Director of Public Prosecutions v Leonard

[2014] VCC 1361

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01407

DIRECTOR OF PUBLIC PROSECUTIONS

v

HEIDI LEONARD

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2014
DATE OF SENTENCE:	21 August 2014
CASE MAY BE CITED AS:	DPP v Leonard
MEDIUM NEUTRAL CITATION:	[2014] VCC 1361

REASONS FOR SENTENCE
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Subject:                     Sentencing;
Catchwords:             Plea of guilty; armed robbery and common assault; blood-filled syringe;
Legislation Cited: Sentencing Act 1991

Cases Cited:R v Markovic & Ors [2010] VSCA 105; R v Verdins & Ors [2007] VSCA 102

Sentence:Total effective sentence three years, one month; non-parole two years; 284 days pre-sentence detention; orders for compensation; retention of forensic sample; disposal

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Lee (on plea) Mr L. Crosbie (on sentence)	Office of Public Prosecutions
For the Accused	Mr A. Halphen	Ms A. Valos

HER HONOUR: 

1Heidi Alexander Leonard, you have pleaded guilty to one charge of armed robbery and have also pleaded guilty to a summary charge of common assault which you agreed to have transferred to and dealt with in this court.  You have also admitted a prior criminal history to which I shall refer later.

2The maximum penalty for armed robbery is 25 years' imprisonment which reflects how seriously this offence is regarded by parliament on behalf of the community.  In contrast, the maximum penalty for the summary charge is three months' imprisonment or a fine of 15 penalty units, and I must also take that much lower maximum into account when deciding your sentence on the summary charge.  You will not be receiving a sentence anywhere near the length of the maximum sentence for armed robbery, but I tell you, at this stage, that I shall be imposing a term of imprisonment which requires you to serve considerably longer in custody that you have already.

3These charges arise from events on 23 February 2013.  You had been staying for the previous two or three days with a man through whom you have been obtaining illicit drugs.  You left his flat with him early that afternoon, taking with you a syringe which you had filled with blood from someone else staying at that flat.

4About 15 minutes later, on your own, you approached a woman sitting with a seven year old boy at an outdoor table at a café opposite the local railway station.  You approached the table, stood over the woman, and said something to the effect of, "Right.  One, two, three, I've got a syringe".  She did not at first understand and asked what you were saying and you then said, "One, two, three, give me your bag".  You held the blood-filled syringe with its uncapped needle pointed close to her face.  She was petrified and gave you her handbag.  You then said, "Good girl, good girl" and walked off across the street, heading towards the railway station.  That is the basis of the charge of armed robbery.

5The woman's partner and father of the boy who had moved away to throw away some rubbish in a nearby bin, saw the handbag being passed to you, realised something was wrong and ran after you as you were crossing the street.  He demanded the bag back and tried to grab it, and a struggle followed between you and him.

6During that struggle, you tried to hit him with a bottle which you had in one of your hands but you fell backwards onto the back of a parked car, and the bottle shattered and smashed the car's rear window.  The scuffle continued between parked cars, the handbag fell to the ground and the man picked it up and flung it to the side.  At that point, he felt a sting in the left side of his neck.  The struggle and your attempts to hit him, give rise to the charge of common assault.

7The man with whom you had left the flat, then came towards the struggle and called out and this enabled you to get away and join him.  By then, the woman you had robbed had crossed the street and you said to her, "I stuck him and it's your fault, bitch".

8The man whom you assaulted had a swollen lip and blood on his shirt, neck and lips.  However, he also clearly feared that the needle of the syringe had pricked his neck.  An ambulance was called, and he was taken to the Royal Melbourne Hospital, where on examination it was recorded that there was no evidence of skin breach, but he was distressed and the history was of assault involving a blood filled syringe.  Blood tests were conducted and he was referred to the Infectious Diseases Outpatient Clinic, where he attended two days later, and had further reviews after one, three and six months.  Eventually he was given a health clearance.

9It is conceded on your behalf that he believed that he was stuck or pricked with the needle of the syringe.  Police found the uncapped needle and blood filled syringe on the road near the struggle.  Your counsel submits that I should not be satisfied, however, as I would need to be beyond reasonable doubt to regard it as an aggravating factor, that the man was, in fact, pierced by the exposed syringe needle in the struggle with you.

10The agreed facts in the prosecution summary include that as you were leaving the scene after the assault you said to the man's partner, the woman you had robbed, that you had "stuck him" and it was her fault.  I take that as an admission.  I note that Mr Farawell also said that you told him shortly afterwards that you had stuck the man with the needle.  Those admissions, together with victim's evidence that he is sure that the prick he felt was not from broken glass, satisfy me beyond reasonable doubt that the needle did, in fact, breach the skin on his neck.

11In any event, in assessing the seriousness of both of these offences, I take into account that you deliberately filled a syringe with the blood of another person before leaving where you were staying.  This reflects that you deliberately equipped yourself with a weapon that not only would appear to be dangerous, but was dangerous.  Sometimes such makeshift weapons appear to contain blood but do not, but in your case, you went to the trouble to equip yourself in advance with this potentially damaging weapon by actually taking someone else's blood, and clearly you set out with it in the belief that it would frighten someone that you might want to threaten.  The clear evidence from both of the victims in this case, is that the needle was in place in the syringe and it was uncapped, and that is, of course, how it was found by police.  I regard these features as reflecting a degree of planning and an intention to commit some type of offending with at least the threat of causing serious harm.

12Further, the fact that you retained the syringe after the armed robbery, and so still had it with you when struggling with the man, also reflects a serious level of culpability.  By this action, you were at least risking causing a needle stick injury to whoever you were threatening and there was real risk of actually causing the risk of the type of harm that such a weapon is generally feared to cause.

13Both the woman you robbed and the man whom you assaulted made and read out in court their victim impact statements.  In not repeating all of what they said, I do not underestimate that the extent of the consequences to each of them has been significant, and that there are significant ongoing consequences for both of them.

14They both, understandably, suffered very real fear at the time of these events.  They have both suffered and continue to suffer anxiety and indirect consequences.  The woman described psychological treatment, including taking medication, and that she feels you threatened her physically and also undermined her sense of security, especially when out amongst strangers, and made her feel inadequate in being unable to protect the child with her.  She also says that she resigned from her longstanding employment as the impact on her continued and she felt unable to fully perform her work, although I make no finding about that.

15She and her partner both say that these events have caused both of them to hesitate, if not avoid, outdoor activities when alone or with their family.  The stress for the six months of undergoing testing of his blood, during which your male victim understandably feared that he might have been infected by the syringe, had understandable impact on both of them.

16In assessing the objective seriousness of your offending, I regard the fact that you approached a woman with a child and that this event was played out in front of that child, as reflecting a callousness on your part towards not only your adult victims, but also the potential emotional consequences to the child.

17I also take into account that this occurred at a time and place where there were likely to be many people going about their personal activities and likely to observe and be frightened by, and potentially in danger from your actions.  I regard the armed robbery using a blood filled syringe with an uncapped needle approaching a woman and a child sitting at an outdoor table, in public , in broad daylight, on a weekend afternoon, as a quite serious instance of this type of robbery.

18However, it is not at the level where sentences approaching the maximum would be considered, and while I find that there was some planning by the filling of the syringe in advance, there was not sophisticated preplanning, and there was no attempt to disguise your face or identity.

19As for the assault, taking into account that this did occur spontaneously in response to the man chasing you for his partner's bag, and that you have pleaded guilty to it, you will not be receiving the maximum penalty which in the circumstances is only three months' imprisonment.  Nevertheless, I regard it as a serious instance of common assault, in particular because you were wielding items which had the potential to cause very grave injury - a bottle and a blood filled syringe.

20The need for general deterrence, that is to send a message to other tempted to engage in these types of offences, that they can expect stern punishment is an important sentencing factor in your case.  So is the need to denounce and punish robberies of this type against what are often called "soft targets", which have become all too common, especially amongst people like you under the influence of drugs and seeking quick money to buy more drugs.

21The fact that your judgment was probably significantly reduced by the effects of a cocktail of drugs, in my view is likely to increase the fear in victims as their attacker often demonstrates irrational or uncontrolled behaviour while threatening them with a weapon capable of causing serious harm.  In other words, the less self-control being shown by the offender under the influence of drugs, often the greater fear engendered and actual risk.

22Whilst I recognise that many people addicted to drugs do not stop and think of the deterrent effect, in my view, the sentencing factor of general deterrence is very important.  Further, the community requires that a punishment be imposed to sufficiently denounce this type of frightening and dangerous offending.

23You have admitted a criminal record of six prior court appearances, all in South Australia, spread over 14 years, and all except one, relating to unauthorised or unregistered use of motor vehicles.  Although there has been mention of some juvenile offending involving theft, none of that is contained in your adult record, and I do not take it into account.  There was one appearance in April 2010 for breaching bail and dishonestly taking property without the owner's consent, but I note that the sentence was a conviction without further penalty, which reflected a minor degree of culpability.

24While you cannot claim to have previously lead a totally law abiding life, I do not regard any of your prior offending as of the same nature nor anywhere near as serious as either of the present charges for which I must sentence you, and in that sense, it is of minimal relevance.  Indeed, you have no criminal history of violence, and given your very long history of addictions, your record does not reflect entrenched antisocial offending.  Whether that is through your own self-control or due to family members' controls or influence over you, I cannot determine on the evidence I have.

25In your favour, I take into account that you have pleaded guilty to these charges.  It was not at the earliest possible time, and indeed a committal hearing was conducted in which witnesses, including these victims, were required to attend and be cross-examined.  Nevertheless, there has been utilitarian value in you deciding to plead to guilty to these charges prior to commencement of the trial, saving these witnesses the further stress of giving evidence before a jury and having to relive their experiences, and saving the community the time and cost of a trial.

26Your plea also reflects that you have accepted responsibility for this conduct, notwithstanding that you claim to have minimal or no memory of it.  I also take your plea of guilty to reflect some remorse although not as much as if it had occurred much earlier.  You have expressed remorse in the sense of saying that what happened to these victims was terrible, and that you feel for them, and acknowledge the anxiety it has caused them.  From this I take that you have finally shown some empathy for their situations.  I shall state after I have announced your sentence what it would have been had you not pleaded guilty but been found guilty by a jury.

27I turn now to your personal circumstances.  You are now aged 38.  You were born and brought up in Adelaide in a comfortable if difficult family environment.  At about age 15, you left your parents' home and moved to live with your grandparents.  You have said that this was due to your mother being domineering and controlling and emotionally distant, and your father alcoholic and physically abusive.  You were at a private school but say you found it hard to make or maintain friendships there, felt marginalised, and this lead to truancy and you mixed with more delinquent youth who involved you in some minor offending.

28You apparently started abusing alcohol and illicit drugs from about age 15.  Apparently at age 16, the South Australian Department of Human Services became involved in your situation which I take to reflect that you were involved in considerable marginal activity as well as truanting from school.

29It is unclear what changed a few years later, but I am told that you eventually returned to live with your parents who were still together at that stage, although they subsequently divorced.  This was when you were about 18 or 19 years old.  You resumed some studies to the extent of obtaining, in 1996, a dental assistant qualification.  You obtained work in that field, and in 2001, completed a Bachelor of Oral Health.  It is unclear for how long you worked in the dental field.

30At age 19 you married, but you describe your first husband as a violent alcoholic.  The marriage lasted about four years, during which you had child, a daughter now aged 16.  You apparently considered yourself an alcoholic by the time you became pregnant with her, but stopped drinking during the pregnancy, and remained abstinent for two years until your marriage broke up.

31According to a report from Dr Deakin, a psychiatrist who examined you in June last year for the purpose of a bail application, you told him that after the end of your first marriage, you formed a relationship with another man who introduced you to heroin, and that as a consequence, you became heroin dependent by age 24.  You maintained a significant daily habit, which you were able to maintain because of an inheritance you received when aged 20.  You have given varying figures as to the amount of that inheritance, or perhaps the amount spent on drugs, but apparently it was all wasted many years ago.

32Dr Deakin's report outlines that you have an extensive former psychiatric history, having first been admitted to a psychiatric inpatient unit at age 21, in Adelaide.  It seems that initially you were diagnosed with bipolar disorder, and commenced on an antidepressant and mood stabiliser, but subsequently that diagnosis has been excluded.  The diagnosis of Borderline Personality Disorder has been confirmed.  It seems that over the years since your first admission, you have had multiple admissions to psychiatric units - approximately 15 - many interrelated with periods of drug abuse.

33You have been managed by an addiction specialist, have tried various drug - assisted detoxifications, and also have received pharmacological management.  Dr Deakin noted that this was rather than psychological therapy, as you told him that you had never got around to it whilst being heroin dependent.

34About 11 or 12 years ago, you met Troy Leonard, your current husband.  He is not a drug user, and over the years has tried to rescue you from periods of drug and mental health problems.  He, however, has his own history of mental health disorder, and also for the last few years has been on a disability support pension due to the combination of his psychiatric condition and a back injury.

35You have two children with him.  The elder, a son, is now aged 10.  He has development delays in language, play and fine motor skills, and a diagnosis of Autism Spectrum Disorder.  He copes well enough to be at a mainstream primary school without a full time individual aide, but does require extra lessons after school, and his care is no doubt more challenging and more complex than for an average boy of his age.

36You also became pregnant again in late 2011, and your youngest child, another son, was born in August 2012.  He is about to turn two.  I am told that because this was an unexpected pregnancy, you were prescribed a high dose of methadone during the pregnancy, and the baby was born in an opioid withdrawal state, and required hospitalisation for that reason for six weeks.  You struggled mentally with this, and experienced post-natal depression, as well as significant sleep deprivation.  As a result, your own mental health became a significant issue, and unable to find an appropriate private psychiatric clinic in Adelaide, your family arranged for admission for you at the Melbourne Clinic.

37You came to Melbourne and were admitted as a psychiatric inpatient at the Melbourne Clinic in early January 2013.  However, you discharged yourself on 29 January 2013.  You are said to have been stabilised and your condition improved in the time you were there, but you had met Mr Farrawell, somehow a visitor at the Melbourne Clinic, and a source of heroin for you.

38It is unclear to me where you spent the next two to three weeks - one suggestion being some treatment in Queensland, but as that appears not to have been known to your family who would have needed to pay for it, I am not sure that that is so.  What is clear is that you did not return immediately to your family and children in Adelaide.  Further, by 19 or 20 February 2013, you were staying with Mr Farrawell at his flat in Kensington, and consuming heroin as well as other drugs including "Ice", and probably any remaining prescribed medications.  It was in this condition that you committed the offences that bring you before the court.  You are said to have very limited, if any, recollection of the events, and indeed it is said that that is why that you at first denied that you had committed the offence.  Indeed, you even went so far when interviewed by the police as to the describe the armed robbery offence as "terrible".

39While your drug taking may explain your offending, and therefore give it context, it does not excuse it or in any way mitigate your involvement in these circumstances.  You chose to leave an inpatient rehabilitation program which was treating your underlying mental health conditions, and knowingly reverted to heroin abuse as well as mixing it with other illicit drugs.  You put yourself directly into access to those drugs by visiting and indeed staying with Mr Farrawell.  If your judgment was reduced by your drugged state, it was a wholly self-induced condition, and even if you had not previously engaged in violent criminal offending in that state, your drugged state was well within your experience, and voluntary.

40Further, as confirmed in a recent Court of Appeal case of Johnson, it will require exceptional circumstances for the taking of drugs as a reaction to an underlying mental health condition to be taken into account in mitigation.  In my view, in particular as there is some evidence through the report of Dr Deakin that you were reported as having been stabilised and beginning to improve under your treatment at the Melbourne Clinic, there are not exceptional circumstances in this situation that would warrant my taking into account in mitigation of the seriousness of your offending, the taking of drugs with an underlying background of a mental health problem.

41When interviewed by police on 26 February 2013, that is three days after the offences, you denied them.  Your version in that record of interview is at times barely coherent, but it clearly contains many strands of an invented story.  There is talk of a flight from Queensland on the very morning that the offences occurred, whereas it is now conceded that you had been staying with Mr Farrawell for at least two to three days.  You also wove a story of luggage being stolen on the train from the airport, and having only met Mr Farawell on that train for the first time.

42Dr Deakin points out a variety of matters on which he regarded your reliability as unclear, and that was at a stage that you were still denying involvement in these offences.  He noted that you told him you had concocted what to tell police while you waiting in the police cells to be interviewed, and also you had falsely told Dr Patterson, who was called in to examine your fitness for that interview, that you were in witness protection.

43When Dr Deakin assessed you, you had been in custody for more than three months, and appeared to him to be coping reasonably well and abstaining from heroin for that period.  You did not present with signs of mental instability during his assessment.  You continued to be prescribed medication to assist with depression and opioid dependency.  He predicted that you would continue to experience difficulty in the community due to a complex constellation of chronic mental health problems, and would require indefinite management of your addiction and psychiatric issues.

44He considered you fit to stand trial, and concluded that if it were proven that you did commit these offences, it was possible you were significantly affected by a combination of illicit drugs and prescribed medication at the time, but he did not consider that your mental state was impaired at the time, nor that your offending was due to a mental disorder.

45I have also read a psychological report from Ms Carla Lechner, who assessed you last month.  This report talks of you suffering from depression and a borderline personality disorder, as well as a polysubstance use disorder.  I have taken into account what it outlines, but it is conceded by your counsel that your various conditions as outlined there do not give rise to a situation where the principles in Verdin's case would invoke leniency or any diminution in the need for general and specific deterrence to be applied as sentencing factors in your case.

46You were taken into custody on 26 February 2013 and held in custody for many months.  The committal hearing was held in July 2013, following which you were committed for trial on the charge of armed robbery, to which you indicated a plea of "not guilty".  In September last year, you were granted bail by this court on condition that you reside and participate in the Raymond Hader Clinic Rehabilitation Program.  You commenced to do that, and apparently found it helpful.  However, in November last year you left that program and that facility, thereby breaching your bail, and you returned to South Australia.  This was despite describing to Ms Lechner that your time at that clinic was life changing and that you worked through the 12-step abstinence based program, and were weaned off methadone.

47I take it that your remand early last year was the first time you had spent any length of time in custody.  In your mid-thirties, and despite your long history of drug abuse, that must have been salutary for you.  I accept that you appear to have utilised that confinement and indeed the further time this year to remain drug free.  You also seem to have recognised the value of the rehabilitation program at the Raymond Hader Clinic.  However, you clearly do not have much ability to recognise the reality of legal restrictions such as bail conditions, nor the really long term commitment you will need to make to your own rehabilitation.  Such long standing issues are not resolved simply, nor after a couple of months of being drug free and feeling a program is helping you.

48I have read a number of letters and references from family and people closely associated with your family in South Australia.  These describe how well you interacted with the family, and were progressing in your rehabilitation after your return there late last year.  However, in May, you were located, arrested and extradited to Victoria and have been in custody since then.

49I accept that since being returned to custody you have remained abstinent from drugs.  There have been some urine screens conducted in late May and June confirming that.  I have also seen the record of your regular attendance at Narcotics Anonymous meetings at the Dame Phyllis Frost Centre.  I take into account that you have become the group's co-ordinator and are proud to have been that.  You have also engaged with various courses whilst in custody, and tried to keep occupied with working in industries, and also completing various certificates under the auspices of Kangan TAFE.

50Apparently whilst in Adelaide earlier this year, you engaged with the Christian community of which your family are active members.  The pastor of the Christian Family Centre Church describes you over that period as attending church services and reconnecting with your family.  He felt that your attempts to be the daughter and mother you desperately want to be, was genuine.  His letter, however, reflects that he was not aware that you were there in breach of bail, and had not finalised your time at the Raymond Hader Clinic.  Nevertheless, I accept for those who believe that this religious commitment can be a help and support.  You have shown signs of reengaging with it and with your family positively.

51The main thrust of mitigatory factors put on your behalf, is that the family circumstances, and in particular, the needs of your three children in Adelaide, form exceptional circumstances which warrant my exercising the discretion of mercy clarified in the case of The Queen v Markovic and Ors.  I am urged to impose a sentence with a minimum term that is not much greater than the time you have already spent in custody, so that you can be paroled and returned to your family and especially your children in Adelaide.

52Evidence about the family situation is contained in letters from your mother, your aunt, and oral evidence from your husband who has travelled to Melbourne for your plea hearing, and of course he is here again as I see today.

53Your eldest daughter, now age 16, has not lived with you since she was about seven years of age.  She has not lived with her father for longer than that.  She has lived with your aunt who has also paid for her schooling at private schools.  The relationship between you and her has obviously been difficult over many years, but I am told that during your return to Adelaide late last year and earlier this year, you formed a better relationship with her, albeit she continued to live with your aunt.

54Unfortunately, your daughter suffered an accident in May this year, following which she had headaches and apparent behavioural or personality problems such that she was assessed as to whether she had an acquired brain injury.  A report of Dr Susanna Thompson, a consultant paediatric neurologist, dated 29 May confirms that history and those health concerns, but while your daughter obviously needed support and monitoring, there was no brain injury found.

55I am also told that in the last couple of weeks she has changed schools, and is now at a boarding school, returning home on weekends to your aunt.  I accept that she has been experiencing particular health difficulties in the last few months and that this will have been of concern to you.  However, it would seem that she has now stabilised and hopefully any ongoing effects of a suspected head injury are well monitored and prove to resolve in time.  The fact that she has been cleared to return to school and has changed schools reflects that at the moment doctors do not consider there to be any immediate cause for concern.  I accept that you might want to be closer to her during such time.  It may even be that her father, in the letter to me, is correct in saying that your presence might assist as extra help for her, given the more recent building of your relationship with her.  However, on the evidence before me, she remains within the care of your aunt, who has been providing that care for her for about the last decade, and that although your aunt may well be aging, and no doubt finding the responsibility harder, she is still willing to continue in that role.

56In relation to your two younger children, I heard evidence from your husband, their father.  The youngest, aged almost two, lives full time with him, and as Mr Leonard is on a disability support pension, he is available to look after a young child full time.  He explained that your mother, who has been like a mother to him, has been relieving him with help from your aunt, two days a week for up to four hours a day to enable him to attend to other matters.  In addition, this enables the baby to play in a larger residential environment than the flat where your family otherwise resides.

57While separation from a such a young child might normally be seen as causing a particular emotional deprivation for such a young child, I have no evidence in this case that that is so.  Further, I note that you have, in fact, had very limited contact with him since his birth. Initially, due to opioid addiction from you, he was kept in hospital for some weeks, and then you were suffering post-natal depression such that you were not interacting normally with him.  In early January last year, you came to Melbourne to attend the Melbourne Clinic, and I note that despite discharging yourself on 29 January, you did not immediately return to Adelaide.  You went for some days to live with a man who was giving you access to drugs you craved, that is heroin, ice and perhaps others.  Those events do not reflect a recognition by you at that stage of an immediate need in your young child to have you present.

58You were then separated by reason of imprisonment - on remand, and when bailed to the Raymond Hader Clinic.  Even accepting that your breaching of your bail and absconding to South Australia followed a visit by your mother who brought the baby to see you, the new-found bond you have towards him is not confirmed through any material before me.  The baby seems to be mainly cared for by his father with whom he has been for most of his young life, and who said in evidence here that shortly after you came to Melbourne, Department of Human Services in Adelaide investigated but felt matters were appropriate and left the baby in his care.

59In relation to your older son, his father's evidence was that he picks him up from school on Fridays, and has him for the weekend, together with the baby, then returns him to your mother's house on Sunday nights, and she has him for the school week.  You mother assists with his extra learning needs and after school learning.

60I have read and been told that your family has suffered a recent tragedy, in that your only sibling, your brother, died of a drug overdose in June of this year.  I do not doubt that you as well as all of the rest of your family, but in particular, your mother, has been deeply affected by this.

61Your mother's emotional trauma and grief at this news, together with the strain of looking after a young and needy child, now aged ten, will have tested her ability to cope.  A report from her doctor confirms that she is not coping well.  Indeed,  it says that she cannot continue to look after her grandchildren.  However, I have read her letter, and whilst I have sympathy for her in this regard, and am satisfied that the circumstances will be causing her greater pressure than might be desirable, she nevertheless will undertake the ongoing care of your older son, and assistance with the care of the younger one.

62The law is clear that mere hardship to families is not sufficient to necessitate the reduction in a prison sentence which should otherwise be imposed.  Indeed, it is recognised that there is hardship to the families of most people who are sentenced to imprisonment.  There must be exceptional hardship for a reduction in the sentence that would otherwise be imposed to be warranted.  I accept that children's needs often create a greater level of hardship than for other family members.  Your children's circumstances are certainly complicated, and might well be putting greater strain on your mother and aunt than is desirable.  However, on the evidence before me, there are arrangements in place in your absence that have been providing satisfactory care and support for your children, and although your presence might be of assistance to them, it has also been missing for long periods in the past.

63Your husband is available to take over the care of your ten year old if your mother really cannot cope, even if he would find the weight of looking after both of the children much more of a challenge.  Your counsel, indeed, described his indication that he could cope if he needed to look after both of the boys as reflecting some bravado on his part and possibly not realistic.  I accept that it would be a particularly difficult extra responsibility for him if facing it alone, and without the backup of your mother and your aunt.  Nevertheless, I am not satisfied that the evidence supports that there are such exceptional needs of your children which you would provide, if returned immediately to Adelaide, that I could be satisfied that exceptional circumstances exist which warrant my reducing your sentence due to hardship to your children.

64Further, even if I were to be satisfied that your immediate release to care for your children would be warranted, the fixing of a sentence requiring parole takes the practicality of that out of my hands.  The granting of parole is not within my powers, and the prospect of your being allowed to return immediately to South Australia is most unlikely.  The processes of the grant, supervision and possible transfer of parole are all for administrative decision by others.  You are nodding as I say that, and I suspect you know that already.  It is in your and your family's interests to ask for information about what arrangements along those lines can be made and for them to be initiated in plenty of time for the processes to be worked through.  There is a possibility of transfer to a reciprocal prison in South Australia, but that is a quite complicated process.  Again one well outside this court's control, and it needs separate consideration that is outside this court's powers.

65In any event, coming back to the issue of hardship, while I have said that there is currently considerable strain, especially on your mother and aunt, I am not satisfied that the circumstances are of such exceptional hardship that I should significantly lower your sentence for that reason.

66What I have taken into account as warranting some leniency in your sentence and arising from those circumstances, are two factors.  First, I take into account that you are likely to experience more concern about your children in the circumstances of this separation from them, and that is likely to increase the burden for you in serving your sentence.  Secondly, I have taken into account that because of the geographical separation, it means that visits from family are likely to be much less frequent than they might otherwise have been, if not near impossible, and that is likely to make more burdensome for you the serving your sentence.  Those matters I have taken into account as requiring some leniency.

67It is conceded, through your counsel, that no sentence other than a term of imprisonment is appropriate in your case.  You will receive credit for your presentence detention, but I am of the view that a term considerably longer than that is necessary to adequately denounce and punish these offences and send sufficient deterrent message to others.

68As this was your first offending of this or any violent nature, I do not regard specific deterrence, that is to deter you from further offending, as high as it might be in other similar cases.  But, as I have already tried to emphasise, what you need to consider and have drummed home to you as often as possible, is the need to stay abstinent from illegal drugs to avoid the risk of you offending again in the future.

69I bear in mind that the sentence I should impose should not be so long as to crush your motivation to rehabilitate yourself, and in particular to remain drug free while in prison, and develop approaches and coping mechanisms to avoid the temptations to relapse when released.  Any drug rehabilitation programs available to you in prison should be accessed.  I understand and recognise that you have been attending and finding help for yourself and becoming actively involved in co-ordination of the Narcotics Anonymous meetings.

70There are signs, from what I have heard, since your first imprisonment 18 months ago, that you have realised the need to stay drug free, and also have found support amongst family, and with religion.  The challenge for you is to continue along that path, and although you have lapsed many times before so your prospects must be guarded, they are in my view far from hopeless, given the progress you seem to have made over the last 18 months, and the will and support from your family to continue to support you.

71Will you stand up now please, Ms Leonard.

72Heidi Leonard, on the charge of armed robbery, you are convicted and sentenced to three years' imprisonment.

73On the summary charge of common assault, you are convicted and sentenced to two months' imprisonment.

74I direct that one month on the summary charge be served cumulatively on the sentence for armed robbery, making a total effective sentence of three years and one month, or 37 months' imprisonment.

75I fix a non-parole period of two years' imprisonment before you can be eligible for parole.  I will declare the days of presentence detention as reckoned served. Adding to what I was told on Monday, I calculated that as 284 days.  I think that was confirmed by my associate in advance.

76I state for the purpose of s.6AAA of the Sentencing Act that if you had not pleaded guilty, but been found guilty of these charges by a jury, and all other circumstances had been the same, I would have imposed a total effective sentences of four and a half years' imprisonment with a non-parole period of three years.

77There are other orders that I am asked to make and they were not opposed.

78First, there is the retention of the forensic sample that was taken from you.  I am satisfied that this is a case well warranting that to be made due to the nature of the offending and in the public interest and I note that it was not opposed.  That means that your DNA details will placed on this state's database.

79I also make the disposal order that was sought for disposal of the syringe and your clothing worn at the time.

80I was asked to make a compensation order in respect of damage that the assault incident caused to the nearby car.  I was asked to make an order for $1,000 said to be the amount of the excess paid by the owner of the car to their insurer, or as the contribution for repairs.

81I was provided with an invoice and some documentation relating to that. Without further information, I am not satisfied that the whole amount should be ordered to be paid. I am satisfied that pursuant to s.86 of the Sentencing Act, the amount that is shown on that documentation as the cost of the replacement back window and the cost of fitting it should be made and that is a total of $672.89.  However, I am not satisfied that the balance of some $5000 of panel beating, which seems to include the side doors and lower down the back of the car, was necessarily caused by your actions in committing that offence.

82I understand that the reality of payment of that is another matter but I am prepared to make the order for that amount.

83You can take a seat for a few minutes Ms Leonard, I need to sign off on orders and have various matters checked.

84There will be a copy of each of those orders given to prosecution and defence counsel.  I don't know that any of those Ms Leonard needs to take with her.  Those ancillary orders or do you want her to?

85MR HALPHEN:  No that can be handled at a later time.

86HER HONOUR:  Is there anything else I have overlooked?

87MR HALPHEN: Your Honour, I just wanted to correct something. It makes no difference to the orders Your Honour has made. I referred Your Honour to s.86(2) and made mention that Ms Leonard was impecunious. Subsequent to that, I have received information that that, in fact, is not the case following her brother's passage.

88HER HONOUR:  Thank you for clarifying ‑ ‑ ‑

89MR HALPHEN:  I do not think that that makes a ‑ ‑ ‑

90HER HONOUR:  ‑ ‑ ‑ and telling the court that.  I am not going to increase the amount ‑ ‑ ‑

91MR HALPHEN:  No.

92HER HONOUR:  Because it may well be some of those other costs are referrable to this incident but for me to be able clarify that would take other evidence ‑ ‑ ‑

93MR HALPHEN:  No.

94

HER HONOUR:  ‑ ‑ ‑ for the reasons I have stated, it makes sense that the cost of the windscreen itself and the labour cost in installing it is appropriate but I

will- - -

95MR HALPHEN:  Yes.

96HER HONOUR:  ‑ ‑ ‑ limit the compensation order to that amount.

97MR HALPHEN:  Yes, as Your Honour pleases.

98HER HONOUR:  Thank you for clarifying that though.  Is there anything else I have overlooked?

99MR CROSBIE:  No Your Honour, thanks.

100HER HONOUR:  Do you want time to talk to your client before she is removed from the courtroom?

101MR HALPHEN:  I would be indebted, Your Honour, thank you.

102HER HONOUR:  Especially with this time of day, I will allow that.  Are there any custody notes that need to be made, I am assuming not because she has been in custody for some time ‑ ‑ ‑

103MR HALPHEN:  Yes.

104HER HONOUR:  ‑ ‑ ‑ and her medication must be known.

105MR HALPHEN:  Yes.  No, it has all gone to the authorities Your Honour.

106HER HONOUR:  All right.  If you would like to approach the dock, I can be signing or checking the orders in the meantime.  Ms Leonard has, in fact, been removed from the courtroom before my asking for it.  I recognise that there is a lot of stress involved, particularly with her partner and her baby brought here to see her.  I'll adjourn now.

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