AH v The State of Western Australia - [2014] WASCA 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 228

CORAM: MARTIN CJ
MAZZA JA
HALL J

HEARD: 27 AUGUST 2014

DELIVERED : 10 DECEMBER 2014

FILE NO/S: CACR 241 of 2013

BETWEEN: AH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :HERRON DCJ
File No  :KAR 24 of 2013

Catchwords:

Criminal law - Appeal against sentence - Appellant sentenced to imprisonment after aggravated burglary and breaches of community-based order - Whether imprisonment only available option - Whether sentence manifestly excessive - Whether general deterrence can be taken into account when sentencing mentally impaired accused

Legislation:

Criminal Appeals Act 2004 (WA), s 31, s 41(4)(a)
Mental Health Act 1996 (WA)
Sentencing Act 1995 (WA), s 6, s 39

Result:

Appeal allowed
Appellant re-sentenced

Category: A

Representation:

Counsel:

Appellant: Ms K J Farley SC
Respondent: Mr J A Scholz

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
REASONS OF THE COURT:

Summary

The prison populations of Western Australia, and Australia, continue to grow disproportionately to rates of reported crime.[1] Aboriginal people continue to be grossly over-represented in the Australian prison population, and Western Australia has a greater disproportion of Aboriginal prisoners than any other State or Territory. In Western Australia, the female prison population has grown at a significantly faster rate than the general prison population and the disproportion of Aboriginal women within that population is greater than the disproportion of Aboriginal men.[2] People suffering from mental illness and cognitive disability comprise a significant proportion of the prison population.[3] Young adults are also significantly over‑represented in the prison population.
[1] In both Western Australia and Australia the rate for some categories of reported crime is falling.
[2] Aboriginal women comprise approximately 47% of the female prison population, whereas Aboriginal men comprise approximately 40% of the male prison population. Aboriginal people comprise approximately 3.8% of the general population.
[3] Accurate statistics on this subject are hard to obtain because of the likelihood of under diagnosis. Estimates of the proportion of the prison population in Western Australia affected by mental illness and/or cognitive disability vary between 35% and 50%.
The appellant, AH, represents the personification of many of these criminological trends. She is a young (21 year-old) Aboriginal woman from the Pilbara whose childhood was characterised by dysfunction, dislocation, physical abuse, sexual abuse and exposure to substance abuse. She suffers from significant intellectual impairment and cognitive disability. She is almost completely illiterate and innumerate. Despite the history which she has given of alcohol abuse by her mother, she has never been assessed in order to determine whether she suffers from foetal alcohol spectrum disorder. She has never gained employment and currently lacks the skills to obtain any form of employment. She is particularly vulnerable to anxiety and stress which has been attributed to her traumatic upbringing.
After a relatively brief history of offending as a child, AH came to the attention of the adult criminal justice system as a result of a series of offences she committed shortly after turning 18. Her various disabilities and needs were identified in a report provided to the District Court and she was placed on a community‑based order in the expectation that the plans and proposals identified in that report would be implemented, thereby reducing the risk of her reoffending. However, none of those plans or proposals were in fact implemented. Instead, AH was subjected to requirements to report at particular times which were entirely unrealistic, having regard to her disabilities and her itinerant and unstable lifestyle. She reoffended.
After AH reoffended, further reports were prepared, reinforcing the observations made in the earlier report and further refining the plans and proposals which would reduce AH's risk of reoffending. In reliance upon those reports, and the reasonable expectation that the plans and proposals embodied within them would be implemented, AH was placed upon another community‑based order. However, in the six weeks which followed that sentence, AH was spoken to only once, immediately after the sentence was imposed. While the various agencies involved communicated with each other during that period, none of them actually did anything to provide any form of support or assistance to AH, who then reoffended.
The difficulty of providing services in regional Western Australia should not be under‑estimated. However, the townships of Roebourne and Wickham, which AH moves between, are not remote communities. They are located a relatively short distance from Karratha which is a major regional centre.
Another psychiatric report was prepared before AH came back before the court. It reinforced the observations made in the earlier reports, and again identified the various steps which should be taken in order to reduce the risk of AH reoffending.
When AH came before the District Court on the third occasion for sentence, the sentencing judge reasonably but erroneously assumed that steps had been taken to provide support and assistance to AH in line with the proposals contained in the earlier reports to the court, and that such support and assistance had failed to change her pattern of offending behaviour. He sentenced AH to an effective term of 2 years imprisonment. She received no beneficial training or treatment while in prison. To the contrary, because of her vulnerability to stress and anxiety, her mental condition deteriorated during her imprisonment, as it had on the previous occasions she had been incarcerated. Ultimately her condition deteriorated to acute psychosis, and by the time her appeal came on for hearing, she was an involuntary patient at the Frankland Centre, although this was not known to counsel or the court.

In this case it is difficult to escape the conclusion that there was an undue focus upon the preparation of reports and assessments for the court, and far too little focus upon the need to actually provide support and assistance to AH. The conspicuous failure of the justice system to provide AH with any of the support and assistance which she so clearly needed and which was identified in the various reports and assessments presented to the court not only failed AH, but also failed to protect the communities of Roebourne and Karratha. Had he been aware of the true facts, the judge sentencing AH should have concluded that, in the particular circumstances of her case, the best means of protecting the community and increasing the prospect of AH living a useful life would be to provide an opportunity for the plans and proposals which had been so clearly identified to be implemented while AH was living in a supportive environment within the community with orders to that effect. The sentences of imprisonment which he imposed should be set aside. Having regard to the period of time which AH has served, the significant deterioration in her mental condition probably caused or exacerbated by her imprisonment, and the positive steps to provide her with the support and assistance she needs which have been taken with the encouragement of this court, AH should be resentenced in a way that does not expose her to the prospect of further punishment.

The narrative

AH was born on 4 November 1993. The information which she has provided to those interested in her upbringing has been vague and to some extent inconsistent. We will refer below to the differing accounts which she has provided to those who have prepared reports provided to the court from time to time. However, it seems relatively clear that her childhood was disjointed and traumatic, and that she was subjected to physical and sexual abuse by family members and other members of the community. She is one of seven children born to her mother of different fathers. She had a difficult relationship with her mother which she attributes to her mother's alcohol abuse. Despite this history, and her evident intellectual and cognitive disabilities, it seems that no consideration has ever been given to the possibility that AH might be afflicted by foetal alcohol spectrum disorder. This is surprising. At all events, AH spent much of her childhood living with members of her wider family, including her grandparents, moving between residences in the Wickham/Roebourne area.
AH attended school until year 12, but did not enjoy the experience as she fought regularly with other students. It seems that she was a frequent truant, and emerged from the school system illiterate and innumerate. She has never been employed.

The Children's Court offences

AH's first recorded intersection with the criminal justice system occurred in July 2010 when she was 16 years old. She drove an unroadworthy vehicle without holding a driver's licence. Those matters were dealt with in the Roebourne Children's Court in August 2011. She was sentenced to 10 hours under a youth community behaviour order, and disqualified from holding a driver's licence for three months.
About two weeks after appearing in the Children's Court in relation to those matters, AH stole a motor vehicle and drove it without holding a driver's licence. She was a little under 18 years of age at the time. In early November 2011 she again appeared in the Roebourne Children's Court in relation to those matters. She received a small fine and was disqualified from holding a driver's licence for a further three months.

The first offences as an adult

In early December 2011, shortly after she turned 18, AH committed a series of offences which were dealt with in the District Court in Perth in August 2012. During the afternoon of Saturday, 3 December 2011 AH and a co‑offender discussed stealing a motor vehicle parked at an address in Roebourne. The owner of the motor vehicle was known to them. The co‑offender stole a set of car keys from the carport which permitted access to a Hyundai vehicle parked in the driveway. AH drove the vehicle to various parts of the Roebourne township, before leaving the vehicle next to a petrol station. The owner of the vehicle found it parked there and recovered the vehicle himself.
During the morning of 6 December 2011, AH and three others were standing at the front of a house in Wickham. AH walked into the front yard of the house while the others kept a lookout. She entered an unlocked motor vehicle parked in the front yard and stole a purse containing $1,600 in cash and a packet of cigarettes. She and the others she was with ran to a nearby house, where they attempted to hide the stolen money in various locations. The victim of the theft and her husband were able to recover approximately $1,000 of the money stolen and the purse. AH was arrested later that day and co‑operated fully with police, candidly admitting her role in the theft and admitting to spending approximately $50 of the money stolen before being apprehended. While interviewed by police, she also admitted the theft of the motor vehicle a few days earlier.
A few days later, in the early hours of 9 December 2011, AH and another entered a house in Roebourne through an unlocked sliding door. AH went into the bedroom where a man was sleeping, took his car keys and drove away in his car. The car was located that day on a rail access road in Roebourne. It was extensively damaged and the back window of the car had been shattered. The battery of the car had also been removed. AH denied causing the damage to the vehicle.
The car was discovered by the owner, who also located AH and took her to the police station. On the way to the police station, AH apologised to the owner of the vehicle, saying that she only took the car because she was bored. Following her arrest, she was remanded in custody, no doubt due to her unstable lifestyle, and detained in Bandyup women's prison until dealt with by the District Court in August 2012.

The first medical reports

In June 2012, AH was transferred from Bandyup to Royal Perth Hospital as a consequence of seizure‑like events which had increased in frequency over the period of three weeks prior to her transfer. The medical notes prepared during her stay in Royal Perth Hospital noted that AH had experienced similar seizures as a child which had been described as 'pseudoseizures'. It seems that these notes were available to the various practitioners who later prepared reports for the court, and perhaps also to the court.
EEG tests showed some degree of abnormality in the architecture of her brain and AH was treated with anti-convulsive medication.
The notes also record that review by a clinical psychologist and a psychiatrist elicited hallucinatory experiences that had caused AH significant distress while in prison. The notes expressed the view that these experiences may be psychogenic in origin - perhaps secondary to a traumatic upbringing.
The notes also record that neuropsychological review showed significant deficits in verbal skills, memory, executive function and academic skills - consistent with a mild-moderate intellectual disability. The clinical neuropsychologist expressed significant concerns with respect to AH's cognition and the level of risk which she posed in the community, and with respect to her capacity to understand the criminal trial process. The notes record the possibility of referring AH to the Disability Services Commission.
The neuropsychological report forming part of the hospital notes records that AH could count from one to 20 and recite the alphabet and days of the week correctly, although she could not recall all of the months, nor could she recall the months in correct order. She did not know the seasons and was unable to tell the time. Her level of single word reading was equivalent to grade 5 level, although her spelling was much weaker, being equivalent to grade 1 level. Her mathematical skills were very poor - equivalent to grade 1 level. Collectively, her literacy and numeracy were described as 'very poor'.
The neuropsychologist described AH's attention and working memory as very weak, and she demonstrated 'mild to moderate slowing' during the assessment of her processing speed.
The neuropsychologist noted AH's verbal skills were very limited, and her expressive vocabulary was considered to be in the 'extremely low' range. It was surmised that her written and listening comprehension would also be very impaired as a result of her poor vocabulary and limited reading skills. It was noted that her higher level executive functions were also impaired.
The neuropsychologist also noted that AH's responses to a series of questions relating to why bills need to be paid and why it was important to understand a document to which you applied your signature raised significant concerns with respect to her ability to function independently within the community. The notes also record significant concern with respect to AH's vulnerability to exploitation.
Overall, in the hospital notes AH is recorded as suffering 'significant generalised cognitive impairment on a background of limited literacy and numeracy.' Her IQ scores were considered to be consistent with a mild to moderate intellectual disability. She was thought to be extremely vulnerable to exploitation from others and her understanding of her own risky behaviour was limited.
A report from Ms Claire Lynn, forensic psychologist, was tendered to the District Court. In that report Ms Lynn described AH as a quietly spoken 18‑year‑old Aboriginal woman with a speech pattern which was slow and often hard to decipher, exacerbated by her tendency to omit and provide inconsistent detail. The author noted that AH portrayed herself as an isolated individual who typically chose not to talk to others.
Ms Lynn noted that AH was confused when asked to advise of the number of siblings she had. She reported that she had lived with her mother until about eight years of age, but was subsequently placed with grandparents as a result of her mother's alcohol abuse and violent behaviour towards her. Ms Lynn notes that AH denied that any sexual abuse took place during her childhood, but as will be seen, AH has provided different accounts to later enquirers.
The report notes that AH had not revealed her illiteracy to anyone, and had struggled through her school years without her illiteracy being identified or addressed. She claimed to have spoken to education staff at Bandyup about joining literacy classes, but was not clear about how or when that could be achieved. She appeared reluctant to reveal her illiteracy for fear of humiliation. She also expressed frustration, and considered that she would be unable to gain employment without literacy skills. She felt incapable of gaining employment, and typically spent her days with her boyfriend, friends and family while moving between Wickham and Roebourne.
Ms Lynn noted that following medical assessment, AH's seizures had been diagnosed as psychogenic in nature, and were not thought to be associated with epilepsy.
During the interview, AH asserted that 'the devil wanted her body for sex and she had been raped by the devil while alone in her cell'. She also stated that typically she spoke to no‑one while in custody - although she knew one person in the prison, she considered her to be aggressive and had no dealings with her. She had received one visit from family while at Bandyup, during their visit to Perth, but otherwise had only very limited contact with her family.
AH reported occasional use of alcohol and cannabis - the latter being consumed more frequently than the former.
When asked to explain her behaviour, AH told the author of the report that she was at a loss to account for her theft of the motor vehicles, although she noted that many other children were stealing cars and she felt that she should be like them. She also explained that the reason for one of the offences was that she stole a motor vehicle in order to get back to Wickham from Roebourne.
In the summary at the end of her report, Ms Lynn wrote:
[AH] failed to reveal the presence of strong role models or pro‑social influences within her community, the majority of whom she reported to use substances. [AH] reiterated her shame and embarrassment in relation to illiteracy, which predisposes her avoidance and inability to address this issue. This currently renders her less able to initiate lifestyle change. Her communication style and confusion during interview in conjunction with illiteracy further raised some question of low cognitive or intellectual functioning. This however was not currently tested for, given the specialised nature of such inquiry. Further confounding these issues are the presence of significant psychological issues (severe anxiety) and indications of psychiatric issues (psychosis). In relation to anxiety, [AH] would appear to suffer seizures which are psychologically induced, which therefore requires psychological intervention to manage these. This is provided currently while in custody, but the extreme nature of such a condition suggests that intervention will need to be long term. In relation to psychosis, the nature, severity and origin of this is unclear in the absence of medical records. This warrants investigation to ensure appropriate treatment. Regardless of origin, the presence of perceptual disturbance reveals the significant risk that any level of ongoing cannabis use would have upon her wellbeing and decision making processes. Overall [AH] presents with significant and complex criminogenic and clinical issues.
Recommendations
In light of the above stated issues [AH] would potentially benefit from the following:
·Psychiatric evaluation.
·Psychological intervention.
·Educational/vocational assessment and assistance.
·Substance abuse intervention and monitoring.
·Mentoring.

The first appearance in the District Court

On 24 August 2012, AH appeared in the District Court at Perth to be sentenced on two counts of stealing a motor vehicle, one count of aggravated burglary, one count of stealing, and one count of driving whilst disqualified as a result of the events in early December 2011. As we have noted, she was remanded in custody and had, by then, spent more than eight months in Bandyup. Noting that fact, both prosecution and defence each submitted that a term of suspended imprisonment was appropriate. However, Judge Derrick did not consider that the offences committed by AH were sufficiently serious to justify a term of imprisonment, noting that he could only impose such a term if it was the only appropriate disposition of the case.[4] During his sentencing remarks, Derrick DCJ referred to a pre‑sentence report which he had received which noted that AH's need for an appropriate community support system had been identified, but that the resourcing of appropriate services in regional areas was limited and that the services which met AH's identified needs may simply not be available during a period of community supervision. However, Derrick DCJ noted that the author of the pre‑sentence report concluded by observing that if the court considered that a community supervision order with a programme requirement was appropriate, community corrections personnel would attempt to monitor, encourage and support AH with services within the context of her transient lifestyle and the restricted availability of programmes.
[4] In accordance with s 6(4)(a) and s 39(3) of the Sentencing Act 1995 (WA).
Derrick DCJ imposed a community-based order for a period of 6 months with supervision and programme requirements. Given what subsequently transpired, Derrick DCJ's concluding remarks have a particular poignancy. He observed:
I acknowledge the comments made by the writer of the pre‑sentence report to the effect that where you live and your lifestyle may make it difficult for the department to take steps to attempt to help you to address even some of your issues, however, I do not think that it is appropriate to simply just throw one's hands up and effectively give up on you by leaving you entirely to your own devices. I think that some efforts, however limited, do need to be made to assist you to live safely and in a law‑abiding way in the community.
As will be seen, contrary to Derrick DCJ's entirely reasonable aspirations for AH, in the result she has been largely left to her own devices with the result that, unsurprisingly, she has continued to offend and her mental state has deteriorated significantly.

The breaches of the community‑based order

Information provided to the court subsequent to the first hearing of this appeal reveals that AH reported to Roebourne Adult Justice Services on 27 August 2012, three days after her appearance in the Perth District Court. She was directed to report again on 3 September 2012. However, she failed to report and a warning letter was issued. While it may be appreciated that there are limited options available to the corrective services authorities in situations such as this, sending a warning letter to an illiterate itinerant young Aboriginal woman with intellectual disability was an exercise in the utmost futility.
Apparently four subsequent attempts were made to locate AH through visiting her home. Contact was made on the fourth visit on 1 October 2012. Her whereabouts in the interim period were unknown and it is suggested that she was transient during that time. She was directed to report on 8 October 2012, but failed to report. Instead she reported on 9 October 2012, advising that she had slept in on the previous day. She was directed to report on 15 October 2012 but failed to do so and made no further contact.
The information provided to the court does not reveal what, if anything, transpired on the three occasions AH did make contact with the relevant authorities on 27 August 2012, 1 October 2012 and 9 October 2012. What is, however, relatively clear is that no assessment was made on any of these occasions of her suitability for any particular form of programme, nor was any beneficial intervention proffered to her. Any reading of the neuropsychological report produced to the court, or of the observations made by Derrick DCJ at the time of passing sentence, would have revealed the unlikelihood of AH attending appointments at fixed times, thus necessitating some other means for making contact.
In the result, during the period of this community-based order, no programmes were offered to AH. Further, there was no meaningful supervision of AH or assistance provided in organising stable accommodation or beneficial activities in which AH might engage, nor were any of the 'community support systems' which had been identified as necessary for her future well being provided to her. It seems that this conspicuous failure is attributed to AH's failure to report when directed to do so. However, having regard to AH's known circumstances and disabilities, that explanation is facile. Plainly, if AH was to be assisted in any meaningful way, and the community protected from the risk which she posed, something more than standard methodology was required, but it was not provided. Nor was any attempt made by the Department of Corrective Services to engage the assistance of the Disability Services Commission with a view to expanding the range and nature of the support and assistance provided to her.

Proceedings for breach of the CBO

On 17 January 2013, AH committed the offence of possessing a smoking utensil used for smoking a prohibited drug. On 9 May 2013, in the Roebourne Magistrates Court, AH pleaded guilty to that offence and was fined $150. That conviction appears to have triggered proceedings against her for breach of the community‑based order which had been imposed on 24 August 2012. Proceedings were also brought against AH for breaching that order by failing to report as directed on 8 October 2012. AH pleaded guilty to both breaches, as a result of which she was liable to be resentenced for the offences in respect of which the community‑based order had been imposed.
Prior to the resentencing hearing, a psychological report, a psychiatric report and two pre‑sentence reports were prepared and presented to the court. The psychological report was prepared by Mr Bart Wszola. He described her presentation as that of a vulnerable young indigenous woman who became easily confused when trying to recall historical information and who appeared to have poor insight into her behaviour and psychological functioning. In his view, she appeared to present with low cognitive or intellectual functioning and there was evidence of the presence of underlying psychological issues.
During her interview with Mr Wszola, AH reiterated that she separated from her mother as a consequence of her mother's alcohol abuse and violent treatment of her. Contrary to the statement she had made to Ms Lynn, AH told Mr Wszola that she had been sexually abused by a family member who continued to make advances toward her. Mr Wszola concluded from other comments made by AH that when she was younger she was the target of sexual predators who offered her financial rewards in exchange for sex. She assured Mr Wszola that she was no longer willing to engage in such activity because she now had a boyfriend. However, Mr Wszola noted that according to reports from AH and information available to the Department of Corrective Services, her boyfriend was physically abusive towards her. Mr Wszola inferred that she was prepared to accept such behaviour because the presence of the boyfriend served to protect her from the sexual advances of other males within her community. Prior to completing his report, Mr Wszola obtained further information to the effect that the boyfriend was in custody as a consequence of assaulting AH, which he considered would make AH more vulnerable to sexual predators. She had given Mr Wszola recent examples of two males trying to rape her and of an older male who had offered her money in exchange for sex.
Mr Wszola administered an abbreviated intelligence assessment using performance scales which do not rely on verbal abilities and which were therefore less likely to disadvantage a person with limited education or from a culturally diverse background. AH was assessed to be in the borderline range with respect to reasoning, spatial processing and attentiveness to detail, having a score lower than 97% of adults of the same age.
Mr Wszola concluded from AH's presentation that she had low cognitive or intellectual function and that although AH did not fulfil the diagnostic criteria for post‑traumatic stress disorder, she did appear to be exhibiting symptoms of unresolved trauma as a result of her childhood history of abuse and neglect.
Mr Wszola observed that AH's low level of intellectual or cognitive function may translate into an impaired ability to problem solve, think consequentially and/or plan. It was also his opinion that AH had deficits in the area of emotional regulation exacerbated by her history of childhood trauma which, in practical terms, left her with a strong aversion to being left alone because she did not feel safe and experienced a fear of being attacked.
Mr Wszola observed that one of the challenges of AH's case was that her significant treatment needs may be difficult to target due to her poor level of insight and possible low cognitive functioning. Nevertheless, in his view, engagement in counselling with the aim of developing better coping skills and educating her about safety behaviours would decrease her risk of further victimisation and was recommended by him. He also observed that engagement with any positive activities, whether they be educational, vocational or recreational was likely to benefit her.
In the summary and conclusion of his report, Mr Wszola observed:
AH presented as a vulnerable Indigenous woman with complex treatment needs in areas relating to:
·Past trauma history.
·Poor coping and emotional regulation skills.
·Possible low intellectual functioning.
·Limited social supports and exposure to negative peers.
Ideally AH would engage with a departmental psychologist to develop better ways of managing her emotions and trauma related symptoms. Although this may be difficult to achieve due to her poor psychological insight and low cognitive functioning she is still likely to benefit from engagement in some form of counselling. Furthermore, assessment and/or engagement by community mental health services may also be of benefit.
Due to the complex nature of her issues AH is likely to require a level of assistance and support that is not likely to be available in her relatively isolated community. However, as stated above she is likely to benefit from engagement with any positive activities whether these be educational, vocational, or recreational.
A psychiatric report was prepared by Dr Siva Bala. He noted that during her childhood AH suffered seizures which were diagnosed as being non‑epileptic in nature and which were thought to be the product of an underlying anxiety disorder. In the notes relating to her prior treatment it was recorded that she had described multiple fits that occurred every few minutes when she was under stress. The notes also recorded the presence of scars on AH's body due to assaults inflicted on her by others, including her mother.
Dr Bala noticed that in August 2011 AH was referred for treatment under provisions of the Mental Health Act 1996 (WA)[5] as a consequence of threatening self-harm following a seizure in hospital after she had been admitted with pneumonia.
[5] Pt 3, Div 1.
Dr Bala also noted that following her admission to Royal Perth Hospital, EEG monitoring showed abnormalities suggestive of complex partial seizures (a type of epilepsy that involves only one part of the body rather than the whole body) and anticonvulsant drugs were prescribed. Dr Bala assumed that following her return to prison and subsequent discharge, she was unlikely to have continued receiving the anticonvulsant medication notwithstanding her need for it.
Dr Bala also noted that the medical notes prepared during AH's admission to Royal Perth Hospital proposed that she might be referred to the Disability Services Commission. Dr Bala was not aware whether this had occurred. It seems clear that it had not.
Dr Bala noted that AH was reportedly subjected to repeated sexual assaults from childhood onwards and that from a young age she seems to have engaged in sexualised behaviour where sexual activity was exchanged for financial rewards. She has also experienced domestic violence. Community Corrections reported to Dr Bala that she was currently living in the residence of a recognised sex offender.
Dr Bala diagnosed AH as suffering from an unspecified anxiety disorder. He observed that her cannabis use may be a way of dealing with anxiety. He observed that her history of learning difficulty, poor literacy, and inability to master and maintain normal social relationships and assume adult tasks suggested a diagnosis of intellectual disability on clinical grounds. He noted the results of the earlier psychometric testing, and referred to deficits in a number of areas including comprehension, planning, judgment, capacity for abstraction and memory. In his view, the disability with which AH had been diagnosed conformed to an IQ level between 55 and 70.
Dr Bala concluded that AH suffered from seizures that were both epileptic and non‑epileptic in origin - the latter being a manifestation of factitious disorder - a condition in which individuals feign physical or psychological symptoms in order to elicit care, sometimes as an extension of a real underlying illness.
Dr Bala also noted that AH appeared to have been groomed for sexual exploitation, given her intellectual disability, and had not been able to manifest appropriate defences, in terms of protective behaviours, but rather had become enjoined in the exploitative behaviour as a way of eliciting care and having some of her needs met.
Dr Bala observed:
[AH]'s intellectual disability generally impacts on her ability to make good decisions and this is likely to be a mitigating factor in her offending, even though she is not of unsound mind. Her offending reflects her unstructured lifestyle, her vulnerability to exploitation and influence by others and limited ability to consider other meaningful options. The best way of mitigating future offending is to set her up in a structured environment which may be able to support her and protect her from predatory males or negative peer groups who may incite her to commit antisocial activities.
Dr Bala recommended that AH would benefit from psychiatric treatment, although he noted that because she was not engaged with the disability services sector, she was not receiving any such services. He suggested that consideration should be given to referring her to the Disability Services Commission with a view to arranging some level of support and supervision. He recommended:
In the interim, all efforts need to be put forth in trying to recruit stable parent or carer figurers [sic] who might be able to remove [AH] from her current environment and place her in a more stable and secure one. I also feel that [AH] should have a guardian and administrator appointed to manage her affairs and make decisions on her behalf regarding her health and welfare, given her impaired capacity.
Dr Bala noted that there were limited services available in the Pilbara region but nevertheless recommended that AH see a psychologist and be encouraged to explore opportunities to spend her time more constructively and in a structured manner. He recommended that she needed to be seen by her general practitioner in Roebourne and an assessment made of her need for anticonvulsant medication.
Dr Bala concluded with a recommendation that if AH was given a non‑custodial sentence:
I recommend a case conference meeting between corrective services, family and carers, [AH], disability services and the general practitioner at Mawrankarra health service about what local options may be available. The general practitioner could initiate a referral to disability services if this has not already occurred. The general practitioner could also make an application for guardianship and administrator if considered appropriate. A community disposition may be a more humane option, given [AH]'s deficits in social communication and relationships and her inability to relate in a normal manner to other people. She may be exploited and vulnerable in prison or may react in an angry, aggressive fashion, both of which would do her a disservice.
I feel that the prognosis is guarded, given [AH]'s significant deficits, vulnerabilities and the lack of supports in the community. She seems to lack the capacity for insight and therefore needs external agencies and professionals to support and monitor her.
Two pre‑sentence reports were prepared - the first in anticipation of a hearing in May 2013, and the second after Dr Bala's report had been prepared and presented. The first report[6] records that AH was spoken to at court on 18 January 2013 where she was directed to attend the Community and Youth Justice Services office. She failed to attend but reported unscheduled on 30 January 2013, when she was directed to attend on 6 February 2013. She again failed to attend and made no further contact prior to the expiry of the order. The observations we have already made with respect to the obvious improbability of AH attending scheduled appointments apply equally to this sequence of events.
[6] Dated 26 April 2013.
The first report also suggested that AH might benefit from further psychiatric assessment, which no doubt led to the engagement of Dr Bala. It was noted that previous psychological reports suggested that AH would benefit from psychiatric evaluation, psychological intervention, development of better coping skills and educational/vocational assistance. In that context, the report noted that availability of psychological assessment and treatment in Roebourne was uncertain, and that while it was evident from the psychological reports that intensive intervention was required, it could not be guaranteed at that stage. The report also proposed that engagement in educational and vocational programmes would also be encouraged through a period of community supervision, although AH's likely engagement was questionable based on her level of engagement during her previous community‑based order and her low cognitive function. The report also proposed that AH's engagement with community mental health would be assisted and monitored.
The first pre‑sentence report concluded by recommending that engagement in psychological intervention was strongly encouraged to enable AH to address the treatment needs identified in the psychological report. It suggested that if AH was given a further opportunity to engage in community supervision, she would be referred to appropriate services for assessment and treatment and her engagement in assessment and treatment would be monitored, including her engagement with community mental health services. As will be seen, this did not happen, even though AH was made subject to a further community‑based order as the author of the first report recommended.
The second pre‑sentence report[7] was prepared after Dr Bala's psychiatric report had been made available. The author of this report observed that:
[I]ndividuals with Intellectual Disabilities are particularly challenging to manage in the community, largely because the access to services to assist [AH] are on a voluntary basis. Discussions with the Intellectual Disability Diversion Programme Coordinator on 8/07/2013 at Mawarankarra Health Service on 27/06/2013 confirmed there are limited services available in the Pilbara to assist and support [AH] and once again are of a voluntary nature. Careful consideration must be given as to how best to manage [AH] if she is given a communitybased disposition as risk of non-compliance is likely to be high. In light of her history of mental health and lack of regular involvement with health services any progress made in relation to addressing her offending behaviour may be impeded given that she does not comply with medication.
…
[AH]'s offending behaviour would best be targeted through individual psychological counselling to explore her impulsivity, cognitive and consequential thinking deficits. It is noted that [AH]'s personality and psychiatric function may impede her meaningful participation in interventions. Treatment gains identified during psychological counselling could be monitored by Adult Community Corrections.
[7] Dated 10 July 2013.

The second pre‑sentence report concludes:
All sentencing options have been considered and discussed with [AH]. However considering she is non compliant with medication and health services she is likely to prove challenging from a supervision prospective [sic]. Notwithstanding the aforementioned issues, [AH] is not deemed a suitable candidate for community supervision and it is respectfully requested the court consider imposing an alternative sentence.
Should the court deem an immediate term of imprisonment to be the only option, [AH] is deemed a suitable candidate for parole eligibility in which she could be assessed at a later stage.
These observations are a little difficult to follow. The first sentence suggests that supervision in the community would be challenging, and the second sentence asserts that 'notwithstanding' those matters, she is not a suitable candidate for community supervision. However, the next sentence proposes that she is a suitable candidate for parole eligibility, which, of course, involves community supervision if parole is granted. No explanation is profferred as to why the community supervision recommended in the pre‑sentence report prepared 10 weeks earlier was no longer considered appropriate.

The breach hearing

The proceedings brought against AH for breach of the community‑based order came before Judge Deane sitting in the District Court at Karratha on 22 July 2013. At the commencement of the hearing, counsel for AH reported that AH had suffered a fit before the court hearing while she was waiting outside the court, as a result of the anxiety she was experiencing.
Counsel for AH advised the court that she had been in communication with Community Justice Services who had advised that they would be willing to spend more time than usual in securing contact with AH, given their knowledge of the disabilities she had. Counsel for AH also agreed with Judge Deane's suggestion that it would be desirable to contact the Disability Services Commission. Counsel for AH also endorsed Dr Bala's suggestion that a case conference involving representatives of all relevant agencies would be desirable. Counsel also submitted that if another community‑based order were imposed, it should not include a supervision requirement, because of the inevitability of breach, given that she was proposing to live in Wickham and the Community Justice Office was in Roebourne.
In the course of argument, Judge Deane proposed that it would be desirable for all relevant agencies to take a collaborative approach, and that leaving it to AH to refer herself to a relevant agency, such as the Disability Services Commission, would be too big a challenge for her.
During the course of her sentencing remarks, Judge Deane referred to that portion of the pre‑sentence report which preceded AH's last appearance in the District Court in which reference was made to the fact that AH would need a lot of help to deal with her psychological, mental health, educational, vocational and substance abuse issues. Judge Deane noted that limited resources and the remote area in which AH was living created a problem with respect to the provision of those resources. It does not appear that Judge Deane was aware that, in fact, apart from the attempts to secure AH's attendance at appointments, which were always likely to fail, no resources had been applied to address any of the issues which had been identified in the reports which were before the court on the last occasion she appeared.
After referring to the salient features of the psychological, psychiatric and pre‑sentence reports which had been presented to the court, Judge Deane observed:
The psychiatrist is of the opinion that the best way of stopping your offending in the future is to put you in a structured environment where you will get support and protection and you will be kept occupied and you will learn some skills that will help you to function a little better in the community. You might benefit from psychiatric treatment but that would involve you being co‑operative and the treatment would have to be tailored to your very particular needs and abilities.
So that's why it has been suggested that you should be referred, if possible, to the local [D]isability [S]ervices [C]ommission, to see if they can help you with some support and supervision in the community. The psychiatrist also feels that you should have a guardian and administrator appointed to manage your affairs and to help you in your decisionmaking and in particular, to assist you with making decisions in relation to health and welfare matters.
A very detailed plan is set out in the psychiatric report, not only in relation to what the psychiatrist regards as your current treatment needs, but also as to what is suggested by way of follow up and possible dispositions.
In the end, the psychiatrist was of the opinion that your prognosis is guarded, particularly in the light of your significant deficits, vulnerabilities and lack of current support in the community. As you apparently lack the capacity to put insight and the need for external agencies and professionals to be involved in your support, it is particularly important.
It's clear that you do have ongoing and very important treatment needs and if at all possible they must be met and there must be some form of rehabilitation if that can be achieved. Despite the tone of the most recent pre‑sentence report before the court, which isn't particularly encouraging in the light of your particular problems and performance in dealing with community justice while on your previous order, it seems to me that the only appropriate method of dealing with you is to put you on another community based order with program requirement - no supervision and no community service work.
The order will be for six months which is a short period of time, but I'm doing that because it's going to be very difficult for you, and it's going to be very challenging.
The order will be for six months starting from today, with a program requirement. So that means people are going to be coming and talking to you about seeing doctors and seeing counsellors, and taking tablets, and seeing if they can help you get a job or help you with the problems that you've got in your life. So you are going to get some help to make your life better. But you have to cooperate with the people who are helping you. Do you think that you can do that?
AH answered affirmatively. Judge Deane concluded the hearing by requesting AH's counsel to assist in arranging for her to attend at the community justice office.
Regrettably, none of the things which Judge Deane foreshadowed in her sentencing remarks came to pass. What actually occurred was that AH went to the Community Justice Services office immediately following her court appearance. The conditions of the community‑based order were explained to her. She was not given a further direction to report to the office because there was no supervision requirement. She was told that referrals would be made for programmes that she was to undertake and she would be contacted when appointments for those referrals had been made.
On 25 July 2013, officers of Community Justice Services met with Mawarankarra Health Services (MHS) to discuss AH's identified risk and need factors. In the course of that meeting reference was made to a possible referral to the Disability Services Commission. The meeting concluded on the basis that the information would be considered and a health plan prepared by MHS.
On 16 August 2013, MHS advised Community Justice Services that Dr Hoff had reviewed AH's psychiatric and medical records and determined that a referral would be made to the Disability Services Commission. There was also discussion with respect to the prospect of seeking an appointment of a guardian for AH, as had been recommended by Dr Bala. It was noted that Centrelink was assessing AH for the provision of a Disability Support Pension.
We digress to observe that none of these proposals were new. The need to refer AH to the Disability Services Commission, the need for counselling and psychiatric attention, the desirability of appointing a guardian, and the need for support and accommodation had all been addressed in the reports prepared before AH's first appearance in the District Court, and had been reiterated in the reports prepared before her most recent appearance.
Worse still, in fact little or nothing was done to advance or implement the proposals discussed on 16 August 2013. While it is possible that some contact was made with the Disability Services Commission, it seems that no significant progress was made in enlisting the support of that Commission. No appointments were made for AH to attend either psychological or psychiatric counselling, and no steps were taken to appoint a guardian over her affairs. No steps were taken to try to arrange accommodation in a secure and supportive environment, as had been recommended in the reports. In fact, no attempt was made to contact AH at all.
Perhaps unsurprisingly, AH reoffended on 2 September 2013. By then six weeks had passed since she had presented herself to Community Justice Services immediately after being sentenced by Judge Deane and, as we have noted, during that period no steps whatever had been taken to actually provide the support and assistance which was so clearly identified in the proceedings before Judge Deane or to contact AH at all.
The circumstances of AH's further offending were as follows. Between 6.30 and 7.10 pm on 2 September 2013, AH entered an unlocked vehicle on the verge of a house at Karratha. She found a key to the vehicle in the centre console and started the vehicle. The owner of the vehicle heard the sound of her car starting and ran from the back of the house. The vehicle stalled and the owner reached in and removed the keys from the ignition before telling AH to get out of the car. AH left the vehicle and apologised to the owner before leaving.
A little later that evening, AH, who was intoxicated, entered another house in Karratha through the front door which was unlocked. She found a spare key to a vehicle on the hallway stand inside the front door. She used the key to enter and steal the vehicle, but only managed to drive it a few hundred metres before crashing into a light pole. Approximately $30,000 worth of damage was caused to the vehicle, which was written off by its insurer. AH was apprehended by police at the scene of the accident.
AH was charged with aggravated burglary, stealing, attempting to steal a motor vehicle, stealing a motor vehicle, driving without authority, and driving under the influence as a result of this sequence of events. She appeared on those charges in the Karratha Magistrates Court on 4 September 2013. She was granted bail on conditions.
On 5 September 2013, MHS advised Community Justice Services that the Disability Services Commission were unwilling to assess AH unless they were given some reassurance that she understood the voluntary nature of their services. The obvious difficulties involved in AH demonstrating that understanding were discussed. MHS advised that a support worker had been allocated to AH's case to assist with providing her with support and encouragement to attend appointments and assessments in the hope that this would facilitate the assessment process by the Disability Services Commission. However, there is nothing to indicate that any contact was in fact made with AH, nor any appointments or referrals or assessments arranged.
Before any of these things happened, AH again offended. On the early evening of 9 September 2013, while intoxicated, she entered a house in Roebourne via the unlocked front door. She found keys to a motor vehicle on the kitchen table and used the keys to steal the vehicle parked in the driveway of the premises. She drove the vehicle to the house where she was staying in Wickham and parked the vehicle on a dirt track behind that house. Police located the vehicle a short time later and AH was arrested. During an interview with police she stated that she stole the vehicle because she was tired and wanted to go home.
As a result of those offences, AH was charged with aggravated burglary, stealing, stealing a motor vehicle and driving without authority. On 10 September 2013, AH was remanded in custody, although she was released to bail on 3 October 2013 on condition that she reside at a youth accommodation service.
On 5 October 2013, AH was charged with possession of cannabis and remanded in custody until she appeared before the District Court in Karratha on 25 November 2013, when she was sentenced to a term of 2 years imprisonment backdated to 16 September 2013. That is the sentence under appeal.

Another neuropsychological report

Prior to AH's appearance for sentence at the District Court in Karratha, another neuropsychological assessment was prepared and presented to the court. The information before this court does not reveal why such a report was thought necessary, given the previous reports which had been prepared and presented to the court, but not acted upon. At all events, Dr Vuletich, a clinical neuropsychologist, assessed AH and prepared a report recording her observations. In that report she recounted the history which she had taken from AH which included assertions of sexual abuse during her childhood.
Dr Vuletich recorded her observations of AH's intellectual impairment, illiteracy, cognitive slowing and executive dysfunction in very similar terms to those expressed in previous reports, loosely summarised as widespread cognitive difficulty and intellectual impairment. The risks to which AH was subject were also expressed in similar terms to those used in previous reports. Dr Vuletich's report concluded:
Based on these factors, [AH]'s likely current needs relate to:
·reduced insight
·limited capacity to reason through complex problems
·lack of educational opportunity
·lack of employment and stable accommodation
·social and emotional vulnerability
·factors associated with her substance abuse
·medical management of her epilepsy and ? possible undiagnosed psychiatric condition (including related to ? auditory command hallucinations)
On the basis of the available history and current assessment results, the following recommendations are made:
·Ongoing close medical management.
·Further psychiatric review in the context of reported auditory hallucinations and documented anxiety
·Consider an adapted program(s) to support [AH] in acquiring self‑management skills necessary to reduce her recidivism. Development of general protective behaviours would also be encouraged. It will be necessary to take into account [AH]'s needs related to cultural, as well as intellectual factors.
·Ongoing efforts to support her abstinence once she is released into the community.
·Consider facilitating engagement with the Disability Services Commission upon release.
·Consider whether there is need for formal oversight and management of health/lifestyle and financial decisions to further protect her upon her return to living within the community
There is an obvious sense of déjà vu arising from assessments and recommendations cast in these terms. They are substantively identical to the assessments and recommendations which had been made in reports presented to the District Court on the two prior occasions AH had appeared before that court. In AH's case there was no shortage of reports, assessments and recommendations. What was missing was any action or oversight to implement those recommendations.

The sentencing hearing

AH came before Judge Herron sitting in the District Court at Karratha on 25 November 2013 to be sentenced for the offences which she had committed on 2 September and 9 September 2013, and to be resentenced for the offences upon which she had been sentenced to a community‑based order, as a result of her breach of that order. In the course of her plea in mitigation, counsel for AH advised the court that the attempt to steal the motor vehicle, and the theft of the motor vehicle on 2 September 2013 occurred because AH was trying to get home to Wickham from Karratha and had no other means of transport available to her. The offences she committed a week later were committed for the same reason.
Counsel for AH related the history of the case to Judge Herron, and in the context of considering the alternatives then available to the court, and in particular, the prospect of a further community‑based order as compared to a term of imprisonment to be immediately served, asked rhetorically:
[I]f your Honour was to impose a term of immediate imprisonment today, what do we do with [AH] … when she comes out of jail and none of this has been fixed?[8]
For the reasons given below, that was a particularly pertinent question.
[8] ts 14.
When Judge Herron responded by referring to the prospect that a term of immediate imprisonment might deter AH from further offending, counsel responded by referring to her intellectual impairment and cognitive disability.
Counsel for AH submitted that through no fault of AH 'she has fallen through the cracks'[9] although understandably she was unable to elaborate that submission by reference to the information which has now been made available to this court. However, it is clear from that information that the submission was justified.
[9] ts 15.
Counsel for AH also drew attention to the apparent association between AH's incarceration in Bandyup and the development of psychosis accompanied by auditory hallucinations. Tragically, subsequent events have reinforced the likelihood of that association.
In the course of his sentencing remarks, Judge Herron observed that AH had reoffended 'despite now being given two opportunities to address your offending behaviour'.[10] It seems clear that his Honour was not aware that the expectations expressed by Judge Derrick and Judge Deane as to the steps that would be taken during the currency of the community‑based orders which each imposed in order to reduce AH's prospects of reoffending had not been fulfilled and that, in fact, all that had occurred in total was:
(a)AH had been required to attend appointments at specified times, when it was apparent from the reports relating to her disabilities that it was most unlikely she would have the capacity to attend such appointments at the allotted times without assistance, and in one instance she was given a warning letter when she is known to be illiterate - in other words, little or no account appears to have been taken of AH's circumstances in assessing the regime that was to be applied to her needs and requirements;
(b)some of the agencies communicated with each other about what they might do for AH, without actually doing anything for her;
(c)contact may have been made with the Disability Services Commission, but apparently without effect.
None of the therapeutic interventions contemplated in any of the many reports written with respect to AH were ever implemented in any way.
[10] ts 25.
In the course of his sentencing remarks, Judge Herron expressed the view that general deterrence was an important sentencing consideration.[11] However, it must be observed that AH was not an appropriate medium by which to provide an example to others, given her intellectual impairment and cognitive disabilities - see Muldrock v The Queen.[12]
[11] ts 26.
[12] [2011] HCA 39; (2011) 244 CLR 120.
Judge Herron referred to a submission by AH's counsel to the effect that if a non‑custodial penalty was imposed, the support of the Disability Services Commission and other relevant agencies could be enlisted to reduce AH's prospects of reoffending. His Honour observed that the difficulty he had with that submission was that very similar submissions had been made to each of Derrick DCJ and Deane DCJ and that 'matters have not advanced any further since then'.[13] It seems clear that Judge Herron was not aware that the reason why matters had not advanced was the inactivity of the agencies responsible for their advancement, given that it would have been quite unrealistic to expect AH to take responsibility for the arrangement of those supports herself. In this context it is significant that despite a number of references to the desirability of appointing a guardian for AH, no action had been taken in that regard.
[13] ts 27.

In the context of rehabilitation, Judge Herron observed 'regrettably I have come to the conclusion that I don't think any further attempts at rehabilitation are going to assist'.[14] Again, it seems clear that his Honour was unaware that, in fact, there had been no meaningful attempts to rehabilitate AH through the implementation of any of the steps recommended in the various reports prepared in relation to her.
[14] ts 27.
Similarly, Judge Herron observed that AH had 'not benefited from the community based orders previously imposed',[15] apparently unaware of the reasons why she had derived no benefit from those orders.
[15] ts 28.
In the result, Judge Herron imposed a number of terms of imprisonment in relation to the various offences with which he was required to deal. For present purposes it is not necessary to recount the particular sentences imposed. All sentences of imprisonment were directed to be served concurrently, apart from the sentences of 12 months imprisonment imposed on each count of aggravated burglary, which were required to be served cumulatively, giving a total effective sentence of 2 years imprisonment. The sentences of imprisonment were backdated to 16 September 2013 to take account of time spent in custody prior to sentence.

The first appeal hearing

AH's appeal was listed for hearing on 22 July 2014. During the course of the hearing, members of the court expressed concern in relation to a number of aspects of the case and requested information as to whether:
(a)any assessment had ever been made of whether AH was suffering from foetal alcohol spectrum disorder, given the reports of her mother's alcohol abuse;
(b)whether the agency responsible for the enforcement of the community‑based orders imposed upon AH had taken any steps to implement the various therapeutic proposals contained in the reports presented to the courts which imposed those orders, or indeed whether anything had been done to reduce the likelihood of AH reoffending during the currency of those orders;
(c)whether any of the therapeutic proposals identified in the reports relating to AH had been provided following her imprisonment, and in particular whether she had received any treatment or programmes during her incarceration;
(d)what arrangements could be made to provide safe, secure and stable accommodation, support and supervision if AH was released and returned to the Roebourne area;
(e)whether any steps had been taken to secure the support of the Disability Services Commission to provide assistance to AH.
Counsel for the State kindly agreed to assume the responsibility for gathering and providing that information and the hearing was adjourned.

The information from the Department of Corrective Services

The information requested by the court was provided in the form of a copy of a letter dated 4 August 2014 from the Department of Corrective Services to the Office of the Director of Public Prosecutions. In that letter the department advised the following:
(a)There was no record of any assessment ever having been made of whether or not AH suffered from foetal alcohol spectrum disorder. Moreover, because AH was particularly unwell, and was being treated at the Frankland Centre, any assessment would take some time.
(b)The steps taken after AH was placed on each of the community‑based orders were as we have set out above.
(c)In Bandyup AH was assessed as requiring the 'Pathways' programme for substance misuse and the 'Cognitive Skills' programme. However, she was unable to participate in those programmes due to her cognitive impairment. The 'Think First' programme which is appropriate for inmates with an intellectual disability/cognitive impairment is only offered at Casuarina Prison (a male prison). AH participated in a voluntary non‑therapeutic programme - 'Yarning' - between 4 and 25 March 2014. She worked for three days as a kitchen worker in February 2014, but has not otherwise been employed within the prison.
(d)AH was transferred to the Frankland Centre on 10 July 2014 following a suicide attempt. A psychiatrist at the centre, Dr Wojnarowska, had advised that AH was 'acutely psychotic' and not fit to participate in any court process, and that it would be at least three months before her capacity to participate in the court process could be assessed.
(e)AH had been residing in Roebourne with a man who has prior convictions for offences of a sexual nature. AH's partner/boyfriend was currently detained in Acacia Prison as a result of offences of a sexual nature. He has been diagnosed with a foetal alcohol related disorder. Attempts to contact AH's family members were continuing.
(f)No assessment of AH had been undertaken by the Disability Services Commission because it wanted reassurance that AH was participating in the process voluntarily. However, more recently, the Commission had advised that AH could be referred to the Commission for assessment while incarcerated. If found to be eligible for assistance, AH might receive a 'Behaviour Support Service' which would involve addressing behaviours of concern and encouraging her to make better choices. Support could also be provided to enable family members to support AH, and to encourage AH to access funding which could be used to link in with a mentoring service, to assist with positive role modelling.
On 26 August 2014, the Department of Corrective Services provided further information to the Office of the Director of Public Prosecutions which was provided to the court. The department advised that Dr Wojnarowska had advised that although AH's condition had improved slightly, she was still unwell and her treatment was likely to take some time. The department also advised that contact had been made with AH's family members within the Roebourne community. Their response was that they were keen to provide AH with support upon her release to the community but reported that in the past AH had demonstrated a propensity to leave the family home and make connections with dubious people.

The second hearing in the Court of Appeal

The hearing of the appeal resumed on 27 August 2014. Senior Counsel for AH advised the court that her client was detained in the Frankland Centre and was clearly not fit to provide her with instructions. Senior Counsel confirmed that AH was an involuntary patient. Of course, in practical terms while AH remains in that condition, the fact that she is serving a term of imprisonment is irrelevant, as revocation of that term of imprisonment would make no difference to her physical location and treatment, although it would, of course, create the opportunity for her to be released if and when her mental condition no longer justifies her involuntary treatment.
Members of the court asked whether anybody was going to take responsibility for providing AH with the support and assistance which she so obviously needs upon her release from custody. In that context, Senior Counsel for AH raised the possibility of approaching the Public Advocate to apply for guardianship and administration orders - the need for which had, of course, been identified in various reports over the preceding years.
At the conclusion of the hearing, the court directed that a current psychiatric report be provided relating to the condition and prognosis of AH and requested the Department of Corrective Services to initiate discussions with other relevant agencies of the State, including in particular the Disability Services Commission, with a view to preparing a specific plan and programme of support and assistance of AH if and when she is released into the community. The court also requested Senior Counsel for AH to report to the court on any steps that might be taken in relation to the appointment of a guardian for AH.

Reports and information provided subsequent to the second hearing of the appeal

Following the second hearing of the appeal, the court received a report from Dr Wojnarowska dated 17 September 2014. The report confirmed that AH had been involuntarily referred to the Frankland Centre on 10 July 2014 'as she had been seen responding to unseen stimulae and expressing persecutory delusional beliefs incorporating the devil'. Apparently AH's mental state had declined over the preceding three months, culminating at an attempt to electrocute herself on 30 June 2014. AH's status as an involuntary patient had been maintained because of continuous symptoms of psychosis, risk of self‑harm, and impaired judgment.
In Dr Wojnarowska's opinion, AH was suffering from a major mental disorder and was not currently fit to participate in any court proceedings.
By letter dated 24 September 2014, Senior Counsel for AH provided further information to the court. She reported that a meeting had been held at her office on 22 September 2014. Dr Wojnarowska and Dr Mondello from the Frankland Centre and a representative of the Department of Corrective Services were present. A representative of the Disability Services Commission participated by telephone. Senior Counsel reported that during the meeting the medical practitioners advised that AH was so unwell as to be incapable of managing her own medication and required 24‑hour nursing care. There was no indication as to when AH's condition would improve and a meeting had been scheduled to review her medication.
Dr Wojnarowska also advised that steps were being taken to refer AH to the Disability Services Commission. The representative of the Department of Corrective Services confirmed that family members had been located in the Roebourne area who were prepared to provide support to AH within the community.
Dr Wojnarowska also agreed to request a social worker associated with the Frankland Centre to contact the Office of the Public Advocate to request that they consider making an application for guardianship and administration orders. By letter dated 7 October 2014, Senior Counsel for AH confirmed that applications had been made to the State Administrative Tribunal for guardianship and administration orders relating to AH.
Dr Wojnarowska provided a further report to the court by letter dated 13 October 2014. She has advised that AH has been slowly responding to the treatment of anti‑psychotic and epileptic medications and that there had been noticeable imprisonment in her mental state. Dr Wojnarowska also advised that cognitive testing had confirmed that AH was within the disabled range and her case had therefore been referred to the Disability Services Commission. A decision was awaited as to whether the Commission would accept responsibility to supply services and support to AH. Dr Wojnarowska confirmed that personnel at the Frankland Centre had also been advised that family members in the Roebourne area were willing to accommodate AH upon her release, and she would be closely supervised by nurses from the local community medical centre and sporadically reviewed by the visiting psychiatrist.
At this point the members of the court determined that it would be desirable to resolve the appeal without further delay, given the uncertain state of AH's health and the inability of her counsel to obtain instructions unless and until AH recovered the capacity to provide those instructions or a guardian was appointed to represent her interests. By letter dated 25 November 2014, Senior Counsel for AH advised the court that a guardian and an administrator had been appointed for AH.

The grounds of appeal

There are two grounds of appeal. The first ground of appeal asserts that the sentencing judge erred by imposing an immediate term of imprisonment when, in all the circumstances, such a sentence was not the only appropriate sentence to be imposed. The second ground of appeal asserts that the total effective sentence of 2 years was manifestly excessive. As that sentence came about as a result of the accumulation of two sentences of 12 months imprisonment, this ground is to be understood as also invoking the first limb of the totality principle, and implicitly asserts that the total effective sentence was not proportionate to the totality of the criminal behaviour involved.
It is well established that a sentence of immediate imprisonment can only be imposed as a last resort, in the sense that there is no other appropriate sentencing disposition. In Western Australia that principle is established by s 6 and s 39 of the Sentencing Act 1995 (WA). Section 39(2) provides that a court sentencing an offender may either impose no sentence and order the release of the offender or may impose any of six forms of sentence, namely, a conditional release order, a fine, a community‑based order, an intensive supervision order, a sentence of suspended imprisonment, or a sentence of imprisonment (in that order). Section 39(3) provides that:
(3)A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.
Thus a court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given in the Act.[16]
[16] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [11] (Gleeson CJ & Hayne J).
Ground 1 must succeed if the court imposing the terms of imprisonment upon AH could not properly have been satisfied that it was not appropriate to use any other sentencing option provided by the Sentencing Act 1995 (WA). If that ground is made out, it necessarily follows that the total effective sentence imposed was manifestly excessive, and ground 2 must also succeed.

Ground 1

In addition to the requirement that a sentence of imprisonment cannot be imposed unless the court is satisfied that no other sentencing option is appropriate, as foreshadowed, a further constraint upon the imposition of a sentence of imprisonment is imposed by s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that :
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
There is no doubt that the offences committed by AH were serious, as each of the judges who dealt with her recognised. However, the question which had to be addressed before she could be sentenced to a term of imprisonment was whether it had been established that:
(a)no other sentencing option was appropriate; and
(b)either the seriousness of the offences which she committed was such that only imprisonment could be justified, or the protection of the community required her imprisonment.
In this case the protection of the community did not justify AH's imprisonment, essentially for the reasons given by her counsel in the course of submissions. The circumstances of the offences committed by AH, her personal circumstances and the various reports presented to the court left no room for doubt as to the causes of her offending behaviour. After a dysfunctional and dislocated childhood in which she was exposed to physical and sexual abuse, AH completed her schooling but left essentially illiterate and innumerate. She suffers significant intellectual impairment and cognitive disability. She has never been employed and has no prospect of gainful employment unless she is provided with a supportive environment in which she can learn to make appropriate choices and, perhaps, acquire the skills that might enable her to live a useful life. As a result of her traumatic childhood she responds poorly to anxiety and, in the past, has used cannabis as a form of self‑medication. The stress and anxiety created by imprisonment has repeatedly induced psychotic conditions, and shortly prior to the first hearing of this appeal, induced a profoundly psychotic state from which she still suffers. During the various periods she has been incarcerated in Bandyup she has not received any treatment or training likely to reduce the risk which she poses to the community upon her release. To the contrary, as we have noted, incarceration has repeatedly worsened her condition thereby increasing the risk to the community.
Because of her intellectual and cognitive disabilities, it is most unlikely that punishment, in the form of a term of imprisonment, would have the effect of deterring her from further offending and, as we have already noted, an offender with her level of disability is not an appropriate medium for endeavouring to deter others who might be minded to commit similar offences.
For all these reasons, the protection of the community was not enhanced by the imposition of a total effective term of 2 years imprisonment upon AH because that term of imprisonment would do nothing to reduce the risk which she would pose upon her release and might well increase that risk by causing her condition to deteriorate (as has in fact occurred).
This was a case in which the appropriate steps to take to reduce the risk to the community had been carefully and thoroughly mapped out in the various reports presented to the different courts which dealt with AH. Those steps included the enlistment of support and assistance from the Disability Services Commission, the appointment of a guardian to protect her interests, the provision of medical, psychiatric and psychological counselling, and the provision of a supportive environment in which AH's exposure to adverse influences and risks were reduced. Derrick DCJ and Deane DCJ each imposed a community‑based order with the reasonable expectation that steps would be taken to implement the proposals documented in the reports produced to them. However, in fact no meaningful support or assistance was provided to AH by any of the agencies whose assistance was foreshadowed in the reports produced to the court. Instead, AH was subjected to reporting requirements that she would inevitably breach (as she did).
It seems clear that Herron DCJ was not aware of what had actually occurred, or more importantly, what had not occurred during the currency of the community‑based orders imposed by Derrick DCJ and Deane DCJ. It is a fair inference that he erroneously concluded that appropriate steps had been taken to modify AH's behaviour but those steps had been unsuccessful, whereas the true position is that none of the therapeutic plans devised in the various reports presented to the court had ever been implemented.
It follows that at the time AH was sentenced by Herron DCJ, it could not be said that the various plans which had been devised to reduce the risk which AH posed to the community were unlikely to be successful because they had not succeeded in the past. To the contrary, the true position was that the various steps properly taken to reduce the risk of AH reoffending were much more likely to be successful if AH was in a supportive environment within the community than if she was subjected to the stress and anxiety of incarceration, as was apparent from her previous responses to incarceration and as has now been tragically demonstrated.
Nor could it be concluded that the seriousness of the offences committed by AH was such that only imprisonment could be justified.[17] It is of the utmost significance that the condition which must be satisfied before a term of imprisonment can be imposed is not whether the offence is so serious that imprisonment can be justified, but rather, whether the offence is so serious that only imprisonment can be justified, consistently with the principle embodied in s 39 to the effect that imprisonment is a last resort. This was a case in which the relative youth, antecedents, vulnerability and disabilities of the offender were of particular significance in the sentencing process. Those factors combined to sustain the conclusion that AH would very likely continue to be a risk to the community unless positive steps were taken to address the factors which combined to cause that risk. Put another way, this was a case in which it should have been concluded that the reduction of AH's risk of reoffending through a process of rehabilitation was a most significant sentencing factor, and in which punishment and deterrence were less significant factors. That was, in effect, the approach taken by each of Derrick DCJ and Deane DCJ. It is a fair inference that Herron DCJ was discouraged from that approach because of his erroneous conclusion that two previous attempts to change AH's behaviour through the various proposals identified in the reports produced to the court had failed.
[17] Sentencing Act 1995 (WA), s 6(4)(a).

For these reasons, in the particular circumstances of this case, when AH came before Herron DCJ for sentence it could not be said that the seriousness of her offences was such that only imprisonment could be justified, nor could it be said that a term of immediate imprisonment was the only sentencing option appropriate to her circumstances. It follows that the terms of imprisonment imposed upon AH were imposed in contravention of s 6 and s 39 of the Sentencing Act. Ground 1 of the appeal must be upheld, from which it follows that ground 2 must also be upheld.

Resentencing

It follows from the reasons given for upholding each ground of appeal that a different sentence should have been imposed. Accordingly, pursuant to s 31 of the Criminal Appeals Act 2004 (WA), this court may allow the appeal and resentence AH. When this court resentences an offender after a successful appeal against sentence, it is appropriate to take account of events which have transpired since the sentences under appeal were imposed.[18] In this case, the court can and must take account of the fact that AH has been in custody since she was sentenced to imprisonment on 25 November 2013, and having regard to the fact that her sentences were backdated to commence from 16 September 2013, would now have served all the sentences imposed upon her but for the accumulation of the two terms of 12 months imprisonment imposed in respect of the counts of aggravated burglary. This court should also take account of the fact that it can be inferred that AH's incarceration significantly contributed to her deterioration in mental health, similar but less serious deteriorations having occurred on the previous occasions she was imprisoned. Her current condition has caused her to be detained as an involuntary patient since 10 July 2014, and on the information presently to hand it is not possible to predict when her condition will improve to the point at which her status as an involuntary patient will be revoked.
[18] The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [41] (McLure P); Criminal Appeals Act, s 41(4)(a).
Other factors properly taken into account for the purpose of resentence include the steps which have been taken to appoint a guardian for AH, the assessment and treatment which she has received while in the Frankland Centre, including the assessment which has resulted in her referral to the Disability Services Commission, and the identification of family members who have offered to provide AH with accommodation and support in the Roebourne area upon her release from custody. These are, of course, all steps which should have been taken when AH was first placed on a community‑based order more than two years ago. They are the first steps appropriately taken in order to reduce the risk which AH poses when her condition improves to the point where she can be released from involuntary mental health treatment.
Having regard to the steps which have now been taken and which will hopefully develop into programmes of support and assistance which will reduce the risk to the community, it is not in the interests of justice to resentence AH in a way which would expose her to the risk of punishment over and above that to which she has already been subjected. The simplest way to give effect to that conclusion is to set aside that part of the sentence which directed that some of the terms of imprisonment be served cumulatively upon each other, and to instead direct that all terms of imprisonment be served concurrently, with the result that AH has now completed all terms of imprisonment imposed and will be released without further constraint if and when her condition improves to the point that she is no longer an involuntary mental health patient.