R v Cunningham (No 2)
[2017] SASCFC 136
•26 October 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CUNNINGHAM (No 2)
[2017] SASCFC 136
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
26 October 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - DEFERRAL OF AND REMAND FOR SENTENCE
On 8 March 2017, this Court allowed the appellant’s appeal against sentence and set aside various District Court sentences. The appellant was remanded on home detention bail for a period of approximately seven months. Having heard further submissions, the Court is to resentence the appellant.
Held per Nicholson J (Kourakis CJ and Parker J agreeing):
1. For the District Court offences the appellant is resentenced to a single term of imprisonment for six months backdated to commence on 5 August 2016.
2. The respondent’s application for the enforcement of the breaches of the bond entered into on 12 July 2013 with respect to the offence of aggravated robbery is dismissed.
3. The appellant be discharged and the orders for her home detention bail be vacated.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 33B, s 58, referred to.
R v Neal [2017] SASCFC 44; R v Willett [2017] SASCFC 62; R v Oake [2017] SASCFC 82; R v Buckman (1988) 47 SASR 303, considered.
R v CUNNINGHAM (No 2)
[2017] SASCFC 136Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ.
I would join in the orders proposed by Nicholson J for the reasons given by him.
NICHOLSON J.
Introduction
On 8 March 2017, this Court made orders allowing the appellant’s appeal against sentence, setting aside various District Court sentences and remanding the appellant on home detention bail with strict conditions with a view to her returning before the Court for resentencing at the expiration of the remand. On 13 April 2017, the Court published reasons for its decision to allow the appeal[1] (the “earlier reasons”) which canvassed, inter alia, the nature of the offences committed, the sentences imposed by the District Court Judge, the personal circumstances of the appellant and fresh affidavit evidence which provided information, additional to that which was before the District Court Judge, concerning the living and medical circumstances of the appellant’s profoundly disabled (now nine year old) daughter. These reasons will need to be read in conjunction with the earlier reasons.
[1] R v Cunningham [2017] SASCFC 30.
The appellant has completed approximately seven months on home detention bail following the allowing of the appeal and it is now necessary for the Court, having heard further submissions, to resentence the appellant.
The relevant offending and the District Court sentencing outcome
On 12 July 2013, the appellant was sentenced to imprisonment for four years with a non-parole period of two years and three months for the offence of aggravated robbery committed in March 2012. That sentence was suspended upon the appellant entering into a bond to be of good behaviour. Between 6 July 2014 and 6 January 2016, the appellant committed four thefts (each in the nature of shoplifting), one offence of possession of a controlled drug and a number of driving offences (the “District Court offences”). Some of these offences caused the appellant to breach the suspended sentence bond.
The Judge sentenced separately for each offence and, after making orders for concurrency and accumulation, imposed a total period of imprisonment of six months. The Judge also revoked the suspension of the earlier sentence, brought it into effect in full and extended the earlier non-parole period by three months. As a consequence, the appellant was ordered to serve a total period of four years and six months with a non-parole period of two years and six months backdated to commence 5 August 2016.
Resentencing for the District Court offences
The way in which the sentencing package for the District Court offences was structured is set out in some detail in the earlier reasons. I also would impose a total period of imprisonment of six months with respect to all of the District Court offences. It is arguable that certain components of that sentencing package, considered on an individual basis, were more severe than is warranted in all the circumstances. In particular, each of the sentences imposed for the three offences that caused the appellant to breach the bond (see below) are to be seen in this light when regard is had to their level of seriousness. This is one of the considerations that I have taken into account in deciding, later in these reasons, to dismiss the respondent’s application to revoke the suspended sentence bond. However, the Judge’s orders dealing with concurrency can be seen to demonstrate a relatively merciful approach. Whilst, if I were to sentence for each offence individually, I would make some adjustments in these respects, it is not necessary to proceed in this way. I would exercise the discretion under section 18A of the Criminal Law (Sentencing) Act 1988 to impose a single penalty for all of the District Court offences of imprisonment for six months, backdated to commence on 5 August 2016.
As at the date the sentences were set aside (8 March 2017), the appellant had spent seven months and three days in custody. Since then, the appellant has spent a little more than seven months on home detention bail. In due course, account will need to be taken of this time spent in custody and on home detention bail.
The more difficult issue is that of whether or not the appellant has shown proper grounds such that this Court might refrain from revoking the suspension of the earlier sentence of four years imprisonment. In the event of revocation, a subsidiary issue would be whether the exercise of the discretion available under section 58(4) of the Criminal Law (Sentencing) Act to reduce that period is warranted in the circumstances of this case.
As far as the former issue is concerned, it is important to note that only three of the District Court offences caused the appellant to breach the bond. They were: an offence of possession of a controlled drug whilst in custody for which the Judge imposed a sentence of three months and two weeks after discount for a plea of guilty; the theft of six dressing gowns and a set of pyjamas from Target at Salisbury Downs for which the Judge imposed a sentence of two months after discount for the plea; and the theft of items of clothing to the value of $74.99 from Rebel Sport at Elizabeth for which the Judge imposed a sentence of two months after discount for the plea. Two additional breaching offences had been dealt with in the Magistrates Court on an earlier occasion: driving under the influence on 12 February 2014 and possession of a taser on 31 March 2015.
The appellant’s circumstances
As earlier indicated, a detailed summary of the appellant’s history and circumstances, as was available to the Judge, is set out in the earlier reasons together with a summary of the fresh evidence admitted on the appeal. For convenience, I attach to these reasons, as an Appendix, paragraphs [18] to [26] of the earlier reasons.
The reasons why the appellant was placed on a long remand prior to resentencing included: to provide an opportunity for the appellant to demonstrate a continued commitment to the rehabilitation processes in which she had been engaged prior to sentencing; and to give the appellant an opportunity to develop a relationship with and to participate in the care of her profoundly disabled daughter, A.
Arising from the appellant’s period on remand, the Court has now received the following further materials.
(i)An affidavit of the appellant’s mother, Deborah Cunningham, sworn 28 August 2017 together with two exhibits.
(ii)A Home Detention Order Suitability Report pursuant to section 33BB of the Criminal Law (Sentencing) Act dated 3 October 2017.
(iii)Two letters from Uniting Communities Aboriginal Community Connect, one from Trisha Perelman dated 18 August 2017 and one from Breda McAlinden dated 25 August 2017, and one letter from Tara Macadam of Drug and Alcohol Services South Australia dated 28 August 2017.
(iv)A report from Natalie Kralj, a supervisor at the Gawler office of the Department for Child Protection, together with two attachments.
(v)A psychological report dated 1 September 2017 by Ms Rosalie Whitelock.
According to Deborah Cunningham, the appellant has been having either weekly or fortnightly visits with A during the remand period, most of which have been supervised by a social worker from Families SA.[2] According to Deborah Cunningham, when the appellant visits she plays with A, engages in various age related activities and assists in feeding, toileting and preparing A for bed. Deborah Cunningham appreciates the assistance the appellant can provide, restricted as it is to the permitted visits. On days when the appellant is not able to visit, Deborah Cunningham will ring the appellant between 6.30 and 7 o’clock each night so that the appellant can speak with and say goodnight to A. The appellant also will call from time to time in the afternoon to speak with A after school. This regular contact by phone is important to and appreciated by Deborah Cunningham and, in her view, assists in the development of the relationship between the appellant and A.
I have noticed a huge difference in how [A] reacts and engages with [the appellant] even just in the last 6 months. Even with all of her difficulties including her autism, I have seen [A] to be happy, comfortable, laughing and engaged with her mother, and the bond between them getting stronger every day.
[2] The frequency with which the appellant can see A is quite restricted, being dependent upon obtaining a pass out in accordance with the terms of the home detention bail agreement and being regulated by the Department for Child Protection according to its consideration of the best interests of A.
Deborah Cunningham would much prefer the appellant to spend more time with A and to assist her further with the care of A. However, she recognises that this has not been possible due to a combination of Families SA and home detention requirements. Families SA has told her that the development of the relationship between the appellant and A will be a long process and that they need to start with small steps. Importantly, Deborah Cunningham makes this observation.
[T]he last 6 months has been the happiest and most settled I have seen [the appellant] be for many years. She is happy on her own in her housing trust house, and has been cleaning it up and making improvements to make it a safe and comfortable environment to one day be able to have [A] spend time there.
[The appellant] has been seeing a psychologist, doctor and drug and alcohol counsellor, and case worker at [Drug and Alcohol Services South Australia]. I think finally being able to have [A] back in her life has given her the motivation to stay off drugs and concentrate on becoming the mother she needs to be for her daughter.
Although I know it may take time, I am confident that if she continues on this path, [the appellant] has what it takes to be a great mother to [A]. I am hopeful that as time goes on she will be able to give more and more help to me, until one day we will be able to have shared care of [A].
The Uniting Communities Aboriginal Community Connect program is a culturally specific alcohol and other drug services program for Aboriginal and Torres Strait Islander individuals and families. According to Trisha Perelman in her letter of 18 August 2017, one of the services provided to the appellant has been a Self Management and Recovery Training (SMART) weekly support group designed to give participants practical information, tools and strategies to help them recover from problematic behaviours associated with addiction. According to Breda McAlinden, in her letter of 25 August 2017, the appellant has been attending Aboriginal Community Connect for counselling and SMART Recovery since 7 April 2017 and has attended for one-on-one counselling with Ms McAlinden as well as the group based SMART Recovery program on nine occasions between 7 April 2017 and 25 August 2017. According to Tara Macadam by her letter of 28 August 2017, the appellant has been attending appointments at Drug and Alcohol Services South Australia and has been attending and receiving from her local pharmacy methadone replacement therapy doses on a daily basis. She has also provided clean urine samples as requested at appointments.
The Home Detention Order Suitability Report prepared on 3 October 2017 is by and large positive. However, given that the question before the Court is whether to revoke the previously ordered suspension of a sentence of imprisonment, there is no power in this Court to order that any term thus brought into effect should be suspended again and served on home detention conditions in accordance with section 33BB of the Criminal Law (Sentencing) Act.[3] Nevertheless, the discussion by the reporter of her assessment of the appellant’s responsiveness to having been on home detention for the last seven months or so, her risk of reoffending and areas of criminogenic need has been of assistance. The reporter concludes in the following terms.
[The appellant] states that she has not used any illicit drug for at least the last twelve months. She appears to have actively sought out psychological and drug and alcohol counselling, as well as medical interventions in the past from an addiction specialist. She has a current mental health care plan and has a sole breach of a Home Detention order.
The sole breach is a reference to the appellant having been absent from her residence without permission on 30 June 2017. The breach resulted from a diversion by the appellant to a shop during a pass out period in order to buy an essential item and is to be regarded as of no consequence. By and large the appellant’s conduct whilst on home detention bail has been observant and she has used her time out of custody in positive ways.
[3] R v Neal [2017] SASCFC 44, R v Willett [2017] SASCFC 62 and R v Oake [2017] SASCFC 82.
The report provided by the Department for Child Protection and dated 29 September 2017 is very detailed. It essentially deals with the arrangements in place for the care of A both prior to and after the appellant being placed on remand on home detention bail conditions earlier this year. At present, the appellant has fortnightly face-to-face contact with A for up to two hours. The first one and a half hours is supervised but the last 30 minutes, when the appellant assists her mother in bathing A as part of the evening routine, is not. In addition, the appellant telephones A each night.
The purpose of the access arrangements is to build and maintain a relationship or best connection between A and her mother. The access is supervised in order to assess the appellant’s relationship with and capacity to respond to A’s needs.
[The appellant] is consistent in her attendance at the scheduled access which occurs in Ms D Cunningham’s home, and appears to not be affected by substances during the access. It is noted in Departmental records that [the appellant] often provides age appropriate activities for these contacts.
The report writer has noted that during supervised access it is sometimes observed that the appellant and the mother will compete for A’s attention and overwhelm A with verbal instructions and conversation. This matter has been taken up with Deborah Cunningham and it has been explained to her that she needs to allow the appellant to have this time with A so that the relationship can be developed.
It is plain from the report that the relevant officers in the Department take the view that the appellant needs to continue with her own rehabilitation efforts, to continue to address her drug addiction problems and her mental health issues and to avoid further criminal conduct before further increases in access will be permitted. It will be a slow process. Nevertheless, it is recognised that access is important for A’s identity, sense of belonging and the maintaining of a connection with her biological family.
Since March 2017, the appellant has been regularly attending Rosalie Whitelock for supportive counselling and cognitive therapy to address her depression, post-traumatic stress disorder and her unresolved grief associated with her daughter’s disabilities. Ms Whitelock has provided a lengthy report. It is sufficient for present purposes to set out the section under the heading “Summary and Assessment”.
I note that the Criminogenic Report of 2016 did not identify [the appellant’s] Post Traumatic Stress Disorder.
[The appellant] was also noted to suffer what she referred to as a Post Natal Depression identified by Ms Lim following the birth of [A] for which she did receive some consideration and treatment by a Social Worker.
Clearly [the appellant] did not have anything close to the necessary supports and treatment she needed around the birth of her daughter. It is very likely that [the appellant] took on a great deal of self blame and guilt, as well as ongoing helplessness and horror at the plight of her daughter.
At this time [the appellant] did not have adequate psychological support but did prioritise her daughter’s needs, believing that it would be in the child’s best interest to be with her father.
[The appellant’s] drug dependency is now steadily resolving.
[The appellant] and her family were not provided with additional evidence based Family Therapy to support the family unit and create [sic] [the appellant] with the opportunity to heal and create the vital maternal bond with her daughter throughout her life so far.
A Drug Dependency and Major Depressive Disorder would have been a Sequalae to this initial condition.
Of late [the appellant] reports that all her urine tests have been clean and she is progressing steadily and well with her management of her resolving drug dependency.
She is currently on home detention.
[The appellant] has been attending my office reliably since March 2017 to work through her issues around the Stress Anxiety and Depression identified in the DASS by her GP.
Results of most recent assessment are consistent with a diagnosis of a Trauma around the birth of her daughter and the discovery of her disabilities, and resultant Drug Dependency.
[The appellant] has ongoing symptoms of Anxiety and Depression consistent with Grief and Loss.
I strongly recommend that [the appellant] and her family attend the Inclusive Directions Family Therapy support through Flinders House as there is a local service of many specialised family therapy and disability inclusive practitioners that could support her and her family very effectively on a long term basis in an evidence based whole family treatment plan.
Funding for this service is provided through the NDIS, and is now available to the family throughout [the appellant’s] daughter’s life.
This would provide a more generous and affirming approach to the newly and effectively reconnected family. This therapy process would provide [the appellant] with the benefit of being released from the ongoing experience of being at fault and her suffering of excessive dysregulated behaviour, guilt and self blame.
She would definitely benefit from time and space to fully take in the complex needs of her daughter and her unique and essential role in her daughter’s care.
This may be a relief for [the appellant] as she has been accustomed to the perusal of the Courts and has possibly not felt safe in therapy to date.
[The appellant] currently is demonstrating a good therapeutic bond in sessions and is actively involved in discussing her daughter’s complex needs.
[A] will need ongoing intensive interactions with consistent reliable supports. Her needs are such that [the appellant] is very much needed in her life for the foreseeable future.
Noone else would be able to provide the quality of shared care required.
[The appellant] is most welcome to continue to attend for ongoing supportive counselling and CBT and recognition of the excellent outcomes she is achieving for herself and her daughter.
The appellant has also been regularly attending her general practitioner as part of her Mental Health Care Plan. Arrangements are in place for her to receive a Naltrexone implant to assist with her drug dependency at a time when medically indicated.
In short, the materials recently made available to the Court demonstrate that the appellant has continued to show good progress with her own rehabilitation. A number of her rehabilitative arrangements have been independently sourced and organised and at her own instigation rather than being required under her bond conditions. She has also shown promising progress in the development of her relationship with and caregiving role for A during the period she has been on remand. A continuation of the development of the mother/daughter and caregiving relationship between the appellant and A is of utmost importance for A, for the appellant’s mother and, in particular, for the continued rehabilitation of the appellant herself. In these circumstances, one should think long and hard before returning the appellant to custody.
The issue of revocation of the suspended sentence bond
Subsection 58(3) of the Criminal Law (Sentencing) Act provides to the effect that where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court may refrain from revoking the suspension. It cannot be said that the failure to comply, that is, all of the five breaching offences, in combination, can be characterised as trivial. However, the question does arise as to whether or not there are proper grounds in this case to excuse the failure. In R v Buckman,[4] King CJ said this.
The purpose of subs (5)[5] is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
[emphasis supplied]
[4] (1988) 47 SASR 303 at 304.
[5] In Buckman the Court was not concerned with section 58 of the Criminal Law (Sentencing) Act 1988 but with section 9 of the Offenders Probation Act 1913. Subsection 9(5) was, at least for present purposes, in materially the same terms as subsection 58(3) of the Criminal Law (Sentencing) Act 1988.
It is now approximately five years and six months since the appellant committed the aggravated robbery the subject of the suspended sentence bond. There has been no relapse into offending of that level of seriousness or involving violence since then. It is now well over two years since the appellant committed the last of the breaching offences. During this latter period, the appellant has made substantial efforts towards rehabilitation including with respect to her serious drug dependency and her mental health problems. She has commenced a very long and difficult process of developing a relationship with, and a caregiver role for, her profoundly disabled daughter. To allow this to continue would be of great benefit to the child, to the appellant and to the appellant’s mother who, at present, is the primary caregiver.
The breaching offending is of a character materially different from that which gave rise to the suspended sentence bond in terms of the seriousness of the offences committed and by reason of the fact that the three District Court offences, on the facts, are relatively minor examples of the offences as committed. In addition, the breaching offences occurred in a context of the appellant relapsing into her serious drug addiction following a miscarriage and increasing uncertainty about the care arrangements for A leading to a diagnosis of post-traumatic stress disorder, depression and unresolved grief. In these circumstances her moral culpability can be seen as less than otherwise would be the case.
In the circumstances, the revocation of the suspension of a sentence of imprisonment for four years and six months would lead to consequences that are quite disproportionate to the nature and circumstances of the breaching offences, when regard is had to the period of time to be served in prison, the impact such might have on the appellant’s continued rehabilitation generally and her progress in the development of her relationship with and care of A. In the unusual circumstances of this matter, there are, in my view, proper grounds to excuse the breach of bond. I would take no further action on the bond which has long since expired.
Given that I would not revoke the suspension of the previously imposed sentence, the power under section 58(4) to reduce the length of the sentence as originally imposed does not arise. Subsection 58(4)(a) provides that:
Where a court revokes the suspension of a sentence of imprisonment, the court –
(a)may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
Nevertheless, I indicate that if the suspension were to have been revoked, there would be strong grounds for exercising the discretion available under subsection 58(4)(a). I would have reduced, quite substantially, the length of the suspended term of imprisonment, bearing in mind the substantial change in the appellant’s personal circumstances that have taken place since the original sentence was imposed more than four years ago and after having regard to the principles governing the proper application of subsection 58(4) set out in Buckman and as explained in subsequent authority.
Conclusion
I would make the following orders.
(i)For the District Court offences the appellant is resentenced to a single term of imprisonment for six months backdated to commence on 5 August 2016.
(ii)The respondent’s application for the enforcement of breaches of the bond entered into on 12 July 2013 with respect to the offence of aggravated robbery is dismissed.
The appellant, having spent seven months in custody together with time on home detention bail following her being sentenced in the District Court, is to be taken to having fully served the sentence imposed in (i) above. Accordingly, I would further order:
(iii)The appellant be discharged and the orders for her home detention bail be vacated.
PARKER J.
I agree with the reasons of Nicholson J and the orders that he proposes.
APPENDIX
18A relatively up to date summary of the appellant’s history and circumstances available to the Judge was that contained in a pre-sentence report dated 20 May 2016.[6]
[6] Sentencing submissions before the Judge took place between 17 June 2016 and 12 August 2016 and sentencing occurred on 19 August 2016.
19The pre-sentence report includes the following information under the heading “Criminogenic factors”.
As stated in the presentence report of 2012, [the appellant’s] personal history had been untroubled by criminal behaviours until she was in her early 20’s when a series of losses and tragedies contributed to an unravelling of her previous stability. She became vulnerable to the influence of anti-social associates, began to abuse illicit drugs, lost her employment and suffered depression in the wake of her grief at the loss of her brother, her father, grandparents and then her daughter’s disabling congenital condition, with concomitant restricted visiting rights.
A previous partner of [the appellant’s] was a co-offender for a period, the resulting Court convictions led to her imprisonment in 2012-13. [The appellant’s mother] advised that although her daughter had not admitted it, her mother had strongly suspected domestic violence in this relationship.
Briefly therefore, criminogenic factors would appear to be substance abuse, contact with anti-social negative peers/relationships, underpinned by ongoing depression about her daughter and [the appellant’s] disempowerment in terms of her rights to see and care for her child and other losses.
20The pre-sentence report contains the following information under the heading “Background information”.
[The appellant] is a 32 year old woman of Scottish, Czechoslovakian, and Aboriginal descent (with her Czech/Aboriginal heritage descending from her father).
[The appellant’s] mother had previously advised this department that her daughter had identified strongly with her Aboriginal heritage, having attended specific Aboriginal schools as a child. She has uncles who work in the Aboriginal Sobriety Group in Adelaide and it was with their help that she gained training and an apprenticeship in hairdressing.
[The appellant] is the mother of an 8 year old daughter [A], who was in the care of [the appellant’s] former partner and his wife who had cared for the child for several years. [A] is diagnosed with Pierre Robin Sequence, a congenital condition that affects her breathing, eating, speech and sight. As a result of this disorder, [A] spent the first two years of her life in hospital. For the first 18 months of [A’s] life, [the appellant] visited the child every day but increasingly struggled with the associated distress, particularly as [A] had to be resuscitated because of her breathing difficulties on several occasions.
In addition [the appellant’s] distress was compounded by other deaths within her close family, i.e. her father, her grandparents and some time earlier, her younger brother who had died as a result of an accident outside the same hospital caring for her child. This information was verified by [the appellant’s] mother at the time that the two abovementioned reports were written.
The [appellant] had contact with a social worker at the hospital and her daughter was born but became increasingly depressed, ceased this contact and stopped attending the hospital as frequently. She said that she resorted to drug use, using amphetamines and heroin. [The appellant’s] mother had advised at the time of the above reports that her daughter’s drug use commenced when the [appellant] formed a relationship with a man who had been a drug user and offender since his mid-teens. [The appellant] had admitted that the relationship was destructive adding that this relationship had ended 15 months prior to the 2012 pre-sentence report.
When the [appellant’s] daughter was finally released from hospital, she was placed in the care of her father, with [the appellant] considering that her rights and wishes in the matter had been entirely overlooked. The child’s father had granted [the appellant] monthly visiting rights and at one stage she was going to take legal advice to secure her rights with regard to [A]. However, following mediation through Relationships Australia [the appellant] did not pursue this course of action.
The [appellant] has had periods when she has been on the methadone program, (including currently – 45 mls per day). [The appellant] also advised she has been in a rehabilitation centre and has undergone treatment in Perth for Naltrexone implants. Plus, [the appellant] has participated in Alcohol and Other Drugs counselling both in prison and in the community. [The appellant] advised that she has great faith in the efficacy of the implants, but following a miscarriage about 16 months ago she had a relapse and began using heroin again.
[The appellant] informed that she is seeking a referral from her general practitioner to undergo further treatment through a Dr Reece Henning in McLaren Vale shortly. Apparently Dr Henning is qualified to provide Naltrexone implants. The benefit of this treatment is expensive and lasts for about nine months. [The appellant] advised that her current partner and her mother have assisted her to pay for the treatment and she is currently paying them back at the rate of $25.00 per week. [The appellant] also advised that her current partner is a positive support, and does not use illicit substances.
21The pre-sentence report contains the following under the heading “Evidence of defendant’s responsiveness”.
[The appellant] completed a period of bail on 13/05/2009 (8 months, 4 days). She finished a good behaviour bond with supervision on 12/11/2010 (1 year 6 months). A period of home detention bail was completed on 24/11/11 (3 months, 8 days). Another period of home detention of [sic] was completed on 03/02/2012 (2 months 11 days). A period of bail was cancelled and [the appellant] was imprisoned from 26/03/2012 until 12/02.2012. Later records show that she completed Parole of 1 year, 7 months, 11 days on 22/09/2014, and completed a supervised good behaviour bond of 2 years on 1/07/2015. However during the Parole period, JIS shows two period of imprisonment for breach of Parole conditions.
[The appellant’s] behaviour in prison, supervised good behaviour bonds and home detention bail appears to have been compliant, although it was noted that during one period of home detention, further offending charges were laid.
[The appellant] has previously displayed remorse for her actions, but little awareness of the consequences of her actions upon others apart from her immediate family and daughter in particular.
[The appellant] does recognise that she has to cut ties with former associates and counts her current partner whom she maintains is drug free, as supportive, along with her mother.
22There was additional information available to the Judge in relation to the change of circumstances concerning the care of A. Some three months prior to the preparation of the pre-sentence report, the father of A surrendered her to the guardianship of the Minister. As a result, and as at the time of sentencing, she was being cared for on a day to day basis by the appellant’s mother. The author of the pre-sentence report noted that A was considered to be in the high care category and that Families SA had indicated concerns regarding the appellant’s drug usage. The report went on to provide.
Current access for [the appellant] with [A] is at the premises of Families SA, Elizabeth. [The appellant] is planning to build up to having visits to her daughter at her mother’s home and to be able to participate eventually in the care of her daughter. Whilst [A] is at school, [the appellant] is able to visit her mother with whom she still has a strong relationship. [The appellant] presented as understanding that [A] is now her mother’s priority. [The mother] lives at Kudla, SA.
During the interview for this report, [the mother] advised that [the appellant] appeared devastated to learn that [A’s] medical needs had not been correctly addressed under her father’s care and that [A] had in fact spent considerable time in respite care.
23The position before the Judge was complex. Further, there can be little doubt that the appellant’s prior history of drug abuse and offending coupled with the extraordinarily difficult demands that the care or even assisting with the care of a very disabled child would place on the already compromised ability of the appellant to cope generally would render, in anyone’s mind, the prospects of continued rehabilitation as being guarded. Nevertheless, the potential for the appellant to obtain and take advantage of further assistance with respect to her drug issues and to be able to form a relationship with and actively assist with the care of her disabled daughter, which of itself might provide positive impetus for the appellant’s rehabilitation, ought not to have been discounted.
24The Judge did not provide any reasons in his sentencing remarks for the decision to refuse to remand the appellant pursuant to section 19B. However, his Honour did indicate towards the end of the submissions put by counsel on behalf of the appellant that he remained “unpersuaded to use 19B”. In my view, there was a serious case made out for the granting of a section 19B remand. However, after giving consideration to the matter I next deal with, it is unnecessary to decide whether or not the Judge erred in refusing the application.
Fresh evidence
25At the hearing of the appeal, the appellant applied to adduce fresh evidence on the appeal and, in this respect, sought to have read an affidavit affirmed by the appellant’s mother on 14 February 2017. The mother is 52 years of age and has been the appointed guardian and full-time carer of A since June 2016. In the affidavit she deposes to the challenges that have arisen over the subsequent seven months whilst A has been in her care. The following matters are canvassed in the affidavit.
(i)A is profoundly disabled and requires 24 hour assistance for her day to day care.
(ii)Until June 2016, A was predominantly in the care of her father and his partner with both the appellant and her mother being afforded extremely limited contact.
(iii)That arrangement prevailed until 6 April 2016 when the partner advised the appellant’s mother that she and the father were unable to care for A any longer and had surrendered her to Families SA.
(iv)At her request, the appellant’s mother was appointed as full-time guardian on 14 June 2016 as a consequence of orders made in the Youth Court.
(v)Apart from attendance at a special school between 8.45am and 2.45pm each day, A requires full time care and assistance by somebody trained to provide it. According to the appellant’s mother, only herself and the appellant have been trained in this respect. There are no other family members who are equipped or trained to care for A. Whilst the appellant’s mother is in good health for her age, she is concerned that as A gets bigger and she gets older she will no longer be able to cope physically or care for A on her own. Over the last seven months or so, the caring arrangement has taken its toll on the mother. She had not expected it to be as difficult as it has been without her daughter’s assistance.
(vi)In August 2016, when the appellant was sentenced, her mother did not fully contemplate the extent of A’s daily care needs and the toll that would be placed on the mother’s own physical health and wellbeing. She did not fully appreciate the burden of having to care for A alone for two and a half years or more whilst the appellant was in custody and without her assistance.
26In the affidavit, the appellant’s mother has summarised A’s disabilities. This provides an indication of the burdens imposed on a full-time carer.
a. [A] is still unable to feed herself, and feeds with a gastric feeding tube connected to her stomach. I prepare her food in bottles, and feed her using the tube five times a day. She has only recently been able to start eating puree and to drink water by herself from a cup.
b. [A] cannot go to the toilet by herself and still wears nappies which require frequent changing.
c. [A] is autistic and non-verbal. Increasingly, she can communicate in other ways, including by signing and physical movements. [The appellant] calls every two or three days from the Women’s Prison and talks to [A]. She knows that her mummy is on the phone and can blow kisses on the phone. I have taken [A] to see her mother at the Women’s Prison on occasions.
d. [A] sleeps with oxygen at night. I have to monitor this carefully as sometimes she pulls the tube out and there is a risk that she could strangle herself. I will usually need to get up several times a night to check on her.
e. [A] has one leg 3cm longer than the other. She wears a shoe lift. She has ongoing appointments at the hospital for X-rays to monitor the progress of that leg. We have been recently been advised that she may need to have pins inserted in the longer leg in future to stunt its growth.
f. [A] also currently has some dental issues due to all of the operations on her jaw. She requires frequent appointments to the dentist. We also see a nutritionist, dietician, respiratory doctor, and have ongoing appointments with the cranio-facial unit at the Women’s and Children’s Hospital.
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