93 Counsel for AH also drew attention to the apparent association between AH's incarceration in Bandyup and the development of psychosis accompanied by auditory hallucinations. Tragically, subsequent events have reinforced the likelihood of that association.

94 In the course of his sentencing remarks, Judge Herron observed that AH had reoffended 'despite now being given two opportunities to address your offending behaviour'.[10] It seems clear that his Honour was not aware that the expectations expressed by Judge Derrick and Judge Deane as to the steps that would be taken during the currency of the community-based orders which each imposed in order to reduce AH's prospects of reoffending had not been fulfilled and that, in fact, all that had occurred in total was:

(a) AH had been required to attend appointments at specified times, when it was apparent from the reports relating to her disabilities that it was most unlikely she would have the capacity to attend such appointments at the allotted times without assistance, and in one instance she was given a warning letter when she is known to be illiterate - in other words, little or no account appears to have been taken of AH's circumstances in assessing the regime that was to be applied to her needs and requirements;

(b) some of the agencies communicated with each other about what they might do for AH, without actually doing anything for her;

(c) contact may have been made with the Disability Services Commission, but apparently without effect.

None of the therapeutic interventions contemplated in any of the many reports written with respect to AH were ever implemented in any way.

95 In the course of his sentencing remarks, Judge Herron expressed the view that general deterrence was an important sentencing consideration.[11] However, it must be observed that AH was not an appropriate medium by which to provide an example to others, given her intellectual impairment and cognitive disabilities - see Muldrock v The Queen.[12]

96 Judge Herron referred to a submission by AH's counsel to the effect that if a non-custodial penalty was imposed, the support of the Disability Services Commission and other relevant agencies could be enlisted to reduce AH's prospects of reoffending. His Honour observed that the difficulty he had with that submission was that very similar submissions had been made to each of Derrick DCJ and Deane DCJ and that 'matters have not advanced any further since then'.[13] It seems clear that Judge Herron was not aware that the reason why matters had not advanced was the inactivity of the agencies responsible for their advancement, given that it would have been quite unrealistic to expect AH to take responsibility for the arrangement of those supports herself. In this context it is significant that despite a number of references to the desirability of appointing a guardian for AH, no action had been taken in that regard.

97 In the context of rehabilitation, Judge Herron observed 'regrettably I have come to the conclusion that I don't think any further attempts at rehabilitation are going to assist'.[14] Again, it seems clear that his Honour was unaware that, in fact, there had been no meaningful attempts to rehabilitate AH through the implementation of any of the steps recommended in the various reports prepared in relation to her.

98 Similarly, Judge Herron observed that AH had 'not benefited from the community based orders previously imposed',[15] apparently unaware of the reasons why she had derived no benefit from those orders.

99 In the result, Judge Herron imposed a number of terms of imprisonment in relation to the various offences with which he was required to deal. For present purposes it is not necessary to recount the particular sentences imposed. All sentences of imprisonment were directed to be served concurrently, apart from the sentences of 12 months imprisonment imposed on each count of aggravated burglary, which were required to be served cumulatively, giving a total effective sentence of 2 years imprisonment. The sentences of imprisonment were backdated to 16 September 2013 to take account of time spent in custody prior to sentence.

100 AH's appeal was listed for hearing on 22 July 2014. During the course of the hearing, members of the court expressed concern in relation to a number of aspects of the case and requested information as to whether:

(a) any assessment had ever been made of whether AH was suffering from foetal alcohol spectrum disorder, given the reports of her mother's alcohol abuse;

(b) whether the agency responsible for the enforcement of the community-based orders imposed upon AH had taken any steps to implement the various therapeutic proposals contained in the reports presented to the courts which imposed those orders, or indeed whether anything had been done to reduce the likelihood of AH reoffending during the currency of those orders;

(c) whether any of the therapeutic proposals identified in the reports relating to AH had been provided following her imprisonment, and in particular whether she had received any treatment or programmes during her incarceration;

(d) what arrangements could be made to provide safe, secure and stable accommodation, support and supervision if AH was released and returned to the Roebourne area;

(e) whether any steps had been taken to secure the support of the Disability Services Commission to provide assistance to AH.

101 Counsel for the State kindly agreed to assume the responsibility for gathering and providing that information and the hearing was adjourned.

The information from the Department of Corrective Services

102 The information requested by the court was provided in the form of a copy of a letter dated 4 August 2014 from the Department of Corrective Services to the Office of the Director of Public Prosecutions. In that letter the department advised the following:

(a) There was no record of any assessment ever having been made of whether or not AH suffered from foetal alcohol spectrum disorder. Moreover, because AH was particularly unwell, and was being treated at the Frankland Centre, any assessment would take some time.

(b) The steps taken after AH was placed on each of the community-based orders were as we have set out above.

(c) In Bandyup AH was assessed as requiring the 'Pathways' programme for substance misuse and the 'Cognitive Skills' programme. However, she was unable to participate in those programmes due to her cognitive impairment. The 'Think First' programme which is appropriate for inmates with an intellectual disability/cognitive impairment is only offered at Casuarina Prison (a male prison). AH participated in a voluntary non-therapeutic programme - 'Yarning' - between 4 and 25 March 2014. She worked for three days as a kitchen worker in February 2014, but has not otherwise been employed within the prison.

(d) AH was transferred to the Frankland Centre on 10 July 2014 following a suicide attempt. A psychiatrist at the centre, Dr Wojnarowska, had advised that AH was 'acutely psychotic' and not fit to participate in any court process, and that it would be at least three months before her capacity to participate in the court process could be assessed.

(e) AH had been residing in Roebourne with a man who has prior convictions for offences of a sexual nature. AH's partner/boyfriend was currently detained in Acacia Prison as a result of offences of a sexual nature. He has been diagnosed with a foetal alcohol related disorder. Attempts to contact AH's family members were continuing.

(f) No assessment of AH had been undertaken by the Disability Services Commission because it wanted reassurance that AH was participating in the process voluntarily. However, more recently, the Commission had advised that AH could be referred to the Commission for assessment while incarcerated. If found to be eligible for assistance, AH might receive a 'Behaviour Support Service' which would involve addressing behaviours of concern and encouraging her to make better choices. Support could also be provided to enable family members to support AH, and to encourage AH to access funding which could be used to link in with a mentoring service, to assist with positive role modelling.

103 On 26 August 2014, the Department of Corrective Services provided further information to the Office of the Director of Public Prosecutions which was provided to the court. The department advised that Dr Wojnarowska had advised that although AH's condition had improved slightly, she was still unwell and her treatment was likely to take some time. The department also advised that contact had been made with AH's family members within the Roebourne community. Their response was that they were keen to provide AH with support upon her release to the community but reported that in the past AH had demonstrated a propensity to leave the family home and make connections with dubious people.

104 The hearing of the appeal resumed on 27 August 2014. Senior Counsel for AH advised the court that her client was detained in the Frankland Centre and was clearly not fit to provide her with instructions. Senior Counsel confirmed that AH was an involuntary patient. Of course, in practical terms while AH remains in that condition, the fact that she is serving a term of imprisonment is irrelevant, as revocation of that term of imprisonment would make no difference to her physical location and treatment, although it would, of course, create the opportunity for her to be released if and when her mental condition no longer justifies her involuntary treatment.

105 Members of the court asked whether anybody was going to take responsibility for providing AH with the support and assistance which she so obviously needs upon her release from custody. In that context, Senior Counsel for AH raised the possibility of approaching the Public Advocate to apply for guardianship and administration orders - the need for which had, of course, been identified in various reports over the preceding years.

106 At the conclusion of the hearing, the court directed that a current psychiatric report be provided relating to the condition and prognosis of AH and requested the Department of Corrective Services to initiate discussions with other relevant agencies of the State, including in particular the Disability Services Commission, with a view to preparing a specific plan and programme of support and assistance of AH if and when she is released into the community. The court also requested Senior Counsel for AH to report to the court on any steps that might be taken in relation to the appointment of a guardian for AH.

Reports and information provided subsequent to the second hearing of the appeal

107 Following the second hearing of the appeal, the court received a report from Dr Wojnarowska dated 17 September 2014. The report confirmed that AH had been involuntarily referred to the Frankland Centre on 10 July 2014 'as she had been seen responding to unseen stimulae and expressing persecutory delusional beliefs incorporating the devil'. Apparently AH's mental state had declined over the preceding three months, culminating at an attempt to electrocute herself on 30 June 2014. AH's status as an involuntary patient had been maintained because of continuous symptoms of psychosis, risk of self-harm, and impaired judgment.

108 In Dr Wojnarowska's opinion, AH was suffering from a major mental disorder and was not currently fit to participate in any court proceedings.

109 By letter dated 24 September 2014, Senior Counsel for AH provided further information to the court. She reported that a meeting had been held at her office on 22 September 2014. Dr Wojnarowska and Dr Mondello from the Frankland Centre and a representative of the Department of Corrective Services were present. A representative of the Disability Services Commission participated by telephone. Senior Counsel reported that during the meeting the medical practitioners advised that AH was so unwell as to be incapable of managing her own medication and required 24-hour nursing care. There was no indication as to when AH's condition would improve and a meeting had been scheduled to review her medication.

110 Dr Wojnarowska also advised that steps were being taken to refer AH to the Disability Services Commission. The representative of the Department of Corrective Services confirmed that family members had been located in the Roebourne area who were prepared to provide support to AH within the community.

111 Dr Wojnarowska also agreed to request a social worker associated with the Frankland Centre to contact the Office of the Public Advocate to request that they consider making an application for guardianship and administration orders. By letter dated 7 October 2014, Senior Counsel for AH confirmed that applications had been made to the State Administrative Tribunal for guardianship and administration orders relating to AH.

112 Dr Wojnarowska provided a further report to the court by letter dated 13 October 2014. She has advised that AH has been slowly responding to the treatment of anti-psychotic and epileptic medications and that there had been noticeable imprisonment in her mental state. Dr Wojnarowska also advised that cognitive testing had confirmed that AH was within the disabled range and her case had therefore been referred to the Disability Services Commission. A decision was awaited as to whether the Commission would accept responsibility to supply services and support to AH. Dr Wojnarowska confirmed that personnel at the Frankland Centre had also been advised that family members in the Roebourne area were willing to accommodate AH upon her release, and she would be closely supervised by nurses from the local community medical centre and sporadically reviewed by the visiting psychiatrist.

113 At this point the members of the court determined that it would be desirable to resolve the appeal without further delay, given the uncertain state of AH's health and the inability of her counsel to obtain instructions unless and until AH recovered the capacity to provide those instructions or a guardian was appointed to represent her interests. By letter dated 25 November 2014, Senior Counsel for AH advised the court that a guardian and an administrator had been appointed for AH.

114 There are two grounds of appeal. The first ground of appeal asserts that the sentencing judge erred by imposing an immediate term of imprisonment when, in all the circumstances, such a sentence was not the only appropriate sentence to be imposed. The second ground of appeal asserts that the total effective sentence of 2 years was manifestly excessive. As that sentence came about as a result of the accumulation of two sentences of 12 months imprisonment, this ground is to be understood as also invoking the first limb of the totality principle, and implicitly asserts that the total effective sentence was not proportionate to the totality of the criminal behaviour involved.

115 It is well established that a sentence of immediate imprisonment can only be imposed as a last resort, in the sense that there is no other appropriate sentencing disposition. In Western Australia that principle is established by s 6 and s 39 of the Sentencing Act 1995 (WA). Section 39(2) provides that a court sentencing an offender may either impose no sentence and order the release of the offender or may impose any of six forms of sentence, namely, a conditional release order, a fine, a community-based order, an intensive supervision order, a sentence of suspended imprisonment, or a sentence of imprisonment (in that order). Section 39(3) provides that:

(3) A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.

Thus a court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given in the Act.[16]

116 Ground 1 must succeed if the court imposing the terms of imprisonment upon AH could not properly have been satisfied that it was not appropriate to use any other sentencing option provided by the Sentencing Act 1995 (WA). If that ground is made out, it necessarily follows that the total effective sentence imposed was manifestly excessive, and ground 2 must also succeed.

117 In addition to the requirement that a sentence of imprisonment cannot be imposed unless the court is satisfied that no other sentencing option is appropriate, as foreshadowed, a further constraint upon the imposition of a sentence of imprisonment is imposed by s 6(4) of the Sentencing Act:

A court must not impose a sentence of imprisonment on an offender unless it decides that :

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

118 There is no doubt that the offences committed by AH were serious, as each of the judges who dealt with her recognised. However, the question which had to be addressed before she could be sentenced to a term of imprisonment was whether it had been established that:

(a) no other sentencing option was appropriate; and

(b) either the seriousness of the offences which she committed was such that only imprisonment could be justified, or the protection of the community required her imprisonment.

119 In this case the protection of the community did not justify AH's imprisonment, essentially for the reasons given by her counsel in the course of submissions. The circumstances of the offences committed by AH, her personal circumstances and the various reports presented to the court left no room for doubt as to the causes of her offending behaviour. After a dysfunctional and dislocated childhood in which she was exposed to physical and sexual abuse, AH completed her schooling but left essentially illiterate and innumerate. She suffers significant intellectual impairment and cognitive disability. She has never been employed and has no prospect of gainful employment unless she is provided with a supportive environment in which she can learn to make appropriate choices and, perhaps, acquire the skills that might enable her to live a useful life. As a result of her traumatic childhood she responds poorly to anxiety and, in the past, has used cannabis as a form of self-medication. The stress and anxiety created by imprisonment has repeatedly induced psychotic conditions, and shortly prior to the first hearing of this appeal, induced a profoundly psychotic state from which she still suffers. During the various periods she has been incarcerated in Bandyup she has not received any treatment or training likely to reduce the risk which she poses to the community upon her release. To the contrary, as we have noted, incarceration has repeatedly worsened her condition thereby increasing the risk to the community.

120 Because of her intellectual and cognitive disabilities, it is most unlikely that punishment, in the form of a term of imprisonment, would have the effect of deterring her from further offending and, as we have already noted, an offender with her level of disability is not an appropriate medium for endeavouring to deter others who might be minded to commit similar offences.

121 For all these reasons, the protection of the community was not enhanced by the imposition of a total effective term of 2 years imprisonment upon AH because that term of imprisonment would do nothing to reduce the risk which she would pose upon her release and might well increase that risk by causing her condition to deteriorate (as has in fact occurred).

122 This was a case in which the appropriate steps to take to reduce the risk to the community had been carefully and thoroughly mapped out in the various reports presented to the different courts which dealt with AH. Those steps included the enlistment of support and assistance from the Disability Services Commission, the appointment of a guardian to protect her interests, the provision of medical, psychiatric and psychological counselling, and the provision of a supportive environment in which AH's exposure to adverse influences and risks were reduced. Derrick DCJ and Deane DCJ each imposed a community-based order with the reasonable expectation that steps would be taken to implement the proposals documented in the reports produced to them. However, in fact no meaningful support or assistance was provided to AH by any of the agencies whose assistance was foreshadowed in the reports produced to the court. Instead, AH was subjected to reporting requirements that she would inevitably breach (as she did).

123 It seems clear that Herron DCJ was not aware of what had actually occurred, or more importantly, what had not occurred during the currency of the community-based orders imposed by Derrick DCJ and Deane DCJ. It is a fair inference that he erroneously concluded that appropriate steps had been taken to modify AH's behaviour but those steps had been unsuccessful, whereas the true position is that none of the therapeutic plans devised in the various reports presented to the court had ever been implemented.

124 It follows that at the time AH was sentenced by Herron DCJ, it could not be said that the various plans which had been devised to reduce the risk which AH posed to the community were unlikely to be successful because they had not succeeded in the past. To the contrary, the true position was that the various steps properly taken to reduce the risk of AH reoffending were much more likely to be successful if AH was in a supportive environment within the community than if she was subjected to the stress and anxiety of incarceration, as was apparent from her previous responses to incarceration and as has now been tragically demonstrated.

125 Nor could it be concluded that the seriousness of the offences committed by AH was such that only imprisonment could be justified.[17] It is of the utmost significance that the condition which must be satisfied before a term of imprisonment can be imposed is not whether the offence is so serious that imprisonment can be justified, but rather, whether the offence is so serious that only imprisonment can be justified, consistently with the principle embodied in s 39 to the effect that imprisonment is a last resort. This was a case in which the relative youth, antecedents, vulnerability and disabilities of the offender were of particular significance in the sentencing process. Those factors combined to sustain the conclusion that AH would very likely continue to be a risk to the community unless positive steps were taken to address the factors which combined to cause that risk. Put another way, this was a case in which it should have been concluded that the reduction of AH's risk of reoffending through a process of rehabilitation was a most significant sentencing factor, and in which punishment and deterrence were less significant factors. That was, in effect, the approach taken by each of Derrick DCJ and Deane DCJ. It is a fair inference that Herron DCJ was discouraged from that approach because of his erroneous conclusion that two previous attempts to change AH's behaviour through the various proposals identified in the reports produced to the court had failed.

126 For these reasons, in the particular circumstances of this case, when AH came before Herron DCJ for sentence it could not be said that the seriousness of her offences was such that only imprisonment could be justified, nor could it be said that a term of immediate imprisonment was the only sentencing option appropriate to her circumstances. It follows that the terms of imprisonment imposed upon AH were imposed in contravention of s 6 and s 39 of the Sentencing Act. Ground 1 of the appeal must be upheld, from which it follows that ground 2 must also be upheld.

127 It follows from the reasons given for upholding each ground of appeal that a different sentence should have been imposed. Accordingly, pursuant to s 31 of the Criminal Appeals Act 2004 (WA), this court may allow the appeal and resentence AH. When this court resentences an offender after a successful appeal against sentence, it is appropriate to take account of events which have transpired since the sentences under appeal were imposed.[18] In this case, the court can and must take account of the fact that AH has been in custody since she was sentenced to imprisonment on 25 November 2013, and having regard to the fact that her sentences were backdated to commence from 16 September 2013, would now have served all the sentences imposed upon her but for the accumulation of the two terms of 12 months imprisonment imposed in respect of the counts of aggravated burglary. This court should also take account of the fact that it can be inferred that AH's incarceration significantly contributed to her deterioration in mental health, similar but less serious deteriorations having occurred on the previous occasions she was imprisoned. Her current condition has caused her to be detained as an involuntary patient since 10 July 2014, and on the information presently to hand it is not possible to predict when her condition will improve to the point at which her status as an involuntary patient will be revoked.

128 Other factors properly taken into account for the purpose of resentence include the steps which have been taken to appoint a guardian for AH, the assessment and treatment which she has received while in the Frankland Centre, including the assessment which has resulted in her referral to the Disability Services Commission, and the identification of family members who have offered to provide AH with accommodation and support in the Roebourne area upon her release from custody. These are, of course, all steps which should have been taken when AH was first placed on a community-based order more than two years ago. They are the first steps appropriately taken in order to reduce the risk which AH poses when her condition improves to the point where she can be released from involuntary mental health treatment.

129 Having regard to the steps which have now been taken and which will hopefully develop into programmes of support and assistance which will reduce the risk to the community, it is not in the interests of justice to resentence AH in a way which would expose her to the risk of punishment over and above that to which she has already been subjected. The simplest way to give effect to that conclusion is to set aside that part of the sentence which directed that some of the terms of imprisonment be served cumulatively upon each other, and to instead direct that all terms of imprisonment be served concurrently, with the result that AH has now completed all terms of imprisonment imposed and will be released without further constraint if and when her condition improves to the point that she is no longer an involuntary mental health patient.

[1] In both Western Australia and Australia the rate for some categories of reported crime is falling.

[2] Aboriginal women comprise approximately 47% of the female prison population, whereas Aboriginal men comprise approximately 40% of the male prison population. Aboriginal people comprise approximately 3.8% of the general population.

[3] Accurate statistics on this subject are hard to obtain because of the likelihood of under diagnosis. Estimates of the proportion of the prison population in Western Australia affected by mental illness and/or cognitive disability vary between 35% and 50%.

[4] In accordance with s 6(4)(a) and s 39(3) of the Sentencing Act 1995 (WA).

[5] Pt 3, Div 1.

[12] [2011] HCA 39; (2011) 244 CLR 120.

[16] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [11] (Gleeson CJ & Hayne J).

[17] Sentencing Act 1995 (WA), s 6(4)(a).

[18] The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [41] (McLure P); Criminal Appeals Act, s 41(4)(a).