9 His Honour was of the view that the record precluded the extension of leniency to the applicant. However, he noted that whilst in prison her behaviour and conduct had been satisfactory and she had been productive. He noted also that her prior personal circumstances had been tragic, leading to her having commenced to use illegal drugs at the age of 12. He further noted she had attempted from time to time to achieve rehabilitation but, coming forward for sentence at the age of 34 years, had never been able to maintain a drug free existence for any lengthy period. Although, in this regard, his Honour noted, and I summarise his views, that, from the material in the Probation and Parole report and the two psychiatric reports before him, there was a genuine willingness on the applicant's part to seek to put aside her drug dependency.
10 In regard to the tragic circumstances of her earlier life, to which his Honour had referred, he found that she had had a very bad life. In that regard I apprehend that his Honour was talking about the way life had treated the applicant, rather than how she had treated others. He referred to the abusive treatment of her when she was a child by men, the death of her husband in tragic circumstances, and the, then, impending death of her mother. He found in her favour that she had probably turned to drugs because of the problems of her background.
11 His Honour was of the view that she would require a great deal of professional help to put her drug-ridden background behind her, but his Honour was also of the view that notwithstanding the strong desire quite honestly held by her to put drugs behind her by going into a residential rehabilitation program, that it would be impossible for him, in the light of her record in particular, and in the light of the fact that the offence for which she came forward for sentence was a more serious offence, incorporating an element of violence, compared to those she previously had on her record, to avoid passing a substantial custodial sentence, and permitting her immediately to enter a rehabilitation programme.
12 His Honour found, it appears, special circumstances. Although there was no express finding to that effect in his Honour's remarks, there was reference in argument to varying the proportion provided for in the Crimes (Sentencing Procedure) Act. His Honour imposed the sentence in a way that suggested she had been given the benefit of special circumstances since he altered the customary statutory proportions.
13 His Honour recommended to the Parole Board that she be placed under conditions, including conditions that she enter into a full-time rehabilitation institution on her release on parole and noted his expectation that she would be released immediately following the end of the non-parole period.
14 In the written submissions that the applicant has filed, there are extensive arguments put in support of a number of individual grounds. These include, under ground one, that his Honour erred in failing to structure a sentence recognising the existence of special circumstances and the report of the psychiatrists. To that ground I will return in a moment.
15 Ground two asserted that his Honour failed to take into account mitigating circumstances. The mitigating circumstances there referred to seem to suggest that the applicant would not have acted with violence had the two dogs not been released into the yard.
16 That ground appears to mistake the violence that was the nub of this offence. It was not the threat to the dogs or the wielding of the screwdriver that was the aggravating circumstance in this charge, but the scuffle with the householder. Of course, that does mean that the objective criminality involved was considerably less than if the applicant had threatened either the persons there, or the dogs present with actual physical harm from the use of the screwdriver.
17 The applicant, in particular, under that ground further drew attention to the fact that her prior offences did not contain such elements of violence, so that what occurred on this occasion should be treated as exceptional. Nonetheless, I am of the view that his Honour did take into account the mitigating circumstances and, as I have said, he did not make any finding adverse to the applicant in respect of the use of the screwdriver or the making of threats.
18 It was also asserted that his Honour described the charges of break, enter and steal with aggravation in terms bearing comparison with offences of armed robbery and home invasion. Shortly, although reference was made to statistics supplied by the Judicial Commission, it is to be noted that the passage in his Honour's reasons does not fall into the error the applicant asserted, in his Honour's description of the offence in argument. In that passage his Honour, in an exchange with the applicant's solicitor, referred to the matters of armed robbery, and home invasion, and said:-
"In reference to what might have occurred if she hit that woman just a little bit harder, 25. If she had done her serious physical injury as a result of that blow, and that is not hard, it would have been 25 years, so they equated it to the most serious robberies in the State.
MR WHITBY: Robbery with aggravation.
HIS HONOUR: Armed robbery, yes, it has been equated now with armed robbery. This kind of home invasion and fighting the householder is regarded by the Legislature to be so serious as to warrant 25 years penal servitude, which, if you do not take any discount with a record like hers, could expect 14 or 15 years, but it is not that one, it is the one down from that which is 20 years, but even so it is a very serious offence ." (emphasis added)