R v Ashworth

[2019] NSWDC 658

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ashworth [2019] NSWDC 658
Hearing dates:	20 March 2019 & 16 April 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 3 years with a non-parole period of 1 year 9 months
Catchwords:	CRIME — Violent offences — Armed robbery — Offensive weapon SENTENCING — Commencement — Pre-sentence custody period SENTENCING — Relevant factors on sentence — Deterrence — General deterrence SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Maximum penalty
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v R [2013] HCA 27 Fernando [1992] 76 A Crim R 58 Henry & Ors [1999] NSWCCA 111 McNaughton [2006] 66 NSWLR 566
Category:	Sentence
Parties:	Regina (Crown) Elissa Ashworth (Offender)
Representation:	Jessica Pelliccione (Crown) Nidal Abdi (Offender)   Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Offender)
File Number(s):	2018/00041637

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. Elissa Ashworth appeared in this Court before me, on 15 February 2019 for sentence proceedings which could not be reached because of the amount of work that I had before me that day. The matter was adjourned to 20 March 2019, with priority on that occasion, with an estimate of two hours. On that day, again the workload was large and the matter could commence but not conclude. In addition, there was a question with regard to what was to happen to the offender once she was released from custody and the extent to which special circumstances might be facilitated, with an extended period on parole. Relevant to that, was the proposal of her family, namely her birth father and his wife, to provide a home and care for her once she was released.

2. That was a significant aspect of this case, because of the, one might say, regrettable life history that this young woman has suffered through her formative years. I was not prepared to resolve the matter without having evidence from her birth father, to make sure that he understood the burden that he was accepting in conjunction with his wife because there can be no doubt that the offender will provide them with some challenges once she is released on parole and given the opportunity to live with them and hopefully redirect her life.

3. That was resolved today when her father was to attend court to give evidence. Unfortunately, whilst travelling from Wagga, he was involved in a motor vehicle incident and could not continue the journey, but at 1 o’clock, was available to give evidence by way of audio-visual link from Wagga to where he had returned, after the collision. He gave evidence of his relationship with his daughter, what he and his wife proposed to do once she is released to parole, and the extent to which he will be able to, in conjunction with his wife, assist her.

4. I accept all that he had to say with regard to his obvious affection for his daughter, the obligation that he is prepared to accept, and his background which includes military service, managing his own business, which employs 120 people; these include some people with challenges such as his daughter has faced.

5. His wife has experience in alcohol and drug work and together they are confident that they will be able to recognise if she strays from the proposed path and provide whatever assistance she will require. Thus today, I have reached the point of being able to continue with the proceedings and give judgement upon the determination of the sentence, which I find is appropriate for the misconduct upon which she engaged.

THE MAXIMUM PENALTY

6. She pleaded guilty upon arraignment in this Court, to the alternative Charge in an indictment, expressed in the following terms, that she on 7 February 2018 at Lethbridge Park in the State of New South Wales, did rob NT of certain property, namely a silver Apple iPhone 5 mobile phone, the property of NT.

7. The offence is contrary to s 94 Crimes Act 1900. The maximum penalty to which she is exposed is imprisonment for 14 years. There is no standard non-parole period for the purposes of Part 4, Div 1A Crimes (Sentencing Procedure) Act 1999.

THE PLEA

8. The indictment upon which she was to be presented for trial included count 1, in the alternative to which count 2 was offered and it was in respect of count 2 that she ultimately pleaded guilty, accepted by the Crown in satisfaction of all matters.

9. The first count alleged an offence contrary to s 97(1) Crimes Act 1900, the offence charged being robbery armed with an offensive weapon, namely an uncapped, used syringe. The Crown concedes that it cannot prove, to the requisite standard, that at the time of the commission of the offence, the offender was in fact armed with such a weapon, though it is agreed between the parties that it was the victim’s perception of matters that she was robbed of her phone in circumstances where the offender had a syringe against her neck.

PRE-SENTENCE CUSTODY

10. The offender was taken into custody on 7 February 2018, the date of her arrest. She was held in custody without bail until 6 August 2018. At that point she was given bail pursuant to an order of the Supreme Court with conditions that she attend a residential rehabilitation facility in Wagga. Her father gave evidence today of having conveyed her to that facility but, shortly after found her wandering the streets, took her to the police station for the clear breach of her bail conditions, and from 8 August 2018, she has remained in custody.

11. Thus, all matters being equal, the sentence would have commenced on 8 February 2018, bringing into account her pre-sentence custody. However, a complication arose because of the time of the commission of this offence she was subject to conditional liberty as a result of proceedings in the Children’s Court. She was called up in respect of that and sentenced to a term of imprisonment for breaching the conditional liberty by this further offence. She was detained as a consequence for three months from 7 February 2018, the date upon which she was taken into custody for the present matter. That was to expire on 8 May 2018.

12. There is discretion available to me with regard to the commencement date of the sentence today. There are considerations that must be brought to account in the exercise of my discretion, including the fact that the offence for which she was subject to conditional liberty is a separate and distinct crime to that with which I am now concerned. I have come to the view that there should be partial concurrence with the sentence that she has been called upon to serve, for the breach of the probation given to her in the Children’s Court. Ultimately I have come to the view that the sentence I pass today, shall commence on 11 March 2018, involving partial concurrence and accumulation upon the three months imposed in the Children’s Court and bringing into account the pre-sentence custody that she has suffered already in relation to this present matter.

THE UTILITY OF THE PLEA

13. She did not plead guilty on the first opportunity but she ultimately took that course after the offer made, I think by the Crown, on 6 September 2018. It is not entirely clear and perhaps I am wrong in that regard because I note that the Crown, I would expect, would have been anticipating a trial upon the more serious charge. It is consistent with the matter as I understand it that the offender would have offered the plea to the less serious charge. If this is correct, that occurred on 6 September 2018 for the first time and in due course it was accepted by the Crown in full satisfaction.

14. One way or another, the Crown concedes that there is a utility provided in the plea of guilty. The Crown has conceded a discount within the range of 15 per cent. I took a less sympathetic view and thought twelve and a half per cent was appropriate, but, ultimately, with the starting point that I adopted, upon the application of 12.5 per cent the ultimate sentence would have been expressed in a period of time including days, which I have abandoned. Thus the discount rests somewhere between twelve and a half and 15 per cent. I cannot say precisely where, at this stage, because I have abandoned the additional days amounting almost to one month to achieve a sentence expressed in years and then in the non-parole period and parole period expressed in terms of a year and months adjusted to reflect the special circumstances of which I am satisfied.

THE FACTS

15. This is a serious offence and I agree with the Crown submission that if not at mid-range, it falls close to mid-range of objective seriousness for such misconduct. The offender was known to the victim with whom she attended school. About 5pm on 7 February 2018, there was conversation between them by way of Facebook Messenger. About 6pm at night, the offender invited the victim to her home, to catch up and provided her with an address in Lethbridge Park.

16. About 7.10pm the victim caught a bus to Lethbridge Park and began walking to the address given. She became lost and telephoned the offender, who met her at an overpass near to the home unit, to which they then walked together. Once inside, the offender and the victim went to the offender’s bedroom. There the victim saw a bong and needles on top of the small bedside table within the bedroom. The victim had her mobile phone with her. The offender asked for the phone to look at it. She held the phone for about 30 to 40 minutes, using her own mobile phone as a hotspot to access data on the victim’s phone. The victim took her phone back every so often, because she was receiving text messages and phone calls from her boyfriend.

17. Whenever that occurred, the offender would cancel the phone call so that the victim would have to take her phone back to return the call to her boyfriend. It is not entirely clear to me on the material that I have, why the offender was accessing data on the victim’s phone. I would accept on the material that I have that it would have some purpose connected with the robbery that occurred.

18. When the victim asked the offender what she was doing with her phone, the offender replied, “Only photos” and pressed a few buttons on the phone before showing the gallery section of the phone to the victim. During the time when the victim had taken her phone back to use it, the offender took a needle from the side table and pulled the cap off the end of it, making a popping sound. Before then, the offender told the victim that she had used the needle and that she had Hepatitis C, from drug use. The offender also asked the victim if she was using drugs at that stage and the victim said “No”.

19. The offender told the victim that another female was returning to the unit. The victim began to feel uncomfortable because others were coming to the unit and because the offender was holding the needle. About 8.30pm the victim received a call from her friend. She told him to come and pick her up. About 8.40pm, the friend called again and was given directions to the unit by the victim. The friend thought the victim sounded distressed and told her that he was on his way. The victim told the offender that he was on his way and that she was going to wait for him outside. The offender said, “All right, I will come and wait with you”.

20. The offender directed the victim toward Palmyra Ave and there they stood near an underpass, while the victim spoke to her friend on the phone, trying to give him directions. At that point a male appeared. He appeared to be drug-affected. He walked to where the offender and the victim were waiting. The offender told the victim to get off her phone, “He is going to rob you”. The victim hung up on Bell, her friend, and when he attempted to call back the offender told the victim not to answer. The offender grabbed the phone from the victim and said, “I’ll hold it and hide it, so the guy doesn’t rob you”.

21. The friend called the victim’s phone again. The victim took her phone back from the offender. The friend told the victim that he was trying to locate the unit to which he had been directed and then the victim and the offender began walking back toward it. The offender approached the drug-affected male and spoke to him for a short period of time. She then walked back to the victim and waited in the stairwell area of the unit complex until the victim’s friend arrived. The victim remained on the telephone to her friend. The male drug-affected person was walking up and down the pathway, outside of the unit complex. The offender instructed the victim to stop moving toward the front of the unit complex, saying, “He is still out there”.

22. She told the victim to get off the phone. The victim did so and placed it inside her bra where she normally carried it. It was then that the offence occurred. The offender was facing the victim. She placed her left arm around the victim’s neck. The victim felt a sharp point pressing against her neck. The offender said, “Hand over the phone and five dollars or I’m going to stab you on the back of the neck with a needle”. The victim complied. As I said, the Crown concedes that it cannot establish that the offender was in fact armed with a needle or a similar device at the time, though it was a reasonable inference in the mind of the victim, no doubt in light of what had occurred previously, that a needle was pressed against her neck. It was her perception that the offender was so armed, but the sentence is determined only upon that basis and not upon a finding that the offender was armed with a needle.

23. When asked why the offender was doing this she told the victim that she was indebted to drug dealers and she needed money. She said that the phone would be returned if the victim “provided $200 by tomorrow”. The victim said that she could not get that kind of money, in response to which the offender told her not to say anything to anyone and not to go to the police.

24. The victim’s friend arrived. The offender told the victim to hug her and act like nothing had happened. The victim complied, out of fear of being stabbed with a needle. She then walked out to her friend’s car. She told the friend that the offender had stolen her phone. Fearing that the offender might be following her, she quickly entered the motor vehicle and told her friend, Mr Bell to drive. He observed her to be very scared. Throughout the incident, the victim was fearful, believing that she was to be stabbed by the needle and might contract Hepatitis C.

25. The victim called her mother, using Mr Bell’s phone and then drove to her mother’s home with him but as her mother was not at that point ready, Mr Bell drove the victim to Mount Druitt Police Station and reported the matter. The police attended the address at her direction, about 9.45pm. Uniformed police officers surrounded the complex. Two of them went to the door of the unit. A male called out to the offender to come out. There was no response. The police approached a back room in the unit and heard a female yell out, “Yeah I’m coming”. As they approached this back room, they noticed the windows were open. The offender was not in the room but police outside saw her and told her to climb down to where they were. She was arrested.

26. She was subject of an outstanding warrant at that point. She denied any robbery and said that the victim had left the phone with her. The phone was retrieved from inside the unit, in the offender’s bedroom. She declined to be interviewed.

THE OFFENDER

27. She was born in 1999 and, has only recently, reached the age of 20 years. She was 18, I am told, at the time of the commission of this offence. She has a record of antecedents, all in the Children’s Court proceedings, beginning in June 2015 when she was charged with assault occasioning actual bodily harm, common assault and using offensive language.

28. She was charged with reckless wounding dealt with in November 2016 and was required to submit to probation. There was also an offence of contravening an apprehended violence order. There was a further offence of contravening an apprehended violence order and a further offence of common assault. The reckless wounding offence was apparently perpetrated against her mother, as discussed in the psychologist’s report to which I shall come.

29. The Children’s Court took non-custodial options when the offender appeared before it, until of course the breach of the probation for the reckless wounding which resulted in the detention of three months to which I have referred. There is no record of any custodial offences on her custodial record. There is a more expansive bail report, dealing with all of the proceedings upon which she has appeared in courts, including a breach for the probation given in respect of the reckless wounding charge.

30. I have a sentence assessment report which provides in summary form, the history consistent with what is contained in the psychologist’s report. This tells me that she was living in a de facto relationship at the time of this offence. She recently connected with her birth father, with whom she intends to reside when released, and her father and his wife intend to support her in their home, near Wagga in South West New South Wales.

31. The offender has never worked since leaving secondary school in Year 9. She has survived on government benefits. It is noted she has no adult convictions. She has a history of alcohol and illicit drug abuse over the years. She lacked pro-social modelling and her life through her formative years has shaped her anti-social behaviour, exhibited as a juvenile. With regard to the offence, she disagreed that she used a syringe to threaten the victim. Her commission of the offence was to support her ongoing drug habit. She is attributed with very little empathy for the victim and justified her behaviour due to drug dependency.

32. There is a history of mental health issues, for which she has been medicated but she is known to be non-compliant with that. She has shown an unsatisfactory response to supervision in the past and notwithstanding that she has expressed herself in terms of willingness to engage in alcohol and drug counselling or rehabilitation and undergo a further assessment for her mental health issues, her past reluctance to engage with counselling and programs to address her criminogenic needs, challenges the extent to which one can accept as reliable, her present stated intentions. That said on balance, I would accept that she is sincere in her wish to pursue rehabilitation.

33. So much has already been indicated, with the restoration of her relationship with her birth father, although efforts made as a consequence of the Supreme Court bail have failed and found her returned to custody.

34. I do not overlook her youth and the challenges in her past, which would no doubt have made it difficult for her to develop the self-discipline and control required, to fully embrace the opportunity for rehabilitation. Hopefully, she has matured beyond that point and will not fall by the wayside in the future.

35. There is an assessment of her medium to high risk of reoffending. She will require close supervision, once she is released into the community. The report from the psychologist, Emma Hubner, was written on 4 February 2019. Although I have not heard from the offender and I am aware of the circumspection required when assessing representations attributed to an offender, by a psychologist or other writers who present material for sentence proceedings, in light of the history that I have in the document and the access to material that the psychologist had to form the opinions offered, I found this report to be of assistance.

36. The psychologist had the statement of agreed facts, the District Court report which I take to be the sentence assessment report and also records from the New South Wales Department of Community Services and the Child and Family Care Plan that was crafted. There is a Children’s Court Clinical Assessment report written by a psychologist in September 2011 and New South Wales Health Patient records for the period from July 2009 through to July 2016. Thus, I find that I have a reliable history of what was a challenging period for this young woman.

27. Her biological father and her mother separated before her birth and thus she had no contact with her birth father until 2018. Having seen him give evidence albeit by way of an audio visual link and having heard of his achievements in life and what he is proposing, I accept him to be a man of substance, who is anxious to do what he can, to provide for his daughter’s future.

28. Unfortunately she has not been so fortunate in the past. Before the age of 11, she lived with five siblings and her mother and step-father in a home where drug use and domestic violence was rampant. The children were left unsupervised in a house over-run with cockroaches and void of food.

29. She was sexually abused at the age of nine, at the hands of her fifteen year old step-uncle. She developed behavioural and emotional problems and began self-harm. She missed significant periods of school. She was labelled “missing” at one point by the Department of Education and Training, Home School Liaison Officer. She was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), and oppositional of defiance disorder, but her parents, that is her mother and step-father, sought no follow-up management for those disorders.

30. On 31 August 2010, Burnside Brighter Futures Early Intervention Service began working with the family, around the issues of domestic violence, parental mental health, child behaviour, parental drug and alcohol misuse and lack of parenting skills. There were 17 home visits conducted. The family was referred to various support services, but none of these were followed up by her mother and step-father. On 28 March 2011, the children were put into the care of the Minister. The offender was aged 11 at that time. She lived with three separate authorised carers in 2011 but placement could not be maintained because, in each instance, she absconded and demonstrated violent and aggressive behaviour towards her carers. She moved into a high needs placement in Newcastle. There was a one on one support worker available to her at all times.

31. She demonstrated lack of regard for her safety, separation anxiety, and rage, threaten to carry out plans to abscond and would not follow her scheduled routine. Her maternal attachment fluctuated between ambivalence and anger and it was thought she had a reactive attachment disorder and post-traumatic stress disorder. On 2 July 2016, when she was 17 years of age, she was transported to Nepean Hospital by ambulance and admitted to the Pialla Mental Health Unit, with suicidal ideation, irritability and aggression and episodes of self-harm. This was within the context of stress associated with unstable living arrangements at the time. She had exhibited distrust of others. She had a negative self-concept and negative cognition with regard to her circumstances generally.

32. She had enduring emotional numbing and inhibition and maladaptive behavioural responses to stress, including self-harm, isolation and aggression. The psychiatrist who assessed her gave the opinion that she had complex post-traumatic stress disorder. She was prescribed anti-depressant medication and anti-psychotics and discharged on 12 August 2016, with a referral to a local general practitioner, the Aboriginal Liaison Officer in the Blacktown Community and Mental Health team.

33. On 19 August 2016, she was admitted to the Emergency Department at Nepean Hospital, after an impulsive overdose of the antipsychotic medication following an argument with her flat mate. She was then diagnosed with a borderline personality disorder, in the context of her childhood trauma and family dysfunction. Her psycho-social history is discussed, including the separation of her mother and birth father, before her birth, her formative years to the age of 12 when she was raised, if that term can be applied, by her mother and step-father, contact with her biological father was not until August 2018. Her mother introduced her to drugs.

34. She returned home to her mother, after being put into the care of the Minister at the age of 12 but there continued to use drugs. Her mother would have people attend the home. The offender was sexually abused and she was given access to drugs. It was within that context that the offence of reckless wounding occurred, when she stabbed her mother. There is a discussion of her contact with her father, with whom she connected by way of Facebook in 2018 and the efforts he made to facilitate rehabilitation, which she left and after which she was returned to custody.

35. Her schooling was inadequate. She was relocated on numerous occasions and thus has attended various schools. She was prescribed Attention Deficit Hyperactivity Disorder (ADHD) medication but she would not “trust” it and would spit it out when she was required to take it. She suffered a heroin overdose at the age of 18. She has a history of mood dysregulation in childhood and adolescence. She has periods of intense anger and self-harm and suicidal ideation. There is further discussion of her admissions to Nepean Hospital, including the psychiatric facility there and her ongoing prescription of medication for her psychosis.

36. The description of the offence and her attitude to it includes the proposition that she threatened the victim with a syringe and stole the mobile phone. It does not follow from that of course that she was in fact armed with a syringe and as I have said, the Crown concedes it cannot prove that fact. But, this does carry the implication that the threat in those terms, as described by the victim, was in fact made by the offender, which she has here acknowledged. She has acknowledged the impact of her conduct upon the victim. She has been a problematic inmate, according to the correctional records to which the psychologist had access, with frequent conflict with others within the system. In the course of the assessment, she vacillated between familiarity and being guarded, an abrasive manner and tearfulness.

37. There was psychometric testing administered, in an attempt to determine her psychological functioning and personality characteristics at the time of the assessment, but because of the product that fell from the offender it could not be reliably interpreted on this occasion. The summary and clinical opinion repeats much of what I have already said, including the ultimate diagnosis of borderline personality disorder and with her attention deficit hyperactive disorder, suggests a measure of impulsivity in her decisions to commit offences.

38. There are recommendations which no doubt can be brought to account by those who will be required for her supervision and management in custody, before she is allowed to be supervised in the community.

SUBMISSIONS

49. The Crown and on behalf of the offender, Mr Abdi, have provided written submissions. They have not been amplified with oral submissions. They are comprehensive and on point in both cases. As I said, the Crown conceded a discount of up to 15 per cent. I am reminded of the impact of her record and the extent to which it aggravates the assessment of sentence, not so as to suggest greater punishment beyond that which is proportionate, or to generally aggravate the offence or increase the sentence that might have otherwise been imposed. But, in terms of what was said in the Court of Criminal Appeal in McNaughton [2006] 66 NSWLR 566, the effect of the decision in that case and other authorities is that the extent to which her antecedent record aggravates, including conditional liberty at the time of the offence, is confined to the assessment of the importance of specific deterrence, the risk to the community and the extent to which the offender might have otherwise had leniency, had she come before the Court without a antecedent record.

50. It does not increase what is otherwise, a proportionate sentence and does not aggravate the nature of the offending, with which the Court is concerned.

51. I agree with the Crown submission that one has to be guarded in relation to the offender’s prospects of rehabilitation. History does not assist the offender in that regard. Her prospects cannot be said to be good and particularly in light of the content of the sentence assessment report and the assessment there made with regard to the risk of future offending. All of that said, she is a young woman. This is her first time in an adult facility and before an adult court and the Court must do what it can, to provide the opportunity for rehabilitation. It will be a matter for the offender to take that opportunity, if she is sincere in that regard, supported as she will be by her father and her step-mother.

52. The Crown has conceded a finding of special circumstances. The Crown submits that the offence is objective seriousness, a finding with which I have no difficulty, and reminds me of the importance of specific deterrence, rehabilitation, protection of the community and recognition of the harm done to the victim. On behalf of the offender, Mr Abdi reminds me of the guideline judgement in Henry & Ors [1999] NSWCCA 111. The case is not entirely consistent with Henry because this is a less serious offence than that which was before the Court when dealing with those offenders. There are some comparisons to be made but I will observe that first of all there is no finding available with regard to a weapon, other than that there was the belief by the victim that the offender was armed with a syringe.

53. It could not be said to have been an impulsive offence but, there must have been limited if any, planning, at the time. Whether it was an opportunity in the circumstances is a difficult assessment to make. One might be suspicious of the presence of the drug-affected man pacing up and down outside the building and the connection he had with the offender and the communication between the offender and that person. It might well be that the offender had some greater plan in mind at the time the victim was invited to the unit. But, if that was so, the offender did not, it appears, act upon it. It was not until well into the sequence of events that she put her arm around the victim’s neck and threatened harm and took the mobile phone. Perhaps she was reticent about perpetrating the crime against her friend but ultimately surrendered to the temptation. One way or another I am not satisfied that this could be said to be an impulsive crime, but it was one where the opportunity presented and she took it, at the expense of her school friend.

54. I have taken into account her youth and the fact that she has a limited criminal history confined to the Children’s Court. I have taken into account that there was a limited degree of planning. There was violence offered, including the threat of harm perceived to be by way of an infected needle. The victim was not a vulnerable victim, such as was within contemplation in the Henry guideline judgement, but she was in circumstances where she had little help until the arrival of Mr Bell, and so there was a measure of vulnerability to be brought to account as part of the factual matrix upon which sentence is to be determined.

55. The value of the item taken and the money was modest overall but the taking of one’s mobile phone in this modern era, where most of us keep an array of information, almost as a computer, carries with it a value beyond the mere monetary value of the item.

56. The plea of guilty, I accept, reflects some measure of contrition and remorse in addition to the utility that must be applied, by way of the discount. That said, it would have been highly unlikely I expect, that the offender would have been found not guilty of this offence had she proceeded to trial in front of a jury.

57. Important aspects of the case are the features of her formative years. This is clearly a case to which decisions such as Bugmy v R [2013] HCA 27 and Fernando [1992] 76 A Crim R 58 apply. Her decision to follow the lifestyle that she has could not be said to be one that she chose without the influence of deplorable circumstances, when as a small child she should have been nurtured, encouraged and loved, rather than exposed to domestic violence, drug use and sexual victimisation. It is recognised now that the impact of those events continues throughout life never to be ignored when an offender comes before court, regardless of how many times they might return to the criminal justice system.

58. It is conceded on behalf of the offender that the line in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed. There is no course other than to impose a sentence of imprisonment, but I take into account her youth, and find special circumstances, which include the need for substantial assistance on parole to address her past drug and alcohol misuse and mental health issues. I accept that her father and step-mother will provide the assistance that they, in my view, are capable of providing. They are, or he at least presents as a man of substance as I have said, with a military background, employing 120 others in the community, some of whom he has already assisted with regard to their misuse of drugs.

59. All of the aspects of sentencing articulated in s 3A of the Crimes (Sentencing Procedure) Act 1999 are engaged in this case. General deterrence has a more limited role to play in this instance but it has some role to play. It was objectively serious misconduct. Punishment is required. Denunciation is required. The harm to the victim must be recognised and the fear and anxiety that was imposed upon her cannot be ignored. There is nothing before me in the way of a victim impact statement or any psychological assessment of the victim to suggest that she has suffered other than what one might expect from such a misconduct, which no doubt caused her fear and anxiety at least at the time of the crime.

THE SENTENCE

60. Thus I come to impose sentence. Upon conviction, on a finding of special circumstances, I specify a non-parole period of 1 year and 9 months, commencing on 11 March 2018, to expire on 10 December 2019. I impose a further period of imprisonment, to commence at the expiration of the non-parole period of 1 year and 3 months. That commences on 11 December 2019 and shall expire on 10 March 2021. Being a period of less than 3 years overall, the sentence is one whereupon the offender is to be released to parole at the expiration of the non-parole period and she will be supervised in accordance with the regulations and the legislation under which they are made, without the need for the Court to make any further order.

61. I shall leave the exhibits on file, for such period of time as the parties might require.

62. Ms Ashworth, I will just remind you of what I have just said. The sentence is one of 3 years. You have a non-parole period of 1 year and 9 months which will expire on 10 December 2019. If you are granted parole and you retain parole, you will be on parole until 10 March 2021. It will be entirely a matter for you, to take the opportunity that I have provided and the opportunity that your father and step-mother are going to provide for you. Hopefully you will be able to address your demons and not come back into the system.

63. I should add, madam Crown before you leave, I will just add an addendum to that judgement, a document I overlooked. There is a document that was provided by Legal Aid, from Sasha De Silva, with regard to the assistance provided by Legal Aid, as a result of the sexual assault she suffered, which offers further support. I simply overlooked it, in the judgement.

**********

Amendments

21 November 2019 - Corrected legal representation status

Decision last updated: 21 November 2019