Johnston v R - [2021] NSWCCA 86 - NSWCCA 2020 case summary — Zoe

NSWNSWCCA

Johnston v R

[2021] NSWCCA 86

Court of Criminal Appeal (NSW)|2020-07-14|Before: Ward JA, Wilson J, Ierace J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-07-14

Before

Ward JA, Wilson J, Ierace J

Catchwords

[2013] HCA 37 Dinsdale v The Queen (2000) 202 CLR 321
[2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194 Fernando v R (1992) 76 A Crim R 58 Firth v R [2018] NSWCCA 144 House v The King (1936) 55 CLR 499
[1936] HCA 40 Ingrey v R [2016] NSWCCA 31 JM v R [2014] NSWCCA 297 Kentwell v The Queen [2014] HCA 37

Source

Original judgment source is linked above.

Catchwords

[2013] HCA 37 Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194 Fernando v R (1992) 76 A Crim R 58 Firth v R [2018] NSWCCA 144 House v The King (1936) 55 CLR 499[1936] HCA 40 Ingrey v R [2016] NSWCCA 31 JM v R [2014] NSWCCA 297 Kentwell v The Queen [2014] HCA 37(2014) 252 CLR 601 LN v R [2020] NSWCCA 131 Lowndes v The Queen (1999) 195 CLR 665[1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Munda v State of Western Australia (2013) 249 CLR 600

Judgment (19 paragraphs)

[1]

Background

The applicant is an Indigenous woman originally from far western New South Wales who has spent much of her adult life in South Australia. She was aged 37 at the time of the offences, which occurred in Blayney in central western New South Wales, where she was living at the time. The agreed facts which were before the sentencing judge were to the following effect.

[3]

The sentence hearing

The proceedings resumed on 18 April 2019. The Crown bundle included the applicant's criminal history from New South Wales and South Australia, her custodial history from New South Wales, an alcohol and drug residential rehabilitation report and the sentencing assessment report.
The applicant's criminal history in New South Wales commenced with appearances in the Children's Court from the age of 15, for matters including break, enter and steal, assault, destroying or damaging property, resist police officer and breaching control orders. The applicant's adult convictions in New South Wales include assault, drive unlicensed, drive whilst disqualified, drive with low-range and mid-range prescribed concentration of alcohol, drive with an illicit drug in her blood, goods in custody, shoplifting, dishonestly obtain financial advantage by deception and use intimidation or violence to unlawfully influence a person. She first served a sentence of imprisonment in 2015, on a call-up for breaching conditions of a suspended sentence of 7 months imprisonment with a non-parole period of 3 months that had been imposed for an assault occasioning actual bodily harm. A sentence of 3 months for a common assault was served concurrently with the non-parole period. Subsequent sentences of imprisonment in New South Wales have been in 2017 for driving while disqualified (9 months with a 4 month non-parole period) and shoplifting (3 months fixed term) and in 2018 for two counts of shoplifting (1 month fixed term each, served concurrently) and larceny (2 months and 12 days fixed term).
The larceny (shoplifting) charge which was the subject of the severity appeal on 12 February 2019 involved the theft of a computer valued at $729 from a shop in Kelso, which was committed on 30 July 2018; that is, a fortnight before the instant offences.
I note that a condition of a bond imposed in 2009 for an offence of destroying or damaging property was that the applicant was to "obey all reasonable direction for counselling, education development or drug and alcohol rehabilitation".
The applicant's criminal record from South Australia discloses the following offences: a common assault in 2004 for which she received a good behaviour bond without a conviction being recorded, driving unlicensed (without authorisation) in 2005, receiving a restraining order in April 2007 with which she failed to comply in June 2007 (discharged without penalty) and in the same year a conviction of damaging property, for which she was discharged without penalty. In 2008, she was obliged to pay a surety of $300 for breach of a bail condition (an estreatment). There are no further entries until 2015, when she was convicted of multiple counts of dishonestly taking property without consent, being offences committed in 2014 and 2015, for which she served a sentence of imprisonment of 4 months, and was released on an 18 month good behaviour bond.
The applicant's criminal records in both New South Wales and South Australia also have multiple entries for breaching bail conditions. Her New South Wales custodial record includes seven disciplinary matters, which occurred between 2016 and 2018, including for assault, intimidation and disobeying a direction.
As an adult, the applicant has had two significant periods of non-offending: 1999-2004 and 2009-2014. Many of her offences have resulted in a conviction or penalty not being recorded or a minor penalty, such as a bond or fine. Her first offence of violence as an adult was an assault occasioning actual bodily harm in 1999, for which no conviction was recorded. The next violent offence was in 2008, assault occasioning actual bodily harm, for which she received a suspended sentence of 7 months imprisonment. She was called up on that sentence in 2016 and served it, with a non-parole period of 3 months. She received another sentence for a violent offence (affray) committed in 2018.
The break and enter offence that is the subject of the present application is the most serious matter in her criminal history.

[4]

The applicant's background

The applicant gave brief evidence in support of the application for bail on 12 February 2019, stating that she had used drugs heavily from age 31, after experiencing "a pretty bad thing" whilst residing in South Australia. She stated that she had been married for five years and had four children aged between 14 and 21 with her ex-partner Clayton, from whom she had been estranged until recently. She stated that her married life consisted of "drugs and domestic violence" and that she had been "stabbed and kidnapped 16 times". Her "drug of choice" was heroin, because it "numbed you" and she would use methylamphetamine to: "… get up and do my daily things, and then everything just started slipping and falling apart. Like I lost my kids to their dad and the drugs just absolutely took over from there."
The applicant gave further evidence in chief on 18 April 2019. She said she grew up in Broken Hill and met her biological father when she was 11. She described violent behaviour by her mother towards her, until she was sent to live with an aunt, whom she named, when she was aged eight. She remained there for "a few years". She claimed on-going sexual assault by her aunt's husband, who she also named, starting when she was aged "nearly nine". She said she complained to her aunt and mother, and they "swept it under the carpet". She was placed in an Aboriginal boarding school by the New South Wales Department of Children's Services ("DOCS"), as it then was. School fees ceased to be paid, and when she was aged about 12 or 13, or perhaps earlier, she was transferred to an Aboriginal foster home in Broken Hill; "Things started getting better then". After that placement, she lived with a woman called "Aunty" who was not a blood relative, but a family friend.
The applicant's evidence was that she started drinking alcohol when aged 13. She smoked cannabis until she fell pregnant at age 16 and started taking ecstasy in her late twenties. When aged between 30 and 32, she started a relationship with an ex-partner, Slade, who introduced her to methylamphetamine and heroin.
His Honour expressed a preliminary view that he was disinclined to accept uncorroborated evidence from the applicant on such matters and noted that the community corrections officer who prepared the sentencing assessment report had not canvassed her background in the report. His Honour appeared to be of the view that it was incumbent on the applicant to have provided the history to the Community Corrections officer who had prepared the report. He asked her solicitor: "His Honour: … can I ask why none of this is in the sentencing assessment report, the purpose of which is to assist the Court to sentence somebody? … What is the explanation for none of this being in the sentencing assessment report? [Solicitor for the applicant]: Your Honour, I understand the sentencing assessment took place in custody. I was not at the correctional centre when this occurred. His Honour: Have you asked your client why none of this is in the sentencing assessment report? Did she tell the author of that report any of this material? [Solicitor for the applicant]: She said she had to rush it so it could be handed in. … His Honour: If [the applicant] sought to give this information to the sentencing report author then it's not worth the paper it's written on." [Applicant]: I don't like to talk about it."
His Honour asked the applicant if she had ever provided the information to a court before. She replied that she was "pretty sure" it would have been in a pre-sentence report that was prepared in "I think 2015" for an appearance in court at Broken Hill, because "they sat with me for a fair while".
Examination in chief continued, in which the applicant related a sexual assault against one of her four children whilst in the care of Clayton's family, for which the alleged perpetrator, who she named, was prosecuted. Her solicitor then sought to lead evidence of past diagnoses of the applicant's mental state and his Honour again intervened, stating: "His Honour: Why would I accept anything she said which was not otherwise corroborated? In fact I'm not going to because she has such a long history of dishonesty."
His Honour invited the applicant's solicitor to seek an adjournment to obtain "an expert's report", which he did. His Honour invited the Crown, in the interim, to locate the earlier pre-sentence report that "the Crown might rely on", although the applicant's solicitor noted to the Court that the applicant's criminal record had no entries for her appearing in court in Broken Hill in 2015. The matter was adjourned to 8 July 2019.
On 30 April 2019, the applicant was sentenced on the affray, which was committed four months before the instant offences. The sentence, 18 months imprisonment with a non-parole period of 10 months, was backdated to commence on 4 December 2018. The applicant was on bail for that offence at the time she committed the instant offences.
On 8 July 2019, the applicant was unwell and was not brought to Court from the prison. His Honour inquired of the Crown if it had located the 2015 pre-sentence report and was advised that it had no instructions. His Honour said to the solicitor for the applicant: "I'm assuming then that the Crown's endeavours either weren't made or they weren't successful. That will have implications for your client if nothing can be found ..."
The matter resumed on 20 September 2019. Nothing further was said by his Honour or either party as to whether the Crown had located an earlier pre-sentence report. A report by clinical psychologist Clara Fritchley, dated 24 June 2019, which extensively canvassed the applicant's background, was tendered on behalf of the applicant, and is considered below. The applicant gave further evidence, the parties addressed and judgment was delivered the same day.
In her further evidence, the applicant was asked about the instant offences. She named her co-offenders and said that she was in the company of the co-offender with the star picket because, like her, he wanted drugs. She expressed remorse, saying, "I'd apologise so much 'cause I know how scared they both would've been. I was scared. I would have been very scared."
The applicant accepted she treated others badly, particularly being a bully: "… I was a ward of State and they said I had a major chip on my shoulder and anger because of the neglect that my mum did."
The applicant said she absconded on bail when given the opportunity to attend Odyssey House because: "I ended up going to my ex's house who I was in a relationship at that time and got bashed pretty bad. … I was scared. … Everyone had told me all different things and, I don't know, I just listened to Mervyn and went straight to Mervyn. … They just kept saying like I was going to fail because I couldn't listen to authority and then there was this … like a rate system where it goes from one to five where apparently you have to dob people in and if you don't then you get kicked out and I had had anxiety and I knew would be kicked out."
The applicant expressed regret for having absconded. She agreed that she had been offered bonds with supervision and counselling, and said: "I'd say, yeah, I'd do it but I'd never go, never allowed to, 'cause I'd go straight back out to Mervyn and I'm not allowed to leave his sight. If I do I'd get bashed."
In cross-examination, the applicant was asked about some of the disciplinary matters in custody, in response to which, it is reasonable to conclude, she sought to minimise her behaviour.

[5]

Ms Fritchley's report

Ms Fritchley's curriculum vitae presented her as an eminently qualified and experienced clinical psychologist. The history the applicant provided to her was as follows. She was born in Broken Hill, of an Indigenous mother and Caucasian father, who she did not meet for the first time until after she was 10 years old. When she was "very young", her mother formed a relationship with "Neville", with whom her mother had two more children, a girl and a boy. Her mother had a fourth child, who was given up for adoption as a baby and with whom there has been no further contact by her or her family. The applicant was led to believe that Neville was her biological father. She had an "okay relationship" with him, saying that "he was more stable and caring towards her than her mother was".
The applicant said that her mother was dependent upon alcohol and cannabis and became a heavy user of methylamphetamine, as a result of which her childhood was "very chaotic. The family did not have a permanent home and would move around staying with various family and friends". When the applicant was aged five, her mother and Neville separated, which resulted in an escalation in her mother's drug and alcohol use. She and her two siblings would be left at various people's homes while her mother would "take off", on one occasion for over six weeks. The applicant claimed she was exposed to drug use and violence in the various places where she was left, as well as being sexually assaulted. At one location, a man would lock her brother in a cupboard and not release him until the applicant touched him sexually. Ms Fritchley reported that the applicant said that "when she told her mother that this had occurred her mother hit her and told her to stop lying".
The applicant said her mother would hit her with objects and repeatedly put her down verbally, calling her worthless. Ms Fritchley reported that the applicant said "she has always felt that her mother has disliked her and did not want her". When she was about 10 years old, her mother, whilst intoxicated, screamed at her and told her that Neville was not her biological father. This news distressed the applicant. She subsequently met her biological father, but he showed no interest in her and she had "very little contact" with him thereafter.
By the time the applicant was aged 11, her mother had commenced a relationship with "Matthew". The family, including Matthew, moved to the Northern Territory. When the applicant's mother was periodically unable to look after her, she would send her back to New South Wales to live with relatives.
When the applicant was aged about 12, she was sent to live with a maternal aunt and her husband, on and off, for a period of two years. She described this new environment as "horrific". Her aunt would physically assault her and verbally abuse her and her uncle "began to sexually abuse her and rape her". She attempted to tell her aunt and grandmother what was occurring, but they did not believe her and denied that it had happened. Ms Fritchley reported that the applicant said that "she stopped trying to tell them what she was going through and begin to pretend that nothing was happening to her".
The applicant was sent to an Aboriginal boarding school, which she suspects was prompted by her family realising she could no longer remain with her aunt. She said that she was teased and excluded by the other children because she was the "only fair red haired kid" in the school. She was withdrawn after approximately a year and returned to Broken Hill. By then, child protection services had become involved. She was made a Ward of the State and placed in foster care for a year. Thereafter, she was placed with another "maternal aunt", Deidre, who she described as "excellent - the person I wanted as my mother".
The applicant began high school in Broken Hill. By then, her behaviour had become disruptive in class. She would truant, spending time with friends who she described as a "bad crowd".
The applicant told Ms Fritchley that she began drinking alcohol and smoking cannabis at the age of 13. By the time she was 14, she was smoking cannabis heavily throughout the day. When she was 15, she stopped attending school. As a teenager she experimented with LSD and ecstasy.
When aged 16, the applicant fell pregnant. She reduced her cannabis and alcohol use but resumed daily use of both substances after she gave birth to her first child, a daughter, when she was aged 17. She was living with her aunt Deidre, who gave her "a lot of support".
When the applicant was aged between 19 and 24 years old, she had three more children, all with her then partner, "Clayton". They lived in South Australia, where she described having a period of "relative stability", bringing up her children and working in an abattoir, although she was a "closet drinker", being her way that she "coped with the day". Clayton was "an intimidating and emotionally and physically abusive man who was extremely jealous and controlling of her". Through this period, she and Clayton would smoke cannabis. As the relationship began to break down, she spent time with drug users. She left, taking the children with her and moving in with another man. Ms Fritchley stated: "20. … She described her behaviour as increasingly chaotic and said that her drug use had been escalating. She said that for some time the children were back and forth between herself and Clayton, who was increasingly aggressive and threatening towards her. She said that on one visit he then took the children and would no longer allow her to see them. After this her drug use escalated and her behaviour became 'hectic'. She expressed a lot of distress about the fact that she wasn't there for her children saying 'I had become my mother, I wasn't there for my children'. Clayton then took full custody of the children and moved back to NSW where he currently lives with her two youngest children. [The applicant] also left South Australia and returned to NSW. She said that she has had little contact with her children in the last few years. Her son and one of her daughters no longer speak to her because they are disappointed by her drug use and unstable behaviour."
By the time the applicant was 31 years old, she was injecting methylamphetamine daily and had also begun to inject heroin, as a way of coping with her negative emotions, particularly around the loss of her children.
The applicant said that an incident occurred in which the applicant was kidnapped by associates of Clayton's family because of money that was owed to them. The applicant did not go into details of this event with Ms Fritchley except to say that she was held hostage and beaten, and that she escaped and contacted police. Ms Fritchley noted that the applicant had spoken about the kidnapping previously with her medical practitioner, although she did not receive ongoing treatment for the trauma associated with it. The applicant said that her drug use escalated after this event.
The applicant told Ms Fritchley that in her mid-thirties, she started a new relationship, with her ex-partner Mervyn, who she described as "extremely physically violent and verbally abusive" towards her. Ms Fritchley reported: "22 … She said that he would 'flog' her every day and he would become particularly violent if there were no drugs available. She said that she would do anything to make sure that there were drugs available for him so as to avoid his violence. She was also using large amounts of drugs to cope with the violence. She expressed feeling trapped in this relationship and terrified of leaving. She also described an intense fear around being alone without anyone in her life saying 'I need someone to be there for me who loves me, I'm terrified of being alone.' She and Mervyn are currently separated."
She said that throughout her 30s, she used drugs daily and had also begun using OxyContin regularly and benzodiazepines. She described the previous eight years as "hectic" and "chaotic", resorting to crime as a way to support her drug use.
The applicant told Ms Fritchley that the instant offences were motivated by her desperation to obtain drugs; she was dependent upon heroin and methylamphetamine at the time. With respect to insight into the offending conduct, Ms Fritchley noted that the applicant: "expressed remorse and regret around her involvement in this offence and … appears to have an understanding as to the gravity of her offence".
Ms Fritchley asked the applicant about her absconding when she was released on bail, conditional upon her partaking in drug rehabilitation at Odyssey House: "She was unable to explain why she did this except to say that she felt she would fail at treatment anyway". Ms Fritchley observed that the applicant has had limited treatment for her drug use, although she engaged briefly with a Dr Rutzen, who was the author of a report tendered to the Court.
The applicant told Ms Fritchley that Matthew was the only person in her family with whom she has regular contact. Her mother continues to use methylamphetamine heavily: "She said that she ruminates about her relationship with her mother all the time and why her mother doesn't love or accept her". Her sister, with whom she does not have a close relationship, has been drug dependent and now lives with Matthew. She has a good relationship with her brother, but he is in prison. Her aunt will not have contact with her because of her drug use and behaviour. She continues to have no contact with her biological father. Her first stepfather, Neville, died when the applicant was in her 20s. She said that many of her extended family have addiction difficulties and mental health struggles and have been in prison.
Ms Fritchley interviewed Matthew. With respect to the applicant's claim that her mother was verbally and physically abusive towards her, Ms Fritchley stated: "[Matthew] was unable to recall [the applicant's] mother being physically violent towards her but acknowledged that [the applicant's] needs were often not met by her mother because of her mother's drug use."
I note that the applicant's account was that her mother's relationship with Matthew post-dated the first decade of her life, when she alleged this behaviour occurred. As to the applicant's evidence that her aunt's husband sexually assaulted her whilst she was living with them at around the age of 12, Ms Fritchley stated: "… [Matthew] said that he had no knowledge of this abuse occurring at the time though [the applicant] has disclosed this abuse to him more recently."
Matthew told Ms Fritchley that the tension between the applicant and her mother was: "… partly because of [the applicant's] own behaviour. [Matthew] said that [the applicant] can be demanding and feels that 'she is owed something from other people'. He also said that her emotions are intense and she will fabricate stories which places stress on the relationship with her mother and other family members."
Later in the report, Ms Fritchley noted: "[Matthew] recounted an incident where she pretended to speak on the phone for an hour to her biological father when in fact there was no one on the other end of the line. He expressed believing that she does this to make people think better of her and to accept her however this behaviour ends up affecting her relationships negatively."

[6]

The applicant's cognitive ability and mental health diagnoses

Ms Fritchley administered psychometric testing to the applicant, assessing her as scoring in the "low average range" for intellectual ability (verbal domain) on the Wechsler Abbreviated Scale of Intelligence, and in the "severe range for stress and anxiety and the extremely severe range for depression" on the Depression Anxiety and Stress Scales. The applicant completed the Trauma Symptom Inventory, which yielded the following assessment: "[The applicant's] trauma profile was clinically elevated, indicating multiple features of trauma. She endorsed intrusive and distressing experiences of trauma, an avoidance of reminders of the trauma, high levels of anxiety and hypervigilance and depressive symptoms".
Ms Fritchley diagnosed the applicant as having a "Major Depressive Disorder, severe" and a "post-traumatic stress disorder", according to the diagnostic criteria of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 5 ("DSM-5"), and a "severe amphetamine and opiate dependence".
Ms Fritchley noted that the applicant presented with symptoms of a borderline personality disorder, which she described as: "… a disorder of emotion regulation which can develop as a result of prolonged trauma and invalidation in childhood where the child's emotional and physical needs are not met."
Ms Fritchley's consideration of whether that diagnosis was established, and reasons for concluding that it was, is helpful in understanding the applicant's presentation and criminogenic influences: "30 … [The applicant] experienced an invalidating, neglectful, abusive and overall highly traumatic childhood environment. Her care givers were not responsive to her basic needs of safety and emotional validation needs and she reports physical, emotional and sexual [abuse]. These experiences meant that [the applicant] did not have the opportunity to develop healthy ways to regulate and cope with her emotions nor develop a healthy sense of identity or self-worth. [The applicant] described unstable emotions and she said that her mood can alter rapidly in response to her circumstances. She said that she becomes easily overwhelmed by her emotions and then she cannot manage them effectively. She said that 'small things' which other people could cope with become extremely consuming for her and she experiences great distress and despair which other people then struggle to understand. She said that she will tend to avoid difficulties or conflicts and run away when things become difficult or overwhelming and she has very limited ability to problem solve or resolve conflict. 31. Overall [the applicant] described extremely emotion driven and impulsive behaviour acting upon her first impulses and emotions without thinking about the consequences of her actions. Her relationships tend to be unstable and she has extreme difficulties setting healthy boundaries with people. Her romantic relationships have been with partners who are controlling and abusive and have been characterised by violence. She expressed a lack of self identity and a desperate need to be in a relationship as a way to feel worthwhile. She said that she feels empty inside and a 'worthless, ugly and broken' person. This leads her to have very poor boundaries in her relationships, giving everything to people as a way to have them like and accept her. She expressed a lot of confusion about wanting and craving acceptance from people even when they harm her and treat her poorly. 32. [The applicant] also said that she struggles to know what to say to people and to be honest in her interactions with them because she is hypervigilant to how they will perceive her. I note that dishonesty has been raised as an issue and Matthew acknowledged that [the applicant] has frequently been deceptive at times in the past. He recounted an incident where she pretended to speak on the phone for an hour to her biological father when in fact there was no one on the other end of the line. He expressed believing that she does this to make people think better of her and to accept her however this behaviour ends up affecting her relationships negatively. [The applicant's] deception and dishonesty can be best understood in the context of her symptoms of borderline personality disorder. Her intense emotions are likely to at times cloud her thinking so that she will view the world through an emotional lens that, may be different from how other people see a situation, but will feel true and correct to her such that she will believe it. Her impulsivity will mean that at times she does not think about the consequences of her dishonesty and her deep sense of shame and sensitivity to rejection is likely to lead her to at times resort to deception in an attempt to cover up mistakes so that other people will not reject her. 33. On assessment I found that [the applicant] meets criteria for a diagnosis of borderline personality disorder as outlined in the DSM, 5. I do note from [the applicant's] records that there is mention of her having a potential diagnosis of bipolar. There is significant overlap in the symptoms of bipolar disorder and borderline personality disorder though it is my opinion that given her unstable emotions in response to events, her impulsivity and her lack of sense of self, her pattern of symptoms is more consistent with a diagnosis of borderline personality disorder. Though assessment over a longer period of time is recommended to confirm this diagnosis." (emphasis added)
Ms Fritchley concluded: "45. It is my opinion that the severely damaging early childhood experiences [the applicant] experienced, as well as a likely genetic vulnerability, placed her at a high risk of developing a mental health and addiction difficulties. She currently meets criteria for diagnoses of major depressive episode, post traumatic stress disorder and borderline personality disorder. These disorders are untreated and her symptoms are severe and underly her drug dependence, as she resorts to drug use to cope with her emotional difficulties as a form of self medication. 46. [The applicant's] offence occurred in the context of her poor mental health and severe amphetamine and opiate dependence. In her desperation to obtain drugs when she had no money she became involved in the situation for which she is now charged. She expressed remorse and regret around her involvement in this offence and she appears to have an understanding as to the gravity of her offence. 47. Given [the applicant's] complex history and long dependence history of addiction she requires intensive long-term treatment for these difficulties which will reduce her risk of recidivism. She has few skills to manage her life and emotions drug free and at this point … she has little confidence in her ability to do so. Because of her poor boundaries and lack of self protection she is vulnerable to forming unhealthy relationships with an abusive partner which would also be a potential risk for a relapse to drugs and reoffending behaviour. She also appears to have a tendency towards deception as a way to manage her intense feelings of shame and as a way to gain acceptance from others and avoid conflict, albeit unhealthily. A highly structured and supportive inpatient treatment program with treatment providers who understand [the applicant's] sequalae of emotional and interpersonal difficulties and are skilled in managing complex emotional needs and comorbid diagnoses such as those she presents with will be necessary in the early days of her recovery. Recommendations 48. Whilst in custody [the applicant] would benefit from regular sessions with a prison psychologist. … Ongoing psychological support will allow [the applicant] to begin to address her emotional and interpersonal difficulties within a safe relationship. Given [the applicant's] fear and avoidance of treatment it is recommended that this support commence while she is incarcerated. This will provide her with an understanding of what treatment involves and can be used to prepare her for attendance at a long-term rehabilitation centre. Treatment should also focus upon increasing [the applicant's] ability to regulate her emotions, reduce her impulsivity and to soothe her distress without the use of drugs. Treatment using a Dialectical Behaviour Therapy for people with borderline personality disorder will be most effective to address [the applicant's] pattern of difficulties in the early stages. 49. The applicant will benefit from being assessed by a Justice Health psychiatrist to determine if her current psychiatric medication is appropriate. 50. [The applicant should] engage in a long-term residential rehabilitation program to continue to address her drug use and offending behaviour. She has had limited treatment for her drug use or mental health and would benefit from engaging in a structured and supportive inpatient treatment program."
As to the applicant's current experience of incarceration, Ms Fritchley said: "At the time of assessment [the applicant] was in custody in the Mid North Coast Correctional Centre. She is currently prescribed an antidepressant and mood stabiliser which she says helps her a little. However, her mood remains very low and she is highly distressed and overwhelmed by her emotions. She expressed feeling worthless and desperate and discouraged about making changes in her life. She is not receiving any support inside the prison and it appears that she is avoiding people and isolating herself. She said that she is somewhat reluctant to engage in psychological support because she feels scared of talking about what she has been through. She said that she would like to repair the relationship with her children and her aunt … and to gain stability and abstinence in her life. However, she expressed feeling unsure and scared about how to go about this and lacks confidence in her ability to succeed."

[8]

The applicant's submissions on sentence

The applicant's solicitor submitted that on the basis of the report of Ms Fritchley and the adoption of its history by the applicant in sworn evidence, the principles of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Fernando v R (1992) 76 A Crim R 58; and R v Millwood [2012] NSWCCA 2 at [69] apply, so that the applicant's moral culpability was reduced.
The applicant's solicitor submitted that the evidence established that the applicant's mental health diagnoses and poor relationship decisions were a consequence of that childhood history which, together with her limited cognitive ability and absence of treatment, were key to understanding her history of offending behaviour including the instant offences, her significant drug dependence and failed counselling programs. It also bespoke a need for a longer than usual period on parole, thus comprising special circumstances, for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant's solicitor submitted that, because of the applicant's mental state, custody was a more onerous experience for her.
As to the applicant's culpability, the applicant's solicitor submitted that it was an "unplanned event" that occurred as a result of a debt that was owed to her, and that the amount of property stolen was not significant. He submitted that the offence was "below the midrange" in terms of objective seriousness, and that the applicant's evidence of remorse she gave to the Court and Ms Fritchley should be accepted, despite the lack of remorse she displayed to the author of the sentencing assessment report. In that regard, the sentencing judge again expressed a disinclination to accept the applicant as a truthful witness, because of her "history of dishonesty", and referred to Matthew's account to Ms Fritchley that she "makes stories up". The applicant's solicitor countered: "It is borne of very low self-esteem. It may be borne from a borderline personality disorder. She, in fact, sees the world differently to other members of the public. This is why she is not a good vehicle for general deterrence."
His Honour accepted that proposition, but when the applicant's solicitor outlined the history of her severely dysfunctional upbringing including child sexual abuse, the absence of maternal love, her seeking approval in inappropriate relationships and seeking escape in drug use, his Honour responded to the effect that the history and the psychologist's conclusions depended entirely on the applicant's account, which was contradicted by what Matthew had told Ms Fritchley, as follows: "HIS HONOUR: You see, here's where I'm having some trouble. What is the source of the dysfunctional upbringing? It's [the applicant]. … What is the source of her being sexually abused? It's [the applicant]. … What is the source of the information that she was physically abused by her own mother? It's [the applicant]. But within the psychologist's report we have [Matthew's] insight and … when the question was asked of [the applicant's] mother being verbally and physically aggressive towards [the applicant], [Matthew] says he was unable to recall [the applicant's] mother being physically violent towards her. … This is why I keep coming back to the point … that the basis for the dysfunction upbringing is based only on the word of someone with a proven history of dishonesty and there are some contradictions … to her account by someone who was there at the time, [Matthew]. [Solicitor for the applicant]: … He does acknowledge that her mother is a drug addict. HIS HONOUR: That doesn't seem to be in dispute. I was focusing on the history given by [the applicant] to the psychologist and it's that history upon which the psychologist has based her conclusion. Part of the history is that her mother was physically aggressive towards her and a person who was there at the time who this offender holds out is a witness of truth says that he doesn't recall [the applicant's] mother being physically aggressive towards her."
It was submitted on behalf of the applicant that her explanation for not absconding on bail should be accepted, to the effect that she believed "she would fail anyway", but was disappointed with herself for not having followed through and that she was keen to try again with counselling, in light of what she regarded as a beneficial experience with Ms Fritchley.
In light of the sentence that the applicant was presently serving for two shoplifting offences and the offence of affray, as to the principle of totality, it was submitted that the sentence should be backdated to start "somewhere towards the start of the year, perhaps before it".

[10]

The remarks on sentence

In the relatively brief ex tempore remarks on sentence, the sentencing judge found that the intimidation offence "hovers somewhere equidistant between the middle and the bottom of the range" of objective seriousness. The aggravated break and enter offence was further aggravated by the fact that the offending occurred in the home of the victim, the use of a weapon and the applicant being on bail at the time the offence was committed. His Honour concluded that: "In terms of its objective seriousness for an offence of its kind, it is a midrange offence".
The sentencing judge expressed caution in approaching the evidence of the applicant's background, which his Honour accepted was relevant to a determination of the applicant's moral culpability, in the sense identified in Bugmy. His Honour said. "37. It is difficult to have a clear picture of your background … because, to a very large degree it is you, and you alone, who is the source of the information about your background. And in this context, you have a significant history of convictions of dishonesty. 38. Moreover, to the extent that there is any purported corroboration of your version of your life, it is not helpful. It would seem that the only member of your family to whom you are now close, and upon whom you can rely, is your former step-father, Mr Matthew McMahon. Mr McMahon was interviewed by the psychologist who interviewed you - and to whom you gave what, at face value, is a very distressing family background. But Mr McMahon was unable, in some significant respects, to assist you. For example, you told the psychologist that your mother was a drug addict; that she had both verbally and physically abused you as a child; and that that abuse, verbal and physical, had increased as you got older and your mother's drug use worsened. Significantly, Mr McMahon, although he confirmed that your mother was a drug addict, was unable to recall your mother being physically violent towards you. In addition, whilst he acknowledged that your mother was a drug user, he said that tension in the relationship between you and her was also partly because of your own behaviour. Furthermore, he said that you would fabricate stories about your mother and other family members. 39 So, when I read that you were sexually abused by family members and others, I have had to pause and think very carefully … 40 I am unable to be satisfied, on the balance of probabilities, as to the fine detail of what you have asserted. 41 I have noted, however, that you have been drinking since 13; that you have been smoking cannabis since you were 14; that you have been using ice and heroin since you were 31; and that you have also abused Oxycontin and benzodiazepine. 42 By having regard to that long history of drug use since childhood (which is consistent with some form of abuse as a child), together with the psychometric testing conducted by the psychologist (particularly on the depression, anxiety and stress scales); and by having regard to the fact that that psychologist was able to determine from objective circumstances that your trauma profile was clinically elevated indicating multiple features of trauma, I have concluded (with some reservations) that, although I cannot be confident as to the detail, there were some things in your childhood which would (more likely than not) attract the application of the principles in [Bugmy]."
The sentencing judge accepted that these factors reduced the applicant's moral culpability and the application of general deterrence, although the latter remained a relevant consideration. Specific deterrence and the protection of the community were "fully engaged", given the applicant's long criminal history and "the escalating nature of the violent aspects of that criminal history".
The sentencing judge accepted, on the balance of probabilities, Ms Fritchley's evidence that the applicant had "significant mental health issues", including a depressive disorder, post-traumatic stress disorder and a borderline personality disorder, together with severe amphetamine and opiate dependence.
The sentencing judge did not accept the applicant's explanation for absconding on bail, stating: "You told me today that the reason you bolted was because your ex-partner, [Mervyn], had bashed you. I do not believe that … You were taken to your house (in breach of s.11 bail). You went in the front door and you went out the back door. There was no opportunity for you to be bashed between the front and the back door, in the company of the officer of the ALS. I am certainly not persuaded of that fact on the balance of probabilities. It seems to me an implausible statement."
The sentencing judge recorded that a 25 per cent discount would apply by reason of the applicant's pleas of guilty. However, his Honour did not accept that the applicant was genuinely remorseful.
Immediately before announcing the sentence, his Honour characterised Ms Fritchley's recommendation that the applicant's support for her drug dependence commence whilst she is incarcerated as a need for incarceration: "I have noted the following sentence in paragraph 48 in the psychologist's report tendered on your behalf. 'Given [the applicant's] fear and avoidance of treatment it is recommended that this support commence whilst she is incarcerated.' In other words, even the psychologist recognises the need for you to spend a period of time in custody in order that the custodial setting may provide the structure for you to commence rehabilitation because, without the structure of the custodial setting, you will continue to avoid it."
The sentencing judge found the applicant's prospects of rehabilitation to be poor and preferred the respondent's submission that a lengthier period of supervision was unlikely to be of assistance to the applicant in this respect. Nevertheless, his Honour made a minor adjustment to the non-parole period.
The sentencing judge gave indicative sentences, after the discount of 25 per cent, of 13 months imprisonment in relation to the intimidation offence, and 5 years and 3 months imprisonment with a non-parole period of 3 years and 11 months in relation to the aggravated break and enter offence.
The sentence handed down to the applicant was an aggregate term of imprisonment for 5 years and 6 months, commencing on 4 February 2019 and expiring on 3 August 2024, with a non-parole period of 4 years, expiring on 3 February 2023.
The ratio of the non-parole period to the total sentence was 72.7 per cent. It is apparent from the indicative sentences that there was a high degree of concurrency. In accordance with the principle of totality, there was an eight-month overlap of the aggregate sentence with the sentence that was imposed on 30 April 2019 for the offence of affray of 18 months imprisonment with a non-parole period of 10 months, which commenced on 4 December 2018.

[12]

Applicant's submissions

The applicant submitted that, although the sentencing judge accepted the applicant's mental condition as established by the expert evidence of Ms Fritchley's report, he did not make any findings as to how it bore on the appropriate sentence, other than what was submitted to be a mischaracterisation of Ms Fritchley's recommendation that drug treatment commence whist the applicant is in prison. Rather, it was submitted that Ms Fritchley's recommendation was an opinion of the best practice approach to managing the applicant's complex trauma issues and longstanding and untreated drug dependence whilst she is custody, so as to provide her with the best chance of success when she is released into the community.
It was submitted that the applicant's solicitor on sentence made submissions on the relevance of the applicant's mental condition consistently with three of the principles identified in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], to the effect that, firstly, where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; secondly, it may have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed; and, thirdly, it may mean that a custodial sentence will weigh more heavily on the person, because the sentence will be more onerous.
Accordingly, it was submitted that the sentencing judge failed to take into account a material consideration, being the evidence of the applicant's mental condition, being an error of the type in House v The King (1936) 55 CLR 499; [1936] HCA 40, warranting intervention.
It was submitted that the applicant's failure to attend residential rehabilitation when the opportunity was provided to her cannot be taken to reflect an unwillingness on her part to address her drug dependence issues, given Ms Fritchley's findings that the applicant's use of illicit drugs is essentially a form of self-medication. Instead, the applicant's evidence as to why she failed to attend residential rehabilitation should be taken as a "candid expression … of her fears about what will be required of her to deal with the psychological factors that underlie her drug addiction".
Counsel for the applicant also submitted that, although Ms Fritchley's opinion was in part founded on assertions of fact by the applicant that the sentencing judge did not accept as truthful, his Honour expressly accepted that the applicant had significant mental health issues based on objective evidence in Ms Fritchley's report and the sentencing assessment report.
In any event, it was submitted that his Honour's reliance on the lack of corroboration provided by the applicant's former stepfather was "problematic in circumstances where he wasn't a presence in the applicant's life until she was aged eleven".

[17]

Consideration

The remarks on sentence were brief and to the point, comprising 58 paragraphs. They were delivered ex tempore on the final day of the sentence hearing, which warrants latitude in their consideration.
The focus of the application is on the sentencing judge's assessment of the applicant's subjective case; there is no dispute as to his Honour's determination of the objective seriousness of the two offences or findings of aggravating factors.
While it was open to the sentencing judge to not accept the applicant's oral evidence and the history she provided to Ms Fritchley as reliable, his Honour's reasoning for not doing so, as explained in his remarks on sentence, is problematic.
The applicant's evidence and history to Ms Fritchley was consistently to the effect that her mother had been violent towards her in the years before her mother commenced a relationship with Matthew, which was by the time she was aged 11. When that relationship commenced, the family moved to the Northern Territory, but the applicant was returned to New South Wales by her mother and placed in the care of other family members, so that Matthew was not a part of her daily life.
It follows that Matthew's response to Ms Fritchley, to the effect that he was unable to recall the applicant's mother being physically violent towards her, is irrelevant to the question of whether the applicant's account of childhood violence by her mother up to the age of 11 was corroborated, although the sentencing judge expressly accepted it as contradicting the applicant's account.
The sentencing judge referred to the applicant having absconded on bail rather than attend Odyssey House, stating, as noted at [201] above, that the reason she gave in evidence was that her partner had "bashed her". This was also incorrect. The applicant's evidence was that she did not attend Odyssey House because of her anxiety that she would fail the program at Odyssey House and, therefore, saw no point in attending. The applicant said that after she deserted the field officer who was to accompany her to Odyssey House, she went to her ex-partner's residence and, at some point before she was re-arrested five days later, he bashed her. The manner in which his Honour mistakenly described her evidence on this point suggests he understood it to be illustrative of her supposed propensity to fabrication.
Although the sentencing judge rejected the applicant's evidence of her history, he nevertheless accepted Ms Fritchley's diagnoses as to the applicant's mental conditions and low intelligence, even though the psychologist's opinions were clearly based, at least in part, on the history she received.
In my view, the first ground of appeal is made out. Although the sentencing judge accepted the evidence of Ms Fritchley as to the applicant's mental disorders and low intelligence, and acknowledged the effect of that finding on the applicant's moral culpability and the application of general deterrence, in light of the sentencing judge's misunderstandings of the applicant's evidence and personal history, that brief acknowledgement left unresolved a concern that it was given appropriate weight. It was necessary that there be some brief explanation at least as to how the applicant's mental condition was treated in the sentencing process, in those circumstances: Tuncbilek at [66].
His Honour found that the principles established in Bugmy were applicable, on the expressed basis of "the long history of drug use since childhood (which is consistent with some form of abuse as a child)", as well as the psychometric testing and psychologist's assessment of the applicant having "multiple features of trauma", leading to the conclusion that "there were some things in your childhood which would (more likely than not) attract the application of the principles in R v Bugmy".
That principle was stated in the majority judgment in Bugmy as follows: "43 … 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. 44 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."
It is apparent from this passage that an application of the Bugmy principle is dependent upon the offender's personal history. Although the applicant had the benefit of a finding by the sentencing judge that the principle applied, it is likely that it would not have had the same force of application if the applicant's personal history had been accepted, or at least considered without misunderstandings of some of the evidence.
In the same way, the sentencing judge's reliance on Ms Fritchley's diagnoses, without an acceptance of the applicant's personal history which Ms Fritchley had expressed as the reason for the applicant's mental disorders, likely deprived those mitigatory factors of appropriate weight.
The sentencing judge, correctly in my view, accepted evidence and submissions to the effect that the applicant's prospects of rehabilitation are low, until she receives treatment for her use of prohibited drugs.
However, his Honour was also mistaken in attributing to Ms Fritchley an observation that the applicant would benefit from an extended period of incarceration, so that treatment for her drug use could begin in the regulated environment of a prison. Instead, Ms Fritchley made a recommendation as to what treatment ideally should occur whilst the applicant is serving her sentence in custody; she did not state or imply that a custodial sentence was to be preferred.
Further, his Honour appears to have assumed that the treatment recommended by Ms Fritchley would be available to the applicant in prison, whereas there was no evidence before the Court as to whether it was or not.
In my view, error is established. The remarks on sentence demonstrate several significant errors by the sentencing judge in assessing the evidence of the applicant and the report of Ms Fritchley which impacted on the appropriate weight to be attributed to those factors, warranting a lesser sentence.
Accordingly, it is unnecessary to consider the second ground advanced by the applicant.

[18]

Conclusion

As to whether a lesser sentence would have been warranted, I note material tendered by the applicant for the Court's consideration in the event that she was to be re-sentenced, which included evidence of physical health issues suffered by the applicant in prison and no treatment having been made available for her drug and alcohol use issues, other than opiate replacement therapy in February 2020, although she has been advised that they will be made available closer to her date of release.
I would make the same findings as the sentencing judge as to the objective seriousness of the offences and the aggravating factors he identified, and as to the applicant's prospects of rehabilitation; namely, they are poor, unless and until she engages in rehabilitative treatment for her use of prohibited drugs, which will inevitably involve therapy for her mental health disorders. I would find a degree of remorse, in that it was necessarily constrained by the limited insight she has, as a result of her borderline personality disorder.
I would have accepted the applicant's evidence as to her personal history, which I note closely corresponds to the detailed history she gave to Ms Fritchley. I am partly persuaded to that conclusion by Ms Fritchley's academic qualifications (a Bachelor of Psychology (Hons), a Master of Clinical Psychology and, at the time of her report, was in her final years of Doctoral research, following the award of a scholarship by the University of Sydney for a PhD candidacy) and her 17 years' experience of clinical work within the forensic, clinical and substance misuse fields of psychology, including 10 years' experience providing psychological assessments and medico legal reports to courts.
It is unremarkable that victims of child sexual assault are not forthcoming with complaints of this abuse until well into adulthood. The Royal Commission into Institutional Responses to Child Sexual Abuse has made society at large aware of this phenomenon. Accordingly, I would not regard her late complaint to others of her sexual assault as reflecting on the reliability of her allegations.
The principle enunciated in Bugmy, to the effect that moral culpability is substantially reduced, is applied in light of the applicant's personal history, which I would accept. The applicant's moral culpability would also be reduced by a causal connection directly and indirectly between her offending behaviour and her mental disorders; in particular, her borderline personality disorder, post-traumatic stress disorder and her severe amphetamine and opiate dependence.
I would have considered the applicant to be a poor vehicle for general deterrence as a consequence of those disorders. Having regard to the applicant's situation in prison as explained in Ms Fritchley's report at [183] above, as well as the applicant's affidavit, I would take into account her onerous conditions and experience of custody.
I would find special circumstances, in order to provide a longer period of parole to ensure that the applicant does not lapse into criminal offending as a result of her mental health issues and returning to the use of prohibited drugs.
As noted in Director of Public Prosecutions (Cth) v De La Rosa, a continuing, unmitigated mental condition may also present a danger to the community and, in that way, may warrant an increased sentence through considerations of specific deterrence. See also, in relation to the Bugmy principle, Bugmy at [44]. The applicant's criminal record since 2014 has involved violent offences of increasing seriousness, coinciding with the loss of custody of her children and her descent into on-going use of methylamphetamine and heroin. These factors must also be taken into account in fashioning the appropriate sentence, by way of specific deterrence and the protection of the community.
Balancing those considerations, I would have sentenced the applicant to a lesser sentence than she received at first instance.

Parties

Applicant/Plaintiff:

Johnston

Respondent/Defendant:

Legislation Cited (5)

Crimes (Sentencing Procedure) Regulation 2017(NSW)

Crimes (Domestic and Personal Violence) Act 2007(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

Cases Cited (24)

Factual Background

The facts upon which the applicant was sentenced were before the Court by way of Agreed Facts tendered as a part of Exhibit B on sentence and were summarised by the sentencing judge (R v Johnston [2019] NSWDC 607 at [6]-[34]) (the sentencing judgment). They may be summarised as follows.
On 15 August 2018, the applicant was on bail on a charge of affray. On that day, the two victims (Ms Sylvia Zarbo and her friend, Ms Stevie Cock), who had been shopping together, returned to Ms Zarbo's home at about 8pm, where each consumed an unknown quantity of the drug 'ice'.
Earlier that day, the applicant had contacted Ms Cock about a debt. The applicant told Ms Cock that she was coming to get the money that was owed and that a mutual friend, Tegan, would drive her to Ms Zarbo's residence. Ms Cock informed the applicant that she had no money until midnight, at which time she expected a deposit to be made from Centrelink into her bank account.
Sometime between 10pm and 11pm, Ms Cock left Ms Zarbo's home and was walking to her house. Ms Zarbo remained at her home watching television. As Ms Cock was walking home, Tegan arrived in a motor vehicle. Ms Cock got into the car and was driven to Ms Cock's home. The applicant was waiting in Ms Cock's front yard with an unknown male (now known to have been Mr Neil Sharpley). The applicant told Ms Cock that Ms Cock's partner (James) had not let them into the house. Ms Cock got out of the car and went into her house. The applicant followed Ms Cock inside. A short time later, Ms Cock managed to usher the applicant out of the house and James closed the door after her.
Although not stated clearly in the Agreed Facts, the sentencing judge assumed that Ms Cock also left the premises with the applicant before James shut the door.
The applicant demanded to know where her money was. Ms Cock told the applicant that, as it was after 12:39am, there should be money in her account. Ms Cock checked her bank account. Ms Cock saw that she had not received any Centrelink payment. Ms Cock told the applicant this, who then asked whether Ms Cock had drugs to provide in lieu of payment. Ms Cock said that she did not have any but that she knew someone who might.
Ms Cock felt concerned for her safety. The applicant remained in close proximity to her. The applicant continually made reference to having bashed a person, which is why she was in gaol. (In the sentencing remarks, the sentencing judge referred to the applicant having said that she had bashed people while she was in gaol. The applicant says that this is an error but not of any consequence.)
At one point the applicant yelled at Ms Cock, "We've got no fuel money, no drugs and no cash. Stevie, I'm not fucking joking around, you have to fix this now".
In an attempt to locate drugs, Ms Cock returned to Ms Zarbo's home with the intention of going inside on her own. The applicant said that she wanted to accompany Ms Cock, although she did not know Ms Zarbo.
While inside Ms Zarbo's home, the applicant said to Ms Cock, "What's going to happen now, are you going to ask her or what?". Ms Zarbo became aware that Ms Cock owed the applicant something and heard a car horn outside, at which point she realised there were others outside her home.
Mr Sharpley knocked at Ms Zarbo's door and the applicant answered it. Ms Zarbo said she did not want Mr Sharpley in her house. The applicant became angry with Ms Cock and shouted at her, "You're going to get hurt".
Ms Cock accompanied the applicant and Mr Sharpley back to the motor vehicle and, after a time, Ms Cock and Ms Zarbo were back inside the house and Ms Cock said that she would call the police.
While Ms Cock was on the phone, the applicant knocked on the door and tried to open it. The door having been locked, the applicant said, "Why the fuck did you lock the door?". Ms Zarbo tried to stall to allow time for police to arrive.
After two loud bangs, Ms Zarbo's front door burst open. The applicant, Tegan and Mr Sharpley were standing there, with Mr Sharpley holding a star post picket. The three began to rummage through Ms Zarbo's possessions looking for drugs. Mr Sharpley picked up a tomahawk, which belonged to Ms Zarbo, and said words like, "Go and get it or I'll bash the fuck out of you with this". The applicant continued to ask for drugs. Fearful of being assaulted, Ms Zarbo found a small quantity of a drug and gave it to the applicant and her co-offenders.
Following this, the applicant's demeanour changed and she became amicable. She and her co-offenders left Ms Zarbo's house.
Shortly thereafter, police arrived. A broken wooden pole was found lying on the nature strip and a metal star picket lying in the gutter of Ms Zarbo's house. The applicant was arrested the following day.

Sentencing judgment

The sentencing judge referred to the maximum penalties for each offence, and the 5 year standard non-parole period applicable to the offence under s 112(2) of the Crimes Act. The sentencing judge stated (at [4]) that he disregarded any evidence adduced by the applicant that was inconsistent with the agreed statement of facts; and recounted the agreed statement of facts (at [5]-[33]).
His Honour made the following findings regarding the objective seriousness of the offences. As to the intimidation offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act, that it "hovers somewhere equidistant between the middle and bottom of the range" of objective seriousness (at [24]). As to the aggravated break and enter offence under s 112(2) of the Crimes Act, that it was a mid-range offence (at [34]). His Honour noted that the aggravated break and enter offence was "additionally aggravated" by the facts that: the offending occurred in the home of the victim; a weapon was used; and the applicant was on bail (at [35]).
No issue is here taken with the sentencing judge's assessment of the objective seriousness of these offences.
The sentencing judge then considered the applicant's subjective case (at [35]ff) and noted the following: that the applicant was on bail at the time of the offending (which was an aggravating factor); that there was a 25% discount for the utilitarian value of the pleas of guilty; and that the applicant was 38 years of age. Due to the applicant's significant history of convictions for dishonesty; the absence of corroboration by her step-father in respect of significant details regarding her childhood; and the applicant's history of fabricating stories about family members, his Honour said that he did not accept the "fine detail" provided by the applicant regarding her background on the balance of probabilities.
Although not satisfied of that detail, his Honour accepted (at [42]) that the applicant's long history of drug abuse commencing in childhood, and the objective testing that established a clinically elevated trauma profile consistent with multiple features of trauma, attracted the application of the principles in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 (Bugmy). His Honour said (at [43]-[44]) that the application of the Bugmy principles reduced the applicant's moral culpability and reduced the application of the principle of general deterrence, though general deterrence remained a relevant consideration, but his Honour considered of more relevance the fact that, by reference to the applicant's long criminal history, and the escalating nature of the violent aspects of that criminal history, specific deterrence and the protection of the community are principles which were here fully engaged.

Applicant's submissions

The applicant points to the discussion in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 (De La Rosa) (at [177]) of the applicable principles governing the assessment of the impact that a mental condition or illness may have upon the sentence to be imposed upon an offender.
It is noted that the applicant addressed the evidence tendered regarding her mental condition (20.09.19, T 13) and relied upon her mental condition in the following ways in mitigation of sentence, consistent with the applicable De La Rosa principles: moderation of moral culpability as a result of a causal connection between the offending and her mental condition (20.09.19, T 17- 18); that the case was not a good vehicle for general deterrence (20.09.19, T 16; T 21.24-25); and the onerousness of custody (referring to Exhibit 3 at [39]) (20.09.19, T 21.18-22).
As noted above, the sentencing judge accepted (at [45]) that the evidence established that the applicant had "significant mental health issues, including depressive disorder, post-traumatic stress disorder, and borderline personality disorder - together with severe amphetamine and opiate dependence". Complaint is made that his Honour did not make any express findings in relation to the factors in mitigation advanced by the applicant in respect of the applicant's mental condition.
It is said that the only further finding made by his Honour regarding the applicant's mental health diagnoses was the mischaracterisation of the recommendation of the psychologist (Exhibit 3 at [48]) that the applicant was highly distressed, and isolated, and had limited coping mechanisms; and that she would benefit from regular psychological treatment commencing in custody, which (in the context of her fear and avoidance of treatment in the past) would provide her with an understanding of what is involved in such treatment and prepare her for attendance at a long term rehabilitation. As noted above, his Honour read this (at [51]) as indicating that even the psychologist recognised the need for the applicant to spend a period of time in custody (in order that the custodial setting may provide the structure for the applicant to commence rehabilitation because, without the structure of the custodial setting, the applicant would continue to avoid it).
The applicant submits that his Honour fell into error in the House v The King sense (see House v The King [1936] HCA 40; (1936) 55 CLR 499) in that his Honour failed to take into account a material consideration, namely, the evidence (that he accepted) regarding the applicant's mental condition. It is submitted that, taking into account the applicant's subjective case, some lesser sentence is warranted (see s 6(3) of the Criminal Appeal Act 1912 (NSW)).

Respondent's submissions

The respondent says that, contrary to the applicant's assertion, the sentencing judge explicitly considered the applicant's mental health issues in his Honour's findings that her moral culpability was reduced and that general deterrence, while relevant, was moderated in her case (pointing to the sentencing judgment at [42]-[43]).
It is submitted that, although declining to accept the applicant's specific accounts of her dysfunctional upbringing, the sentencing judge was satisfied on balance that the principles enunciated in Bugmy applied to the applicant's case by having regard to her history of drug use since childhood, "together with the psychometric testing conducted by the psychologist (particularly on the depression, anxiety and stress scales); and… that [her] trauma profile was clinically elevated indicating multiple features of trauma" (see at [42]). It is noted that, after turning to considerations of moral culpability, general and specific deterrence and the protection of the community, the sentencing judge noted his acceptance that the applicant had significant mental health issues consistent with Ms Fritchley's report (see at [45]).
Accordingly, the respondent says that this is not a case where the sentencing judge made particular findings concerning the applicant's mental condition without any meaningful elaboration as to how such matters impacted on sentence (cf Tuncbilek v R [2020] NSWCCA 30 (Tuncbilek) at [65]-[66] and LN v R [2020] NSWCCA 131 at [66], [75]). The respondent notes that the sentencing judge was not required to provide "elaborate reasoning"; and that a "brief explanation" as to how the mental condition was treated in the sentencing process was sufficient (referring to Tuncbilek at [66]).
The respondent says that the sentencing judge evidently viewed the applicant's mental health issues as a function of her dysfunctional upbringing (the former taken as evidence in establishing the latter in circumstances where the details of the applicant's evidence could not be accepted on balance). It is said that, in this way, the applicant's mental condition directly impacted the sentencing judge's findings concerning moral culpability and general deterrence; and that there is no available inference that the sentencing judge inadvertently disregarded the applicant's mental condition.
It is noted that the sentencing judge's finding of lesser moral culpability was a finding in favour of the applicant in circumstances where there was no clear evidence that any mental condition materially contributed to the applicant's offending in relation to the instant offending. It is said that the height of evidence in this regard is derived from the report of Ms Fritchley (at [45]-[46]), to the effect that the applicant's early childhood experiences likely predisposed her to mental health and drug addiction difficulties, and that her drug dependence was born out of an attempt to self-medicate her emotional difficulties. The respondent notes that the report continued (at [46]) to state that: [The applicant's offending] occurred in the context of her poor mental health and severe amphetamine and opiate dependence. In her desperation to obtain drugs when she had no money she became involved in the situation for which she is now charged.

Applicant's submissions

The applicant submits that the aggregate sentence imposed is manifestly excessive, noting that it is necessary in order to make out this ground of appeal to show that the sentence is "unreasonable or plainly unjust" (citing Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 (Dinsdale) at 325) and noting the following matters identified by R A Hulme J (Hoeben CJ at CL and Adamson J agreeing) in JM v R [2014] NSWCCA 297 (at [40]) as being applicable to appellate review of the aggregate sentence imposed upon the applicant. First, that indicative sentences are not themselves amenable to appeal but may act as a guide as to whether error is established regarding the aggregate sentence. Second, that an excessive indicative sentence does not necessarily result in an excessive aggregate sentence. Third, that manifest excess will be determined primarily on whether the aggregate sentence reflects the totality of the criminality involved.
It is noted that the aggregate sentence involved almost substantial concurrency (reflecting the concession made by the Crown). It is submitted that consideration of the starting point, the indicative sentence, and the indicative non-parole period for the s 112(2) aggravated break and enter offence, supports the contention that the aggregate sentence was manifestly excessive when consideration is given to the applicant's subjective case (noting the application of the 25% discount for the pleas of guilty).
The maximum penalty for the s 112(2) offence was 20 years imprisonment; and a standard non-parole period of 5 years applied (Crimes (Sentencing Procedure) Act, Pt 4, Div 1A). It is noted that the standard non-parole period reflects the non-parole period that applies to an offence at the mid-range, after trial and before consideration of the offender's subjective case. The applicant submits that, when regard is had to the objective gravity of the offences and the subjective case of the offender, as well as the maximum penalty and standard non-parole period, a starting point of 7 years (with a non-parole period of approximately 5 years and 3 months) is manifestly excessive.
It is said that, applying the discount in the present case (25%) to that 5 year standard non-parole period, the standard non-parole period for an offence at the mid-range should attract a non-parole period of approximately 3 years and 9 months (before consideration of an offender's subjective case other than the 25% discount).
The applicant received an indicative non-parole period of 3 years and 11 months. It is noted that this non-parole period was indicated after the discount for the plea, and after consideration was purportedly given to her subjective case. It is said that this reflects that, upon a finding that the offence was of mid-range objective seriousness, the indicative sentence prior to discount for the plea of guilty would have resulted in a non-parole period in excess of the 5 year standard non-parole.

Respondent's Submissions

The respondent similarly refers to Dinsdale (see above) and also refers to Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian) (at [25]) for the proposition that the applicant must demonstrate that the sentence was unreasonable or plainly unjust. It is noted that it is not sufficient that this Court might have exercised the sentencing discretion in a manner different from the judge at first instance (see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]); and that the conclusion of manifest excess is to be established in a context where there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle (see Markarian at [27]).
The respondent contends that the applicant's submissions (that the indicative sentence of 5 years and 3 months, with a non-parole period of 3 years and 11 months, for the offence of aggravated break and enter, and commit serious indictable offence, reveals error in the aggregate and that the pre-discount non-parole period (of 5 years and 3 months) for an offence held to fall in the mid-range of objective seriousness, when held against the standard non-parole period of 5 years, is incongruent with proper consideration of her subjective case) are misconceived for two reasons.
First, the respondent says that this impermissibly attributes determinative significance to the standard non-parole period. It is said that the standard non-parole period is not to be treated as a starting point for offences that fall within the mid-range of objective seriousness but, rather, as a statutory guidepost to be taken into account, together with the maximum penalty.
Second, the respondent says that the applicant's contention apparently assumes that certain mitigatory consequences follow from her subjective case, which required the sentencing judge to balance countervailing considerations (referring to Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [58]-[59]; Bugmy (2013) 249 CLR 571 at [44]; Ingrey v R [2016] NSWCCA 31 at [35]).
The respondent submits that the aggregate sentence imposed by the sentencing judge was within his Honour's proper sentencing discretion, and that, contrary to the applicant's submissions, the sentence and non-parole period indicated for the aggravated break and enter offence reflect both the sentencing judge's finding of objective seriousness, as well as the other factors which were required to be taken into account, including aggravating factors and the applicant's subjective case.
The respondent submits that, having regard to the following considerations, the aggregate sentence of 5 years and 6 months with a non-parole period of 4 years imposed upon the applicant is not unreasonable or plainly unjust.