Supreme Court of SA|2003-03-25|Before: Doyle CJ, Gray JJ

The application for leave to appeal on this additional ground was treated as the argument of the appeal, if leave were to be granted.

5 The offences were committed between December 2001 and June 2002. They were part of a course of conduct directed at obtaining property which could be sold to raise money, or obtaining cash, the proceeds of the offending being used by the appellant to buy heroin, to which she was and is addicted.

6 The number of offences is so substantial that the precise details are unimportant. I will draw on the Judge's summary.

7 One group of offences involved unlawful entry on premises, and the taking of property. In this group are two counts of aggravated serious criminal trespass in a place of residence (maximum penalty, imprisonment for life); three counts of serious criminal trespass in non-residential premises (maximum penalty, 10 years imprisonment); 25 counts of serious criminal trespass in a place of residence (maximum penalty, 15 years imprisonment); 40 counts of larceny (maximum penalty, imprisonment for five years). In each case the maximum penalty applies to each count.

8 Another group of offences involved the use of stolen bank cards and credit cards to obtain money from banks. This group includes 13 counts of obtaining money by false pretences (maximum penalty, imprisonment for four years) and three counts of attempting to obtain money by false pretences (maximum penalty, imprisonment for two and two-third years). According to the Judge the appellant obtained about $36,000 from various banks.

9 There is a final mixed group. This includes 11 counts of providing false information or documentation to a second-hand dealer (maximum penalty, a fine of $10,000); one count of unlawful possession (maximum penalty, a fine of $10,000 or imprisonment for two years) and one count of giving a false name and address (maximum penalty, imprisonment for three months or a fine of $1,250).

10 The Judge said that the total value of the money and property obtained by the appellant was about $150,000. The Judge noted that most of the property taken by the appellant was probably disposed of for much less than the true value. It is unclear how much of the property was recovered.

11 This bare catalogue of the offences should not be allowed to disguise the seriousness of the offences, although the maximum penalties give some indication of that seriousness. Victim impact statements given to the Judge disclose that the victims were upset and angry over the loss of their property. It is well known that often such property offences cause a lot of inconvenience and disruption for the victims, as they attend to such matters as insurance claims, repairing and replacing locks and so forth. The theft of credit cards also usually involves the victims in troublesome and annoying rearrangements of their affairs. A number of the victims suffered feelings of loss of security and fear, and some had trouble sleeping. Some of the victims needed the company of relatives because they did not feel secure when alone. Adverse effects of this kind on the victims of such offending are common. Such adverse effects are to be recognised as consequences of this kind of offending.

12 During the period of the offending the appellant was arrested on one or more occasions and released on bail, but continued offending.

13 The appellant is a young woman. She was 19 years of age when sentenced. She is now just over 20 years of age.

14 The Judge had the benefit of a pre-sentence report prepared by the Department for Correctional Services, and of a report from Mr Balfour, a psychologist.

15 From this and other material before the Court it appears that the appellant had a relatively normal childhood. At the age of 14 years she left home. This she said was due to unhappiness in her parent's marriage, and the bad influence of friends with whom she was associating. At about this time she began to use drugs. She progressed through a series of drugs, and became addicted to heroin when 15 years old. She continues to be addicted to heroin. She has had no significant employment experience.

16 Mr Balfour said that the appellant did not suffer from any mental disorder or intellectual disability. She was of low average intelligence. She did not suffer from a significant personality disorder. Ms Proom's addiction to heroin appears to be attributable to peer group pressure and unhappiness at home. A significant feature of her case is the fact that she became addicted to heroin at a very young age, and has remained addicted.

17 Ms Proom has been convicted by the Youth Court for a significant number of offences committed between 1997 and the time of this offending. The offences include driving offences, drug offences and property offences. She has served a number of periods in detention. It is likely that most of the offending is linked to her heroin addiction.

18 According to the pre-sentence report, while serving periods of detention Ms Proom has attempted to break her addiction, but on each occasion ultimately failed. Apparently she has not participated in a program of drug rehabilitation while at liberty. She told Mr Balfour that she found it difficult to participate in rehabilitation while in the community "because she cannot cope with the distressing heroin withdrawal symptoms." Ms Proom participated in the drug court diversion program for two months, but her participation in that program was not successful, and was terminated.

19 For several years Ms Proom has had a relationship with a young man, some six years older than her. The relationship apparently continues. They have an 18 month daughter. Ms Proom's mother now cares for the child.

20 Mr Balfour's view was that the prospect of Ms Proom ceasing to offend was "fair." Rehabilitation would depend on her participating in a supervised and structured rehabilitation program. In reaching this conclusion he noted the impact on Ms Proom of her first experience of adult imprisonment. He thought that "she is showing some early signs of evolving social maturity. For example, she has developed a more responsible attitude towards her daughter." Not surprisingly, he recognised "a high probability" of relapses along the way to recovery. For that reason it was important to have a strategy to deal immediately with relapses, to prevent the addiction escalating and re-offending occurring. Mr Balfour outlined an appropriate structure for a rehabilitation program.

21 Although the Judge did not refer specifically to Mr Balfour's conclusions in this respect, I see no reason to disagree with what Mr Balfour said. However, in describing the prospects of rehabilitation as "fair", it is important to bear in mind the likelihood of relapses along the way. It is also important to bear in mind that this description of the prospects leaves a real possibility that the battle with addiction will be prolonged and may ultimately be unsuccessful. In that event, there is a real prospect that the appellant would continue to offend. In other words, one cannot be confident that Ms Proom will be able to rehabilitate herself.

22 The Judge referred to the addiction that has dominated the appellant's life. He said that her case was "extremely difficult." He noted that if Ms Proom could break her addiction she had "the potential to be a decent and worthwhile person." The Judge then said:

"It is necessary to stand back and look at what, in an overall way, should be done to a 19 year old, by way of one sentence for those four months of crime, crime committed at a time when you were addicted to heroin."

23 The Judge then made the observation, set out above, in relation to Ms Proom's addiction to heroin.

24 But for the pleas of guilty, the Judge would have imposed a single head sentence of imprisonment for 15 years. He reduced that sentence to 10 years imprisonment, on account of her co-operation, her age and her plea of guilty. He fixed a non-parole period of five years. He said:

"I must impose a significant period in custody, long enough I hope for you actually to beat your addiction. You must then be on parole for a lengthy period thereafter, with supervision to try and assist you to integrate into society and to help you start the better life that I know you wish to lead."

25 Mr Braithwaite submits that having regard to the circumstances of the offender and of the offending, this sentence is manifestly excessive.

26 As to the circumstances of the offending, the immediate point to make is that the sentence is moderate. When every allowance is made for the fact that the offences were committed during a six month period, the end result is a very small proportion of the period of imprisonment to which Ms Proom was exposed. But that is by the by, because the Judge had to and did consider the circumstances of Ms Proom as well.

27 Mr Braithwaite makes the point that the sentencing Judge made no specific reference to the rehabilitation of Ms Proom. The explanation for that is, I consider, that the Judge recognised that rehabilitation depended on breaking the heroin addiction, and his reference to breaking that addiction, and to the appellant starting a better life, recognised her wish to rehabilitate herself, and the fact that her ability to do so would depend upon her ability to beat her addiction.

28 I have no doubt that the head sentence reflected in part the prospects of rehabilitation, and that the non-parole period was structured to assist the appellant's rehabilitation. If Ms Proom does succeed in breaking her addiction, one would hope that she would do so in less than the five year non-parole period. But the non-parole period could not be fixed by reference exclusively to considerations of rehabilitation. Other matters had to be considered.

29 In my opinion there is no reason to think that the Judge overlooked or gave inadequate weight to the issue of rehabilitation.

30 Mr Braithwaite made the point that although the Judge mentioned Ms Proom's age, her youth was not given much weight. I disagree. I consider that the Judge's reference to her age, to the period in which the offences were committed and to the addiction to heroin are a global reference to what is the outstanding feature of the case. That is, the fact that Ms Proom is so young, and that while her past offending and recent offending is substantial, it occurred over a relatively short period of time and can be attributed to addiction to heroin, which addiction has gripped her since she was about 15 years of age.

31 Mr Braithwaite submits that considerations of totality required a lesser sentence. Apart from the points already made, he emphasised that the offending was committed to enable Ms Proom to satisfy her craving for heroin, and that in the circumstances the offending does not indicate on her part "entrenched criminality." These are relevant matters. But it was also necessary for the Judge to bear in mind the seriousness of the offending and the need, as one aspect of the process, to consider the protection of society, while at all times ensuring that the punishment ultimately imposed was no more than was proportionate to the offending.

32 Mr Braithwaite submits that the Judge did not regard Ms Proom's heroin addiction as a mitigating factor, and that he was in error in this respect. I am satisfied that the Judge did make allowance for Ms Proom's addiction, despite what he said. The only explanation for the relatively moderate punishment for such a series of offences is Ms Proom's youth and the fact that her offending is the result of her addiction. Had these two factors not been present, I am confident that the Judge would have imposed a greater sentence. The Judge's remark that addiction "cannot be regarded as an excuse" has to be seen in that context, and in my view should not be taken to mean the Judge disregarded Ms Proom's addiction. Indeed, other parts of his sentencing remarks, including other passages that I have set out, indicate that the Judge treated her addiction as a relevant matter. As well, as the Judge said, much offending of the kind for which Ms Proom was sentenced is committed by people addicted to drugs. The levels of penalty that are imposed include many penalties imposed on drug addicts. In other words, the comparable penalties reflect, in many cases, the presence of addiction.

33 For these reasons, Mr Braithwaite has not demonstrated any error of principle in the Judge's approach, subject to the submission that the remark that addiction "cannot be regarded as an excuse" reflects an error of approach. There remains also the question of whether, having regard to all the circumstances, the penalty is excessive.

34 An observation similar to that made by the Judge has often been made by this Court and by individual judges when sentencing persons who are addicted to drugs. There is no need to multiply examples. A case often cited in this State, and in other States, is The Queen v Spiero (1979) 22 SASR 543. There the Court of Criminal Appeal resentenced the appellant, the sentencing judge having erred. The offence was armed robbery. The appellant was addicted to heroin. King CJ said (at 549):

"Armed robbery is a crime which leaves little scope for leniency even when mitigating factors are present. In this case mitigating factors are few. The appellant has a criminal record. He is addicted to heroin. One feels sympathy for a person who has become entangled in drug addiction, but the courts cannot treat addiction as an excuse, or even a mitigating factor, in relation to serious crime. Those who are addicted to drugs must understand that if they allow their addiction to lead them into serious crime, they must expect to receive the same severe punishment as would be received by others."

The other members of the Court agreed with those remarks.

35 Another decision which has been referred to with approval in this State and elsewhere is The Queen v Terizakis (1986) 41 SASR 252. This was a prosecution appeal against sentences imposed for three offences of armed robbery and one offence of assault with intent to rob whilst armed. The offences were motivated by Mr Terizakis' addiction to heroin. O'Loughlin J referred to a number of cases, including Spiero. He said (at 256):

"I have quoted these passages for the purposes of establishing that heroin addiction cannot, of itself, justify a sentencing judge reducing a penalty, which is otherwise appropriate to the offence that has been committed and to the circumstances in which the offence was committed. One cannot help but have immense sympathy for a person who is addicted to heroin; and it would be callous to adopt an attitude that, because it is self-inflicted, the addict is not worthy of sympathy or concern. But having said that, it unfortunately remains a fact of life that all too many armed hold-ups are these days committed by persons who, in one way or another, are dependent upon drugs and are seeking money to meet the costs of that dependency. Despite the cravings caused by the addiction and despite irrationality that is so often a consequence of the addiction, the majority of drug addicted persons still retain, in varying measures, the ability to distinguish between right and wrong and the ability to comprehend that the consequence of armed robbery will be a lengthy term of imprisonment. To give way, out of sympathy and concern, by imposing lesser terms of imprisonment than would otherwise be imposed, might appear to be an act of humanity, but it will do nothing to stamp out the drug trade and, worse, it might even give some indirect encouragement to would-be offenders."

Cox J agreed with O'Loughlin J, and Zelling ACJ said that heroin addiction "is not a matter of mitigation in charges of robbery under arms" (at 252).

36 In R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60, in a judgment with which other members of this Court agreed, I reviewed sentences appropriate for a number of offences involving dealing with and trading in drugs contrary to s32 of the Controlled Substances Act 1984 (SA). I was dealing with offences involving drugs, and the sentencing of persons who offended while addicted. Referring to an earlier decision of King CJ, I said (at 64) that that decision:

" ... makes it plain that addiction provides little or no basis for leniency in cases involving trading in drugs contrary to s32."

That is not say that an addict would necessarily receive the same sentence as a person who traded in drugs solely for the purpose of financial gain. My remark reflected the need to impose deterrent sentences, even though the offender might be an addict. In R v Di Maria [1996] SASC 5882; (1996) 67 SASR 466, in reasons with which the other members of the Court agreed, I said (at 476) referring to the appellant's addiction and its tragic effects upon the appellant and his family:

"As to those matters, the court has said repeatedly that addiction to drugs does not offer much if anything by way of mitigation. This was an enterprise which aimed to produce amphetamine and MDA in significant quantities, with a view to supplying others for profit. Addiction merely explains how the offence came to be committed, and is in no way an unusual feature of such cases. It does not mitigate the seriousness of the offence. The impact on Di Maria's family does not help him. Sadly, imprisonment will always have an adverse effect on the family of the prisoner. And while his prospects of rehabilitation do seem reasonably good, the seriousness of his offences must also be considered."

Similar observations will be found in plenty of other cases in this State.

37 Similar views have been expressed in other appellate courts in Australia. The cases are helpfully collected by Mr Taylor in "Should addiction to drugs be a mitigating factor in sentencing?" (2002) 26 Crim LJ 324. As Mr Taylor points out, there has been some variation in the Australian case law, but by and large it is consistent with the views expressed above. Because Mr Taylor has collected the cases in his article, I will content myself with some brief references to the case law in New South Wales, where the issue was recently canvassed in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. The Court of Criminal Appeal of New South Wales in that case also reviewed decisions of other Australian Courts on the relevance of addiction in the sentencing process.

38 It is convenient to begin with a reference to the decision of the same Court in R v Valentini (1989) 46 A Crim R 23, where the Court said at 25:

" ... This Court has said on countless occasions that addiction to heroin is not to be considered as a factor for the reduction of what would otherwise be an appropriate sentence for the nature of the offences which have been committed. It serves, however, to provide an explanation for the commission of the offences."

Another decision from New South Wales that is worth referring to is that of R v Engert (1995) 84 A Crim R 67. The Court there was dealing with the sentencing of a person suffering from a mental disorder. In that context, Gleeson CJ said (at 68):

"A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise."

I will return to this topic later. At this stage it suffices to make the point that, as will appear, addiction to drugs will not always point towards a more lenient sentence than would otherwise be imposed. In some cases addiction may make it more difficult to extend leniency than would otherwise be the case. In other cases the mitigatory aspects of addiction, if they exist, might be outweighed in any event by other factors.

39 I return to the decision of the Court in Henry. Having referred to Valentini, Spigelman CJ said that drug addiction may be relevant. It might be pertinent to the issue of impulsiveness or planning, or to the weight to be given to rehabilitation in a particular case: at [174]. After referring to a number of cases, including Spiero and Terizakis, he said at [194]:

"The authorities are against the proposition that drug addiction should, of itself, be accepted as a mitigating factor. There is authority that where the original addiction was not a willed act, that may be taken into account by way of mitigation. The authority does not go beyond that."

He then went on to rebut a number of arguments put forward to support a conclusion that addiction, when causally related to the commission of an offence, should be accepted as a mitigating circumstance.

40 The effect of his reasons is that he agreed with the approach taken in Valentini, while recognising that drug addiction is a relevant circumstance, without being an excuse for offending. His reasons explain why this is an area in which general or absolute propositions are not helpful.

41 Spigelman CJ said that he agreed also with the reasons of Wood CJ at CL. The views expressed by Wood CJ were similar to those of Spigelman CJ. He also rebutted a number of arguments said to support the proposition that drug dependence should be recognised as a significant factor of mitigation, justifying a lesser sentence than might otherwise be appropriate: see at [245] and following. In doing so he referred to a number of matters relevant to the sentencing, treatment and rehabilitation of drug addicts. He made the point that important as rehabilitation is, it is not the sole aspect of sentencing: at [269]. His conclusion (at [270]) was as follows:

"It is more appropriate, in my view, to have regard to these considerations, upon an individual case basis, in which it is recognised that the offence of armed robbery remains a very serious crime, which, save in exceptional circumstances, calls for full-time imprisonment. That is not to say that, in an individual case, the fact of drug dependency of the person standing for sentence may not remain a relevant fact reflecting on the objective circumstances of the offence, and/or the subjective circumstances of the offender, and particularly on the relativity of the minimum and additional terms: Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 537 and R v B (1993) 68 A Crim R 547."

He went on to give some examples of how drug addiction might affect sentencing in particular cases.

42 Newman J and Hulme J agreed with Spigelman CJ and Wood CJ at CL. As to the issue of addiction, the approach by Simpson J was substantially the same. She said at [345]:

"The authorities cited by Spigelman CJ and Wood CJ at CL are almost unanimous in holding that drug addiction of itself does not operate as a mitigating circumstance. When the words 'of itself' are emphasised, I respectfully agree with the proposition repeatedly stated; but, in any event, the line of authority is so compelling and so sustained that, even sitting as one of a Bench of five, I would be reluctant to participate in a decision departing from it. It is the role of the legislature (or the High Court) to alter such a longstanding principle. What I have said above is consistent with that line of authority. Nowhere is it held that it is inappropriate, in sentencing drug offenders, to take into account either the circumstances that gave rise to the drug addiction or demonstrated rehabilitation."

The balance of her reasons might suggest that she was prepared to attribute more weight to addiction as a mitigatory factor, but I suspect that that reflects nothing more than the complexity of the sentencing exercise, and the need at the end of the day to have regard to all circumstances. In any event, the majority approach is to be found in the reasons of Spigelman CJ and Wood CJ at CL.

43 The approach taken in New South Wales is similar to that taken in this State. I refrain from attempting a global summary of the correct approach, because such an exercise would either be misleadingly brief and general, or unduly lengthy. I merely make these brief points, emphasising that I select them because of their relevance to the present case, and not because they are a summary of the overall position. Addiction to drugs, when it leads to crime, is not an excuse for the purposes of sentencing. Nor is addiction of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. Nevertheless, addiction may be a relevant circumstance. It might explain that the offender is not a professional criminal, or did not make a calculated decision to offend. Addiction will often be relevant to prospects of rehabilitation, but might indicate that those prospects are not good. In the end, if addiction is of any significance, it is to be considered in the context of all of the circumstances of the case. The seriousness of the offending, or the need for a deterrent sentence, may outweigh any mitigatory effect that addiction would have. One cannot say that addiction is always simply irrelevant, nor can one say that addiction can never be a mitigating circumstance.

44 This is the approach that has been taken in this State. When individual cases are examined it will sometimes be found that the nature and circumstances of the offence are such that the court has taken the view that even though addiction is a factor, other considerations mean that it cannot have any mitigating effect. Other cases will be found in which it appears that the sentence must have been reduced to reflect the fact that the offending was not the result of a calculated commercial decision, or to encourage what seemed to be strong prospects of rehabilitation linked to real progress in breaking addiction.

45 The approach in this State is well settled. It is consistent with the approach taken in other Australian jurisdictions. That is a solid reason not to depart from it. This is not simply a stubborn adherence to precedent. There is no reason of principle to do so, nor is this approach inconsistent with the provisions of the Criminal Law (Sentencing) Act 1988 (SA) ("the Sentencing Act").

46 Drug addiction is a complex human and social problem, and has many ramifications for society. The adverse consequences for individuals and for society that flow from addiction, and from the unlawful trade in drugs, are well known. I make the following points, recognising their selective nature, but intending to support my statement that there is no reason of principle to depart from the existing practice of this Court.

47 The unlawful trade in drugs, and drug addiction, with all their adverse consequences for individuals, their families and for society, are major problems in our society. To treat drug addiction as a routine mitigating circumstance when sentencing an offender, would conflict with attempts made through the criminal law and by other means to deal with unlawful trading in drugs and with drug addiction. To say that is not to deny that addiction may be a form of illness. But Parliament has made it clear that the courts must treat unlawful dealing in drugs severely. It would seem curious in that context to treat as a mitigating factor, the fact that a crime was committed to obtain money with which to purchase drugs in breach of the law.

48 I accept that in some cases addiction might diminish individual moral culpability. But addicts do not lose the ability to make choices, and addicts remain legally responsible for their conduct. Moral culpability is not the only relevant consideration. Deterrence through punishment may be a blunt remedy, but courts must do what they can to deter addicts from using crime to sustain their addiction. Society is entitled to be protected from persons who commit crime to fund their addiction.

49 The proposition that addiction will always or generally be a mitigating factor confronts an obvious question. For how long does addiction operate as a mitigating factor? Is it a mitigating factor for the first offence, for the first few offences, or always? Can an addicted offender continue to expect a lesser sentence? Surely not. To the contrary, an addict who is a repeat offender may be entitled to a lesser degree of leniency simply because of the repeated offending, and because the pattern of conduct gives the court no choice but to emphasise deterrence, recognising the bluntness of that response.

50 Addiction to drugs may indicate that assurances by an offender of a desire to be rehabilitated are unreliable, or must at least be treated with caution, and sadly may mean that even a genuine wish to rehabilitate may have to be treated with caution. In the worst case, if there is no reason to think that the addiction will be broken, there will be no basis for leniency by reference to the prospect of rehabilitation.

51 Finally, there is the obvious point that sentencing involves the balancing of a whole range of factors. When considerations of deterrence predominate, or require greater weight, there is less scope for leniency on the basis of addiction.

52 As I have said, I do not suggest that this is all that can be said on the topic. But considerations like these show the substantial obstacles to acceptance of the general proposition that addiction will always or usually be a mitigating circumstance, in the sense of calling for a lesser sentence than is otherwise appropriate.

53 There is nothing inconsistent with what I have said in the Sentencing Act. Section 10(1) of that Act sets out a number of matters to which a court should have regard in sentencing. Relevantly, they include the following:

"(a) the circumstances of the offence; ...

(i) the need to protect the community from the defendant's criminal acts;

(j) the deterrent effect any sentence under consideration may have on the defendant or other persons; ...

(l) the character, antecedents, age, means and physical or mental condition of the defendant;

(m) the rehabilitation of the defendant;

and

(o) any other relevant matter."

I make the following brief observations in relation to these provisions. As to (a), the presence of addiction may, for example, show that the offence was of an impulsive nature, and may show that the offender is not a professional offender. As to (i), addiction may indicate a risk of re-offending, if there is no indication of an attempt to break the addiction. Addiction may indicate that the deterrent effect of a sentence on the offender will be diminished, but that does not mean that the deterrence of other offenders is not to be considered. Addiction is obviously relevant to the character and mental condition of an offender, but for reasons already explained might point in different directions in terms of sentencing. Addiction would usually be highly relevant to the issue of rehabilitation, but again, depending on the circumstances, addiction may cast doubt on the prospects of rehabilitation as much as it might, by indicating that the offender is not otherwise criminally inclined, hold out hopes of rehabilitation. Under (o) one might have regard to issues of moral culpability, the social problem constituted by addiction and like matters, but as I have explained, these matters do not necessarily lead to the conclusion for which Mr Braithwaite contends. My view is that there is nothing in the Sentencing Act inconsistent with the approach previously taken in this State.

54 For all those reasons, this Court should adhere to its existing approach.

55 As I have already said, I am satisfied that the Judge allowed for the fact that Ms Proom was addicted to heroin, had been addicted from an unusually young age, and for the fact that probably all of her offending, past and present, was related to her addiction. But equally the Judge had to bear in mind the number of offences and their seriousness, the fact that her rehabilitation prospects were only fair, the need to protect society if her rehabilitation failed, and the need to rely on the blunt remedy of deterrence, both individual and general. In my view the Judge made no error of principle. His comment that addiction is "no excuse" was correct. It is clearly not an excuse. Moreover, the fact of addiction provided no further scope for mitigation, beyond the allowance made by the Judge.

56 That leaves the final question of whether the sentence is excessive, or whether, for such a young person, it is so crushing as to call for modification on the basis of totality.

57 The case was a very difficult one. There is no error of principle in the Judge's approach. But I agree with Gray J that for a 19 year old woman, a starting point for the sentence of 15 years' imprisonment is a crushing sentence. It is a crushing sentence, even though, taking into account the circumstances of the offences and the other personal circumstances of Ms Proom, it was well warranted. I agree with Gray J that the starting point for the sentence is the appropriate point of reference for these purposes. Accordingly, the sentence is excessive, and should be reduced.

58 I would reduce the sentence to one of imprisonment for eight years, and would fix in relation to that head sentence a non-parole period of four years. This is an exceptionally low sentence for these offences. To my mind a lesser sentence cannot be justified in the public interest. The rehabilitation of Ms Proom is not the only matter to be considered.

59 I would grant leave to appeal on the additional ground, allow the appeal, set aside the sentence imposed by the District Court and substitute a sentence of imprisonment for eight years, and in relation to that sentence of imprisonment fix a non-parole period of four years.

60 DUGGAN J: I agree with the orders proposed by the Chief Justice and his reasons for decision. In particular, I agree with his observations on the approach to be taken by the courts in sentencing offenders in cases in which the crimes are related to drug addiction.

61 Melissa Mandy Proom, the appellant, pleaded guilty to criminal trespass and dishonesty offences. A sentence of 10 years imprisonment was imposed. A non parole period of five years was fixed. The sentence and the non parole period were back dated to commence on 2 July 2002.

62 Ms Proom pleaded guilty to two counts of aggravated serious criminal trespass in a place of residence, 25 counts of serious criminal trespass in a place of residence, three counts of (non residential) serious criminal trespass non residential, 40 counts of larceny, 13 counts of obtaining by false pretences, three counts of attempted false pretences, 11 counts of providing false information or documentation to a second hand dealer, one count of unlawful possession and one count of giving a false name and address.

63 The sentencing judge treated all offences as part of the one course of criminal conduct. He exercised his powers pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence with respect to all offences which attracted a penalty of imprisonment.

64 Ms Proom was born in Adelaide and raised in an apparently caring family, although the deterioration of her parents' relationship was an area of concern in her adolescence. She became unsettled in her early teenage years. When aged fourteen she lost interest in her studies. She was expelled from school. Thereafter she moved away from home, fended for herself and fell in with bad company. She became addicted to heroin. Her addiction has remained. As a teenager she formed a relationship and has a child now almost two years of age.

65 As a fourteen year old Ms Proom was inexperienced, immature and vulnerable. She was not in a position to make informed judgments about drug experimentation. She committed many dishonesty offences as a young offender. Her offending was driven by her drug addiction. The information before the sentencing judge disclosed that Ms Proom had made determined but unsuccessful efforts to free herself from her addiction.

66 Ms Proom spent eight months on youth detention. At this time she received treatment and support for her heroin addiction. When she left detention she appeared to be free from her addiction. Her child was born without traces of heroin. However, on release she was placed under pressure to resume her drug taking habits. Due to weakness she succumbed.

67 Ms Proom's course of criminal conduct, the subject of the charges before the court, commenced a few days before her 19th birthday. They were her first offences as an adult.

68 Although a number of Ms Proom's offences involved entry into private residences there was no suggestion that any violent behaviour occurred. It was submitted that Ms Proom wanted to avoid any confrontation and that the offences were caused by recklessness driven by "raging heroin addiction".

69 When apprehended Ms Proom admitted her guilt. She cooperated fully with the authorities. She took the investigating officers to the scenes of her offending. As a result a number of previously unresolved crimes were solved. It was accepted that but for her cooperation many of these crimes would not have been resolved. Ms Proom's involvement would have remained undetected.

70 Pre-sentence and psychological reports outlined Ms Proom's history of drug addiction. The authors were guardedly optimistic about her future. Mr Balfour, an experienced forensic psychologist, outlined a recommended program of rehabilitative treatment. Although acknowledging that Ms Proom could be expected to lapse from time to time he considered that her prospects for rehabilitation were fair. He reported:

"My recommendations regarding Ms Proom's rehabilitation are that she participate in a supervised, structured rehabilitation programme consisting of:

- Referral to the Drug and Alcohol Services Council for ongoing assessment to determine which pharmacotherapy approach is best for her; to have counselling; and to learn relapse prevention strategies.

- Assertive case management consisting of twice weekly supervision and regular urine screens (i.e., 2 to 3 times a week) for the first six months.

- Open access to a country based drug and alcohol residential rehabilitation programme (e.g. Woolshed, Karabran, etc). If she experiences a relapse of her heroin addiction, then she can be immediately transferred to the programme for a respite admission (e.g., for three to four weeks). This would prevent her become addicted to heroin or offending and allow time to do some troubleshooting.

- Referral to the range of social support programmes offered by FAYS for young sole parents.

- Referral to a clinical psychologist who can use cognitive-behavioural therapy to foster her developing maturity, and improve her repertoire of coping and problem solving skills.

- Referral to an employment casemanager who can assess her training and employment needs and assist her work towards becoming a hairdresser.

- She should be forbidden to have any contact with individuals who are associated with the drug using culture. Strict monitoring should be maintained on where and with whom she resides.

- I believe that it would be useful for her to reside in a supported accommodation programme to begin with, then with her mother, and then independent housing trust accommodation depending on her rate of progress."

71 As earlier observed Ms Proom's offending occurred over a four month period commencing in December 2001, a matter of days before her nineteenth birthday. Her conduct was driven by the insatiable needs of her heroin addiction.

72 The sentencing judge was correct to exercise his powers pursuant to section 18A of the Sentencing Act. Ms Proom engaged in one course of criminal conduct. It would have been inappropriate to attempt to separate the offences and consider separate penalties for each offence[1]. He was correct to emphasise the community concern associated with offences of this type. General deterrence was an important matter.

73 The sentence imposed on Ms Proom was crushing. As a nineteen year old she confronted the adult justice system for the first time. Had there been no reduction for her pleas of guilty and cooperation she would have been imprisoned for 15 years for offences involving no violence or threats of violence. Tested in this way although Ms Proom's criminal conduct was serious, a sentence of 15 years imposed on Ms Proom, a 19 year old, is crushing. The sentence remained crushing despite the reduction of one third on account of her pleas and cooperation.

74 In the course of his remarks the sentencing judge said:

"It is necessary to stand back and look at what, in an overall way, should be done to a 19 year old, by way of one sentence for those four months of crime, crime committed at a time when you were addicted to heroin.

The fact that you are addicted to heroin may well be 90 percent of the explanation for what you have done. Unfortunately, it is the reason why a lot of people get themselves into this sort of trouble and the courts have consistently said that it cannot be regarded as an excuse."

75 Counsel for Ms Proom submitted that the judge had erred in concluding that drug addiction could not have any mitigatory effect upon sentence. It was said that Ms Proom's drug addiction was a factor to be used in mitigation in this case. It was submitted that the earlier authorities of this court determining that drug addiction could not be mitigatory should be reviewed.

76 In R v Engert[2] Gleeson CJ addressed the complexity and subtlety of the sentencing task:

"It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise."

Ms Proom's drug addiction is not mitigatory per se[3]. However, it is a fact of [her] Ms Proom's life. It is one of her personal antecedents. Her addiction provides an explanation for and allows an understanding of her criminal behaviour[4]. It may have a mitigatory effect. It may also be a matter of aggravation.

77 These principles were discussed in R v Hammond[5]:

"The true relevance of drug addiction is a factor contributing to the commission of crime and its effect in the sentencing process has never been adequately explained. In our view it is a factor that may help an offender to the extent of showing that his or her descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice. It may be inferred in many cases (and the present case is very much in point) that the offender would almost certainly never have become a thief but for loss of control of an ordered life through drug addiction. The proposition that the results of drug addiction are self-inflicted is half true and therefore dangerous. The offender must of course be held responsible for his or her own actions. The drug addiction is not an excuse; but it is a factor that may tell the court that the real weakness of character is that of a drug addict rather than that of a robber. That may be by no means inconsequential. It is however a two edged factor; it may also tell the court that rehabilitation is going to be difficult.

Just how these factors are to be applied to particular cases had not been spelled out, and it may be undesirable to attempt to do so. In our view the fact that drug addiction has led to criminal activity can properly lead to a wider understanding of the offender's character and motivation for the crime. Depending on the circumstances of the particular case this may sometimes show the offender to be less deserving of condemnation than the primary facts, without more, might suggest."

In Douglas v The Queen[6] the Full Federal Court observed:

"It is, of course, not a mitigatory factor that a person commits crime to feed a drug addiction. However, that is not a principle of universal application. As Jenkinson J noted, at 105, in Talbot v The Queen [1992] FCA 54; (1992) 34 FCR 100, the moral and legal fault for the acquisition of the addiction has to be considered:

'... evaluation of moral culpability remains in my opinion as fundamental to our system of punishment for crime as evaluation of the degree of harm caused or threatened by the criminal act or actor.'

The age of an offender when he or she became addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct."

The analysis of Simpson J in R v Henry[7] is also of assistance:

"I cannot accept that the blameworthiness of one drugtaker is (even excepting that small number of individuals who begin drug taking with medically prescribed drugs) always to be treated as being at the same level as the blameworthiness of the next. Nor can I accept that the exercise of free choice in the use of drugs is always of equal dimensions. It is not every decision to use drugs that can properly or fairly be characterised as a decision made in the exercise of free choice. The will of an individual can be overborne or undermined, not only by acts of another person, but also by the pressure of circumstances. I do not accept that most drug offenders are truly exercising free will when they choose the degradation, despair, criminality and cycle of imprisonment that can follow the initial use of illegal drugs. The circumstances that propel the offender to the use of drugs are often, if not usually, beyond his or her control. They may or may not be combined with a vulnerable personality or even a weakness of character. Many drug offenders have not had the life experiences or the normal developmental path that permit a conclusion that the decision to take drugs was a decision made in the exercise of a free choice in the sense in which that phrase is ordinarily understood.

An analogy can legitimately and properly be drawn with the principles relating to the sentencing of Aboriginal offenders, collected and stated by Wood J, as he then was, in R v Fernando (1992) 76 A Crim R 58 at 62-63. As I understand the remarks on sentence in that case, his Honour observed that Aboriginality alone does not excuse serious crime nor operate as a mitigating factor. However, since it is often associated with other circumstances of disadvantage or deprivation, Aboriginality may explain or throw light on the particular offence or the circumstances of the offender. It is, in truth, not Aboriginality, but the life experiences too commonly associated with Aboriginality that are relevant to the sentencing decision. Just as it is properly said that, while drunkenness is not normally an excuse or mitigating factor, where alcohol abuse reflects the socio-economic circumstances and the environment in which an offender has grown up, that fact can and should be taken into account as a mitigating factor (R v Fernando (principle E at 62)), so also can it properly be said that drug abuse may reflect the socio-economic circumstances and the environment in which another offender has grown up, and that may equally then be taken into account as a mitigating factor."

Earlier authority of this court does not deny that drug addiction may be relevant to the sentencing process. The authorities do not preclude the circumstance and factor of drug addiction from being a mitigatory effect in a particular case.[8]

78 A matter relevant to sentencing is an assessment of an offender's criminal culpability. Ms Proom's drug addiction developed during her early adolescence at a time of immaturity and vulnerability. As earlier observed, her counsel submitted that her conduct was driven by her uncontrollable and raging need for heroin. When it is understood that this need stemmed from her being taken advantage of as an adolescent her criminal culpability is lessened. Regard should also be had to Ms Proom's prospects for treatment and rehabilitation. This is relevant to the community and to reform Ms Proom.

79 Ms Proom's criminal conduct is explained by her drug addiction. Her heroin addiction is relevant to the assessment of her criminal culpability and to her prospects for treatment and rehabilitation. The effects of her drug addiction are mitigatory in this case.

80 During the course of his sentencing remarks the judge observed:

"Trying to set one overall penalty, I think that a fair starting point to consider in your case is a 15 year head sentence. Because of your cooperation, your age, and your pleas of guilty, I reduce that to 10 years. That is one sentence in respect of all of the counts carrying imprisonment as a possible penalty. In respect of those that do not, I record convictions but impose no separate penalty. You do not have the means to pay any fines and there is no point in you emerging from gaol in years to come with heavy fines hanging over your head."

81 This passage discloses that the judge made a reduction of five years from his "starting point" of 15 years imprisonment. He did so because of Ms Proom's age, her cooperation and her pleas of guilty.

82 The judge was correct to make a reduction for Ms Proom's cooperation and pleas of guilty. He should have identified the reduction made on that account.[9] Including age as a factor was inappropriate. His Honour's approach suggests that some mathematical adjustment was made for Ms Proom's age. Such a process is inconsistent with the instinctive synthesis approach to sentencing favoured by a majority of the High Court.[10]

83 Ms Proom's age was an important sentencing consideration. She offended as an adult for the first time[11]. Her age allowed the court to extend a degree of leniency. By imposing a sentence of 10 years, a term approaching half her life, the sentencing judge did not give sufficient weight to her age.

84 Ms Proom was entitled to a substantial reduction on account of her pleas of guilty, contrition, remorse and cooperation with the authorities. Her pleas of guilty avoided numerous trials. But for her assistance, cooperation and disclosures much of her offending would not have been discovered. Her cooperation and assistance including the matters earlier identified, called for a special allowance. A reduction of one third was appropriate on account of these matters.

85 The rehabilitation of a young offender is an important aspect of criminal sentencing. This has been recognised by parliament in the Sentencing Act and in repeated judicial observations.

86 In The Queen v Weaver[12] in the joint judgment of Bray CJ and Mitchell and Sangster JJ the court emphasised the importance of rehabilitation in the case of a young offender:

"Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence. "

87 In Vartokas v Zanker[13] King CJ observed:

"Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrong doing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person."

These remarks are apposite. Ms Proom's age and her prospect for rehabilitation were important considerations in the sentencing process.

88 The sentencing judge made only passing reference to Ms Proom's prospects for rehabilitation. This may have occurred because of his view that drug addiction could not be mitigatory. For reasons earlier expressed Ms Proom's prospects for rehabilitation have a mitigatory effect in this case.

89 Error has been demonstrated, in these circumstances the appeal against sentence should be allowed and Ms Proom should be resentenced.

90 In resentencing Ms Proom regard must be had to her personal and criminal antecedents, her pleas of guilty, her contrition and remorse and to her cooperation with the authorities. Her age and the fact that these offences are her first offences as an adult are also relevant considerations. The nature and timing of her addiction to heroin as an adolescent is relevant. It allows an assessment to be made of her criminal culpability. Her prospects for rehabilitation must also be considered. These latter matters are mitigatory. Regard must also be had to the other submissions made to the sentencing judge on her behalf.

91 Having regard to the nature of Ms Proom's offending and the above matters it would be appropriate to impose a head sentence of six years imprisonment. In arriving at that sentence a reduction of one third has been made on account of her pleas of guilty, contrition and remorse and cooperation with the authorities. Regard has been made to the principle of totality and the need to impose a sentence that does not crush Ms Proom. The prospects for rehabilitation have a particular relevance in fixing the non parole period. A non parole period of 3 years should be fixed.

1 R v Symonds [1999] SASC 217, R v Elliott (2001) 121 A Crim R 254; R v Jason [2002] SASC 201; R v Caplikas [2002] SASC 258

3 R v Valentini (1989) 46 A Crim R 23 at 25

6 (1995) 56 FCR 465 at 470. See the review of authority by Taylor - "Should addiction to drugs be a mitigating factor in sentencing?" (2002) 26 Crim LJ 324

8 R v Spiero (1979) 22 SASR 543, R v Terizakis (1986) 41 SASR 252

9 R v Place [2002] SASC 101; (2002) 81 SASR 395 at 411-413, 425, Cameron v The Queen (2002) 76 ALJR 382

10 AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 121-122, 157, R v Wong [2001] HCA 64; (2001) 207 CLR 584 at 611-612, Cameron v The Queen (2002) 76 ALJR 382, R v Caplikas [2002] SASC 258

11 The Queen v Weaver (1973) 6 SASR 265 at 267, Taylor v Barr (1987) 135 LSJS 106 at 110-112

13 [1989] SASC 1591; (1988-89) 51 SASR 277 at 279 see also Taylor v Barr (1987) 135 LSJS 106 at 110-112

[1] R v Symonds [1999] SASC 217, R v Elliott (2001) 121 A Crim R 254; R v Jason [2002] SASC 201; R v Caplikas [2002] SASC 258

[3] R v Valentini (1989) 46 A Crim R 23 at 25

[4] R v Henry (1998-1999) 46 NSWLR 346

[6] (1995) 56 FCR 465 at 470. See the review of authority by Taylor - "Should addiction to drugs be a mitigating factor in sentencing?" (2002) 26 Crim LJ 324

[8] R v Spiero (1979) 22 SASR 543, R v Terizakis (1986) 41 SASR 252

[9] R v Place [2002] SASC 101; (2002) 81 SASR 395 at 411-413, 425, Cameron v The Queen (2002) 76 ALJR 382

[10] AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 121-122, 157, R v Wong [2001] HCA 64; (2001) 207 CLR 584 at 611-612, Cameron v The Queen (2002) 76 ALJR 382, R v Caplikas [2002] SASC 258

[11] The Queen v Weaver (1973) 6 SASR 265 at 267, Taylor v Barr (1987) 135 LSJS 106 at 110-112

[13] [1989] SASC 1591; (1988-89) 51 SASR 277 at 279 see also Taylor v Barr (1987) 135 LSJS 106 at 110-112

Law (Sentencing)_ Act 1988(SA)

R v PROOM No. SCCRM-02-390 [2003] SASC 88 (25 March 2003)

(2002) 26 Crim LJ 324

R v PROOM No. SCCRM-02-390 [2003] SASC 88

At a glance

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Judgment (147 paragraphs)

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Legislation Cited (2)

Cases Cited (15)

R v PROOM No. SCCRM-02-390 [2003] SASC 88 (25 March 2003)