DECISION
23 Mr. Odgers SC for the respondent concurred in the last submission of Mr. Bugg, and I accept that submission. The Court of Appeal in its previous judgment held that s.20AB(1A) did not mean that periodic detention could be imposed for a sentence longer than three years; but it did not hold that the provision was not effective to take away the necessity of first fixing an appropriate term of imprisonment before considering whether it should be served by way of periodic detention. Thus I accept that, in the case of Commonwealth offences, the Court can consider directly whether a three year sentence of periodic detention is the preferable option.
24 As noted by Spigelman CJ in the previous Court of Appeal decision, s.16A(2)(p) of the Crimes Act refers to the "probable" effect of a sentence on family members, not to possible effects. It is plain that a full-time custodial sentence would mean at least a four to six week separation of the respondent and her child, whilst she was being assessed for suitability for inclusion in the relevant programme. Dr. Moore did give the answer referred to by Mr. Bugg in his submissions, to the effect that she would not have any concern with the child being looked after by the respondent's mother for this period. However, in the context of the whole of her evidence, this does not mean there would be no significant ill-effects from such separation, but rather that the respondent's mother would be an appropriate carer if there had to be such separation. In re-examination, Dr. Moore assented to the proposition that "there is still the probability that there will be significant psychological damage if the separation is more than one week".
25 More significantly, evidence from prison authorities as to the process for assessing the respondent for inclusion in the relevant programme did no more than set out in general terms what were the criteria that would be applied. Despite the previous judgment of the Court of Appeal, which contemplated that sentencing should be carried out with reliable information as to whether the respondent would be admitted to such a programme, there had not even been any preliminary assessment of the respondent's suitability by the prison authorities.
26 Ms. Loy, the co-ordinator of the Mothers' and Children's Programme, gave evidence that for admission to the programme a woman had to be of the appropriate security classification, drug-free, stable, not violent, and so on. These are of course appropriate concerns. There are no doubt substantial administrative reasons why it was not possible to carry out even a preliminary assessment of the respondent between 14 December 2001 and 28 March 2002, and why it is not possible to make even a provisional determination of suitability prior to the commencement of full-time custody. However, the result of all this is that the Court has no reliable material on which to base a judgment as to whether the respondent would be admitted to the programme. The respondent is totally unable to assist the Court further on that matter. While as I have said there are no doubt substantial administrative grounds why this is so, the fact remains that the authorities responsible for prosecution and punishment, who could possibly assist the Court further, have not done so.
27 In those circumstances, there is in my opinion material upon which an inference can be drawn that there is a probability, not necessarily a greater than fifty percent probability, but nevertheless a substantial probability, that the respondent will be separated from her child for the whole of her sentence; and in circumstances where the respondent is helpless to take the matter further but the prosecuting and punishing authorities could possibly do so, fairness between the parties makes it reasonable to draw that inference. That is, the Court should proceed from the basis that there is a probability and not merely a possibility that the child will be subjected to separation from her mother for the whole of any full-time custodial sentence. I do not overlook that this is a Commonwealth prosecution, and that the matter of punishment is in the hands of New South Wales State authorities. I do not think this significantly affects the considerations I have given: the Commonwealth has chosen to leave the execution of punishment to the State authorities.
28 There is evidence that such separation from the mother and primary carer of a child of this age is likely to cause long-term and significant deleterious effects on the psychological makeup of the child. The case is different from those of SLR and White, because it was assumed that in these cases the child could remain with the mother in custody. In all the circumstances, in my opinion there was no error in the sentencing judge finding exceptional circumstances, or exceptional hardship to the child. I should add that this view is not based on the lack of availability of another carer, such as the respondent's mother or her partner; but rather is based on the evidence about the severe effects of separation from the mother and primary carer.
29 Apart from hardship to the child, there were other significant subjective factors referred to by the sentencing judge; but in my opinion, even giving full weight to those factors, the objective seriousness of the offence and the need for general deterrence, coupled with the consideration of the matter in the previous Court of Appeal judgment, indicate that, apart from the question of hardship to the child, a sentence of less than about five years with a non-parole period of about three years would have been inadequate.
30 Mr Bugg submitted that the sentencing judge was in error in not weighing the objective seriousness of the offence against the hardship to the child. In my opinion, on a fair reading of the judgment as a whole, it should not be inferred that the sentencing judge did not have regard to the objective seriousness of the offence and did not weigh it against the considerations relating to hardship to the child.
31 The question then is whether, in a case otherwise requiring something like a five year sentence with a three year non-parole period, hardship to the child justified suspending the whole sentence. But for considerations of double jeopardy, I believe I would have taken the view that anything less than three years' periodic detention would have been outside the range of reasonable exercise of discretion. However, this is the second Crown appeal and the fourth sentencing hearing which the respondent has faced, and in all the circumstances, I do not think interference by this Court with the sentence imposed below is now justified.
32 For those reasons, in my opinion, the appeal should be dismissed.
33 SIMPSON J: I agree with Hodgson JA.
34 SMART AJ: The facts, circumstances and submissions of the parties are set out in the reasons of Hodgson JA. I will supplement that account.
35 On 7 October 1999 Ms Togias arrived at Sydney International Airport on board a flight from Indonesia. She was travelling alone. After a baggage search Customs officers performed a frisk search of Ms Togias and located a bulky item underneath her clothing around her waist. On her incoming passenger card Ms Togias had answered "No" to the question, "Are you bringing into Australia goods that maybe prohibited or subject to restrictions, such as medicines, steroids, firearms, weapons of any kind or illicit drugs?" When questioned by Customs officers about the nature of the bulky item around her waist Ms Togias stated, "No I don't know. You know that German guy, you know that he raped me, he put this on." That story was an invention.
36 Five sealed clear plastic body packs containing small circular off white tablets were taken from her body. There were about 8282 MDMA (or ecstasy) tablets, weighing about 2,1645 grams gross. Their approximate street value was $400,000. The calculated pure MDMA was 967.5 grams. This is nearly twice the commercial quantity. The offence was thus a serious one. The maximum penalty is life imprisonment. She was in custody for a week before being granted bail.
37 On 22 March 2000, having pleaded guilty, she was committed for sentence by the Local Court to the District Court. A Pre-Sentence Report was prepared on 12 July 2000 for a Court hearing on 24 July 2000. Nothing was said in this report about her having become pregnant or the relationship which she had formed.
38 On 31 August 2000 a further Pre-Sentence Report was prepared for a Court hearing on 4 September 2000. It noted that she had been in a stable relationship for the past 18 months (that is, from well before the commission of the offence) and that she had stated that she was about six months pregnant. On 4 September 2000 the sentence hearing was adjourned to 2 March 2001, against the Crown's opposition, by Woods DCJ to enable Ms Togias to have the baby in the meantime. The baby was born on 7 January 2001.
39 The objective seriousness of the offence demanded a full time custodial sentence of five to six years with a non-parole period of three to four years. A suspended sentence could not be contemplated for an offence of this gravity. The question is whether a suspended sentence was permissible because of the baby. There is the further question of the delay which has occurred.
40 One matter which was investigated at the further sentencing hearing before Solomon DCJ in March-May 2002 was whether, if Ms Togias was sent to gaol, she could take her child with her. As at May 2002 the child was 16 months old. In about late 1996 the NSW State Government established the Jacaranda Cottages at Emu Plains Gaol. Those cottages are for prisoners with low security ratings, that is, a C rating. The cottages allow mothers sentenced to prison to have very young children, that is, under 5 years of age, with them. There are 20 places available but no more than about 13 places are usually occupied.
41 To ensure that the Scheme continues to be successful and that the applicant mother will fit in at the cottages and with the mothers there, the Department engages upon an extensive process of assessment. This includes observation of her in a custodial setting. Thus the assessments are made after the mother has entered into custody. The reasons for that are explained in the evidence. The process of assessment and running a custodial unit for mothers with young children are not as simple or straightforward as may appear at first sight. It takes not less than about four weeks after the mother is put in prison before a decision is made whether to place the mother in the Jacaranda Cottages. It may take considerably longer. Meanwhile the mother and the baby are separated. The officers of Corrective Services were unable to say whether Ms Togias would be accepted into the Cottages. There appeared to be no way of avoiding the separation of Ms Togias and her baby for four weeks or a much longer period if she were sent to prison. There were indications that Ms Togias was likely to meet the selection criteria but this was far from certain.
42 It is not possible to say one way or the other whether Ms Togias would have been ultimately admitted to the Jacaranda Cottages but what was clear was that the mother and the baby would be separated for a substantial period and this would probably prove harmful to the child. She was still being breast fed at the time of the hearing before the judge in May 2002, It was Ms Togias' plan to continue to breast feed her daughter until she was about two years of age.
43 The judge was confronted with a very difficult situation and one which was probably not envisaged by this Court in its earlier decision. On the one hand the serious offence warranted a substantial custodial sentence. On the other hand the expert medical evidence was that the separation of Ms Togias from her child for more than a week was likely to cause significant long term psychological damage to the child. There was no evidence to the contrary.
44 Faced with that evidence the judge could hardly impose a sentence of full time custody on the applicant. It is true that Ms Togias fell pregnant about March/April 2000, some six months after the offence was committed. However, this case turns on the likelihood of significant damage to a child which could have long term consequences for her and the community.
45 The Crown was concerned about the creation of a special class of offender who, although she had committed a serious offence (and one for which the maximum penalty was life imprisonment) nevertheless would not be sent to gaol because of a very young baby. Was falling pregnant after committing an offence the way to avoid effective and timely punishment? Much the same question could be asked of a lady who gave birth to a baby shortly before or shortly after the commission of an offence. A suspended sentence of 5 years holds the sword over a person's head for 5 years to be of good behaviour. However, if the offender behaves she does not go to gaol at all.
46 In real and practical terms a sentence of periodic detention of 3 years exceeds the impact on the offender of a suspended sentence of 5 years. Section 20AB(1A) of the Crimes Act 1914 (Cth) enables a Court when dealing with a Commonwealth offence to impose a sentence of periodic detention direct without having to first pass a sentence of imprisonment and then order that it be served by way of periodic detention. In this respect the Crimes Act 1914 (Cth) differs from the NSW legislation.
47 The sentence imposed by the judge failed to reflect adequately the objective gravity of the offence. It was manifestly inadequate. In the face of the medical evidence it was open to the judge to take the view that a sentence of full time custody should not be imposed. However, it was erroneous not to impose a sentence of periodic detention of 3 years. No non-parole period should have been fixed. This is not adequate punishment for a serious offence but it was pre-eminently the only solution in this difficult case. Such a sentence goes some way to reflecting the gravity of the offence and avoids significant damage to the child. The appellant's mother and her de facto husband (and the father) could have looked after the child while her mother was serving her weekend detention. The evidence as to the de facto husband suffering disabling sleep apnoea was tenuous.
48 The question remains as to what should now be done. The troubled history of three proceedings has resulted in a delay of about 17 months since Woods DCJ sentenced Ms Togias. The delay prior to that was the result of Ms Togias' application not to be sentenced prior to the birth of her baby. As a result of the delay she has now had the advantage of being able to rear her baby from birth until now, a period of nearly 20 months. It is true that she has had the stress of these proceedings continuing but that is more than offset by the benefit of not going to prison so far and not being separated from her baby.
49 The appellant has suffered jeopardy on four occasions. In addition to the welfare of the baby she has strong subjective features. Nevertheless the gravity of the offence remains as does the need to impose a sentence reflecting that gravity at least in part. Ms Togias should be sentenced to 3 years periodic detention. No non-parole period should be fixed as this is the least sentence that should be imposed. I have proceeded on the basis that Ms Togias would not be able to take her baby with her while she serves her periodic detention on weekends and that her mother and husband would care for the child on those weekends.
50 This case has revealed serious problems in the sentencing of mothers with babies. The medical evidence given in this case could probably be repeated in almost every case where a mother has a baby shortly before or after the commission of an offence and prior to sentencing. The Commonwealth Crown is concerned about drug dealers recruiting women of prior good character, as here, to act as couriers and then being met with the situation which has arisen in the present case. Both Federal and State authorities should anticipate that in the future expert medical evidence will be led to the same effect as in this case with possibly the same result. They may wish to consider whether in the interests of the administration of justice steps should be taken whereby the Court can be assured that a mother will be able to take her baby with her from the date of her sentence or first incarceration except, of course, where that would pose dangers to the mother or the child.
51 I propose that Ms Togias be sentenced to periodic detention for 3 years from a date to be fixed by this Court and that no non-parole period be fixed.
**********