APPEAL - IN GENERAL - Appeal against sentence - Whether drug use correctly taken into account - Whether commission of offence while under the influence of drugs a relevant sentencing consideration - Discussion of principles relating to the relevance of drug addiction to sentencing - Appeal ground dismissed

APPEAL - IN GENERAL - Appeal against sentence - Whether mental impairment and history correctly taken into account - No automatic mitigation of sentence due to the presence of a mental impairment - Relevant connection must be shown between the impairment and the circumstances when allowance should be made for an impairment - No connection demonstrated - Appeal ground dismissed

APPEAL - IN GENERAL - Appeal against sentence - Whether sentence manifestly excessive - View of one court as to rehabilitation prospects do not inevitably bind another court - Sentences of imprisonment for past offences does not mean imprisonment must be imposed for subsequent offending - Sentencing manifestly excessive - Appeal upheld

Crimes Act 1900 (ACT), s 54(2)

Magistrates Court Act 1930 (ACT), s 216, Part 3.10, Div 3.10.2

Brown v The Queen [2006] NSWCCA 144

Clarkson v The Queen (2011) 32 VR 361

Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483

Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353

Groenewege v Tasmania [2013] TASCCA 7

Gyory v The Queen [2012] ACTCA 28

Hanania v The Queen [2012] NSWCCA 220

House v The King [1936] HCA 40; (1936) 55 CLR 499

Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Nevermann (1989) 43 A Crim R 347

Pettitt v Dunkley [1971] 1 NSWLR 376

Re Kulari [1978] VicRp 29; [1978] VR 276

R v Ang [2014] ACTCA 17

R v BB [2013] ACTSC 290

R v Eisenach [2011] ACTCA 2

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Flentjar [2013] SASCFC 11

R v Flowers [2014] ACTCA 13

R v Kissner (1993) 69 A Crim R 83

R v Koumis [2008] VSCA 84; (2008) 18 VR 434

R v Morton [2010] NTSC 26; (2010) 27 NTLR 114

R v Smith (1987) 44 SASR 587

R v Stewart (Unreported, New South Wales Court of Criminal Appeal, 2 October 1987)

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

R v Yarwood [2011] QCA 367; (2011) 220 A Crim R 497

Shepherd v The Queen (1988) 94 FLR 55

Shrubsole v Rodriguez (1978) 18 SASR 233

Trueman v Tasmania [2009] TASSC 29

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Walmsley v The Queen [2014] ACTCA 24

Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228

Wong v The Queen (2001) 202 CLR 584

2. The sentence imposed on Cristy Lee Holder on 19 March 2014 be set aside.

1. On 6 January 2013, Cristy Lee Holder, the appellant, took two boxes each containing a video recorder from a store in Fyshwick and, without paying for them, left the store with them. She got into a car and was driven away.

2. Ms Holder was later identified by police and arrested. She was charged with an offence under s 321 of the Criminal Code 2002 (ACT), namely of stealing property with a replacement value of $2,000 or less. Because of the heading to that section, the offence is often, but perhaps rather misleadingly, called minor theft.

3. After police spoke to her on 8 May 2013, she was summonsed to appear in court on 26 July 2013. She ultimately pleaded guilty on 22 November 2013 and on 19 March 2014 was sentenced to three months imprisonment from that day.

4. On 15 April 2014, Ms Holder appealed against the sentence. She was, on 24 April 2014, granted bail pending her appeal.

5. Part 3.10 of the Magistrates Court Act 1930 (ACT) confers jurisdiction on this Court to hear appeals from the Magistrates Court, including against sentences imposed by it, and Div 3.10.2 regulates those appeals.

6. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.

7. Sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.

8. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable or plainly unjust or plainly wrong.

9. I note that I shall apply these principles in this case.

10. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

11. On 15 May 2014, an amended Notice of Appeal was filed for Ms Holder. The grounds of appeal were as follows:

1. That the sentence imposed was manifestly excessive in all the circumstances, particularly as the sentence had the effect of depriving the appellant of the opportunity of ongoing participation in the New South Wales MERIT program with the consequence that the sentence to be imposed for the charge of break, enter and steal pending at the Queanbeyan Local Court was likely to be more severe.
2. His Honour failed to have any or any sufficient regard to principles of totality when sentencing the appellant and in particular, failing to have due regard to the course of the Queanbeyan Local Court proceedings in relation to a significantly more serious offence committed shortly after the offence the subject of this appeal.
3. His Honour erred in finding that it was an aggravating circumstance that the appellant was in company at the time of the commission of the offence.
4. His Honour erred in finding that that there was some level of planning in the commission of the offence.
5. His Honour erred in finding that the offending was in the upper, middle range of objective seriousness for offences of minor theft.
6. His Honour erred in failing to deal appropriately with and attach due weight to the appellant's longstanding history of drug abuse.
7. His Honour erred in finding that the appellant's moral culpability was not reduced by her being under the influence of a drug at the time of the offence.
8. His Honour erred in finding that the appellant's moral culpability was not reduced by reason of the fact that the offence was committed to support her drug habit.
9. His Honour erred in failing to deal appropriately with and attach due weight to the appellant's mental condition.
10. His Honour erred in finding that the appellant's mental condition did not reduce her moral culpability for her offending.
11. His Honour failed to take into account and give due weight to the appellant's participation in the New South Wales MERIT program and completion of three previous MERIT programs as evidence of genuine desire for rehabilitation.

12. The relevant facts necessary to an understanding of the appeal are as follows.

13. At about 1:10 pm, Ms Holder and an associate went into a store in Fyshwick and approached a promotional display containing digital video recorders. The area of the display was being recorded by a CCTV camera.

14. Ms Holder's associate discussed car stereos with one of the sales assistants in the store and then left shortly after.

15. Ms Holder walked around the store and then returned to the promotional display and picked up two boxes containing digital video recorders, each valued at $499. She immediately turned and left the store.

16. The store manager followed her. He saw her get into a car parked outside being driven by her associate.

17. As soon as Ms Holder got into the car, her associate drove it away. The store manager saw that the car had ACT registration plates with the letters YGS but the numerals were obscured as they had been covered with cardboard secured by duct tape.

18. The police were called and, when they attended, collected CCTV footage from the camera which was recording the area of the promotional display. The police circulated a request for help in identifying Ms Holder and a New South Wales police officer responded. He was able to identify Ms Holder as the person who took the two boxes containing digital video recorders and left the store without paying for them.

19. On 3 February 2013, Ms Holder appeared in the Local Court of Queanbeyan, New South Wales, charged with breaking, entering and stealing property worth less than $60,000. She pleaded guilty to the charge in that Court. There was also, apparently, a charge of intent to supply an illicit drug but no information was available about that charge.

20. There was, in the proceedings in the Magistrates Court, some evidence about the offence for which Ms Holder was charged in the NSW Local Court. The learned Magistrate was told that the offence was "an old charge" which was alleged to have been committed before 6 January 2013, the date on which the minor theft was committed.

21. I was told, on the appeal, that the learned Magistrate had been misinformed, I assume unintentionally, and that the offence was said to have been committed on or about 3 February 2013, that is, approximately a month after she had committed the minor theft offence.

22. I may have misunderstood what I was told, but, on further inspection of the appeal papers and after further thought, it seems to me that it is unlikely that Ms Holder committed the further offence on or about 3 February 2013. In the first place, her counsel told the learned Magistrate a number of times that the offence was an "old" one; indeed, he said that the police would have charged her with it "if they were organised" at the time her parole was cancelled in New South Wales and she served a further ten months' imprisonment. Nothing to the contrary was said by the prosecutor.

23. Secondly, it seems unlikely that, for a fresh, serious offence committed after Ms Holder's recent incarceration and with her record, the Local Court would be considering referring her to the Magistrates Early Referral into Treatment (MERIT) program, which decisions such as Brown v The Queen [2006] NSWCCA 144 at [4]- [5], [49]-[50], suggest that no more serious penalty than a suspended sentence would be imposed after successfully completing the MERIT program.

24. Thirdly, her criminal record shows a warrant issued in New South Wales for her arrest for an offence committed on 11 May 2012, which may have been the NSW offence, consistent with her counsel's submission that it was "an old offence". The offence is not specified and the warrant was said in the record to have been for a charge and court date of 11 March 2013, though this was after it was asserted that she appeared in the Local Court on the breaking and entering charge. It may, of course, relate to the charge of intent to supply an illicit drug.

25. I am, accordingly, left with some uncertainty about this matter, though it may not be critical to the outcome of the appeal, though it is unfortunate. It seems to me that I should proceed on the basis of what I was told by Ms Holder's counsel at the appeal, an assertion not challenged or contradicted by the respondent's counsel.

26. In the Local Court, Ms Holder was admitted to bail and referred to a drug treatment program, the MERIT program. The primary goal of the program is described in a document of the New South Wales Department of Attorney-General and Justice which was tendered and helpfully labelled as an exhibit in the proceedings below. It states that the objectives of the program are "to break the substance abuse-crime cycle by involving defendants in treatment and rehabilitation".

27. The document described the program as targeting adult "defendants with a demonstrable drug or alcohol problem" who have a "treatable drug/alcohol problem for which there is appropriate treatment available" and who are eligible for bail. They must voluntarily agree to participate in the program. Defendants charged with sexual or strictly indictable offences are ineligible to participate.

28. The document stated that the program requires the participants to participate in the treatment program agreed to by them with a case worker and appear before the Local Court for updates on treatment progress.

29. The document also sets out the consequences of non-compliance as follows:

The consequences are that the [Local Court] may remove the defendant from the program. If removed from MERIT, the defendant's matters proceed to plea or hearing.

It should be noted that failure to respond to a drug treatment program will not be dealt with by punitive measures. If convicted of the offence(s) as charged, any penalty will relate to that offence only, and not to any failure to respond to treatment.

30. It also refers to the orders made upon successful treatment as follows:

Types of sentences used after successful completion of MERIT vary but should reflect successful completion of MERIT and also take into account any recommendations for further treatment.

31. Ms Holder had been assessed in NSW as suitable for the MERIT program three days prior to her sentencing in the Magistrates Court in Canberra.

32. As noted above (at [3]), Ms Holder was summonsed to appear to answer the charge of minor theft in the Magistrates Court on 26 July 2013. She was, however, serving a sentence of imprisonment at the time, as a result, it appears, of breaching a parole order.

33. The Court adjourned the proceedings pending her release from custody on 8 November 2013 and she appeared in court on 22 November 2013, entering a plea of guilty to the offence, the earliest time she could do so. The learned Magistrate ordered a Pre-Sentence Report and adjourned the proceedings for sentence to 19 March 2014 when he heard submissions and imposed sentence.

34. At sentencing, compensation in the sum of $998 was sought.

35. Ms Holder was born thirty-one years ago in New South Wales, the youngest of three children. She witnessed domestic violence perpetrated by her father on her mother; her parents divorced when she was sixteen. She then moved out of home but became involved with a group of people who used drugs.

36. She attended schools in New South Wales and completed Year 11 at Canberra College. She also completed Certificates I and II in computer applications through TAFE. She is, it appears, not unintelligent and has some education.

37. Despite that, her only period of employment was between 2002 and 2008, when she worked "on and off" as a postal services officer, but left the position when she became pregnant with her second child.

38. Ms Holder's father remarried and had three children with whom Ms Holder has regular contact, though she has no contact with her brother and sister.

39. She has two children who have been in the care of her mother since January 2011, when she lost custody of them because of the violence they suffered from her second partner. She had a more recent relationship, but it was also marked by severe violence, which included her receiving injuries requiring hospitalisation. That relationship has also ended.

40. Ms Holder is in receipt of Newstart benefits. She has debts of about $8,500, consisting mainly of fines. Her mother is assisting with living expenses.

41. Although she drinks socially on special occasions, Ms Holder has no problems with alcohol consumption. She started smoking cannabis, however, at age sixteen and by age eighteen was regularly using "ice" (methamphetamines) as well as cannabis. She also experimented with other drugs, including ecstasy and heroin. These led to her committing crimes to support her substance use.

42. Ms Holder has attempted drug rehabilitation on three occasions since 2008 but only completed a seven day detoxification program at Arcadia House in 2011. She has also completed three treatment programs of one-to-one counselling for twelve weeks each under the MERIT program, the last being in August 2011.

43. A court order made in 2012 required her to participate in a community-based substance abuse program, but she was not compliant.

44. In November 2013, she arranged for pharmacotherapy treatment to address her craving for opioids but stopped taking the medication arranged for her after only two days.

45. She reported to the author of the Pre-Sentence Report that she had abstained from illicit drugs, other than cannabis, since October 2013 and expressed the opinion that she could maintain her abstinence and control her use of cannabis with counselling and the support of her mother. She is not interested in undertaking residential rehabilitation because of her past failures and a "need" to be close to her children and mother. She has, however, not contacted any counselling service since November 2013. She has also not been subject to any drug screening, such as urinalysis.

46. Ms Holder was diagnosed with Bipolar disorder and Anxiety disorder in 2012 and has been prescribed Seroquel and Temazepan. She has attempted suicide on three occasions. She states that, as long as she takes her medication, her mental health is manageable. There was no suggestion that she was not taking her medication.

47. Ms Holder stated that she was under the influence of illicit drugs at the time of the offence. She committed it to support her drug habit.

48. She was assessed by the author of the Pre-Sentence Report as at a medium to high risk of re-offending, but this level is increased substantially if she uses illicit drugs, ceases to take her medication and associates with criminal peers.

49. She has a rather depressing criminal history dating back, however, only to 2006. Since then, she has been found guilty of twenty-five offences, of which seven are dishonesty offences: two shoplifting offences, two offences of stealing, two offences of dishonestly obtaining property by deception and one offence of aggravated breaking, entering and committing a serious indictable offence. The most recent offences were the more serious offences for which she received terms of imprisonment. She breached her parole when released and was required to serve the balance of the term of imprisonment.

50. She has been found guilty of four drug-related offences and six offences of violence. Her other offences include traffic offences, an animal welfare offence and hindering the investigation of a serious indictable offence.

51. In sentencing submissions, Ms Holder's counsel referred to her traumatic childhood and the domestic violence she had experienced. He referred to the various criminal matters in New South Wales. He noted her early plea of guilty. His principal submission was that, for a more serious offence, the Local Court had referred her to the MERIT program and that a sentence that permitted her to complete that program should be imposed.

52. He noted that, although assessed by the author of the Pre-Sentence Report as unsuitable for a community service work condition to a good behaviour order, Ms Holder and he had discussed this matter and she considered that she would be able to undertake community service work.

53. During submissions the learned Magistrate suggested that, given her criminal history, Ms Holder had "already had her last chance", suggesting

Isn't the approach of sentencing courts the fact that everything short of full-time imprisonment has been tried and hasn't worked. Even full-time imprisonment hasn't worked. One doesn't go backwards.

54. His Honour made it clear that he was considering a custodial sentence and said

Treatment for drug addictions is available in custody and often in fact when people have got a history of not complying with community based rehabilitation programs, it is only treatment in custody which is ever going to be effective.

55. The prosecutor submitted that, in this case, specific deterrence was "of particular significance" and referred to her prior offending. She also submitted that recognition of the harm to the victim and the community was relevant, which was experienced when losses to traders are passed on to the community.

56. The learned Magistrate then proceeded to sentence. After summarising the facts, he said

It is an aggravating factor that you were in company at the time of the offending. The goods stolen were not food or other necessities of life. The fact that two identical items were stolen indicates an intention to sell one or both of them, rather than that they were intended for your personal use.

The value of the items taken was not insignificant. The circumstances indicate some level of prior planning. I rate your offending in the upper, middle range of objective seriousness for offences of minor theft.

57. His Honour referred to the history of the proceedings, making a minor but irrelevant error as to the date of her plea (which was entered on 22 November 2013 not, as his Honour said, 27 November 2013), and to her criminal history. His Honour referred to the Pre-Sentence Report, from which he cited some extracts, and to her background and family. His Honour referred to her substance abuse history, her mental health and to the fact Ms Holder was under the influence of drugs at the time of the offence. His Honour referred to the fact that Ms Holder was assessed as not suitable for serving a sentence of imprisonment by periodic detention. His Honour did not mention a community service work condition to a good behaviour order.

58. His Honour considered that Ms Holder's criminal record indicated "little room for leniency" and that "a strong message of specific deterrence is called for".

The order in New South Wales, that you participate in the merit program while on bail for offences committed in New South Wales does not persuade me that any special leniency is called for in sentencing for the current offence. The fact that you were drug dependent and committed the offence to support the drug habit does not reduce your moral culpability for the offending.

The reference in the pre-sentence report to your mental health does not establish any causal connection between any mental condition and the offending conduct, nor does it establish any reduced moral culpability for the offending conduct as a result of any mental health condition.

60. His Honour found her lack of interest in residential rehabilitation "a surprising attitude" in the circumstances she faced, but it is not clear that his Honour was suggesting the obvious inference from that remark that, had she so expressed such an interest, his Honour would have imposed a different sentence.

61. His Honour referred to Ms Holder's plea of guilty, for which he allowed a discount of twenty-five percent, namely one month and imposed the sentence of three months imprisonment. His Honour considered that to suspend that wholly or in part "would result in inadequate punishment".

62. It is convenient to deal first with the grounds of appeal that address the seriousness of the offence, namely (iii), (iv) and (v), set out above.

(iii.) His Honour erred in finding that it was an aggravating circumstance that the appellant was in company at the time of the commission of the offence

63. His Honour, as I have set out from his remarks on sentence above (at [56]) found that the fact that the offence was committed in company was an aggravating feature. His Honour did not explain why.

64. In certain offences, such as burglary, robbery and sexual intercourse without consent, statutory provisions make the circumstances that the offence is committed in company a more serious offence, attracting a more severe penalty: s 312 of the Criminal Code, s 310 of the Criminal Code and s 54(2) of the Crimes Act 1900 (ACT). The offence of which Ms Holder was found guilty was not such an offence.

65. The common law was that, in relevant circumstances, the commission of an offence in company could aggravate the seriousness of the offence. See Shepherd v The Queen (1988) 94 FLR 55 at 64. Certain circumstances, however, need to be present for that to apply.

66. Thus, whether in a particular case that factor is aggravating must depend on circumstances which make it so, where it is not otherwise a statutory aggravating factor. So much is clear from what Howie AJ said in Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 at 387-8; [99]- [102] where his Honour said

1. This Court has frequently encouraged sentencing courts and, hence legal practitioners appearing before them, to take a principled approach to the provisions of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) based upon an understanding that generally the provisions were not intended to change the common law. In R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 it was stated that, if a court takes into account an aggravating feature that was not available at common law, then the court is probably using s 21A(2) incorrectly.
2. That approach should have at least raised a question about whether a factor of aggravation that an offence was committed in company meant that the factor was engaged simply because another person other than the offender was present or engaged in the offending regardless of the nature of the offending or the purpose of the other person's presence. The common law understanding of 'in company' should have informed an appreciation of the nature of the aggravating factor contained in s 21A(2)(e). It relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person. That factor had no application to the applicant simply because he happened to use Ms Hunter to assist in his drug trade. The prosecutor should not have asserted that it did. Prosecutors should not be leading a sentencing court into error by a failure to understand the approach that is to be adopted to s 21A(2) in light of the numerous decisions in this Court in that regard: see McCullough v The Queen [2009] NSWCCA 94; (2009) 194 A Crim R 439.
3. I agree with Adams J that it is not sufficient for a court simply to refer to an aggravating factor in the section without considering whether, in light of a discernable policy making the factor aggravating, that it is truly aggravating in the context of the offence being committed. There was no policy that would make the applicant's offending more serious simply because it happened to be in the presence and with the assistance of Ms Hunter in the circumstances of this case. Again any understanding of the approach taken to s 21A(2) by this Court would make it clear that it is not to be used as a checklist without any regard to the particular facts before the court and the nature of the offence for which sentence is being passed.
4. Like conspiracy, an offence may be aggravated because the offender has employed others to carry out, or assist, in the commission of a crime. But this is not because the offender is in company with those he employs. Such a circumstance is aggravating because the offender has involved others, perhaps for reward, in carrying out his crime. But there was nothing to suggest that this was the case by the applicant's use of Ms Hunter.

67. It seems to me that there was no basis in the facts here for finding that the presence of Ms Holder's associate at some stage - and, indeed, not when the asportation actually occurred - was an aggravating feature as required.

68. The only basis suggested by the respondent on the appeal was that the store manager may have been less inclined to confront Ms Holder if her associate was present. There is, however, no factual basis for this; indeed, the inference from the facts was to the opposite effect as the store manager had no hesitation in following her as she left the store.

69. Further, the associate could not be said, on the facts alleged, to have assisted by distracting the staff while Ms Holder stole the goods. That he drove her away after she left the store is, on its own, neutral about whether he knew she had stolen the goods. Indeed, Ms Holder's counsel asserted, without contradiction from the prosecution, that her associate had not been charged with an offence.

70. As Adams J pointed out in Gore v The Queen at 361-2; [28], to say that being in company per se means a theft is more serious means that

a theft that takes place in the presence of an innocent stranger is made more serious than one that occurs when no-one else is present.

71. I am not sure I would, for myself, go quite that far, but his Honour's point reinforces the common law position that there must be some accepted relevance to the aspect that the offence was committed in company.

72. The mere presence of an accomplice does not aggravate an offence unless there is a basis for showing the way in which that makes it more serious.

73. His Honour did not explain how he considered that the presence of the associate made the offence more serious and I find no basis in the facts for any such conclusion.

74. This means that his Honour took into account an irrelevant consideration. That it was the first factor mentioned may imply that it was the most serious of the aggravating factors that his Honour considered.

75. It clearly led his Honour to assess the level of seriousness of the offence in the way he did. This must then be reconsidered.

76. In my view, this is an error that vitiates the sentence unless I consider that a different sentence is not appropriate when re-exercising the sentencing discretion.

(iv.) His Honour erred in finding that that there was some level of planning in the commission of the offence

77. Again, it was submitted that his Honour did not explain how he had arrived at the conclusion about the degree of planning as is shown in his remarks on sentence, the relevant part of which is extracted above (at [56]).

78. A sentencer is, of course, required to record in the reasons for sentence the findings of fact and the basis for the sentence imposed so that the offender, the general public and any appeal court knows the basis on which the offender has been sentenced. See Pettitt v Dunkley [1971] 1 NSWLR 376. In R v Kissner (1993) 69 A Crim R 83, however, the New South Wales Court of Criminal Appeal referred with approval to what Hunt J said in R v Stewart (Unreported, New South Wales Court of Criminal Appeal, 2 October 1987) as follows:

Sentencing judges, particularly when involved in long lists of guilty pleas, are under a substantial degree of understandable pressure, and they are usually unable to prepare considered remarks on sentence. The difficulties under which those judges administer justice should not be underestimated. But it is nevertheless important that, however roughly it may be done, sentencing judges expose in such remarks their attitudes to the various matters of aggravation and mitigation present in the particular case, so that this Court can see whether the undoubtedly wide discretion which sentencing judges exercise has (or, perhaps more importantly, has not) miscarried.

79. James J, with whom Sheller JA and Campbell J agreed, went on to say, however

It is not a sufficient answer to a criticism of remarks on sentence that the remarks on sentence can be supplemented, as was done on the hearing of this appeal, by the record of the argument in the proceedings on sentence including the exchanges between the judge and counsel. Often a transcript of the argument in the proceedings on sentence will for one reason or another not be available. In any event, remarks on sentence should themselves contain a statement of the reasons which led the sentencing judge to his decision.

80. That approach, however, cannot be taken too far. See, for example, Nevermann (1989) 43 A Crim R 347 at 356 where Brinsden J, with whom Malcolm CJ agreed, accepted that a reference to sentencing alternatives in argument was sufficient to permit a finding that the alternatives had been considered.

81. While it is necessary for the reasons to record the findings as to the circumstances of the offence (R v Koumis [2008] VSCA 84; (2008) 18 VR 434 at 439; [63]), it does not seem to me to be necessary, especially in a Magistrates Court, to provide all the reasoning that leads to those findings unless they are contentious or otherwise likely to be unclear or unable to be inferred from the proceedings. After all, as Wells J said in Shrubsole v Rodriguez (1978) 18 SASR 233 at 235, sentencing remarks are not like a judgment which is "a compact piece of reasoning directed to the resolution of defined issues both factual or legal". The difference between the two cannot be taken too far, for, as Spigelman CJ said in R v Thomson (2000) 49 NSWLR 383 at 394; [42], there is a similarity between sentencing remarks and judgments in, at least, the need to provide reasons for the decision.

82. Nevertheless, as Crawford CJ said in Trueman v Tasmania [2009] TASSC 29 at [32]

It is proper that many offenders are sentenced immediately following the hearing of submissions in the interests of expediency, and as was said in this Court by Nettlefold J in R v Sherlock unreported 41/1975 at 6: 'I do not think that this Court should analyse a Judge's reasons with too critical an eye. The remarks are often made "off the cuff".'

83. It seems to me that it was tolerably clear from the facts that his Honour's assessment was well open to him. Ms Holder and her associate had driven to Fyshwick apparently to go to the store; it was not as if they were just passing a store, say in Civic or another shopping centre. The car had been partially disguised by the cardboard secured by duct tape over numbers on the number plate. Ms Holder had the car as an easy and effective means of escape, where her associate was in the driver's seat when she left the store. There was, as his Honour said, a degree of planning or pre-mediation in the offence.

(v.) His Honour erred in finding that the offending was in the upper, middle range of objective seriousness for offences of minor theft

85. I find it difficult to assess how to approach the assessment of the range of seriousness of an offence by the current fashion of using terms such as "upper middle" and the like. It has an element of qualitative assessment which may be antithetical to the instinctive synthesis which is required of sentencers by decisions such as Wong v The Queen (2001) 202 CLR 584 at 611; [76].

86. There can be a temptation to equate the assessed level of seriousness with the same level of penalty by reference to the statutory maximum. This is clearly wrong.

87. There are many other factors involved. Some of these are obviously the subjective circumstances of the offender but some cross boundaries. For example, repetition of an offence makes the repeated offence somewhat more serious.

88. Factors can point in different directions, making the result of "adding them up" somewhat deceptive for averages always hide the extremes. The theft of an article of little value is not serious, but to repeatedly steal, even such items, is more serious.

89. Nevertheless, it is now common for such assessments to be made. In this case, the learned Magistrate included a factor, namely that the offence was committed in company, as a significant aggravating factor. That appears to me to have led to an assessment of the seriousness of the offence that was greater than it should have been.

90. The value of the goods stolen was significant but not of great value. Ms Holder had committed such offences before, as well as other dishonesty offences, and had only fairly recently committed dishonesty offences for which she had been imprisoned. She had, however, only two prior shoplifting offences on her record and they were some years ago. All shoplifting is serious, but this was not a particularly serious version of the offence. Indeed, it may be regarded as only somewhat more serious than the typical shoplifting offence. The planning and premeditation was relevant but relatively limited and not enough to show that she knew or cared that her actions were caught on camera; she took no steps to avoid this.

91. By taking into account an irrelevant circumstance, the learned Magistrate assessed the offence as more serious than it was. This ground of appeal must be upheld.

(vi.) His Honour erred in failing to deal appropriately with and attach due weight to the appellant's longstanding history of drug abuse.

(vii.) His Honour erred in finding that the appellant's moral culpability was not reduced by her being under the influence of a drug at the time of the offence.

(viii.) His Honour erred in finding that the appellant's moral culpability was not reduced by reason of the fact that the offence was committed to support her drug habit.

92. It is convenient to deal with these three grounds together.

93. Mr R Davies, who appeared for Ms Holder, submitted that the fact that she committed the offence while under the influence of a drug was, and the commission of the offence to support her drug habit were, relevant factors.

94. He referred to the principles articulated by Wood CJ at CL said in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at 397-8; [273]- [274] in relation to the relevance of drug addiction to sentencing. These may be summarised as follows:

1. The need to gain funds to support a drug habit is not an excuse to commit offences and, of itself, not a matter of mitigation.

2. The fact of that motivation may be relevant to the objective criminality of an offence because it may show

(a) the commission of the offence was impulsive and not planned;

(b) there were or were not other, aggravating motives for committing the offence, such as to support serious crime or terrorism;

(c) that the offender had a limited capacity to exercise judgement if, for example, suffering an extreme state of withdrawal which caused a mental disorder or reduced the will of the offender.

3. The addiction or use of drugs may be relevant to the subjective circumstances of the offence because

(a) it may impact on assessments of the likelihood of recidivism or rehabilitation;

(b) the addiction may not have been a result of a choice but, for example, the result of medical prescription or parental pressure or example;

(c) the addiction may have occurred at too young an age to show that at the time the offender could have exercised appropriate judgement or choice; and

(d) the offender may be at "the cross roads" and ready to reform.

4. The fact of drug addiction is also not a matter of mitigation.

95. These principles are well-known and have been followed in many decisions of courts in this jurisdiction and elsewhere. See, for example, R v BB [2013] ACTSC 290 at [26]; Clarkson v The Queen (2011) 32 VR 361.

96. None of the matters relevant to the objective criminality pertained here, especially in the light of the degree of planning found, as under term 2. The relevance of rehabilitation or recidivism as in item 3(a) was a matter to which the learned Magistrate did have regard; the other matters in item 3 were not relevant as there was no evidence to support them. In particular, other than the reference from the referral of Ms Holder by the Local Court to the MERIT program, there was no evidence that she was "at a crossroads"; indeed, the evidence was that she had tried rehabilitation and it had failed and she did not want to undertake intensive residential rehabilitation.

97. In my view, there was no error shown in the approach his Honour took.

(ix.) His Honour erred in failing to deal appropriately with and attach due weight to the appellant's mental condition.

(x.) His Honour erred in finding that the appellant's mental condition did not reduce her moral culpability for her offending.

98. These two grounds can also be dealt with together.

99. The Pre-Sentence Report stated that Ms Holder had been diagnosed with mental health conditions; I noted then above (at [46]) as Bipolar disorder and Anxiety disorder. As I have also noted above (at [57]), the learned sentencing Magistrate mentioned these.

100. The complaint made by Ms Holder was that they were not shown in the ultimate sentence to have been taken into account.

101. Reliance was placed on the articulation of the relevant principles in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 287; [82]. This decision has been followed in the ACT Court of Appeal: Walmsley v The Queen [2014] ACTCA 24 at [38]; R v Flowers [2014] ACTCA 13 at [5]; Gyory v The Queen [2012] ACTCA 28 at [12]. It has also been followed widely throughout Australia: Groenewege v Tasmania [2013] TASCCA 7 at [30]; R v Flentjar [2013] SASCFC 11 at [43]; R v Yarwood [2011] QCA 367; (2011) 220 A Crim R 497 at 506-7; [24]; R v Morton [2010] NTSC 26; (2010) 27 NTLR 114 at 126; [50]; Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228 at 246; [81]- [82]; Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1 at 5-6; [10].

102. The principles re-stated by the Victorian Court of Appeal are set out by the Court, at 276; [32] as follows:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

103. Reliance was placed on items 1, 2 and 6. The difficulty for Ms Holder on the appeal is the absence of evidence to support those contentions. The law, as set out in those principles does not require an automatic mitigation of sentence because an offender has a mental impairment. It must be shown that there is a relevant relationship between that impairment and the circumstances when, as identified in these principles, allowance should be made for the impairment.

104. Thus, the Court of Appeal in R v Verdins at 31; [26] set out the kind of ways in which, as set out in item 1, the offender's moral culpability may be lessened. It said

Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of:

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(c) making the offender disinhibited;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(e) obscuring the intent to commit the offence; or

(f) contributing (causally) to the commission of the offence.

As we have said, this is not to be taken as an exhaustive list.

(Footnotes omitted)

105. There was, in this case, no material before the court to show how Ms Holder's mental disorders resulted in any of the above matters, nor any others. There must be some relevant connection shown to activate the need for mitigatory moderation of the sentence.

106. Similarly, there was no evidence to show that her conditions would make the proposed sentence a greater burden on her or gravely adversely affecting her mental health, as identified by King CJ in R v Smith (1987) 44 SASR 587 at 589 as being relevant matters on sentencing of an offender with a mental impairment.

107. There is no error shown in the approach taken by the learned Magistrate so far as those matters are concerned and the grounds must be dismissed.

(ii.) His Honour failed to have any or any sufficient regard to principles of totality when sentencing the appellant and in particular, failing to have due regard to the course of the Queanbeyan Local Court proceedings in relation to a significantly more serious offence committed shortly after the offence the subject of this appeal.

(i.) That the sentence imposed was manifestly excessive in all the circumstances, particularly as the sentence had the effect of depriving the appellant of the opportunity of ongoing participation in the New South Wales MERIT program with the consequence that the sentence to be imposed for the charge of break, enter and steal pending at the Queanbeyan Local Court was likely to be more severe.

(xi.) His Honour failed to take into account and give due weight to the appellant's participation in the New South Wales MERIT program and completion of three previous MERIT programs as evidence of genuine desire for rehabilitation.

108. It is appropriate to deal with these three grounds together, since each addressed the interaction of the sentence to be imposed by the learned Sentencing Magistrate and the course taken by the New South Wales Local Court.

109. It should be noted that a ground asserting that inadequate weight has been given to a relevant consideration is not a specific error of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. As the Court of Appeal has made clear in R v Eisenach [2011] ACTCA 2 at [43], such matters are only, at best, particulars of the ground that the sentence was manifestly excessive (or inadequate, as the case may be). It is helpful if appellants bear this in mind and proceed accordingly to plead the grounds of appeal. See also Re Kulari [1978] VicRp 29; [1978] VR 276; Hanania v The Queen [2012] NSWCCA 220 at [33]. See also R v Ang [2014] ACTCA 17 at [20]- [25].

110. The ground that no weight has been given to a matter may, of course, be to plead that the matter has not been taken into account. If that is a relevant consideration then the failure to take it into account is a specific error in itself. Where, however, the matter has been mentioned by the sentencing court or it is clear that the court is well aware of it, then it is very difficult to assert successfully that the court has not taken it into account.

111. His Honour did make express reference in the remarks on sentence to the fact that Ms Holder had been assessed as suitable for the MERIT program. His Honour did not ignore it.

112. That one court has taken a particular view of the personal circumstances and rehabilitation prospects of an offender cannot bind another court, unless bound by virtue of their relative places in the judicial hierarchy and, even then, it is not always inevitable, where the same evidence is not before both courts.

113. Ms Holder's counsel could have sought an adjournment of the sentencing proceedings in order that Ms Holder complete the MERIT program and, if she did so successfully, this would provide very relevant evidence on sentence. He chose not to do so and his forensic choice now binds Ms Holder.

114. If, on the evidence before the learned Magistrate, which did not include any recently completed rehabilitation, a sentence of imprisonment was appropriate, then the fact that another court had assessed her, in respect of another offence (the circumstances of which are by no means clear to me and were no better articulated to the learned Magistrate), to be given a rehabilitative opportunity, cannot and did not bind the learned Magistrate to impose what his Honour considered clearly to be a too lenient sentence.

115. His Honour could have, on his own initiative, decided to adjourn the sentencing proceedings to await the outcome of Ms Holder's participation in the MERIT program, but was not bound to do so. In the light of the, at least odd, failure of Ms Holder's counsel to seek such an adjournment, there was no obligation on his Honour to grant one.

116. That seems to me the only way that his Honour could have had regard to what the Local Court had done. If there was no error in not doing so, then there can be no error in not otherwise having regard to what was, after all, a mere assessment for Ms Holder's participation and not even, at that stage, any actual participation by her in the program, the success of which could be evaluated.

117. Reference was made to totality, but this does not arise. Totality refers to the aggregate of the sentences imposed either on one occasion or consecutively where there is a reason why a later sentence should be moderated because of an earlier one. See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-7. Neither of these circumstances pertain here; his Honour was sentencing Ms Holder for one offence only and no relevant earlier sentence had been imposed. The Local Court had not sentenced Ms Holder.

118. For these reasons, grounds (ii) and (xi) are not made out.

119. So far as ground (i) is concerned, it must be partly upheld in part because of the fact that grounds (iii) and (iv) have been upheld.

120. In addition, however, it seems to me that a sentence that, for the particular offence without the plea of guilty, was of four months imprisonment was excessive for the facts of this case. It appears as though there may have been an element of sentence imposed for Ms Holder's previous offending which, of course, would breach the principles that the High Court has established in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477. In my view, the sentence was manifestly excessive.

121. His Honour also made reference (noted at [53] above) to the fact that Ms Holder having been sentenced to full-time imprisonment which had not prevented further offending, and remarked, "one doesn't go backwards".

122. That is a problematic remark for it suggests that his Honour was improperly constraining the sentencing discretion. That an offender has in the past been sentenced to imprisonment does not mean that thereafter, even for the same offence, imprisonment must be imposed. That is at least inconsistent with individualised justice. See Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at 494-5; [27].

123. It may be that where a sentencing option has not prevented further offending, it is necessary to be more creative in further sentencing. It may be, also, that there is no alternative to more severe punishment. There is, however, no principle that once imprisonment has been imposed, all future sentencing, even for the same offences, requires further imprisonment.

124. To that extent, his Honour may have imposed on the sentencing discretion a limitation which led to a more severe penalty than the circumstances, that is the objective seriousness of the offence and Ms Holder's personal circumstances, required.

126. I was asked to have regard to further material if I upheld the appeal as Ms Holder would need to be re-sentenced. I shall receive such material and re-sentence Ms Holder.

I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the appellant: Legal Aid Office (ACT)

Solicitor for the respondent: Director of Public Prosecutions (ACT)