Beal v R

1. [1]

   JOHNSON J: I agree with the reasons and proposed orders of Ierace J..

2. [2]

   N ADAMS J: I agree with Ierace J.

3. [3]

   IERACE J: This is an appeal pursuant to s 5AF of the Criminal Appeal Act 1912 (NSW) against the severity of a sentence imposed upon the appellant in the Drug Court, sitting at Parramatta, on 23 August 2019.

4. [4]

   On 25 October 2018, the appellant was referred by the Local Court to the Drug Court, pursuant to s 6 of the Drug Court Act 1998 (NSW) (“the Act”). She pleaded guilty to 14 offences and, on 21 January 2019, she received an initial sentence from the Senior Judge of the Drug Court, his Honour Senior Judge Dive. This was an aggregate sentence of imprisonment for 3 years, for eight of those offences. For another five offences she was convicted with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”) and for the remaining offence she was remanded for a period of 12 months, pursuant to s 11 of the CSP Act, conditional upon her being of good behaviour and complying with the Drug Court program. Indicative sentences were recorded for the offences for which the aggregate sentence had been imposed. At the time the 14 offences were committed, and at the time of the initial sentence, the appellant was aged 29.

5. [5]

   The sentence was suspended to enable the appellant to enter into the Drug Court program. The appellant failed to comply with its conditions and committed three further offences, leading to her participation being terminated. She came before Judge Mottley in the Drug Court on 23 August 2019 to be finally sentenced in respect of the 13 offences that were the subject of the initial sentence, as well as for the remanded matter and an additional three offences. Her Honour imposed an aggregate sentence of 3 years and 6 months with a non-parole period of 2 years, backdated to commence on 11 March 2019. Indicative sentences were expressed for all the offences for which the aggregate sentence was imposed.

6. [6]

   The 18 offences, together with the indicative sentences recorded by Senior Judge Dive and Judge Mottley, were helpfully listed in a table that is annexed to the respondent’s written submissions, as follows (omitting the column titled “Charge No”):

Grounds of appeal

1. [7]

   There are two grounds of appeal, the first being that the sentencing judge on final sentence erred by:

2. [8]

   The second ground is that the sentencing judge erred by:

The first 15 offences

1. [9]

   The appellant was initially charged with 15 matters. One of the charges, which was a backup to another, was withdrawn at the initial sentence hearing (Offence No 9 in the table). The 13 offences for which the appellant was initially sentenced (Offence Nos 1-4, 6-8 and 10-15) and the matter for which she was remanded (Offence No 5) may be grouped in terms of the dates on which they were committed.

2. [10]

   The first seven offences were committed on 7 June 2018. The appellant and a co-offender rented a car and were at the Pymble Hotel that afternoon. Upon leaving, the appellant stole a cover from a lounge chair: Offence No 1, larceny. The couple then drove to Turramurra where they entered a side courtyard to a residence through an unlocked gate and then ripped off a screen door in an attempt to gain access to the interior. The resident confronted them. The co-accused said: “Sorry mate wrong house” and the pair walked away. The resident followed. The co-accused turned to the resident, stating, “go away I’ve got a gun”: Offence No 2, aggravated break and enter with intent to steal.

3. [11]

   The pair then drove to Wahroonga, where they entered a dwelling through a door left open by the only occupant at the time, a 12-year-old boy. He had left his drone on the front lawn and from a bathroom inside, he had a view on his phone of the front yard from a live feed from the drone camera. He noticed someone walking past and then heard banging noises in the downstairs area of the house. He went to the top of a stairwell and saw the co-accused below, who said to him: “Your parents have done bad things, I am here to take their stuff”. The two offenders ransacked various rooms of the residence. The boy rang his mother who contacted police. The couple left with the boy’s schoolbag, the appellant first approaching the boy and telling him: “If you follow me I’ll come back and cable tie you and take you hostage”: Offence Nos 3 and 5, steal property in dwelling house, intimidate.

4. [12]

   The same afternoon, the appellant entered a motor vehicle that was parked in the driveway of a home in Wahroonga and stole a schoolbag and various items to the value of $950: Offence Nos 6 and 7, larceny and enter a vehicle without consent.

5. [13]

   That evening, the appellant broke into another residence in Wahroonga by removing a flyscreen and smashing a rear window. She stole an iPad, watches, wallets, a handbag, jewellery, cash, car keys and various other items to the total value of around $60,000: Offence No 4, break, enter and steal.

6. [14]

   On the night of 21 July 2018, or shortly after midnight, the appellant broke into an apartment in Liverpool by removing a flyscreen and pushing in a window, ransacked the apartment and stole various items of property including jewellery, electronics and clothing to a total estimated value of $7,600: Offence No 8, break, enter and steal.

7. [15]

   In the early hours of 12 August 2018, the appellant, accompanied by a female friend, stole her father’s car by removing his car keys from his residence without his permission: Offence No 10, take and drive conveyance. At about 1:55am the same morning, whilst driving her father’s vehicle, she collided with a parked car and then mounted the kerb and crashed through the front gate of a property and adjoining fence of another property, finally colliding with a second vehicle. She and other occupants of the vehicle fled the scene: Offence Nos 11 and 12, negligent driving, driver never licensed.

8. [16]

   On 10 October 2018, the appellant was stopped by police on alighting from a train at Warwick Farm Railway Station. She did not have a ticket or Opal card and gave false particulars. Police checked the details and found that no such person existed. When they attempted to arrest the appellant, she ran away, but ultimately tripped and fell: Offence Nos 13, 14 and 15, travel without a valid ticket, state incorrect name or address to authorised officer, resist officer in execution of duty.

The initial sentence

1. [17]

   Pursuant to s 7A(3) of the Act, on 21 January 2019, the appellant was convicted and sentenced. The sentence was delivered ex tempore.

2. [18]

   All 14 matters were within the jurisdiction of the Local Court but, pursuant to s 24 of the Act, the jurisdiction of the Drug Court includes the criminal jurisdiction of the Local Court. Neither party called evidence and no material was tendered on behalf of the defence, so that following the tender of the Crown bundle, the case proceeded directly to submissions.

3. [19]

   The solicitor appearing for the appellant made submissions in relation to the relative seriousness of the offences, the appellant’s early pleas of guilty, her disadvantaged background which included behavioural and mental health issues, and her drug history; she had used methamphetamine for the previous seven years and heroin for the previous two years. She had also been taking Xanax at the time of the offences.

4. [20]

   His Honour Senior Judge Dive firstly summarised the offences, noting that parity did not arise in respect of the first seven offences, since the appellant’s co-offender had not been dealt with. His Honour considered that a relevant exacerbatory consideration was that the three break and enter offences all involved residential premises.

5. [21]

   His Honour assessed the objective seriousness of the second offence, aggravated break and enter with intent, as below the middle range. His Honour assessed the break, enter and steal offence in relation to the second residential property at Wahroonga (Offence No 4) as being slightly above the mid-range, having regard to the amount of property stolen, and the break, enter and steal which was committed on the night of 21 July 2018 (Offence No 8) as falling below the middle range. The fact that the offences committed on 10 October 2018 (Offence Nos 13, 14 and 15) were committed after warrants had been issued, was described by his Honour as being “akin to being on conditional liberty”.

6. [22]

   The Crown conceded that the appellant was entitled to the full 25 per cent utilitarian value of her guilty pleas. His Honour assessed the appellant’s criminal history as limited, summarising it in these terms:

7. [23]

   His Honour accepted the submission by the appellant’s solicitor that the appellant was under the influence of drugs when the offences were committed, observing that on 7 June 2018, “Clearly she was in a very altered state”. His Honour also accepted that the appellant had:

8. [24]

   His Honour remanded the applicant for the offence of intimidation (Offence No 5 in the table) and dealt with what he described as the “lesser offences which carry fines” by way of s 10A of the CSP Act, which are Offence Nos 11, 12, 13 and 14 in the table. His Honour then gave the indicative sentences for the remaining matters, which are set out in the table, and the aggregate sentence of 3 years’ imprisonment. A non-parole period was not nominated, in accordance with s 7A(4) of the Act.

9. [25]

   Section 3 of the Act is as follows:

10. [26]

    The nature of the Drug Court program, as described on the Drug Court’s official website, insofar as it is relevant to this case, can be summarised as follows.

11. [27]

    The objective of the Drug Court program is to rehabilitate offenders who have drug dependency issues. Individual treatment programs are tailored to the specific needs of each participant. The treatment options include methadone and buprenorphine programs that may be conducted in either residential rehabilitation or community settings. The Drug Court works closely with community organisations such as “Wayback”, which is a charitable alcohol and drug rehabilitation service. The program takes a minimum of one year to complete, with participants transitioning through three phases: initiation, consolidation, and re-integration.

12. [28]

    In the initiation phase, participants are expected to reduce their drug use, stabilise their physical health and cease any criminal activity. They are to undergo drug testing at least three times a week and report back to the Drug Court once a week. If the participant is found to have taken drugs during the previous week, sanctions may be imposed, which include the withdrawal of privileges and imprisonment in a correctional facility. If the participant is found to have remained clean, they may be rewarded with privileges, such as decreased frequency of drug testing and supervision.

The fresh matters

1. [29]

   On 11 February 2019, the appellant was found to have a small quantity (0.2g) of methylamphetamine secreted in her clothing when she was being searched as part of the procedure of her being received into custody to be subject to sanctions applied to her as part of the program, for her persistent issues with drug use.

2. [30]

   On 6 July 2019, by which time the appellant had effectively abandoned the program, a warrant for her arrest was executed. She was sighted by two police officers outside an apartment where she was living. Upon seeing the officers, she ran inside. The occupant gave police access to the apartment, where she was located hiding under a mattress. The circumstances of her arrest led to two charges of resisting an officer in the execution of their duty. According to the uncontested police facts:

The final sentence

1. [31]

   At the time the appellant committed the three fresh offences, and at the time of the final sentence, on 23 August 2019, she was aged 30. The Crown case comprised the tender of the remarks on sentence by Senior Judge Dive, the appellant’s antecedents, material concerning her participation in the Drug Court program (the program chronology, drug test results and sanctions history), the facts for the three further offences, the transcript of the initial sentence proceedings and certain sentence calculations, to the effect that she had 103 days of pre-sentence custody as well as 14 days’ sanction whilst on the Drug Court program and 48 days in custody since her arrest, being a total of 165 days in custody, suggesting a commencement date of 11 March 2019.

2. [32]

   In 2007, two charges of robbery were proved against the appellant in the Children’s Court. For each, she received a bond without conviction, conditional upon 18 months’ supervision by Juvenile Justice, which included “counselling for drug/alcohol rehabilitation”. The following year, when the appellant was aged 19, she was convicted of assaulting an officer whilst in the execution of their duty and behaving in an offensive manner in a public place. For the assault officer offence, she received an 18 month good behaviour bond conditional upon her not being intoxicated in a public place. In 2010, she received an 18 month bond for assaulting an officer whilst in execution of the duty. The following year, she was called up on the bond. In 2016, she received a fine for an offence of dishonestly obtaining property by deception. Later the same year, she appeared in the District Court at Parramatta on two counts of assault occasioning actual bodily harm in company, receiving in respect of each a sentence of 18 months’ imprisonment with a non-parole period of 8 months, to be served concurrently. Later the same year, she received a 6 month bond for shoplifting.

3. [33]

   The appellant did not progress past the first phase of the Drug Court program. The interactions between the appellant and staff indicated that she struggled to comply with attendances and urine analysis obligations. Drug test results repeatedly indicated the presence of prohibited drugs that she had not admitted to taking, being primarily methamphetamine and morphine.

4. [34]

   The appellant’s solicitor tendered a recent report by a clinical psychologist, John Machlin, who has extensive forensic experience. Mr Machlin took a history from the appellant and had regard to the Drug Court participation notes, as well as the appellant’s record of convictions, sentences and appeals, her criminal history, the facts sheets for the offences and the initial sentence remarks of Senior Judge Dive.

5. [35]

   Mr Machlin recounted the appellant’s history. The appellant was born in Sydney, the third in a family of five children. Her parents separated when she was four years old. Her father was a heavy drinker who had spent time in custody. The appellant said that between the ages of seven and 11, she and two other family members were sexually abused by her mother’s then boyfriend. When the appellant disclosed the abuse to her mother, she did not believe the appellant. Her mother later remarried. The appellant initially did not accept her stepfather. From her perspective, he resembled the abuser, as both had the same ethnicity. Over time, the appellant has come to accept her stepfather as an honourable man. He remains married to her mother. She also said she had maintained contact with her father after he left the family and continues to have a close relationship with him.

6. [36]

   Mr Machlin referred to the appellant’s childhood as follows:

7. [37]

   The appellant said to Mr Machlin that her siblings have, for the most part, led more stable lives than she has, although a sister has suffered some drug and mental health problems.

8. [38]

   Mr Machlin recounted that the appellant has had two significant relationships, both highly dysfunctional and characterised by drugs and violence. The first was when she was aged 15–21. That relationship produced one child and the second resulted in two more children. The eldest and youngest were removed from the appellant at birth and the middle child was taken into care at the age of two years by the NSW Department of Family and Community Services (FACS) (as it then was). All three children are now in the care of the appellant’s mother and stepfather, for which she is very grateful. Mr Machlin said:

9. [39]

   The appellant told Mr Machlin that she remained fearful that her second partner would pursue her. At the time of the report, she was single.

10. [40]

    Mr Machlin recounted her history in relation to mental health:

11. [41]

    Mr Machlin noted that the appellant showed no sign of cognitive impairment or psychosis, although he did not attempt psychometric testing in view of the appellant’s acute emotions that she experienced throughout the assessment.

12. [42]

    As to her drug use, the appellant said she started using cannabis from age 11, apparently to self-medicate for anxiety. She developed ecstasy and amphetamine habits at times, but her drug of choice remained cannabis for many years. She turned to heroin use after her third child was removed from her at birth and conceded that she remains opiate-addicted. I note that her third child was born on 6 February 2018.

13. [43]

    The appellant’s understanding as to why she had failed the Drug Court program was limited. Mr Machlin said:

14. [44]

    By way of an explanation of the background to the recent offences, the appellant claimed to have been sexually assaulted two weeks after the birth of her third child, by two men who she believed had drugged her. She said she went “off the rails” and resorted to heroin use in combination with Xanax and Lyrica, which tended to put her in a stupefied state. She had only partial memory of the offences which were committed whilst she was intoxicated. Mr Machlin said:

15. [45]

    Mr Machlin’s preliminary diagnosis was of a substance use disorder. He also found that the childhood diagnosis of ADHD and the reported diagnosis of a bipolar disorder in 2011 were credible, although historical documentation was required for confirmation of both. In addition, he considered that:

16. [46]

    Mr Machlin’s conclusion was as follows:

17. [47]

    The appellant gave evidence. She confirmed that what she had told Mr Machlin was true and correct and gave evidence of the history of sexual abuse that he had reported. She also gave evidence of a suicide attempt when she was aged 12 and of being diagnosed at that time with severe anxiety and depression, for which she was treated with Avanza. She said the longest period that she was at school was from Year 1 to Year 4 and that she was in a special class in Year 2 because of her ADHD. She also confirmed the trip to Perth. On her return at age 14, she said she was “kicked out” by her mother and sent to live with a paternal aunt elsewhere in Sydney. She said that she could not live there because it was a bedsitter, and for a year and a half she lived instead with a sex worker. She confirmed her drug history and said that she had attempted the Odyssey House program at one point, lasting three months. Whilst on that program, a psychiatrist diagnosed her with having a bipolar disorder and severe anxiety.

18. [48]

    The appellant also confirmed that, in her view, two contributing factors to her failure to cease drug use whilst on the Drug Court program were, firstly, her concern for her sibling’s drug use, which led to her sister being hospitalised from a deliberate overdose on two occasions, and secondly, the imminent release from prison of her former partner, who was the father of two of her children.

19. [49]

    When asked how she felt now about having broken off contact with the Drug Court, she said: “I’m devastated, I should have come forward and asked for help and to be protected”. She described her father as: “My rock, I love my dad … He’s always been there, he’d buy my clothes when I got out of jail, like I’ve let him down big time”. In relation to the recent offences, she said that her former partner had assaulted her the week before the offences of 6 July 2019 and that she was under the influence of “heroin and pills”.

20. [50]

    Judge Mottley delivered her remarks ex tempore. The appellant received a 25 per cent discount for early guilty pleas that she entered to the three fresh matters. Her Honour found that the quantity involved in the possess prohibited drug offence was “towards the lower end of the scale of seriousness”, although it was aggravated by her being on the Drug Court program at the time and therefore subject to conditional release. In relation to the two counts of resist officer, her Honour found that “these are not serious examples of their type”, and that she had not resisted to any significant degree.

21. [51]

    In relation to the intimidation offence, her Honour recounted the facts and identified three aggravating factors: the offence was committed in the home of the victim, who was aged 13, and it was committed in the company of another person, both of them being strangers to the victim. I note that, according to the statement of facts, the victim was aged 12 years. Her Honour concluded that the offence “falls at about mid-range”.

22. [52]

    Her Honour outlined the appellant’s performance in the Drug Court program, as follows:

23. [53]

    Her Honour then turned to subjective matters, and canvassed the evidence in relation to the appellant’s background, including Mr Machlin’s report and the appellant’s evidence. Her Honour accepted the evidence of the appellant’s underprivileged background and her determination to overcome it:

24. [54]

    Her Honour found special circumstances, in recognition of the need to provide ongoing support, supervision and stability as the appellant transitions into the community.

The appeal against sentence

1. [55]

   The aggregate sentence that was imposed by her Honour pursuant to s 12 of the Act was in respect of both indictable and summary offences. Section 5AF(1) of the Criminal Appeal Act confers upon a person sentenced by the Drug Court the same right of appeal to the Court of Criminal Appeal as would be available under s 5AA to a person convicted by the Supreme Court in its summary jurisdiction. Section 5AF(3) provides that the power of the Court of Criminal Appeal to hear and determine an appeal from a person sentenced by the Drug Court pursuant to s 12 of the Act is to be exercised:

2. [56]

   The Chief Justice made such a direction in relation to the summary offences on 28 July 2020.

3. [57]

   Section 12 of the Act is as follows:

4. [58]

   The essence of the appellant’s case is that the term “reconsider” in ss 12(1) and (2) of the Act obliges the judge on final sentence to take into account the matters specified in s 12(2) and engage in a “resentencing exercise” of the offences that were the subject of the initial sentence.

5. [59]

   As to the meaning of the word “reconsider”, the appellant relied upon the definition in the Macquarie Dictionary (7th ed, 2017), which is:

6. [60]

   The appellant submitted that the absence of a “statutory appeal route” from an initial sentence imposed pursuant to s 7A of the Act is supportive of its proposition that the word “reconsider” must mean “resentence”.

7. [61]

   The appellant relied upon the references in the remarks by her Honour implying that the initial sentence was a starting point:

8. [62]

   The appellant acknowledged that her Honour specifically addressed the matters at s 12(2)(a)–(c) and that she had to “redetermine” the sentence pursuant to s 12 of the Act:

9. [63]

   In support of the proposition that her Honour did not “reconsider” the sentence, the appellant relied on the following three features of the remarks on the final sentence:

   1. (1)

      Her Honour only considered the facts of the three fresh offences and the offence for which the appellant had been remanded by Senior Judge Dive and considered only these three offences as their objective seriousness.

   2. (2)

      The same indicative offences were fixed by her Honour in respect of the earlier eight offences that were the basis of the aggregate sentence.

   3. (3)

      Her Honour did not express any sentence for the offences for which Senior Judge Dive had imposed s 10A convictions (pursuant to the CSP Act).

10. [64]

    The appellant submitted that, consequent to the error, she was deprived of the mitigatory effect of the subjective evidence in the final sentence proceedings being applied to the offences for which she had received an initial sentence. Although the submissions made on her behalf as to her background of deprivation at the initial sentence hearing were accepted by Senior Judge Dive, the evidence advanced on her behalf at the final sentence hearing would have had a greater mitigatory impact on her sentence for those matters, if she had been re-sentenced for them. The initial sentence includes, for example, an indicative sentence for the first offence, which was the larceny offence concerning the lounge cover, of 3 months’ imprisonment.

11. [65]

    The respondent submitted that her Honour had complied with her obligations pursuant to s 12 of the Act and that any impression to the contrary should be considered in light of three factors.

12. [66]

    Firstly, her Honour delivered the judgment ex tempore. The respondent relied upon a passage from this Court in R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, per Johnson J (McClellan CJ at CL and Hammerschlag J agreeing):

13. [67]

    The respondent submitted that this is a relevant consideration in respect of both the initial sentence and the final sentence. In any event, the respondent submitted, although his Honour had ranked the objective seriousness of the three break and enter offences on a range, he was not obliged to do so. The respondent relied upon Yeung v R [2018] NSWCCA 52 at [24], per McCallum J (as her Honour then was), Hoeben CJ at CL and Simpson JA agreeing.

14. [68]

    The second submission by the respondent is that the judgment of Judge Mottley followed the submissions made to her Honour by both parties in the sentence proceedings. The parties focused their submissions on the three additional offences and the remand matter, and neither suggested that the material tendered in the defence case warranted a reduction in the initial sentence. In written submissions, the respondent continued:

15. [69]

    The third submission is that one would expect the additional offences and the remand offence to be dealt with at greater length, since the applicant was being sentenced for them for the first time.

16. [70]

    The appellant responded to the respondent’s second submission by contending that, in the sentence proceedings, the Crown had led the judge into error, when it submitted that the sentencing judge should accumulate the new offences and the remanded offence so as to “increase the aggregate sentence that was imposed at the initial sentence”. The appellant submitted that the failure of the parties at the sentence hearing to submit otherwise did not alleviate the court from undertaking the statutory task of reconsideration.

17. [71]

    Central to the first ground of appeal is the meaning of the term “reconsider” as it appears in ss 12(1) and (2), and the terms “consider” and “determine” in the context of s 12(3), all of which are undefined in the Act. The terms in those contexts have not previously been the subject of consideration by a superior court.

18. [72]

    Section 33 of the Interpretation Act 1987 (NSW) is as follows:

19. [73]

    At the hearing, counsel for the appellant characterised the purpose of the initial sentence as a “Damocles sword” hanging over the head of a person participating in the Drug Court program. Having regard to the objects of the Act as stated in s 3, and pursuant to s 33 of the Interpretation Act and the scheme of the Act generally, in particular the power to impose sanctions and award privileges to encourage compliance with the program provided by s 16 of the Act, I accept that characterisation.

20. [74]

    The logical purpose of the initial sentence, which is “suspended” in view of the participant’s acceptance into the program, is clearly to set their sentence on the basis of the evidence before the court at that time, subject to their performance in the Drug Court program, so that they understand exactly what is at stake if they abandon the program.

21. [75]

    The full range of sentencing alternatives are made available to the final sentencing Court by s 12(3)(a), since Pt 2 of the CSP Act includes the most lenient of non-custodial sentencing options. Pursuant to s 34(2)(f) of the Interpretation Act, I have regard to the Second Reading Speech to the Drug Court Bill 1998 by the Minister for Police, the Hon Paul Whelan in the Legislative Assembly, who said:

22. [76]

    The proposition that the initial sentence is intended to be disregarded in the final sentencing exercise, in my view, is illogical and inconsistent with the object and scheme of the Act. The initial sentence would lose its potency as a warning of what awaits a participant who decides to abandon the program, if it is irrelevant to the final sentence. Such a proposition is also, in my view, inconsistent with the terms of s 12, which make clear the central role of the participant’s performance in the Drug Court program in reconsidering and determining the final sentence. The obvious meaning of “reconsider”, in that context, is to take into account the matters enunciated in s 12(2).

23. [77]

    The terms of s 12, in my view, do not exclude the Court also taking into account matters other than those identified in s 12(2), in determining the final sentence. There is no impediment in the Act to the Court handing down a different sentence for offences that were the subject of the initial sentence, in light of evidence or submissions advanced for the first time by the appellant in the final sentence hearing.

24. [78]

    I note that in this case, the solicitor for the appellant did address, at least in passing, the three most serious offences that were the subject of the initial sentence, stating:

25. [79]

    However, his submissions were not developed to the extent of seeking an application of the evidence tendered at the final sentence hearing to a reconsideration of the offences that were the subject of the initial sentence. Clearly there was scope to do so, even without the benefit of the evidence in the second sentencing hearing; in relation to the larceny of the (unvalued) hotel waiting lounge cover, it might be assumed from the indicative sentence of 3 months’ imprisonment that the sentencing judge had formed a view that the objective seriousness of that offence was significant, but in the absence of an explanation, it is not immediately apparent why that was so.

26. [80]

    In relation to the appellant’s submission that it is not possible to appeal an initial sentence, although there is not a direct path for an offender who is a participant in the Drug Court program to appeal an initial sentence, it is of no consequence, since inevitably there is a final sentence, which is appealable. To the extent that the final sentencing judge has not interfered with the sentence or sentences handed down in the initial sentencing exercise, they become appealable as part of the final sentence.

27. [81]

    Although I have reservations about the decision of the parties to not re-assess the initial sentence, I am of the view that her Honour did undertake her task pursuant to s 12 of the Act, and that my concerns arise more directly in the context of the second ground of appeal.

28. [82]

    Accordingly, I would dismiss the first ground of appeal.

29. [83]

    The relevance of childhood deprivation in a sentencing exercise is apparent from the majority judgment in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, at [43] and [44]:

30. [84]

    In my view, the evidence tendered at the final sentence hearing did warrant a reconsideration of the initial sentence, so that those offences could be re-assessed in light of the psychologist’s report, as fortified by the appellant’s sworn evidence. In particular, the appellant’s revelation that she was sexually assaulted between the ages of seven and 11 years explains her childhood anxiety, her suicide attempt as a young girl, her resorting to the heavy use of highly addictive prohibited drugs and thus relevantly, a lifestyle of relatively petty property crime and her ongoing difficulty in relinquishing that behaviour. The loss of her three children is both a further consequence and an additional imperative to that behaviour.

31. [85]

    As noted in Bugmy v The Queen, at [45], the impact of these considerations is not necessarily exclusively mitigatory of a sentence:

Resentence

1. [86]

   The parties to the appeal agreed that the final sentencing judge was misinformed by the parties as to the appropriate commencement date for the aggregate sentence, following a miscalculation as to the time that the appellant had been in custody. The agreed appropriate commencement date for a fresh sentence is 3 March 2019.

2. [87]

   The appellant relied on an affidavit as to her participation in courses offered in prison that address some of her issues. She completed two months of the addiction and aggression parts of the “EQUIPS” program (Explore, Question, Understand, Investigate, Practise, Succeed) in September 2019 but was moved to another prison before she could complete it. She has completed the first phase of a program known as “IDAPT” (Intensive Drug and Alcohol Treatment Program) and was due to complete the program by 7 August 2020. She completed other programs concerning hygiene, safe work practices, and also a sober driving program.

3. [88]

   The appellant has incurred four custodial infringements since she was finally sentenced. Records of the incidents generated by the Department of Corrective Services have been tendered. The incidents were as follows: failing to comply with correctional centre routine (6 September 2019), disobeying a direction, unlawfully delivering or receiving an article to or from an inmate and resisting or impeding a search (6 November 2019), fighting (6 December 2019) and a request sent by the appellant via mail for “5 oranges and some (heart)”, attaching a $100 note, apparently sent to a relative (19 May 2020). Her affidavit provided a largely exculpatory account of each of these offences.

4. [89]

   Counsel for the respondent submitted that on resentence, no lesser sentence is warranted, having regard to the number and seriousness of the offences. Although the appellant’s participation in programs whilst in custody is commendable, her prospects of rehabilitation, in view of her absence of commitment to the Drug Court program, remain low.

5. [90]

   Having regard to the table, in relation to Offence Nos 1, 7, 11, 12, 13 and 14, I would impose no penalty other than a conviction. In relation to Offence Nos 2, 3, 4, 5, 6, 8, 10, 15, 16, 17 and 18, I would impose an aggregate sentence of 3 years’ imprisonment, backdated to commence on 3 March 2019, and expiring on 2 March 2022. I would impose a non-parole period of 1 year, 9 months and 3 weeks, to expire on 23 December 2020.

6. [91]

   The indicative sentences that I would impose are as follows:

   1. (1)

      Offence No 2: 12 months’ imprisonment;

   2. (2)

      Offence No 3: 8 months’ imprisonment;

   3. (3)

      Offence No 4: 18 months’ imprisonment;

   4. (4)

      Offence No 5: 6 months’ imprisonment;

   5. (5)

      Offence No 6: 3 months’ imprisonment;

   6. (6)

      Offence No 8: 15 months’ imprisonment;

   7. (7)

      Offence No 10: 6 months’ imprisonment;

   8. (8)

      Offence No 15: 3 months’ imprisonment;

   9. (9)

      Offence No 16: 2 months’ imprisonment;

   10. (10)

       Offence No 17: 1 month’s imprisonment; and

   11. (11)

       Offence No 18: 1 month’s imprisonment

7. [92]

   The orders I propose are as follows:

   1. (1)

      Appeal allowed.

   2. (2)

      The sentence imposed by Judge Mottley on 23 August 2019 is quashed.

   3. (3)

      In lieu thereof, the appellant is sentenced to 3 years’ imprisonment, commencing on 3 March 2019 and expiring on 2 March 2022 with a non-parole period of 1 year, 9 months and 3 weeks, expiring on 23 December 2020.