Beal v R

Court of Criminal Appeal (NSW)|2020-07-29|Before: Johnson J, Adams J, Ierace J

Solicitors: Legal Aid NSW (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2019/356465 Decision under appeal Court or tribunal: Drug Court Date of Decision: 23 August 2019 Before: Judge Mottley File Number(s): 2018/0282

Judgment

JOHNSON J: I agree with the reasons and proposed orders of Ierace J..
N ADAMS J: I agree with Ierace J.
IERACE J: This is an appeal pursuant to s 5AF of the Criminal Appeal Act 1912 (NSW) against the severity of a sentence imposed upon the appellant in the Drug Court, sitting at Parramatta, on 23 August 2019.
On 25 October 2018, the appellant was referred by the Local Court to the Drug Court, pursuant to s 6 of the Drug Court Act 1998 (NSW) ("the Act"). She pleaded guilty to 14 offences and, on 21 January 2019, she received an initial sentence from the Senior Judge of the Drug Court, his Honour Senior Judge Dive. This was an aggregate sentence of imprisonment for 3 years, for eight of those offences. For another five offences she was convicted with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act") and for the remaining offence she was remanded for a period of 12 months, pursuant to s 11 of the CSP Act, conditional upon her being of good behaviour and complying with the Drug Court program. Indicative sentences were recorded for the offences for which the aggregate sentence had been imposed. At the time the 14 offences were committed, and at the time of the initial sentence, the appellant was aged 29.

Table of offences DC Offence Date of Offence Maximum Penalty Initial Sentence 21.01.19 Final Sentence 23.08.19 No. 1 Larceny 07.06.18 5 years imprisonment 3 months imprisonment (indicative) 3 months imprisonment (indicative) s 117, Crimes Act 1900 2 Aggravated break & enter with intent (steal) 07.06.18 14 years imprisonment 12 months imprisonment (indicative) 12 months imprisonment (indicative) s 113(2), Crimes Act 1900 3 Steal property in dwelling house 07.06.18 7 years imprisonment 8 months imprisonment (indicative) 8 months imprisonment (indicative) s 148, Crimes Act 1900 4 Break, enter and steal 07.06.18 14 years imprisonment 18 months imprisonment (indicative) 18 months imprisonment (indicative) s 112(1)(a), Crimes Act 1900 5 Stalk/intimidate 07.06.18 5 years imprisonment and/or 50 penalty units Section 11 remand 9 months imprisonment (indicative) s 13(1), Crimes (Domestic and Personal Violence) Act 2007 6 Larceny 07.06.18 5 years imprisonment 5 months imprisonment (indicative) 5 months imprisonment (indicative) s 117, Crimes Act 1900 7 Enter vehicle without consent 07.06.18 4 penalty units s 10A Conviction with no other penalty s 10A Conviction with no other penalty s 6A, Summary Offences Act 1988 8 Break, enter and steal 21.07.18 - 14 years imprisonment 15 months imprisonment (indicative) 15 months imprisonment (indicative) s 112(1)(a), Crimes Act 1900 22.07.18 9 Steal motor vehicle 12.08.18 WITHDRAWN s 154F, Crimes Act 1900 10 Take & drive conveyance 12.08.18 5 years imprisonment 9 months imprisonment (indicative 9 months imprisonment (indicative) s 154A(1)(a), Crimes Act 1900 11 Negligent driving 12.08.18 10 penalty units s 10A Conviction with no other penalty s 10A Conviction with no other penalty s 117(1)(c), Road Transport Act 2013 12 Driver never licenced - first offence 12.08.18 20 penalty units s 10A Conviction with no other penalty s 10A Conviction with no other penalty s 53(1)(a), Road Transport Act 2013 13 Travel without a valid ticket 10.10.18 5 penalty units s 10A Conviction with no other penalty s 10A Conviction with no other penalty s 77A(1), Passenger Transport (General) Regulation 2017 14 State incorrect name or address to authorised officer 10.10.18 5 penalty units s 10A Conviction with no other penalty s 10A Conviction with no other penalty s 55(2)(b), Passenger Transport Act 1990 15 Resist officer in execution of duty 10.10.18 5 years imprisonment 4 months imprisonment (indicative) 4 months imprisonment (indicative) s 58, Crimes Act 1900 16 Possess prohibited drug 11.02.19 2 years imprisonment and/or 20 penalty units N/A 2 months imprisonment (indicative) s 10(1), Drug Misuse and Trafficking Act 1985 17 Resist officer in execution of duty 06.07.19 5 years imprisonment N/A 4 months imprisonment (indicative) s 58, Crimes Act 1900 18 Resist officer in execution of duty 06.07.18 5 years imprisonment N/A 4 months imprisonment (indicative) s 58, Crimes Act 1900

Grounds of appeal

There are two grounds of appeal, the first being that the sentencing judge on final sentence erred by: "… not undertaking the task of jurisdiction set by section 12 of [the Act] by not lawfully reconsidering the 'initial sentence' and then lawfully determining the 'final sentence', in the manner required by the statute."
The second ground is that the sentencing judge erred by: "… not applying the principles applicable when sentencing an offender with a background of severe social deprivation, which in this matter required the Court to consider the moral culpability of [the appellant] and how her background impacted on the weight to be given to the various purposes of sentencing."

The first 15 offences

The appellant was initially charged with 15 matters. One of the charges, which was a backup to another, was withdrawn at the initial sentence hearing (Offence No 9 in the table). The 13 offences for which the appellant was initially sentenced (Offence Nos 1-4, 6-8 and 10-15) and the matter for which she was remanded (Offence No 5) may be grouped in terms of the dates on which they were committed.
The first seven offences were committed on 7 June 2018. The appellant and a co-offender rented a car and were at the Pymble Hotel that afternoon. Upon leaving, the appellant stole a cover from a lounge chair: Offence No 1, larceny. The couple then drove to Turramurra where they entered a side courtyard to a residence through an unlocked gate and then ripped off a screen door in an attempt to gain access to the interior. The resident confronted them. The co-accused said: "Sorry mate wrong house" and the pair walked away. The resident followed. The co-accused turned to the resident, stating, "go away I've got a gun": Offence No 2, aggravated break and enter with intent to steal.
The pair then drove to Wahroonga, where they entered a dwelling through a door left open by the only occupant at the time, a 12-year-old boy. He had left his drone on the front lawn and from a bathroom inside, he had a view on his phone of the front yard from a live feed from the drone camera. He noticed someone walking past and then heard banging noises in the downstairs area of the house. He went to the top of a stairwell and saw the co-accused below, who said to him: "Your parents have done bad things, I am here to take their stuff". The two offenders ransacked various rooms of the residence. The boy rang his mother who contacted police. The couple left with the boy's schoolbag, the appellant first approaching the boy and telling him: "If you follow me I'll come back and cable tie you and take you hostage": Offence Nos 3 and 5, steal property in dwelling house, intimidate.
The same afternoon, the appellant entered a motor vehicle that was parked in the driveway of a home in Wahroonga and stole a schoolbag and various items to the value of $950: Offence Nos 6 and 7, larceny and enter a vehicle without consent.
That evening, the appellant broke into another residence in Wahroonga by removing a flyscreen and smashing a rear window. She stole an iPad, watches, wallets, a handbag, jewellery, cash, car keys and various other items to the total value of around $60,000: Offence No 4, break, enter and steal.
On the night of 21 July 2018, or shortly after midnight, the appellant broke into an apartment in Liverpool by removing a flyscreen and pushing in a window, ransacked the apartment and stole various items of property including jewellery, electronics and clothing to a total estimated value of $7,600: Offence No 8, break, enter and steal.
In the early hours of 12 August 2018, the appellant, accompanied by a female friend, stole her father's car by removing his car keys from his residence without his permission: Offence No 10, take and drive conveyance. At about 1:55am the same morning, whilst driving her father's vehicle, she collided with a parked car and then mounted the kerb and crashed through the front gate of a property and adjoining fence of another property, finally colliding with a second vehicle. She and other occupants of the vehicle fled the scene: Offence Nos 11 and 12, negligent driving, driver never licensed.
On 10 October 2018, the appellant was stopped by police on alighting from a train at Warwick Farm Railway Station. She did not have a ticket or Opal card and gave false particulars. Police checked the details and found that no such person existed. When they attempted to arrest the appellant, she ran away, but ultimately tripped and fell: Offence Nos 13, 14 and 15, travel without a valid ticket, state incorrect name or address to authorised officer, resist officer in execution of duty.

The initial sentence

Pursuant to s 7A(3) of the Act, on 21 January 2019, the appellant was convicted and sentenced. The sentence was delivered ex tempore.
All 14 matters were within the jurisdiction of the Local Court but, pursuant to s 24 of the Act, the jurisdiction of the Drug Court includes the criminal jurisdiction of the Local Court. Neither party called evidence and no material was tendered on behalf of the defence, so that following the tender of the Crown bundle, the case proceeded directly to submissions.
The solicitor appearing for the appellant made submissions in relation to the relative seriousness of the offences, the appellant's early pleas of guilty, her disadvantaged background which included behavioural and mental health issues, and her drug history; she had used methamphetamine for the previous seven years and heroin for the previous two years. She had also been taking Xanax at the time of the offences.
His Honour Senior Judge Dive firstly summarised the offences, noting that parity did not arise in respect of the first seven offences, since the appellant's co-offender had not been dealt with. His Honour considered that a relevant exacerbatory consideration was that the three break and enter offences all involved residential premises.
His Honour assessed the objective seriousness of the second offence, aggravated break and enter with intent, as below the middle range. His Honour assessed the break, enter and steal offence in relation to the second residential property at Wahroonga (Offence No 4) as being slightly above the mid-range, having regard to the amount of property stolen, and the break, enter and steal which was committed on the night of 21 July 2018 (Offence No 8) as falling below the middle range. The fact that the offences committed on 10 October 2018 (Offence Nos 13, 14 and 15) were committed after warrants had been issued, was described by his Honour as being "akin to being on conditional liberty".
The Crown conceded that the appellant was entitled to the full 25 per cent utilitarian value of her guilty pleas. His Honour assessed the appellant's criminal history as limited, summarising it in these terms: "There were some matters of robbery dealt with in the Children's Court in 2007 by way of a bond and then on call up by way of probation. In 2008 there was a good behaviour bond for assaulting an officer and in July 2016 [the appellant] was dealt with in the District Court at Parramatta for assault occasioning actual bodily harm in company leading to significant terms of imprisonment. Since then there has been a good behaviour bond for shoplifting in November 2016. The non-fingerprint record has a further matter of assaulting an officer leading to a s 9 bond and a call up finally led to a short term of imprisonment when dealt with at the District Court."
His Honour accepted the submission by the appellant's solicitor that the appellant was under the influence of drugs when the offences were committed, observing that on 7 June 2018, "Clearly she was in a very altered state". His Honour also accepted that the appellant had: "… a childhood of disadvantage, many schools which is very disruptive for a young person, alcohol and violence in the home and whilst her mother made considerable efforts and worked it was a childhood of disadvantage. [The appellant] has certainly struggled in life with a diagnosis of ADHD in the past and having been allocated to special schooling and having experienced self-harm. So it has been a complicated life thus far."
His Honour remanded the applicant for the offence of intimidation (Offence No 5 in the table) and dealt with what he described as the "lesser offences which carry fines" by way of s 10A of the CSP Act, which are Offence Nos 11, 12, 13 and 14 in the table. His Honour then gave the indicative sentences for the remaining matters, which are set out in the table, and the aggregate sentence of 3 years' imprisonment. A non-parole period was not nominated, in accordance with s 7A(4) of the Act.

The Drug Court program

Section 3 of the Act is as follows: "3 Objects (1) The objects of this Act are: (a) to reduce the drug dependency of eligible persons and eligible convicted offenders, and (b) to promote the re-integration of such drug dependent persons into the community, and (c) to reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies. (2) This Act achieves its objects in relation to eligible persons by establishing a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs. (2A) This Act achieves its objects in relation to eligible convicted offenders by establishing a scheme for compulsory drug treatment and rehabilitation for certain drug dependent persons. (3) Reducing a person's dependency on drugs should reduce the person's need to resort to criminal activity to support that dependency and should also increase the person's ability to function as a law abiding citizen."
The nature of the Drug Court program, as described on the Drug Court's official website, insofar as it is relevant to this case, can be summarised as follows.
The objective of the Drug Court program is to rehabilitate offenders who have drug dependency issues. Individual treatment programs are tailored to the specific needs of each participant. The treatment options include methadone and buprenorphine programs that may be conducted in either residential rehabilitation or community settings. The Drug Court works closely with community organisations such as "Wayback", which is a charitable alcohol and drug rehabilitation service. The program takes a minimum of one year to complete, with participants transitioning through three phases: initiation, consolidation, and re-integration.
In the initiation phase, participants are expected to reduce their drug use, stabilise their physical health and cease any criminal activity. They are to undergo drug testing at least three times a week and report back to the Drug Court once a week. If the participant is found to have taken drugs during the previous week, sanctions may be imposed, which include the withdrawal of privileges and imprisonment in a correctional facility. If the participant is found to have remained clean, they may be rewarded with privileges, such as decreased frequency of drug testing and supervision.

The fresh matters

On 11 February 2019, the appellant was found to have a small quantity (0.2g) of methylamphetamine secreted in her clothing when she was being searched as part of the procedure of her being received into custody to be subject to sanctions applied to her as part of the program, for her persistent issues with drug use.
On 6 July 2019, by which time the appellant had effectively abandoned the program, a warrant for her arrest was executed. She was sighted by two police officers outside an apartment where she was living. Upon seeing the officers, she ran inside. The occupant gave police access to the apartment, where she was located hiding under a mattress. The circumstances of her arrest led to two charges of resisting an officer in the execution of their duty. According to the uncontested police facts: "… [the appellant] remained seated on the floor and after repeated directions to stand, still remained on the floor. [The appellant] was restrained by [a police officer] who took hold of her left arm and wrist while [another police officer] took hold of her right arm and wrist. Police stood [the appellant] up and held her against the bedroom wall directing her to stop moving and keep her hands behind her back. [The appellant] continued tensing her arms and attempting to pull away from police. Due to this police kept pressure on [the appellant] holding her against the wall. [The appellant] yelled 'Stop putting my head into the wall', then commenced to head-butt the wall at least two times before police dragged her away from the wall and forced her to the floor. Whilst on the floor [the appellant] continued to resist both officers as she ignored directions by police and attempted to roll from her stomach onto her back. [The appellant] was able to free her right arm from police and immediately put it underneath her chest. Police regained control of [the appellant] and she was handcuffed to the rear. Police cited an injury to the left side of [the appellant's] forehead, being a small amount of swelling which had a small amount of dried blood around it. Police confirmed with [the appellant] the injury to her forehead was from a previous unrelated matter which she agreed. Police could not sight any other visible injury to [the appellant's] forehead."

The final sentence

At the time the appellant committed the three fresh offences, and at the time of the final sentence, on 23 August 2019, she was aged 30. The Crown case comprised the tender of the remarks on sentence by Senior Judge Dive, the appellant's antecedents, material concerning her participation in the Drug Court program (the program chronology, drug test results and sanctions history), the facts for the three further offences, the transcript of the initial sentence proceedings and certain sentence calculations, to the effect that she had 103 days of pre-sentence custody as well as 14 days' sanction whilst on the Drug Court program and 48 days in custody since her arrest, being a total of 165 days in custody, suggesting a commencement date of 11 March 2019.

The appellant's criminal record

In 2007, two charges of robbery were proved against the appellant in the Children's Court. For each, she received a bond without conviction, conditional upon 18 months' supervision by Juvenile Justice, which included "counselling for drug/alcohol rehabilitation". The following year, when the appellant was aged 19, she was convicted of assaulting an officer whilst in the execution of their duty and behaving in an offensive manner in a public place. For the assault officer offence, she received an 18 month good behaviour bond conditional upon her not being intoxicated in a public place. In 2010, she received an 18 month bond for assaulting an officer whilst in execution of the duty. The following year, she was called up on the bond. In 2016, she received a fine for an offence of dishonestly obtaining property by deception. Later the same year, she appeared in the District Court at Parramatta on two counts of assault occasioning actual bodily harm in company, receiving in respect of each a sentence of 18 months' imprisonment with a non-parole period of 8 months, to be served concurrently. Later the same year, she received a 6 month bond for shoplifting.

The appellant's participation in the Drug Court program

The appellant did not progress past the first phase of the Drug Court program. The interactions between the appellant and staff indicated that she struggled to comply with attendances and urine analysis obligations. Drug test results repeatedly indicated the presence of prohibited drugs that she had not admitted to taking, being primarily methamphetamine and morphine.

The clinical psychologist's report

The appellant's solicitor tendered a recent report by a clinical psychologist, John Machlin, who has extensive forensic experience. Mr Machlin took a history from the appellant and had regard to the Drug Court participation notes, as well as the appellant's record of convictions, sentences and appeals, her criminal history, the facts sheets for the offences and the initial sentence remarks of Senior Judge Dive.
Mr Machlin recounted the appellant's history. The appellant was born in Sydney, the third in a family of five children. Her parents separated when she was four years old. Her father was a heavy drinker who had spent time in custody. The appellant said that between the ages of seven and 11, she and two other family members were sexually abused by her mother's then boyfriend. When the appellant disclosed the abuse to her mother, she did not believe the appellant. Her mother later remarried. The appellant initially did not accept her stepfather. From her perspective, he resembled the abuser, as both had the same ethnicity. Over time, the appellant has come to accept her stepfather as an honourable man. He remains married to her mother. She also said she had maintained contact with her father after he left the family and continues to have a close relationship with him.
Mr Machlin referred to the appellant's childhood as follows: "She changed schools many times due to family relocations. She explained that her father, who had a capacity for violence, was 'stalking' her mother because he wanted to get back together with her. [The appellant's] behaviour never improved. Her mother sent her to Perth to stay with an aunt, but she 'ran amok' at school there as well, and was sent home after two months. [The appellant] said she was unsure why she was so out of control, but she considered the abuse from her mother's partner was a large factor. She last attended school in Year 9."
The appellant said to Mr Machlin that her siblings have, for the most part, led more stable lives than she has, although a sister has suffered some drug and mental health problems.
Mr Machlin recounted that the appellant has had two significant relationships, both highly dysfunctional and characterised by drugs and violence. The first was when she was aged 15-21. That relationship produced one child and the second resulted in two more children. The eldest and youngest were removed from the appellant at birth and the middle child was taken into care at the age of two years by the NSW Department of Family and Community Services (FACS) (as it then was). All three children are now in the care of the appellant's mother and stepfather, for which she is very grateful. Mr Machlin said: "[The appellant] has had only intermittent contact with them over the years due to her chaotic lifestyle, but she says they are on good terms."
The appellant told Mr Machlin that she remained fearful that her second partner would pursue her. At the time of the report, she was single.
Mr Machlin recounted her history in relation to mental health: "She has received only brief mental health attention over the years. She reported she was diagnosed with ADHD in primary school and medicated for it. She describes a pronounced anxiety and panic condition with a long history, for which she has been medicated a number of times. She reported that she was diagnosed with Bipolar Disorder in 2011 and was prescribed Seroquel, an antipsychotic, which she believes helped her. She said she was once admitted to a psychiatric unit in Blacktown, but she dismissed the significance of it saying she was only admitted because she had fabricated psychotic symptoms at a rehabilitation facility. She has overdosed on medications a number of times but it was difficult to get a sense of the degree of suicidal intent. Her Conviction, Sentences and Appeals record indicates that in 2011 a history of suicidal behaviour/self-harm, depression and anxiety was identified. [The appellant] said she continues to experience significant anxiety and panic on a near daily basis. She is not currently receiving treatment for any mental health condition."
Mr Machlin noted that the appellant showed no sign of cognitive impairment or psychosis, although he did not attempt psychometric testing in view of the appellant's acute emotions that she experienced throughout the assessment.
As to her drug use, the appellant said she started using cannabis from age 11, apparently to self-medicate for anxiety. She developed ecstasy and amphetamine habits at times, but her drug of choice remained cannabis for many years. She turned to heroin use after her third child was removed from her at birth and conceded that she remains opiate-addicted. I note that her third child was born on 6 February 2018.
The appellant's understanding as to why she had failed the Drug Court program was limited. Mr Machlin said: "She gave a jumbled account of what went wrong. She mentioned feeling disturbed and threatened because her violent [former] partner was imminently to be released from prison. She mentioned her [sibling's] overdose and her own guilt over the idea that she had put drug use in her [sibling's] mind. Ultimately, she was unclear as to the full set of factors affecting her, and blamed herself for her relapse and subsequent offences which have prompted her return to the Drug Court for sentencing."
By way of an explanation of the background to the recent offences, the appellant claimed to have been sexually assaulted two weeks after the birth of her third child, by two men who she believed had drugged her. She said she went "off the rails" and resorted to heroin use in combination with Xanax and Lyrica, which tended to put her in a stupefied state. She had only partial memory of the offences which were committed whilst she was intoxicated. Mr Machlin said: "She expressed regret and self-disgust over her offences. She was particularly contrite about the unexpected confrontation with a 12-year-old boy, who was a similar age to her eldest child, stating her awareness that he would have been very frightened and that the incident would have had a lasting effect on him."
Mr Machlin's preliminary diagnosis was of a substance use disorder. He also found that the childhood diagnosis of ADHD and the reported diagnosis of a bipolar disorder in 2011 were credible, although historical documentation was required for confirmation of both. In addition, he considered that: "A range of trauma, mood [and] personality conditions are potentially applicable. More comprehensive assessment across a range of settings, and preferably assisted by any clinical records that might exist, would be needed to specify her diagnoses."
Mr Machlin's conclusion was as follows: "[The appellant's] account of her life is one of severe trauma and disadvantage since childhood. Periods of good functioning have been rare. She has generally lived in situations of abuse and chaos, where traumas and losses have compounded over time. She has struggled to manage her behaviours and emotions. Self-medication for depression and anxiety has led to drug dependencies. She has received little professional support for her complex clinical problems. She did not manage to take advantage of the opportunity provided by the Drug Court program. She describes having made genuine efforts to apply herself. She identifies external, destabilising factors in her life, but remains somewhat bewildered by her internal struggle, where emotional regulation skills and insight may be lacking. I do not doubt the combination of factors was overwhelming for her. As is often the case with severe addiction, it will be necessary for [the appellant] to overcome her setbacks and repeat her efforts backed by as much personal and clinical support as possible. A number of factors are to her advantage. She is motivated to improve and currently appears optimistic. She has commenced a therapeutic program in custody called Out of the Dark, and is finding it helpful. A range of existing family supports remain very important to her. She has a strong connection to her father. One of her sisters is apparently resourceful enough to accommodate her if needed. Her mother is guardian to her three children, and while this is a complex situation, she generally holds a favourable view of the support her mother and stepfather continue to provide, and the structures are in place for her to reconnect with her children over time. She has no apparent cognitive impediments. She does not have a major mental illness. [The appellant's] criminal record supports her claim that the break and enter offences were out of character. She expresses remorse and shame in relation to the full range of offences for which she now appears before the Court. Her therapeutic and welfare needs are broad. She requires: (1) psychiatric assessment to assess her complex condition and her need for medication to manage her symptoms and avert the need to self-medicate; (2) reintegration and support provided by a Services and Program Officer within Corrective Services in preparation for her release, and (3) the support of FACS which, it is anticipated, will have a continuing role in overseeing the guardianship of her children and hopefully maximise [the appellant's] contact with them to the extent that it is in the children's interests."

The appellant's evidence at the final sentence proceedings

The appellant gave evidence. She confirmed that what she had told Mr Machlin was true and correct and gave evidence of the history of sexual abuse that he had reported. She also gave evidence of a suicide attempt when she was aged 12 and of being diagnosed at that time with severe anxiety and depression, for which she was treated with Avanza. She said the longest period that she was at school was from Year 1 to Year 4 and that she was in a special class in Year 2 because of her ADHD. She also confirmed the trip to Perth. On her return at age 14, she said she was "kicked out" by her mother and sent to live with a paternal aunt elsewhere in Sydney. She said that she could not live there because it was a bedsitter, and for a year and a half she lived instead with a sex worker. She confirmed her drug history and said that she had attempted the Odyssey House program at one point, lasting three months. Whilst on that program, a psychiatrist diagnosed her with having a bipolar disorder and severe anxiety.
The appellant also confirmed that, in her view, two contributing factors to her failure to cease drug use whilst on the Drug Court program were, firstly, her concern for her sibling's drug use, which led to her sister being hospitalised from a deliberate overdose on two occasions, and secondly, the imminent release from prison of her former partner, who was the father of two of her children.
When asked how she felt now about having broken off contact with the Drug Court, she said: "I'm devastated, I should have come forward and asked for help and to be protected". She described her father as: "My rock, I love my dad … He's always been there, he'd buy my clothes when I got out of jail, like I've let him down big time". In relation to the recent offences, she said that her former partner had assaulted her the week before the offences of 6 July 2019 and that she was under the influence of "heroin and pills".

The remarks on sentence

Judge Mottley delivered her remarks ex tempore. The appellant received a 25 per cent discount for early guilty pleas that she entered to the three fresh matters. Her Honour found that the quantity involved in the possess prohibited drug offence was "towards the lower end of the scale of seriousness", although it was aggravated by her being on the Drug Court program at the time and therefore subject to conditional release. In relation to the two counts of resist officer, her Honour found that "these are not serious examples of their type", and that she had not resisted to any significant degree.
In relation to the intimidation offence, her Honour recounted the facts and identified three aggravating factors: the offence was committed in the home of the victim, who was aged 13, and it was committed in the company of another person, both of them being strangers to the victim. I note that, according to the statement of facts, the victim was aged 12 years. Her Honour concluded that the offence "falls at about mid-range".
Her Honour outlined the appellant's performance in the Drug Court program, as follows: "At the time of termination of the program, you had not progressed past phase 1, and from the time of initial sentence until termination, you had only been on the program for approximately eight weeks. It is regrettable that you did not enjoy a good program. While your initial sentence was imposed on 21 January, you were not released to commence until 29 January. The day following your release, it was reported that you used heroin, and two days later, ice and cannabis. Sanctions rapidly accumulated, and you were returned to custody on 11 February for a period of 14 days. Following your release from custody, on 25 February, sadly, your pattern of drug use continued, together with a failure to commit to all aspects of the program, and the Court has heard submissions today in relation to you participating in some aspects but not all aspects. In March, there were instances of failing to provide samples for testing and issues relating to curfew. It was clear that by the end of March, your commitment to the program had waned to such a degree, it was considered that you had abandoned the program. A warrant was directed to issue on 25 March, and your matter was listed for ex parte termination on 8 April. Some contact was made by you to the Drug Court, and the question of termination was postponed until 15 April. In the absence of any further contact from you, you were terminated from the program on that day. A warrant issued for your arrest, and you have been in custody since the execution of that warrant on 6 July."
Her Honour then turned to subjective matters, and canvassed the evidence in relation to the appellant's background, including Mr Machlin's report and the appellant's evidence. Her Honour accepted the evidence of the appellant's underprivileged background and her determination to overcome it: "What is crystal clear is that you have had a life of trauma and disadvantage. You have lived in situations of violence and chaos. You have struggled with your emotions. You have self-medicated with drugs, leading to a dependency, which, in turn, has led to criminal activity. Despite this, you have expressed some optimism for the future. You have commenced counselling for domestic violence issues, whilst in custody. You have got those ambitions to undertake vocational training and to secure employment for yourself, and you are hopeful that you will be able to reconnect with your children. … I have got no doubt you are keen to break that substance abuse, from your program history, it is abundantly clear that you are not ready yet to embrace a program of recovery from addiction, as intensive as the one that is offered by this Court … Given that history of dysfunctional relationship and trauma, it is not surprising that you have sought to find some escape from your reality, through the abuse of drugs."
Her Honour found special circumstances, in recognition of the need to provide ongoing support, supervision and stability as the appellant transitions into the community.

The appeal against sentence

The aggregate sentence that was imposed by her Honour pursuant to s 12 of the Act was in respect of both indictable and summary offences. Section 5AF(1) of the Criminal Appeal Act confers upon a person sentenced by the Drug Court the same right of appeal to the Court of Criminal Appeal as would be available under s 5AA to a person convicted by the Supreme Court in its summary jurisdiction. Section 5AF(3) provides that the power of the Court of Criminal Appeal to hear and determine an appeal from a person sentenced by the Drug Court pursuant to s 12 of the Act is to be exercised: "(a) in relation to an appeal against a sentence for an indictable offence - by such 2 or 3 judges of the Supreme Court as the Chief Justice may direct, or (b) in relation to an appeal against a sentence for a summary offence - by such single judge of the Supreme Court as the Chief Justice may direct unless the judge, on the application of either party or of his or her own motion, considers that the appeal raises matters of principle or it is otherwise in the interests of justice for the appeal to be dealt with by the full Court of Criminal Appeal and notifies the Chief Justice accordingly, in which case the appeal is to be heard and determined by such 3 or more judges of the Supreme Court as the Chief Justice may direct."
The Chief Justice made such a direction in relation to the summary offences on 28 July 2020.

The first ground of appeal

Section 12 of the Act is as follows: "12 Imposition of final sentence (1) On terminating a drug offender's program, the Drug Court must reconsider the drug offender's initial sentence. (2) In reconsidering a drug offender's initial sentence, the Drug Court must take into consideration: (a) the nature of the drug offender's participation in his or her program, and (b) any sanctions that have been imposed on the drug offender during the program, and (c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment: (i) under the sentence, or (ii) under the condition of the program arising under section 8A. (3) After considering a drug offender's initial sentence, the Drug Court is to determine the drug offender's final sentence: (a) by making an order setting aside the initial sentence and taking such action under Part 2 of the Crimes (Sentencing Procedure) Act 1999 as it could have taken for the offence to which the initial sentence related, or (b) by making an order confirming the initial sentence. (4) The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence. (5) For the purpose of making an order under subsection (3) in relation to an initial sentence imposed before the commencement of this subsection, subsections (3) and (4) have effect as if the amendments made to the Crimes (Sentencing Procedure) Act 1999 by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 were in force when the initial sentence was imposed."
The essence of the appellant's case is that the term "reconsider" in ss 12(1) and (2) of the Act obliges the judge on final sentence to take into account the matters specified in s 12(2) and engage in a "resentencing exercise" of the offences that were the subject of the initial sentence.
As to the meaning of the word "reconsider", the appellant relied upon the definition in the Macquarie Dictionary (7th ed, 2017), which is: "1. to consider again. 2. to consider again with a view to a change of decision or action …"
The appellant submitted that the absence of a "statutory appeal route" from an initial sentence imposed pursuant to s 7A of the Act is supportive of its proposition that the word "reconsider" must mean "resentence".
The appellant relied upon the references in the remarks by her Honour implying that the initial sentence was a starting point: "… in my view, there is nothing demonstrable within your program participation, to justify any favourable variation to the total term of imprisonment that had been imposed on 21 January; not only is the court dealing with those matters today but the further offending."
The appellant acknowledged that her Honour specifically addressed the matters at s 12(2)(a)-(c) and that she had to "redetermine" the sentence pursuant to s 12 of the Act: "… the Court needs to have regard to any time served, referable to the matters being dealt with on final sentence. The Court is then to redetermine the sentence, with the final sentence not to be greater than the initial sentence imposed, unless the Court is dealing with additional matters. … As I said earlier, on termination of your program, the court must reconsider the initial sentence that is imposed."
In support of the proposition that her Honour did not "reconsider" the sentence, the appellant relied on the following three features of the remarks on the final sentence: 1. Her Honour only considered the facts of the three fresh offences and the offence for which the appellant had been remanded by Senior Judge Dive and considered only these three offences as their objective seriousness. 2. The same indicative offences were fixed by her Honour in respect of the earlier eight offences that were the basis of the aggregate sentence. 3. Her Honour did not express any sentence for the offences for which Senior Judge Dive had imposed s 10A convictions (pursuant to the CSP Act).
The appellant submitted that, consequent to the error, she was deprived of the mitigatory effect of the subjective evidence in the final sentence proceedings being applied to the offences for which she had received an initial sentence. Although the submissions made on her behalf as to her background of deprivation at the initial sentence hearing were accepted by Senior Judge Dive, the evidence advanced on her behalf at the final sentence hearing would have had a greater mitigatory impact on her sentence for those matters, if she had been re-sentenced for them. The initial sentence includes, for example, an indicative sentence for the first offence, which was the larceny offence concerning the lounge cover, of 3 months' imprisonment.

The respondent's submissions

The respondent submitted that her Honour had complied with her obligations pursuant to s 12 of the Act and that any impression to the contrary should be considered in light of three factors.
Firstly, her Honour delivered the judgment ex tempore. The respondent relied upon a passage from this Court in R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, per Johnson J (McClellan CJ at CL and Hammerschlag J agreeing): "[34] … it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]). [35] When considering whether error has been demonstrated in the ways alleged by the Crown, it will be necessary to fairly read his Honour's remarks on sentence, bearing in mind the features of an ex tempore decision."
The respondent submitted that this is a relevant consideration in respect of both the initial sentence and the final sentence. In any event, the respondent submitted, although his Honour had ranked the objective seriousness of the three break and enter offences on a range, he was not obliged to do so. The respondent relied upon Yeung v R [2018] NSWCCA 52 at [24], per McCallum J (as her Honour then was), Hoeben CJ at CL and Simpson JA agreeing.
The second submission by the respondent is that the judgment of Judge Mottley followed the submissions made to her Honour by both parties in the sentence proceedings. The parties focused their submissions on the three additional offences and the remand matter, and neither suggested that the material tendered in the defence case warranted a reduction in the initial sentence. In written submissions, the respondent continued: "While the material before the court in the final sentence proceedings, which the sentencing judge referred to at length, included some details not previously mentioned (for example, that the appellant reported having been sexually abused as a child) those additional details did not justify variation of the initial sentence, which was itself quite lenient particularly when one has regard to the extent of the criminality encompassed by it."
The third submission is that one would expect the additional offences and the remand offence to be dealt with at greater length, since the applicant was being sentenced for them for the first time.
The appellant responded to the respondent's second submission by contending that, in the sentence proceedings, the Crown had led the judge into error, when it submitted that the sentencing judge should accumulate the new offences and the remanded offence so as to "increase the aggregate sentence that was imposed at the initial sentence". The appellant submitted that the failure of the parties at the sentence hearing to submit otherwise did not alleviate the court from undertaking the statutory task of reconsideration.

Consideration

Central to the first ground of appeal is the meaning of the term "reconsider" as it appears in ss 12(1) and (2), and the terms "consider" and "determine" in the context of s 12(3), all of which are undefined in the Act. The terms in those contexts have not previously been the subject of consideration by a superior court.
Section 33 of the Interpretation Act 1987 (NSW) is as follows: "33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
At the hearing, counsel for the appellant characterised the purpose of the initial sentence as a "Damocles sword" hanging over the head of a person participating in the Drug Court program. Having regard to the objects of the Act as stated in s 3, and pursuant to s 33 of the Interpretation Act and the scheme of the Act generally, in particular the power to impose sanctions and award privileges to encourage compliance with the program provided by s 16 of the Act, I accept that characterisation.
The logical purpose of the initial sentence, which is "suspended" in view of the participant's acceptance into the program, is clearly to set their sentence on the basis of the evidence before the court at that time, subject to their performance in the Drug Court program, so that they understand exactly what is at stake if they abandon the program.
The full range of sentencing alternatives are made available to the final sentencing Court by s 12(3)(a), since Pt 2 of the CSP Act includes the most lenient of non-custodial sentencing options. Pursuant to s 34(2)(f) of the Interpretation Act, I have regard to the Second Reading Speech to the Drug Court Bill 1998 by the Minister for Police, the Hon Paul Whelan in the Legislative Assembly, who said: "It is also important to note that the Drug Court pilot program will be open only to adult offenders who are genuinely facing imprisonment. As noted above, the prospect of imprisonment hanging over the offender is a key part of the program's philosophy, insofar as it seeks to marry a set of incentives and sanctions into the case management of individual offenders. … At the end of the offender's program, either because of graduation or otherwise, the Drug Court must reconsider the initial sentence in light of the offender's participation in the program. The options available to the Drug Court are wide ranging. Depending on how successful a person has been, the judge may decide to wipe the sentence clean, reduce the length of the sentence, vary the terms of the sentence, or simply confirm the initial sentence."
The proposition that the initial sentence is intended to be disregarded in the final sentencing exercise, in my view, is illogical and inconsistent with the object and scheme of the Act. The initial sentence would lose its potency as a warning of what awaits a participant who decides to abandon the program, if it is irrelevant to the final sentence. Such a proposition is also, in my view, inconsistent with the terms of s 12, which make clear the central role of the participant's performance in the Drug Court program in reconsidering and determining the final sentence. The obvious meaning of "reconsider", in that context, is to take into account the matters enunciated in s 12(2).
The terms of s 12, in my view, do not exclude the Court also taking into account matters other than those identified in s 12(2), in determining the final sentence. There is no impediment in the Act to the Court handing down a different sentence for offences that were the subject of the initial sentence, in light of evidence or submissions advanced for the first time by the appellant in the final sentence hearing.
I note that in this case, the solicitor for the appellant did address, at least in passing, the three most serious offences that were the subject of the initial sentence, stating: "I would ask the Court when looking at this matter obviously the break and enters seem to be the result of obviously a very deep addiction at the time and not something that occurred on the record earlier and unfortunately [the] intimidate [offence] comes from that deep addiction period of time as well."
However, his submissions were not developed to the extent of seeking an application of the evidence tendered at the final sentence hearing to a reconsideration of the offences that were the subject of the initial sentence. Clearly there was scope to do so, even without the benefit of the evidence in the second sentencing hearing; in relation to the larceny of the (unvalued) hotel waiting lounge cover, it might be assumed from the indicative sentence of 3 months' imprisonment that the sentencing judge had formed a view that the objective seriousness of that offence was significant, but in the absence of an explanation, it is not immediately apparent why that was so.
In relation to the appellant's submission that it is not possible to appeal an initial sentence, although there is not a direct path for an offender who is a participant in the Drug Court program to appeal an initial sentence, it is of no consequence, since inevitably there is a final sentence, which is appealable. To the extent that the final sentencing judge has not interfered with the sentence or sentences handed down in the initial sentencing exercise, they become appealable as part of the final sentence.
Although I have reservations about the decision of the parties to not re-assess the initial sentence, I am of the view that her Honour did undertake her task pursuant to s 12 of the Act, and that my concerns arise more directly in the context of the second ground of appeal.
Accordingly, I would dismiss the first ground of appeal.

The second ground of appeal

The relevance of childhood deprivation in a sentencing exercise is apparent from the majority judgment in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, at [43] and [44]: "… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." (footnote omitted)
In my view, the evidence tendered at the final sentence hearing did warrant a reconsideration of the initial sentence, so that those offences could be re-assessed in light of the psychologist's report, as fortified by the appellant's sworn evidence. In particular, the appellant's revelation that she was sexually assaulted between the ages of seven and 11 years explains her childhood anxiety, her suicide attempt as a young girl, her resorting to the heavy use of highly addictive prohibited drugs and thus relevantly, a lifestyle of relatively petty property crime and her ongoing difficulty in relinquishing that behaviour. The loss of her three children is both a further consequence and an additional imperative to that behaviour.
As noted in Bugmy v The Queen, at [45], the impact of these considerations is not necessarily exclusively mitigatory of a sentence: "The point was made by Gleeson CJ in R v Engert in the context of explaining the significance of an offender's mental condition in sentencing: 'A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen [No 2]. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.'"

Resentence

The parties to the appeal agreed that the final sentencing judge was misinformed by the parties as to the appropriate commencement date for the aggregate sentence, following a miscalculation as to the time that the appellant had been in custody. The agreed appropriate commencement date for a fresh sentence is 3 March 2019.
The appellant relied on an affidavit as to her participation in courses offered in prison that address some of her issues. She completed two months of the addiction and aggression parts of the "EQUIPS" program (Explore, Question, Understand, Investigate, Practise, Succeed) in September 2019 but was moved to another prison before she could complete it. She has completed the first phase of a program known as "IDAPT" (Intensive Drug and Alcohol Treatment Program) and was due to complete the program by 7 August 2020. She completed other programs concerning hygiene, safe work practices, and also a sober driving program.
The appellant has incurred four custodial infringements since she was finally sentenced. Records of the incidents generated by the Department of Corrective Services have been tendered. The incidents were as follows: failing to comply with correctional centre routine (6 September 2019), disobeying a direction, unlawfully delivering or receiving an article to or from an inmate and resisting or impeding a search (6 November 2019), fighting (6 December 2019) and a request sent by the appellant via mail for "5 oranges and some (heart)", attaching a $100 note, apparently sent to a relative (19 May 2020). Her affidavit provided a largely exculpatory account of each of these offences.
Counsel for the respondent submitted that on resentence, no lesser sentence is warranted, having regard to the number and seriousness of the offences. Although the appellant's participation in programs whilst in custody is commendable, her prospects of rehabilitation, in view of her absence of commitment to the Drug Court program, remain low.
Having regard to the table, in relation to Offence Nos 1, 7, 11, 12, 13 and 14, I would impose no penalty other than a conviction. In relation to Offence Nos 2, 3, 4, 5, 6, 8, 10, 15, 16, 17 and 18, I would impose an aggregate sentence of 3 years' imprisonment, backdated to commence on 3 March 2019, and expiring on 2 March 2022. I would impose a non-parole period of 1 year, 9 months and 3 weeks, to expire on 23 December 2020.
The indicative sentences that I would impose are as follows: 1. Offence No 2: 12 months' imprisonment; 2. Offence No 3: 8 months' imprisonment; 3. Offence No 4: 18 months' imprisonment; 4. Offence No 5: 6 months' imprisonment; 5. Offence No 6: 3 months' imprisonment; 6. Offence No 8: 15 months' imprisonment; 7. Offence No 10: 6 months' imprisonment; 8. Offence No 15: 3 months' imprisonment; 9. Offence No 16: 2 months' imprisonment; 10. Offence No 17: 1 month's imprisonment; and 11. Offence No 18: 1 month's imprisonment
The orders I propose are as follows: 1. Appeal allowed. 2. The sentence imposed by Judge Mottley on 23 August 2019 is quashed. 3. In lieu thereof, the appellant is sentenced to 3 years' imprisonment, commencing on 3 March 2019 and expiring on 2 March 2022 with a non-parole period of 1 year, 9 months and 3 weeks, expiring on 23 December 2020.

Amendments 01 June 2021 - Minor typographical corrections made throughout judgment; corrections made to Offence Nos at [9], [90] and [91] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2021

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Judgment (21 paragraphs)

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Cases Cited (6)