa (which is an anti-psychotic).^[47]
108. [108]
     In addition, the applicant suffered from endometriosis (which his Honour understood to be a very painful condition) and there were signs of early changes in her cervical cells “that can sometimes progress to cancer”.^[48]
109. [109]
     A letter from the applicant’s mother was tendered, which noted that the applicant had not been violent before.^[49]
110. [110]
     The court was then closed.

Submissions on sentence – closed court

111. [111]
     In submissions in closed court, the applicant’s counsel made the point that the applicant had implicated herself in the present offence – beyond that which was known to police – by providing police with a written statement.  In particular, in her statement, she admitted that she knew that her co-offenders were armed when they entered the complainant’s house.
112. [112]
     Also, that statement implicated SQ and MJ and the applicant undertook to give evidence against them, in accordance with s 13A of the PSA, notwithstanding her fear of “repercussions”.^[50]
113. [113]
     In addition, as verified in an affidavit by an Acting Superintendent of Police,^[51] the applicant had assisted police, by way of her registration as a “human source”, providing police with information about drug offenders.  Her information led to police charging six people, three of whom had not been previously identified by police as of interest.  The information provided by the applicant was “accurate and reliable” and was unlikely to have been obtained “from the use of conventional policing methods alone”.
114. [114]
     The applicant was not willing to give evidence in court about the drug offenders “for fear of physical repercussions” however nothing suggested to police that the applicant or her family were compromised because of the information she provided.  She was still assisting police as at 26 February 2018.
115. [115]
     Defence counsel’s written submissions contended for a notional sentence of two years’ imprisonment, with parole release or suspension at the “one-third mark” – relying on R v Buckley; R v Ghattas.
116. [116]
     He submitted that the applicant’s co-operation under s 13A required a reduction to the head sentence and to the recommendation or suspension attaching to it.  He submitted that the reduction had to be “significant” and that “40 percent or more” was appropriate.  In some cases, it had been has high as “two-thirds”.  Ultimately, he submitted that the appropriate head sentence was between 12 and 18 months’ imprisonment, with suspension after the time the applicant had spent in custody – which was then 45 days.^[52]
117. [117]
     In oral submissions, defence counsel said that the applicant’s past co-operation (s 13B co-operation) was also deserving of significant mitigation.^[53]
118. [118]
     Reflecting upon comments made by his Honour in open court that a penalty of 18 months to two years’ imprisonment was a bit light, defence counsel said that he accepted that the applicant was exposed to a term of three years’ imprisonment “before 13A and 13B considerations”.
119. [119]
     Defence counsel also relied upon AB v The Queen,^[54] because the applicant incriminated herself by providing information that she knew her co-offenders were armed (after first denying that she had such knowledge),^[55] which would not otherwise have been known to police,^[56] and asked for “special leniency”.  He asked his Honour to sentence the applicant in such a way as to not require her to serve any more time in custody.^[57]
120. [120]
     Having heard those submissions, his Honour was concerned about the justness of, and the community’s perception of, a sentence which did not require the applicant to serve any more that 45 days in custody.  His Honour described the offence as “extraordinarily dangerous”.^[58]
121. [121]
     In her written submissions, the prosecutor stated that the applicant’s co-operation was “of some use” in the identification of SQ and MJ as her co-offenders.  Her submissions referred to general statements in the authorities about s 13A co-operation and the approach to the reduction in penalty because of it.  She “accept[ed]” that the applicant was “entitled to a discount for her co-operation” but submitted that the level of the reduction was at the discretion of his Honour and did not follow a fixed formula.
122. [122]
     In oral submissions, the prosecutor said that his Honour’s instinct – that her initial submissions were a bit light on – was correct.  She submitted that the applicant’s offending warranted a sentence of at least two years’ imprisonment and that three years’ imprisonment would be in range.^[59]
123. [123]
     The prosecutor disagreed with defence counsel about the value of the assistance given by the applicant in respect of her co-offenders.  She pointed out other evidence implicating them in the offence.  She accepted though that “due credit” should be given for the applicant’s past co-operation (identifying drug dealers).  It was “a significant matter” that put her at “some risk”.^[60]
124. [124]
     The prosecutor referred to the applicant’s statement in which she revealed her prior knowledge of the weapons and said “she’s really increasing her own culpability.  I don’t know how that makes it – attracts more leniency towards her, but anyway”.^[61]  Of course, this is explained in AB v The Queen.  In that case, Hayne J said:^[62]

“An offender who confesses to a crime is generally to be treated more leniently than the offender who does not.  And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were know.  Leniency is extended to both offenders for various reasons.  By confessing, an offender may exhibit remorse or contrition.  An offender who pleads guilty saves the community the cost of a trial.  In some kinds of case, particularly offences involving young persons, the offender’s plea of guilty avoids the serious harm that may be done by requiring the victim to describe yet again, and thus relive, their part in the conduct that is to be punished.  And the offender who confesses to what was an unknown crime may properly be said to merit special leniency.  That confession may well be seen as not motivated by fear or discovery or acceptance of the likelihood of proof of guilt; such a confession will often be seen as exhibiting remorse and contrition.

These considerations are well known and well accepted.”

125. [125]
     In response to a question from his Honour, the prosecutor said that she was confident that the applicant’s evidence would be of benefit to the prosecution in the trial of SQ and MJ.  His Honour said that he was minded to take the view that it was of “some weight” in sentencing.^[63]

The sentence imposed at first instance

126. [126]
     In open court, his Honour recited the facts and also said:

• the applicant’s experience of the complainant’s domestic violence made it all the more dangerous to participate in the home invasion: it was a ‘particularly dangerous course for everyone” including L;^[64]
• the plan to grab L was the applicant’s first option – not her last; she did not seek assistance or advice from the police; it was a serious example of vigilantism;^[65]
• the home invasion was premeditated; the co-offenders were armed with a knife and a bat and in disguise; violence was plainly in prospect;^[66]
• there were other small children in the house – whether the applicant knew it or not, it was utterly reckless to disregard that possibility;^[67]
• the applicant had no relevant criminal history;^[68]
• of the applicant’s personal circumstances, she was a young woman, and her young motherhood put a great deal of pressure on her; she had psychological and health challenges;^[69]
• the prospect of L not being with the applicant was stressful and caused the applicant to act in a way she otherwise wouldn’t have;^[70] and
• the applicant left school in grade 10, and was working towards a certificate in aged care; she lived with her mother who was supportive of her.^[71]

127. [127]
     His Honour referred to the victim impact statement (VIS) and the effect of the offence on children and others who were innocent in the dispute between the applicant and the complainant.  His Honour suggested that the VIS reflected a somewhat excessive response to this serious offence but observed that the experience would have been no doubt terrifying, particularly for the children.  His Honour made it plain that he placed no weight on allegations contained in the VIS that the applicant was a drug affected person who continued to make threats of domestic violence to the complainant.^[72]
128. [128]
     His Honour referred to Thomas J’s statement in Wentt,^[73] in which his Honour said:

“[O]ffences of this character, which threaten the safety of persons in their own home are commonly regarded as sufficiently serious to demand custodial sentences, even in the case of persons of previous good character.”

129. [129]
     His Honour referred to the importance of general deterrence, highlighted in other cases, including Fitzgerald, Denham and Buckley.  His Honour considered those cases to be materially less serious than the present case.  His Honour also referred to Cockfield as another example of less serious offending.
130. [130]
     His Honour imposed the sentence as above – 20 months’ imprisonment, with parole release after, in effect, four and a half months.
131. [131]
     In closed court, his Honour explained that the sentence he imposed took into account the applicant’s past co-operation with the police and her undertaking to cooperate in the future.  His Honour noted that the applicant’s police statement also implicated her in the offending and referred to AB v The Queen.  Her assistance as a confidential source was, in his Honour’s view, much more significant than her other co-operation.  His Honour accepted that the applicant placed herself at risk by assisting police as she had done.  But for the applicant’s co-operation, his Honour would have sentenced the applicant to three years’ imprisonment, with parole after 10 months.  Because of her co-operation, that sentence was reduced to 20 months, of which she was required to serve four and a half months.  His Honour did not consider a lesser sentence just.
132. [132]
     As discussed above, his Honour did not separately state the sentence he would have imposed had the applicant’s co-operation not included her undertaking to give evidence against her co-offenders.

Applicant’s submissions

133. [133]
     The applicant argued that the sentence imposed was manifestly excessive.  It did not adequately reflect her extensive co-operation with the authorities.  Nor was it sufficient to incentivise others to co-operate with the authorities.
134. [134]
     Eighteen months’ imprisonment, with release on parole after 45 days of pre-sentence custody was the appropriate penalty for this offending in all of the circumstances.
135. [135]
     The applicant relied upon the authorities to which his Honour was referred.  She also referred to Webber^[74] for its statements about the need for a significant reduction in sentence where there has been co-operation.  At [4], McMurdo P and Chesterman J said:

“We agree with Pincus JA that a prisoner who provides tangible co-operation in the prosecution of others implicated in the prisoner’s or some other criminal offence should receive a significant reduction in the sentence sufficient to afford an inducement to others to provide such co-operation.

Although the discount for co-operation must be discernible, and worthwhile, the adjusted sentence must nevertheless reflect the seriousness of the offence which is being punished.  The balance between these competing demands will not always be easy to strike …”

136. [136]
     Pincus JA said, at [16]:

“… it is positively necessary to make it clear that co-operation, in the sense of incriminating other persons, will be likely to produce a significant discount in sentence, quite apart from the discount obtained by persons who plead guilty.”

137. [137]
     The applicant referred to the additional 10 days she spent in custody serving the sentence before she was released on parole and the harshness of returning her to custody – separated from her daughter – a second time.^[75]  It was submitted that personal deterrence had already been achieved.
138. [138]
     The respondent argued that the sentence was not manifestly excessive.  It properly reflected the applicant’s co-operation.  There was no suggestion that his Honour erred in his assessment of it.  There was no precise discount for co-operation.  The sentence imposed was not unreasonable or plainly unjust.
139. [139]
     In response to the applicant’s arguments about the court’s residual discretion not to send the applicant to custody a second time even if the sentence imposed at first instance was proper, the respondent noted that returning the applicant to custody for 80 days could not be considered trivial.

Comparable decisions to which his Honour referred

140. [140]
     In his sentencing remarks, his Honour referred to the cases relied upon by the parties:  Fitzgerald, Denham, and R v Buckley; R v Ghattas.  His Honour also referred to Cockfield which was discussed in R v Buckley; R v Ghattas.  Those cases were relied upon in this application also.  They are discussed in chronological order below.
141. [141]
     R v Denham; Ex parte Attorney-General (Qld) was an unsuccessful appeal against sentence by the Attorney General.  The penalty imposed upon Denham for a home invasion did not involve actual custody.  He had previous convictions for assault.  The offence arose out of his concerns for his child.
142. [142]
     Denham pleaded guilty to burglary, assault occasioning bodily harm and breaching a domestic violence order.  For the offences of burglary and assault occasioning bodily harm, he was sentenced to concurrent terms of 12 months’ imprisonment, to be served by way of intensive correction in the community, with special conditions that he submit to psychiatric or psychological treatment and not contact the complainant.  He was also ordered to pay $1,000 in compensation to the complainant, in default, one month’s imprisonment.  For breaching a domestic violence order, he was sentenced to six months’ imprisonment, wholly suspended for an operational period of three years.
143. [143]
     The Attorney General argued that the sentences were manifestly inadequate; failed to reflect the gravity of the offending; failed to take general deterrence sufficiently into account and gave too much weight to mitigating factors.
144. [144]
     Denham and his former partner were in conflict over the custody of their child.  The complainant was Denham’s former partner’s father.  He was 59 years old.  On the evening of 31 January 2002, in breach of a domestic violence order, Denham approached the complainant’s home.  Before the complainant was able to lock the door, Denham pushed it open.  He and the complainant struggled, during which Denham hit the complainant’s face four or five times, causing his nose to bleed.  He kicked him and held him in a headlock.  The complainant managed to escape and locked himself inside the house.  Denham threw outside furniture around the yard and into the pool.  When police located him, he was agitated and appeared intoxicated.
145. [145]
     The complainant’s injuries included bruising, tenderness and abrasions, as well as emotional damage.  He feared for his life during the attack.  His suffered ongoing pain and lived in fear of another attack.
146. [146]
     Denham had prior convictions for minor street offences and in 1999 had been sentenced to two months imprisonment, wholly suspended, for assault occasioning bodily harm, committed upon a woman who had gone to the aid of a woman he was assaulting.
147. [147]
     It was submitted at sentence that the offence occurred because he was concerned about his son, including his being exposed to the drug use of the child’s mother’s new partner.
148. [148]
     Denham was 32 years old at sentence.  He had not behaved unlawfully since the offending.  He had, by the time of sentence, regular and frequent access to his child.  He had a good work history and was in full-time employment.  His counsel tendered a positive report about his warm interactions with his son.  He had worked hard to overcome depressive symptoms triggered by (previous) exclusion from contact with his son.
149. [149]
     In refusing the Attorney General’s appeal against sentence, McMurdo P, with whom Cullinane J agreed, said that it was “fortunate indeed” that the child was not present and that the complainant was not more seriously injured.  She described Denham’s conduct as “completely unacceptable” warranting a “salutary deterrent sentence”.^[76]  However, he had employment and promising prospects of rehabilitation, which could be furthered by the penalties imposed at first instance.
150. [150]
     McMurdo P considered that the comparable decisions relied upon by the Attorney General demonstrated that a custodial sentence of 18 months’ to two years’ imprisonment, suspended after some months to reflect the plea of guilty and mitigating factors, was within range, but was not the only appropriate penalty.  The sentences imposed, while “compassionate”, appropriately provided punishment and protected the complainant.  They provided continued, structured, supervised rehabilitation, with onerous consequences for Denham were he to reoffend within the next three years.  The sentences were not manifestly inadequate.
151. [151]
     Jerrard JA said that Denham’s behaviour would ordinarily have justified a sentence including at least six months of actual imprisonment but having read the remarks of the President was persuaded that Denham should “just” escape a finding that the combination of sentences imposed was manifestly inadequate.
152. [152]
     R v Fitzgerald was an unsuccessful application for leave to appeal against sentence.  Fitzgerald pleaded guilty to entering a dwelling, by breaking, with intent to commit an indictable offence and assault occasioning bodily harm.  He was sentenced to 21 months’ imprisonment, to be suspended after six months, for an operational period of three years.  Pre-sentence custody, from 29 January 2003 (the day the offence was committed) until 13 February 2003, was declared as imprisonment already served under the sentence.
153. [153]
     The complainant, Z, and the applicant had been best friends.  The two men and the applicant’s wife engaged in a “threesome” in March of 2001.  The applicant and his wife separated in 2002.  The applicant’s wife remained involved with Z.  A month after their separation, the applicant took an overdose of sleeping pills.  He was hospitalised but remained depressed after his discharge.
154. [154]
     On 29 January 2003, the applicant decided to ask Z to “remove himself” from his marriage.  When he called Z, his wife answered.  When he arrived at Z’s house, his wife’s car was there.  He kicked open the front door.  He head-butted Z, who was on crutches, and put him in a head-lock.  He threw him to the ground and put his fingers around his windpipe and squeezed.  Z grabbed the applicant’s testicles.  The applicant released his grip.  He said he was going to make Z “that ugly” so his wife did not want to see him again.  He said he was not leaving until Z died.
155. [155]
     He grabbed Z’s windpipe again.  Z briefly lost consciousness.  The men continued to push and shove each other until the applicant stopped his attack.  The police then arrived.  In their presence, the applicant followed Z into his bedroom and punched him at least once in the face with a closed fist.  Police intervened and stopped the assault.
156. [156]
     Z suffered abrasions to the front of his neck and bruising to his forehead and right forearm.  He had some difficulty swallowing and soreness of the throat.
157. [157]
     The sentencing judge accepted that the applicant had acted in a jealous rage.  Referring to the remarks of Thomas J in R v Wentt, his Honour noted the importance of deterrence and the demand for a custodial sentence for a “home invasion” even where the offender was otherwise of good character – although there could be “an exceptional case or a category of case in which a noncustodial term is implemented”.
158. [158]
     de Jersey CJ and Mackenzie JA dismissed the application.  Jerrard JA dissented.
159. [159]
     de Jersey CJ considered the sentence imposed to have been moderate.
160. [160]
     Mackenzie J referred to the applicant’s mental ill health.  He was suffering from an adjustment disorder with mixed anxiety and depressed mood, or arguably a major depressive episode.  His Honour found no error of principle in the learned sentencing judge’s approach.  Nor did the level of sentence imposed suggest that there had to have been some error which was otherwise not apparent.  The learned sentencing judge had weighed up the relevant factors, including the general context of the marriage break up, the applicant’s good character and work record, that he was a responsible father to a child who particularly needed him, and his co-operation with justice.  However, deterrence was considered to be more than ordinarily important in matters of this nature.  People had to be deterred from going to another’s home intending to be violent and in fact being violence.
161. [161]
     R v Cockfield^[77] was a successful appeal against sentence.  Cockfield and others committed a home invasion upon persons who were unknown to them.  They pretended to be armed with a gun.  Cockfield had previous convictions for assaults.
162. [162]
     Cockfield pleaded guilty to burglary and armed robbery in company with personal violence.  He was sentenced to three and a half years’ imprisonment, suspended after six months, for an operational period of three and a half years.
163. [163]
     Three complainants (A, B and C) were drinking at home with two friends.  At about 12.30 am, a car pulled up outside their house containing Cockfield and his two offenders.  They were unknown to the complainants and their friends.  C and one friend were outside the house smoking.  The offenders asked C and his friend for drugs.  When they said they had none, their denial was challenged and the offenders pushed their way into the house.  Cockfield said “Go and get your weapons boys “cause we’ve got a gun here”.
164. [164]
     The female complainant A was taken out of the house by a friend.  Cockfield demanded money from the complainants B and C and picked up A’s handbag.  He took hold of B’s throat with one hand and, as he tapped the pocket of his trousers with the other, said “I’ve got a gun in my pocket.  I’ll shoot you if you don’t give me any money”.  One of the other offenders said “Just shoot him, just shoot him”.  An offender rummaged through the drawers of the house.  Cockfield put two mobile phones in his pocket.  Ultimately, B, C and a friend pushed the offenders out the door.  The friend brandished a knife to frighten them.  C telephoned the number of one of the stolen phones and demanded its return.  Whoever answered the phone said “You better be ready.  I’ve got a carload of boys coming over there now”.
165. [165]
     Cockfield was arrested the next morning.  In an interview with police, he minimised his role in the offending.  He gave a statement to police, just before his sentence, in which he admitted his role and stated his willingness to give evidence against his co-offenders (s 13A co-operation).  His matter proceeded to sentence on the basis that the complainants had not suffered ill effects from the incident.
166. [166]
     Cockfield was 22 when he offended and 24 at sentence.  He had a criminal history which included assaults.  References were tendered to establish that in the two years since the commission of the offence he had rehabilitated.  He was, at sentence, a hard working family man (he and his partner had a newborn) in steady employment.
167. [167]
     In Cockfield, the sentencing court was led into error about the appropriate starting point, before taking into account the s 13A co-operation.  The appropriate starting point was one within the range of two and a half to three years’ imprisonment, with an early recommendation or suspension to recognise the applicant’s significant mitigating factors.  That error had infected the notional sentence imposed under s 13A(7) as well as the ultimate sentence.
168. [168]
     The sentence originally imposed was set aside.  The applicant was re-sentenced to two years’ imprisonment, suspended after three months, with an operational period of two years.  But for his s 13A co-operation, he would have been sentenced to two and a half years’ imprisonment, suspended after nine months, for an operational period of two and a half years.
169. [169]
     R v Buckley; R v Ghattas was a successful appeal against the sentence imposed after a trial.  Ms Buckley was an inactive participant in a home invasion during which men she recruited to retrieve her children assaulted their father.
170. [170]
     Ms Buckley had two children with the complainant – aged seven and four.  Their relationship, which included domestic violence,^[78] broke down.  The children mostly resided with her.  Before she was due to collect her children in accordance with a court order, the complainant contacted her and told her that they were staying the night with him and that she should call the police with any questions.  She responded by a message threatening a court order and reminding the complainant that he was jeopardising access to his children.
171. [171]
     Ms Buckley tried to call the police to find out why she could not pick up her children.  She was unable to get through.  She and Bryant, a work colleague with whom she had been drinking, decided to go to the complainant’s house.  Another man, Carter, agreed to drive them there.
172. [172]
     On the way to the complainant’s house, they picked up Buckley’s friend Ghattas.
173. [173]
     Ghattas broke into the complainant’s house, smashing the door with a gas bottle, when he heard Ms Buckley’s daughter screaming from inside it.  The daughter said she yelled out to her mother ten times.  She said “dad’s holding me”.  The daughter ran to her mother.
174. [174]
     The complainant ran out the front door of his house, carrying his son.  He was struck on the back of the head as he ran across the lawn.  He could not see what hit him.  He lost balance and fell, with his son in his arms.  There were other assaults upon him, causing cuts to his arms and hands, bruising to his face and lumps to his head.  He said that two men had been “unloading for 10 or 15 seconds”.^[79]
175. [175]
     After a trial, Ghattas was convicted of wilful damage (count 1), burglary by break, in company (count 2) and assault occasioning bodily harm in company (count 3).  Carter was convicted of count 3.  Buckley was convicted of counts 2 and 3, on the basis that she shared a common unlawful intention with Ghattas and/or Carter to assault the complainant.^[80]
176. [176]
     Buckley was sentenced to concurrent terms of two years’ imprisonment, suspended after 12 months.^[81]  She argued that the requirement that she serve 12 months of actual custody was manifestly excessive: the offence involved heightened emotions in relation to children, exacerbated by the complainant’s contravention of a court order, and additional leniency ought to have been extended to her.  She sought release after the five months she had spent in custody by the time of the appeal hearing.
177. [177]
     She was 27 when the offences were committed.  She had worked all her life, from the age of 12.  She purchased her first property when she was 18.  She was working as a House Cleaning Manager when the offences were committed.  She was a good parent and a volunteer at the RSPCA.  She had no criminal or traffic history.  This was the first occasion she had been “in trouble” with the authorities.^[82]
178. [178]
     In allowing the appeal, and reducing the period of actual custody to seven months’ imprisonment, Applegarth J, with whom Fraser and Gotterson JJA agreed, observed that the complainant, in breach of a court order, decided to retain custody of the children.  He encouraged Buckley to contact police, but she was unable to.  She should have gone to the police station, but instead, she went to the complainant’s house.  It was also not surprising that an upset mother would seek the complainant to comply with the court order and seek support in doing so, after she was unable to contact the police.  The escalation in matters would have been appreciated by a clearer mind.^[83]  The complainant suffered minor physical injuries.  There was no finding that a weapon had been used in the assault upon him (although he said he’d seen a man with a baseball bat).  The implementation of a plan to assault the complainant if necessary could have resulted in more serious physical consequences for the complainant and others.  The sentence of two years’ imprisonment was not excessive having regard to the principles of denunciation and deterrence.^[84]  However, requiring Buckley to serve 12 months of actual custody gave too little weight to her previous good character and antecedents and too little weight to the extenuating and subjective circumstances of her offending.  His Honour supported his conclusion by reference to comparable authority, including the decision in Cockfield.

Consideration of authorities

179. [179]
     The applicant argued that his Honour erred in viewing Denham and Fitzgerald as “materially less serious” than the applicant’s offending.  His Honour considered Cockfield as “somewhat less serious”.  The applicant submitted that such a description was “open on one view of the facts”, but that the offending in Cockfield was gratuitous.  He had a relevant criminal history and he was a principal, in the sense of an active, offender.^[85]
180. [180]
     It is rarely possible, or useful, to rank offending on a stepped scale of seriousness.  While offending may be broadly categorised in terms of its seriousness, an appropriate sentence is one which takes into account the nature and seriousness of the offence, the personal circumstances and antecedents of an offender, and all other relevant matters which will vary from case to case.  The respondent made this point by reference to the observation of Keane JA in R v Dwyer:^[86]

“An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.”

181. [181]
     However, treating the comparable cases appropriately –  as yardsticks^[87] against which to compare the sentence nominated by his Honour as the one which would have been imposed were it not for the applicant’s co-operation –  reveals the sentence (of three years’ imprisonment, with parole after 10 months) to be a relatively high one having regard to the applicant’s role in the offending (she was not a principal offender: she was directed to stay in the car); the absence of physical harm; and taking into account the applicant’s personal circumstances.
182. [182]
     The applicant was a young mother, whose education had been interrupted by the birth of her daughter while she was still a school girl.  She left school at that stage.^[88]  She had vulnerabilities of mental health and personality.  The complainant’s conduct during their relationship was such as to warrant the making of protection orders in her favour.  It is reasonable to assume that her vulnerability in all respects – educational; mental health; personality; and in her relationship with the complainant – bore upon her ability to solve the issue of the custody of her daughter in a considered and careful way.
183. [183]
     Nevertheless, his Honour was correct to characterise the offence as an act of vigilantism, which had to be effectively deterred by an appropriately severe penalty.  There is a high risk of serious injury where armed, masked and emotionally charged offenders intend to physically retrieve a child from a person who does not wish to give up that child.
184. [184]
     The notional sentence was not manifestly excessive.  Nor did the applicant argue that it was.  Rather the applicant focused on the inadequacy of the reduction from that sentence having regard to her extensive co-operation with the authorities.

The reduction for the applicant’s co-operation

185. [185]
     Many cases contain statements about the real public interest in encouraging offenders to supply information to police which assists in the prosecution of other offenders by giving tangible recognition for that assistance in the sentence imposed upon the informant.
186. [186]
     In R v Gladkowski,^[89] the Court of Appeal (in a judgment of the Court) agreed that the benefit given to Gladkowski for his co-operation with law enforcement authorities in the incrimination of others was far too slight, and his sentence was reduced.  His co-operation included assistance which enabled the prosecution of others.  Of the “informer’s discount” the Court said:^[90]

“In these circumstances, the applicant is entitled to a substantial informer’s discount for his extensive co-operation, which should take into account the risk of incidental retributive violence against him whilst incarcerated.  The major point on this application is the extent to which effect should be given to this important factor.  It is well recognised that co-operation of this kind, particularly where society benefits from it and it places the offender in a position of danger, calls for “very substantial discount” (McGookin and Robinson (1986) 20 A Crim R 438, 449).  The necessity of encouraging persons to inform so that offenders may be convicted is regarded as a matter of “high public policy”.  The benefits of such a policy are not likely to ensue without substantial inducement (compare Golding (1983) 3 A Crim R 26; R v Pang (1999) 105 A Crim R 474, 477).  Discounts of one-third or even one-half of the sentence that would other be appropriate are not uncommon, according to the value and risk of the assistance rendered (Golding, above; R v Thompson (1994) 76 A Crim R 75, R v D CA 13 of 1995, 4 August 1995).  In Pang, Wood CJ at CL, without purporting to cover the field, described the discount “customarily given” in New South Wales as ranging between 20 and 50 per cent.  Other decisions including Thompson recognise the possibility of the discount exceeding 50 per cent, but at the same time the court must ensure that the reduction does not result in a sentence that is an affront to community standards.”

187. [187]
     In Malvaso v The Queen,^[91] Malvaso had provided information which assisted in the prosecution of a corrupt police officer.  Deane and McHugh JJ considered his assistance to have warranted exceptional leniency.  Their Honours also considered it in the public interest that there be a general perception that such leniency would be extended:^[92]

“… the applicant had provided vital and reliable information and assistance in the prosecution of a corrupt senior police officer involved in the organized production and distribution of drugs.  That fact was a powerful consideration favouring exceptional leniency in the sentence imposed upon the applicant.  It would be to close one’s eyes to reality to fail to recognize that in areas of organized crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organizers and financiers by the provision of significant and reliable evidence.”

188. [188]
     The exposure of an informer to retributive violence was a related factor also calling for leniency.
189. [189]
     These observations were acknowledged in R v D; Ex parte Attorney-General (Qld),^[93] although that Court, after referring to Thompson, noted the risks of excessive leniency, namely the giving of false evidence as well as the imposition of an effective sentence that is “so disproportionate to the gravity of the offence and the personal circumstances of the offender as to affront community standards”.^[94]
190. [190]
     In R v Galeano,^[95] Gotterson JA, with whom McMurdo P agreed, McMeekin J dissenting, found that the sentencing judge had not made due allowance for all of the circumstances in mitigation in the applicant’s case including his “moderate degree” of co-operation with police.  His Honour considered R v D, Ex parte Attorney-General (Qld) and Gladkowski.  His Honour said he did not understand the court in Gladkowski to be setting finite boundaries “within which any and every discount for co-operation with authorities must fall”: “There is no fixed “floor” or “ceiling” for the discount that may be accorded on account of co-operation”.^[96]
191. [191]
     In the present case, the reduced sentence sought by the applicant, because of her co-operation, was one which did not require her to serve any more than the 45 days of custody she had already served.
192. [192]
     Having determined that, but for the applicant’s co-operation of all kinds, he would have sentenced the applicant to three years’ imprisonment with parole release after 10 months, the question for his Honour in real terms was whether it was appropriate to reduce that sentence to such an extent as to not return the applicant to custody.
193. [193]
     His Honour frankly stated that he struggled with the submission made to him that the applicant’s high level of co-operation provided his Honour with the “scope”^[97] to reduce the sentence to one which did not involve any more custody.
194. [194]
     His Honour said (omitting counsel’s responses):

“That’s another thing that troubles me about this, Mr Wilson, just from a philosophical perspective.

I mean, the law’s the law.  But it’s small comfort, in terms of deterrence or punishment – and punishment is – has been well earned by Ms MCY in this case.

And every – a lot of the things you’ve told me – properly, I should say, as you should – have reinforced my view about that.  This was more than just reckless.  It utterly disregarded the other people who were in the house or may have been in the house.  It sent people she knew were violent in to recover a child, even though there had been no attempt to deal with it in accordance with the law, in – from a house where a man is living who she sad is – himself has the capacity for violence.  I struggle with the notion – and I mean, obviously I have to take it into account – but it’s small comfort to the community observing that offence that Ms MCY has assisted – as she has and probably at some considerable risk to herself … in assisting the police to prosecute and convict others for drug offences.

There seems to be – it’s some level of disconnect there.  I understand that the law says it’s so.

…

And again, the Act says you may take it into account, or words to that effect.

In fact, 13A and 13B don’t say anything about what you’re supposed to do with it.  It’s procedural entirely, isn’t it?

…

That’s [her co-operation] not the only question about what is a just sentence for this offence, though, even taking that into account.”

195. [195]
     His Honour was properly concerned to ensure that the ultimate sentence that he imposed was not one which was an affront to community standards.  However, the fact that the applicant – a young woman with vulnerabilities – had already served 45 days of pre-sentence custody, separated from her daughter, and had been bailed since, added a complexity to the exercise of his Honour’s sentencing discretion and in particular the degree of leniency to be extended to her in all of the circumstances.
196. [196]
     An offender’s co-operation with law enforcement authorities is to be encouraged.  There are well known risks to such an offender.  The benefit of co-operating to an offender must outweigh those risks to persuade the offender to co-operate.  Obviously, the real benefit to an offender is in the reduction of their sentence.
197. [197]
     In her police statement, the applicant spoke of her fear of MJ.  This fear had caused her to move house and to cancel all of her social media accounts.  The affidavit of the Acting Superintendent speaks of the applicant’s unwillingness to give evidence against any of the persons charged by police as a consequence of her accurate and reliable information, for fear of physical repercussions.  There is no reason to think the applicant is anything but genuine in her feelings of fear, particularly when regard is had to her mental health vulnerabilities.  Her decision to assist law enforcement agencies was a particularly brave one, which required full recognition.
198. [198]
     The sentence imposed by his Honour required the applicant’s return to custody for another 88 days – about three months.  In her circumstances, that would undoubtedly add to her punishment significantly.  However, it also carried the risk of dissuading her from continuing to provide her accurate and reliable information to police.  And it carried the risk that others similarly placed might reason that the benefits of co-operating with law enforcement agencies were not worth it.
199. [199]
     In the circumstances of this case, including not only the seriousness of the offence but also –

• the applicant’s very early plea of guilty;
• the applicant’s character, antecedents, age and health;
• that she was considerably younger than her co-offenders;
• that she was not a principal offender;
• that, despite threats and weapons, no one was physically harmed;
• that she incriminated herself in a critical feature of the offence – namely, her knowledge that her co-offenders entered the house armed – and was entitled therefore to a degree of “special leniency”;
• that, overcoming her fear of reprisals, the applicant had provided accurate and reliable information to police which had resulted in several people being charged with drug offences;
• that, overcoming her fear of reprisals, the applicant had undertaken to give evidence against her co-offenders;
• that returning her to custody would separate her from her daughter – thereby rendering it particularly harsh punishment; and
• the public interest in encouraging the applicant, and those in a similar position, to assist authorities,

the sentence imposed by his Honour was manifestly excessive.

200. [200]
     It is reasonable to assume that the applicant had been personally deterred from conduct of this sort by her imprisonment.  Her willingness to co-operate with authorities, and the value of her past co-operation suggest genuine remorse on her part.
201. [201]
     The sentence imposed by this court – that is, of 20 months’ imprisonment, with parole release on 20 June 2018 (the applicant having spent 55 days in custody) – was one which adequately reflected the gravity of the offending and provided an appropriate response to the many factors in play in this case as well as serving as an incentive to other offenders to co-operate with the authorities.
202. [202]
     The applicant’s conduct had to be met with a term of imprisonment and it was.  She served weeks in actual custody.  She will be under the supervision of the parole authorities – and at risk of a return to custody were she to breach the conditions of her parole – until early December 2019.
203. [203]
     His Honour made it plain that he had reduced the applicant’s notional sentence only modestly to reflect her undertaking.  The greatest reduction in it was attributable to her past co-operation.
204. [204]
     In my view, had the applicant’s co-operation been limited to her admitting that she knew her co-offenders were armed, and her past co-operation, in other words, but for her undertaking, an appropriate sentence was one of 20 months’ imprisonment, with parole after 90 days.  Were she to renege on her undertaking, she is exposed to the risk of having to serve another 35 days in custody (having regard to the time already served).