Director of Public Prosecutions (Acting) v Poole
[2015] TASCCA 10
•28 May 2015
[2015] TASCCA 10
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10
PARTIES: ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v
POOLE, Kristin Lee
FILE NO: 851/2014
DELIVERED ON: 28 May 2015
DELIVERED AT: Hobart
HEARING DATES: 23 April, 26 May 2015
JUDGMENT OF: Blow CJ, Porter and Wood JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Crown appeal – Sentence manifestly inadequate – Assaulting a police officer by spitting in his face – Offender with hepatitis C – Bad record of anti-authority offences – Violent and dysfunctional upbringing – Entrenched drug addiction – Offender also charged with associated summary offences including possess dangerous article in public place and possessing cannabis – Competing considerations of deterrence and rehabilitation – Sentence of release and adjournment order and probation manifestly inadequate.
R v McKee (2003) 138 A Crim R 88, considered.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: D G Coates SC
Respondent: C Graves
Solicitors:
Appellant: Acting Director of Public Prosecutions
Respondent: N/A
Judgment Number: [2015] TASCCA 10
Number of paragraphs: 42
Serial No 10/2015
File No 851/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v KRISTIN LEE POOLE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
PORTER J
WOOD J
28 May 2015
Order of the Court
Appeal allowed.
Order adjourning proceedings and probation order set aside.
Respondent sentenced to six months' imprisonment with effect from 15 May 2015, with the balance from today suspended on conditions that (a) the respondent is not to commit any offence punishable by imprisonment for a period of two years; and (b) for a period of 18 months the respondent is to be subject to the supervision of a probation officer and comply with the conditions of the probation order made today.
Probation order, to operate for a period of 18 months, with special conditions that the respondent (a) attend educational and other programs as directed by a probation officer; (b) undergo assessment and treatment for alcohol or drug dependency as directed by a probation officer; (c) submit to testing for alcohol or drug use as directed by a probation officer; and (d) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer. The respondent is to report to a probation officer within one clear working day at Community Corrections, 114 Bathurst St, Hobart.
Serial No 10/2015
File No 851/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v KRISTIN LEE POOLE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
28 May 2015
I agree with Porter J.
File No 851/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v KRISTIN LEE POOLE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
28 May 2015
Introduction
This is an appeal against sentence. The respondent pleaded guilty in a court of petty sessions to a charge of assault under the Criminal Code, and was committed to the Supreme Court for sentence. When the matter came before Estcourt J, his Honour agreed under s 385A of the Code to deal with an additional seven summary matters on the original complaint. Pleas of guilty were entered.
In addition to the assault, the respondent was then before the Court on related offences of failing to wear a seat belt as a passenger, providing to police a false name, age and address, possessing a dangerous article in a public place, possessing a controlled plant (cannabis), failing to dispose of a syringe in a correct container, using abusive language to a police officer, and bringing an unauthorised thing (cannabis) into a prison.
All of the offences arose out of a series of events which happened in the early hours of the morning of 14 June 2014. The respondent was in a car stopped by police. She was with a number of men. She was argumentative and unco-operative when questioned. Because of what was found in the car, she and two of the other occupants were taken to the Launceston Police Station. Most of the charges arise from the respondent's conduct and what was found in her possession inside the station. In particular, the allegation in relation to the assault was that the respondent spat in the face of a police officer, Const Richard Groves. Although not a particular of the crime, the Crown alleged that the respondent had hepatitis C at the time.
On 26 September 2014, by way of a global sentence, Estcourt J recorded convictions on each charge and adjourned the proceedings for a period of 12 months. His Honour also made a probation order for a period of 12 months, with special conditions relating to educational and other programs, assessment and treatment for alcohol and drug dependency, testing for alcohol or drug use, and submission to medical, psychological or psychiatric assessment or treatment.
The appellant complains that the sentence was manifestly inadequate in all the circumstances. The appellant does not allege specific error. Before proceeding further, it is necessary to examine what it is that the sentencing judge did. The appeal was conducted on the basis that his Honour intended to make an order under s 7(f) of the Sentencing Act 1997 (the Act). That provision says that a court may:
"(f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender."
Immediately after making the orders, the sentencing judge told the respondent that the sentence put the matter back in her hands, and after referring to the consequences of a breach of the probation order, went on: "If you come back before me in twelve months' time, that is the period to which I've adjourned the matter, and you've done well, I'll discharge you from all of the present charges … ". The order signed by the sentencing judge reflects what he said on that day; that is, that the proceedings were adjourned for a period of 12 months. However, as I will explain, an undertaking within the meaning of the provision was not sought or given.
For some reason, the sealed memorandum of sentence does not refer to the adjournment of proceedings, but merely records the convictions and the making of the probation order. More importantly, the Court file reveals that, apparently on his Honour's instructions, an amended memorandum of sentence was prepared. No doubt this was sought to be done under s 94 of the Act which enables a court to vary a sentence if (among other things) it has failed to impose a sentence that was in conformity with the law. This amended memorandum contained a written undertaking that, for a period of 12 months, the respondent would be of good behaviour and appear before the Court during the period if called upon to do so.
It was anticipated that the respondent would sign this document. It was sent to her lawyer but attempts to have the respondent sign it were unsuccessful. By arrangement with her lawyer the matter was listed for hearing on 17 December 2014, at which time the respondent failed to appear. His Honour observed that he could do nothing further.
Whilst a judge has the power to generally adjourn sentencing proceedings to a later date in order to assess an offender's behaviour in the interim, it seems clear that the sentencing judge intended to dispose of the matters by way of recorded convictions, the procedure under s 7(f), and the making of the probation order. Because of the way in which the provision is worded, the failure to obtain the undertaking meant that, under the provision, the respondent could not have been released.
Section 59 of the Act specifies that an undertaking given under s 7(f) is subject to conditions that:
"(a)that the offender must appear before the court during the period of the adjournment if called on to do so and, if the court so specifies, at the time to which the further hearing is adjourned;
(b)that the offender must be of good behaviour during the period of the adjournment;
(c)that the offender must observe any conditions imposed by the court."
For the provision to operate in practical terms, the conditions of the undertaking and the period of the proposed adjournment are explained, and if the undertaking is given, the proceedings are adjourned for the period, or to a specific time at the end of that period. My understanding of the effect of the provision in relation to the first adjournment option, is that if there is compliance with the undertaking, the relevant prosecuting authority does not seek to have the matter listed; that is, "call upon" an offender to appear. At this point, I should mention s 8(3) of the Act. That sets out a number of orders which may be combined with a probation order. Adjourning proceedings under s 7(f) is not one of them. It was not the subject of complaint or discussion in the appeal, and there is no need to decide the point, but it may be that there is no power to proceed under s 7(f) and also to make a probation order.
In this case, in the absence of the undertaking, and leaving aside the probation order, no action could have been taken as a consequence of any subsequent offending. There was nothing to enforce. The order adjourning the proceedings was of no real effect. Accordingly, in assessing the sentence which is said to be manifestly inadequate, no regard should be had to a purported order under s 7(f). I immediately say however, that even assuming that the proceedings had been adjourned for 12 months and the respondent released upon an undertaking to be of good behaviour for that period, the outcome of the appeal would be the same. For the reasons which follow, I would allow the appeal.
The facts
The sentencing judge was told the following. At about 12.45am on 14 June 2014 police stopped a motor vehicle on Elphin Road in Launceston. There were five people in the vehicle. The respondent was sitting in the rear and not wearing a seat belt. When spoken to about this, she became argumentative and claimed that she had been wearing one. She was asked to supply her name, age and date of birth for a traffic infringement notice in relation to the seat belt offence. The respondent gave police a false name and address, and told police she was 17. (In fact, at the time she was nearly 33.) When asked to get out of the vehicle she did so and then admitted to having given false details. Officers searched the vehicle and found a loaded firearm, as a result of which two men, the driver and the front seat passenger, were arrested.
The respondent, along with the men, were taken to the Launceston Police Station, where the respondent's bags were searched. Police found a small plastic zip lock bag containing cannabis, two black handled kitchen knives, a razor blade, a pair of scissors and a number of uncapped needles and a used syringe. She was put in a holding cell where she began yelling and became abusive. At about 2.15am Const Groves and another officer were attempting to get some details from her. Whilst Const Groves was speaking with the respondent in the holding cell, the respondent cleared her throat and as the officer looked up she spat a mouthful of saliva at him. It hit him in the face, running into his eye and down the side of his face. She yelled at him, "You're a fucking ugly dog and you're nothing but a fucking dog cunt."
The respondent was known to have hepatitis C. The sentencing judge was told that hepatitis C is an infectious disease transmitted primarily through blood to blood contact. As a result of being spat on, Const Groves washed his face with a disinfectant wash. Whilst the risk of transmitting the disease through saliva is considered to be minimal, the officer had to undergo blood tests and was required to have follow-up tests done at three months and six months.
The respondent was later charged and detained for court. At about 2.35am, having been transferred to the Launceston Prison reception centre, she was searched, during which a plastic zip lock bag containing cannabis was found hidden in her underwear. The respondent appeared in the Magistrates Court on 14 June 2014 and was remanded in custody. His Honour was told that she had been in custody since that date, although on 10 July she had been sentenced to three months' imprisonment to commence on 16 June 2014. Accordingly, the respondent had spent 13 days in custody on these matters.
The respondent's record of offending
The respondent's record of offending starts in March 1995 for offences of burglary and stealing committed when she was 13 years old. By July 2007, a judge of this Court described her list of prior convictions as "formidable". By then the respondent had convictions for, in particular, attempted robbery (committed in June 1998), causing grievous bodily harm (May 2002), and wounding (10 September 2011). That offending was interspersed with numerous offences of dishonesty and ones against authority and public order.
In July 2007, on a charge of armed robbery committed in April 2007, she was sentenced to four years' imprisonment, with a non-parole period of three years. She was released on parole on 7 July 2010, but on 29 December 2011 committed the crimes of aggravated burglary and aggravated robbery. For those crimes, on 24 May 2012 she was sentenced to 18 months' imprisonment. In the meantime, whilst in custody, she assaulted a prison officer, for which, on 16 October 2012, she was sentenced to three months' imprisonment cumulative to the previous sentence, with two months suspended on conditions. She was paroled on 24 May 2013 but was returned to custody from 23 August to 6 October 2013.
At the time of sentencing on 26 September 2014, the respondent had 8 convictions for assault police (summary offences), 8 convictions for other offences against police officers (threats, abuse and resisting), and 6 convictions for summary assaults. As noted above, at the time of sentencing, the respondent had just completed a three month term of imprisonment imposed on 10 July 2014. That was for possessing a dangerous article in a public place and two driving offences committed on 28 January 2014.
Matters put in mitigation
The sentencing judge had pre-sentence reports from Community Corrections dated 3 May 2012 and 5 October 2012. The respondent's counsel also provided his Honour with a comprehensive report from a psychologist, Mr Minehan, dated 3 September 2014. That provided the basis of much of the plea in mitigation. I will come back to the terms of that report. Facts asserted and points made on the respondent's behalf can be summarised as follows.
· The respondent identified as a Tasmanian aboriginal woman.
· She had a violent and disrupted upbringing, and was declared a ward of the State when she was 13 under the legislation then existing. "The one constant in her life" was her grandmother, a Tasmanian aboriginal elder.
· The respondent had spent about half her life in institutional care or prison.
· The respondent had long-standing alcohol and poly-substance abuse and addiction issues, with substance abuse going back to when she was 13. Much of her offending has been as a result of drug addiction.
· In 2009 the respondent received a $40,000 compensation payment for abuse whilst in State care. She had invested the bulk of that in a company which has failed, giving rise to an ongoing fraud investigation, but there were some prospects of recovery. She retained about $13,000 which she had intended to use to "make a life for herself". Unfortunately, her drug addiction intervened.
· The respondent has a son born in 2002. That child has been cared for by the respondent's mother, and more recently the grandmother had relinquished care of the child to the State. The respondent was keen to focus her attention in the future on her relationship with the child.
· On the day of the offences she had been to the funeral of an associate in Launceston. She had ingested crystal methylamphetamine and an amount of crushed morphine tablets, and drank a large amount of beer. On impulse she decided to hitchhike back to Hobart. She got into the vehicle with people that she did not know.
· The respondent accepts that she has "a frustration with public officers". She is also frustrated that she is not able to control her impulsivity and that she does not seem to be able to free herself from drug use.
· In her most recent time in custody she had been properly participating in drug rehabilitation programs, and there was a pharmacotherapy care program prepared for when she was released. Arrangements had been made for a more stable housing situation for her upon her release.
It is worth setting out much of the "Opinion & Recommendations" section of Mr Minehan's report:
"59Ms Poole is a 33 year old woman with a clear personality disorder demonstrating a number of borderline and antisocial traits. These traits include failure to conform with social norms, impulsiveness, irritability, aggressiveness, disregard for the safety of self or others, lack of empathy, unstable and intense interpersonal relationships and emotional instability.
60In addition Ms Poole has considerable emotional dysregulation, anger problems and poor frustration tolerance. Her personality is marked by a distrust of others, particularly authority figures, and her interpersonal relationships are a cause of considerable angst and conflict. She is hypervigilant to threat from others and responds to authority figures poorly.
61Ms Poole has an extensive substance use history that is a contributing factor to her offending behaviour. Substance use has led to increased paranoid ideation and perception of threat. Her own self report suggests a high level alcohol abuse from age 12 that progressed to cannabis, hallucinogens and amphetamine use. Ms Poole appears to be aware of the detrimental effect that drugs have on her, however returns to the use of these during periods of personal difficulty.
62Ms Poole's self report and the collateral information indicate that she has been the victim of multiple physical, sexual and psychological traumas. This has included violence from a very young age within a dysfunctional family unit. Childhood parental attachment was poor and disorganised, involving physical and emotional maltreatment.
63Ms Poole is the product of many years of exposure to high level violence. From early childhood she was exposed to almost random physical assault at the hands of her stepfather. From this environment she progressed to an antisocial subculture where violence, drug abuse and anti-authoritarian views were encouraged. Ms Poole identified strongly with this culture and found a degree of acceptance within this environment.
64When faced with high levels of stress, social problems or interpersonal difficulties Ms Poole often resorts to aggression threat and violence as her first step to address these issues. In addition her drug abuse has, in the past, contributed to seemingly random acts of violence against strangers. This behaviour may also be attributed, in part, to interpersonal difficulties that have resulted in explosive acts of violence, albeit against innocent victims. Her previous conviction for armed robbery appears to have been motivated by the need to gain money for drugs. Ms Poole herself identified the death of her grandmother and relationship conflict as two factors that contributed to her substance use and violence.
65Ms Pool's violent offending is a combination of voluntary instrumental violence and an inability to appropriately deal with interpersonal conflict and strong emotion. Ms Poole herself admits that she chooses to use violence to solve her problems as 'it works'. In addition substance abuse increases her level of mistrust and suspiciousness of others making her more likely to perceive threat or to interpret others [sic] comments as a personal slight or insult.
66Ms Poole remains a high risk as illustrated by a high number of factors associated with future violence. In order to reduce this risk multiple factors would need to be addressed. Ms Poole would require assistance and motivation on her part to reduce or abstain from substances. She has had a recent period, during parole, when she has achieved this for a relatively extended period. It is no coincidence that reduced substance use and supervision have contributed in some way to a period free of offending
67Ms Poole has displayed an explosive personality and considerable issues controlling anger. When experiencing anger, Ms Poole is highly likely to express this outwardly, either through verbal or physical aggression. The experience of strong emotion and the ability to regulate these emotions is clearly an ongoing issue for Ms Poole. She may benefit, if willing and motivated to participate, in psychological therapy that may assist her to cope with this in a less maladaptive and destructive manner.
68It is noted that a return to substance use, impulsivity, poor anger control, a continuation of her 'strike first' attitude toward any threat and poor attitude toward authority figures were significant contributors to this group of offences."
The sentencing judge's comments
After outlining the facts, the sentencing judge continued:
"Ms Poole is 30 [sic] years old , she is a Tasmanian aboriginal woman. She has a long record of prior convictions. She has been to prison for wounding, causing grievous bodily harm, armed robbery and other offences involving dishonesty and violence. She was released on parole back in 2010, and, to her credit, stayed out of trouble for nearly 10 months before offending again. For many years she has had problems with alcohol, drugs and violence when under the influence of drugs. She is about to be released from prison after serving a three months' sentence for possessing a dangerous article in a public place, unlicensed driving and driving with an illicit substance in her blood. She was due for release in respect of those matters on the 16 September 2014. She remains in custody in respect of these matters.
The assault upon a police officer is a serious matter. It is the only indictable matter on the complaint and the other offences are, relatively speaking, minor summary offences. I have been provided with an updated and thorough report by a clinical psychologist. In my view, it is high time that once again someone addressed the root cause of Ms Poole's offending. Despite being sent to gaol on numerous occasions - spending almost half her life in prison - she has not been afforded the assistance of supervised probation for the last 8 years. It is clear from the period of parole in 2010 that Ms Poole is able to abstain and reduce her substance use for a relatively extended period with self-motivation and supervision, as pointed out by the clinical psychologist. It is a matter of regret that I cannot make a drug treatment order and yet a magistrate before whom all but one of these charges could have proceeded would have been able to do, so subject to eligibility and an available place. Our community would be a lot better off if this Court could make such orders and if there were more places in the program."
His Honour then made the orders which I have detailed.
Discussion
The appellant submitted that the crime of assault was spontaneous and unprovoked, and aggravated by the fact that the respondent had hepatitis C. Mitigating factors were said to be limited, but acknowledged to include an early indication of a guilty plea, a successful transition to the pharmacotherapy program whilst in custody, and a settling of mental health issues. It was said that spitting in another's face is extremely offensive. The appellant submits that the act was a demonstration of contempt for authority, and highlighted the need to vindicate the authority of police. So much can be accepted. There is a need to uphold the authority, safety and dignity of police officers. The appellant says that this was a particular issue in this case given the respondent's history of offending against people in authority. The respondent's prior convictions were highlighted and it was said that there was no evidence of remorse.
The appellant endorses the proposition set out in Warner, Sentencing in Tasmania, 2nd ed, at page 292 [11.314] that ordinarily a sentence of imprisonment is the proper penalty for assaulting a police officer, but that the need to reinforce the lawful exercise of authority by police officers does not eliminate the need to take into account all matters to the proper exercise of the sentencing discretion: see House v Johnson, unreported serial no 93/1966; Dunford v Fletcher, unreported serial no B40/1991; [1991] TASSC 154. By reference to Sentencing in Tasmania at 294 [11.317], the appellant notes that the median for sentences for single counts of crimes of assaulting a police officer between 1978 and 1989 is three months. In the ten years to 2000, there were only two single counts, each of four months' imprisonment.
The appellant accepted that an immediate return to custody may have been a little harsh on the respondent, but submitted that at the very least, it would have been appropriate to impose a term of imprisonment the execution of a part or the whole of which was suspended.
As has been repeatedly stated, for a sentencing range for a particular crime to be of any value, the number of cases must be such as to provide a discernible and established range, and the sentences must be for comparable offending. A difficulty is created when the offence can be committed in various ways, and that difficulty is compounded by the variation of circumstances from case to case. In any event, the use of statistics is limited: Dowie v The Queen [1989] Tas R 167 per Wright J at 185; Oliver v Tasmania [2006] TASSC 95 per Underwood J (as he then was) at [13]-[19] and Director of Public Prosecutions v Harris [2013] TASCCA 5 per Wood J at [15].
Even accepting that a true range for comparable offending can be established, it does not follow that a sentence which lies outside that range must be set aside. The range is one factor to be taken into account: Inkson v The Queen (1996) 6 Tas R 1 per Underwood J at 15; Devine v The Queen (1993) 2 Tas R 458 at 469; Harris (above) per Estcourt J at [51].
To the extent that it is of any use, my investigations have revealed seven Code cases of assaulting a police officer by spitting in the face, where that assault is the only, or predominant, offending. There are two other similar cases not involving police officers. The range is from a community service order of 90 hours (a police officer case) to six months' imprisonment. With the exception of the community service order, all were custodial sentences spread across the range. But for three of those, the execution of the whole of the sentence was suspended, while there was one involving partial suspension. There are other instances of assaults by spitting being dealt with in this Court, involving both police officers and others. However, the co-existence of other crimes makes the sentences of no real value. Generally, the court's comments reflect the fact that an assault of this form is to be regarded seriously. It is conduct which would be viewed by the community with disgust and revulsion. It is made more serious when there is any consequent risk of infection.
As to the respondent's personal circumstances, the prominent features are her gravely dysfunctional upbringing, and long-standing drug addiction. The sentencing judge's primary concern was to address "the root cause of the respondent's offending". His Honour noted that despite spending almost half her life in prison, she had not been afforded the assistance of supervised probation in the last eight years, and that it was clear that she was able to abstain and reduce substance abuse for a relatively extended period with self-motivation and supervision. Of itself, no exception can be taken with that view.
As well as a long-standing drug addiction being the root cause of offending, on this particular occasion the respondent was suffering from the effects of drugs and alcohol. There is a distinction between the two situations, although both provide explanations. Intoxication, whether by alcohol or drugs, may explain an offence but ordinarily will not mitigate penalty, except perhaps where there is an underlying addiction not involving free choice. As to addictions, the fundamental premise seems to be that self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice: R v Henry (1999) 46 NSWLR 346 per Spigelman CJ at 385 [197]–[202], per Wood CJ at CL at 397 [267]; Douglas v The Queen (1995) 56 FCR 465 at 470; Hinchliffe v The Queen [2001] WASCA 15 at [24].
However, there is judicial recognition that by virtue of seriously adverse personal circumstances, particularly in formative years, some people are more susceptible or vulnerable to drug use and addiction than others. It is sufficiently established that drug addiction and its consequences are factors to be taken into account, although the effect and weight will vary considerably across individual cases, depending on, among other things, the seriousness of the offence. Rehabilitation is a consideration which needs to be put into the balancing exercise where appropriate, but the nature of the offending and the need for public protection may leave little room for leniency.
For instance, in R v McKee (2003) 138 A Crim R 88, Buchanan JA (Eames JA concurring) said at 92–93 [13] (omitting references):
"The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, … I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender."
In a similar vein, Vincent JA at 94 [21] said:
"I accept that … experiences [of deprivation, abuse and disadvantage] and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape. …That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes. These would include the assessment of the moral culpability of an offender with respect to the commission of a specific offence and therefore could assume relevance when considering the significance to be attributed to the notion of retribution for wrongdoing as a sentencing consideration. Of course, it does not follow that individuals who come before the court with the type of history to which I have referred do not make choices or that they cannot be held fully accountable for conduct in which they voluntarily engage or which may be the ultimate product of deliberate lifestyle choices made by them. However, and obviously, in the determination of an appropriate sentence in an individual case, regard must be had to the particular circumstances of the offender concerned."
In this case, the adoption of that approach allows for the factor of rehabilitation to be given proper emphasis.
Conclusion
The purposes for which an order under s 7(f) may be made are set out in s 58 of the Act. Relevantly, they include provision for rehabilitation, to take into account the trivial, technical or minor nature of the offence, to allow for circumstances in which it may be inappropriate to inflict any punishment other than a nominal punishment, and to allow for the existence of other extenuating or exceptional circumstances that may justify mercy. There is authority for the proposition that the scope of provisions such as s 7(f) of the Act decreases where the offence is an objectively serious one and where general deterrence and denunciation are important factors. Nonetheless, such orders can impress the seriousness with which a court is treating the offender's conduct upon an objective and reasonable member of the community: R v Mauger [2012] NSWCCA 51 per Harrison J (Beazley JA and McCallum J agreeing) at [18]-[19], [37]. In this case, the purported order under s 7(f) was ineffective, but even if it were to have been properly made upon the basis of an undertaking, I would take the same view about the outcome of this appeal.
The factors of general deterrence and denunciation were important in this case. Personal deterrence remained a factor. Regard needs to be had to the nature of the whole of the offending, and to the history of the respondent's attitude to authority (although on one level, its genesis is perhaps understandable to a degree). Whilst there may well have been room for some individualisation, the sentence did very little, if anything, to achieve the relevant sentencing aims. There was no error in focussing on the respondent's rehabilitation, but the sentence lacked any real and proper impact. A greater incentive not to re-offend was required. A combination of orders could have fulfilled the sentencing needs created. I am satisfied that the sentence was manifestly inadequate.
I would allow the appeal and set aside the orders made. Since the respondent spent 13 days in custody before being sentenced, it is desirable to impose a substituted sentence that gives recognition to that fact. The respondent failed to appear on 26 May 2015 when this appeal was listed for decision. She was arrested and is presently in custody but the amount of time involved is negligible. I would impose a sentence of imprisonment backdated to 13 days before today, with all but those 13 days suspended. Accordingly, I would sentence the respondent to six months' imprisonment to commence on 15 May 2015, the execution of the balance of which is suspended on conditions that she be of good behaviour for a period of two years, be subject to the supervision of a probation officer for 18 months, and comply with the conditions of a probation order.
I would make such an order for 18 months with special conditions that the respondent:
· attend educational and other programs as directed by a probation officer;
· undergo assessment and treatment for alcohol or drug dependency as directed by a probation officer;
· submit to testing for alcohol or drug use as directed by a probation officer; and
· submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
It can be seen that I have made compliance with the probation order, a condition of the suspension of the execution of the term of imprisonment. That is to achieve a greater level of incentive to co-operate in rehabilitative attempts. I am conscious that, with the respondent's history, it might be said that this approach is setting up the respondent to fail, but her capacity for rehabilitation has been demonstrated, and there is nothing to suggest that she will inevitably fail to comply, or that there is a high degree of likelihood of that happening. As required by s 37(1)(b) of the Act, I would specify the place at which the respondent has to report to a probation officer within one clear working day as Community Corrections, 114 Bathurst St, Hobart.
File No 851/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v KRISTIN LEE POOLE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
28 May 2015
I agree with the reasons for judgment of Porter J.
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