DPP v Nicholls (a pseudonym) (No 2)

The offender is now in breach of those orders by virtue of failing to accept supervision from ACT Corrective Services (ACTCS) as directed and by virtue of offences she committed in NSW in June and August 2025. This matter came before me on 15 April 2026. The parties were united as to the outcome of these breach proceedings. I agreed with the position adopted by the parties and made orders with reasons to follow. These are the reasons for the orders I made.

In DPP v Nicholls (a pseudonym) [2025] ACTSC 194 (Nicholls), I recorded the background and personal circumstances of the offender. Suffice it to say, the offender has a background of childhood disadvantage: Nicholls at [65]-[68]. In the weeks leading up to the sentence on 9 May 2025 the offender’s eldest daughter died in a car accident. Unsurprisingly, this had a crushing effect upon her. In addition, at the time of sentencing the offender was scheduled to give evidence in a criminal trial in relation to a sexual assault alleged to have been perpetrated against her in her own home.

The alleged perpetrator was on remand awaiting trial at the time of sentence. He was ultimately acquitted after a trial which took place between 16 June 2025 and 26 June 2025. The acquittal had a devastating effect upon the offender and additionally raised concerns for her with respect to her safety because the offender was released from custody and the alleged offence had occurred in the home where she was still residing with her children.

If that was not enough, in August 2025 the offender’s father died.

It is important to set out that background because as the prosecution fairly conceded it is the prism through which both her reoffending in NSW and her failure to engage as directed by ACTCS must be understood.

It is also the background against which the prosecutor, Mr Robinson, accepted that this was a matter where the breach could be dealt with by the offender being re-sentenced to an order in the same terms as the orders I made on 1 May 2025. The position adopted by the prosecutor in this matter demonstrated that there remains a place for mercy in the administration of justice. A merciful approach, in view of the background I have set out, is entirely appropriate in the circumstances and leads to a just and appropriate outcome.

The facts of the offence subject to the sentence order on 9 May 2025 are set out in Nicholls at [4]-[28]. I need not extract them here. The offence was a serious offence. The offender entered a plea of guilty and was remorseful for her conduct.

The breach conduct occurred at a point of significant crises for the offender. Many of the instances recorded in the breach information by ACTCS can be explained by the offender’s reaction to her father’s death which only compounded the grief arising from her daughter’s death, as well as the obligations arising from, and the effect of, the criminal trial in which she was the complainant.

The offender has continued to engage with support services and remains strongly connected to trauma specialist Ms Tanya Keed. The offender works with Ms Keed in a program designed to provide case management and ‘wrap around’ services to First Nations women in the criminal justice system. Ms Keed described the offender’s engagement as substantive and overwhelmingly positive.

In November 2025 the offender was incarcerated in NSW for 7 months arising from fresh offending committed on 30 July 2025. I have been provided with the facts of the offending in NSW. The offending included breaching an apprehended violence order and stalking in a family violence context. Consequently, the offender is now subject to a parole order which will remain in place until June 2026. In addition, the offender was placed on a community corrections order for a driving offence committed on 28 August 2025 which will expire in July 2027. She is currently subject to supervision by NSW Corrections with respect to both orders. The offender is hoping to have both orders transferred to ACTCS. The offender acknowledged that any breach of those orders could see her return to full time imprisonment in NSW

The offender continues to experience symptoms of severe post traumatic stress disorder. She completed a mental health care plan in March 2026. She is currently prescribed diazepam (for anxiety), quetiapine (anti-psychotic) and fluoxetine (for serotonin). She remains a client of, and actively engaged with, Winnunga Nimitijyah Aboriginal Health Service. She remains the carer for her two daughters who I accept would experience significant hardship if she were to be incarcerated again. In a positive move, the offender recently obtained access to a new residence.

I bear in mind the factors which may be relevant to the question of whether a suspended sentence should be imposed or an offender re-sentenced in the face of a breach and observe the following (see R v Kelly (No 2) [2021] ACTSC 253 at [15]).

The proportion of the good behaviour order (GBO) served before the breach occurred was not substantial. The offender did attend three appointments with ACTCS and disclosed to them that she was struggling with grief. Some of the appointments the offender failed to attend were within the period where she was subject to a subpoena to give evidence in the criminal trial involving her allegation of sexual assault.

The offender’s reoffending tells against there being any significant level of rehabilitation achieved. That said, the offending engaged in was of an entirely different character and while clearly of sufficient seriousness to warrant a period of imprisonment, the offences were not as objectively serious as the offence I dealt with in May 2025.

Notwithstanding the breach, I remain convinced that the offender does have prospects of further rehabilitation, noting the scope and severity of the life events with have dramatically affected her life in the lead up to the sentence in May 2025 and since. The offender in my view does understand her obligations and does want to comply with her obligations. It is in the execution of compliance where she has struggled with respect to supervision and I note an observation I made in Nicholls at [71] which remains relevant: Some of the difficulty the offender experienced with bail appointments can be attritubed to the general disorganisation which appears to have at times attended to her personal circumstances, as well as the demands upon her from number engagement with support services and criminal justice agencies.

The offender has in the past received warning with respect to her compliance with supervision. The extent of the breach with respect to supervision is failing to attend appointments and/or answer phone calls from ACTCS and not a failure to engage in more substantive programs, counselling or treatment. Of course, before ACTCS could direct the offender on to more substantive support they must be able to first assess her needs and understand the supports that she may require. That said, the appointments the offender did attend with ACTCS did not yield any directions with respect to substantive assistance consistent with the directions I made when I sentenced the offender.

Plainly, the offender is in breach of the orders made on 9 May 2025. I my view the compelling personal circumstances of the offender are such that to impose the suspended sentence would be disproportionate to the breach in the circumstances. I am satisfied that the offender is trying as best she can to manage the emotional and psychological catastrophe that the death of her daughter and father have caused. Whilst she has come up short, she continues to demonstrate her motivation for reform by engaging with services designed to assist her.

Counsel for the offender suggested that I might consider removing the requirement for supervision. There is some merit to this suggestion, but ultimately the offender is going to have to engage with supervision to comply with the conditions on her liberty in NSW until July 2027. If ACTCS are satisfied that the offender is engaging satisfactorily in supervision, or if a successful transfer of supervision responsibility occurs, the Director- General of ACTCS will have the power, under the terms of my order, to terminate supervision at their discretion.

The appropriate course with the breach having been proved, is to re-sentence the offender in the same terms. The effect of which is to ‘reset’ the period that she will be required to be of good behaviour and accept supervision before the suspended sentence order is discharged.