R v Togias

[2002] NSWCCA 363

Reported Decision: (2002) 132 A Crim R 573

New South Wales

Court of Criminal Appeal

CITATION:	Regina v. TOGIAS [2002] NSWCCA 363 revised - 6/09/2002
FILE NUMBER(S):	CCA 60375/02
HEARING DATE(S):	21 August 2002
JUDGMENT DATE:	30 August 2002
PARTIES :	Regina - appellant Nicolitsa Togias - respondent
JUDGMENT OF:	Hodgson JA at 1; Simpson J at 33; Smart AJ at 34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC00/11/0195
LOWER COURT JUDICIAL OFFICER :	Solomon DCJ

COUNSEL :	Mr. D.J. Bugg QC with Mr. G.T. Bellow for appellant Mr. S. Odgers SC with Mr. I. McClintock for respondent
SOLICITORS:	Commonwealth DPP for appellant Murphy's Lawyers, Sydney for respondent
CATCHWORDS:	CRIMINAL LAW - Sentence - Crown appeal - Offender becoming pregnant after arrest and charge - Three-year suspended sentence overturned by Court of Appeal as mainfestly inadequate - On resentencing by District Court, five-year suspended sentence imposed - Evidence from prison authorities that no decision on whether the offender could have her child with her in prison could be made until the offender had served at least four weeks - Evidence that separation of more than one week likely to cause significant long-term psychological damage to the child - Probability of hardship to offender's family - Whether exceptional circumstances - Effect of double jeopardy - CRIMINAL LAW - Sentence - Commonwealth offence - Whether Court can consider directly whether three-years periodic detention is preferable sentencing option.
LEGISLATION CITED:	Crimes Act 1914 (Cth) ss.16A, 20AB
CASES CITED:	R v. Capper [2000] NSWCCA 63 R v. Carmody (1998) 100 ACrimR 41 R v. Edwards (1996) 90 ACrimR 510 R v. Lux NSWCCA 26/8/88 R v. Niga NSWCCA 13/4/94 R v. SLR (2000) 116 ACrimR 150 R v. Togias [2001] NSWCCA 522 R v. White [1999] NSWCCA 60
DECISION:	Appeal dismissed.

- 12 -IN THE COURT OF

CCA 60375/02
DC 00/11/0195

HODGSON JA
SIMPSON J
SMART AJ

Friday 30 August 2002

REGINA v. Nicolitsa TOGIAS

Judgment

1 HODGSON JA: On 7 October 1999, the respondent was charged with an offence under s.233B of the Customs Act 1901 (Cwth), namely that she:

On 7 October 1999, at Sydney, New South Wales did import into Australia prohibited imports to which Section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of 3,4-methylenedioxymethamphetamine, being not less than the commercial quantity applicable to 3,4-methylenedioxymethamphetamine.

2 On that day, she had arrived at Sydney Airport on a flight from Bali, carrying 8,282 tablets of the substance MDMA, commonly known as Ecstasy, amounting to almost double the commercial quantity of MDMA and having a street value estimated to be about $400,000.00.

3 On 22 March 2000, the respondent entered a plea of guilty before Downing Centre Local Court, and was committed to the District Court of New South Wales for sentence.

4 The respondent first appeared for sentence on 4 September 2000 before Woods DCJ, when his Honour was informed that the respondent was five and a half months pregnant. Over objection by the Crown, his Honour adjourned the proceedings to 2 March 2001, and the respondent was released on bail.

5 On 7 January 2001, the respondent gave birth to her daughter Summer.

6 On 2 March 2001, the matter was back before Woods DCJ: and it was then adjourned to 20 March 2001 so that evidence could be given as to whether, in the event of imprisonment, continuity of contact between the respondent and her daughter could be maintained.

7 On 30 March 2001, evidence was given to the effect that, whilst there was a facility within the prison system in which the respondent could care for her daughter if sentenced to full-time imprisonment, acceptance into that facility was dependent on an assessment which would take a number of weeks, during which the respondent would be separated from her daughter. There was evidence from a psychologist that such separation would be absolutely traumatic for the baby.

8 Woods DCJ then sentenced the respondent to imprisonment for three years, and directed that she be released forthwith upon entering into a recognisance to be of good behaviour for three years.

9 The Crown appealed to the Court of Appeal against the inadequacy of that sentence, and that appeal was heard on 10 August 2001. In its judgment delivered on 14 December 2001, the Court of Appeal allowed the appeal and remitted the matter to the District Court for imposition of an appropriate sentence: R v. Togias [2001] NSWCCA 522.

10 On 28 March 2002, the matter came before Solomon DCJ. There was evidence to the effect that, although some of the assessments for admission to the Mothers’ and Children’s Programme could be carried out prior to a person going into custody, there would still be at least a four-week delay from then until the question of admission could be determined, during which the mother and child would be separated.

11 Solomon DCJ adjourned the matter to 10 May 2002, when evidence was given by a psychiatrist to the effect that any separation for more than one week of the respondent from her child would be very traumatic to the child and very likely to have long-term and significant deleterious effects on the psychological makeup of the child. On 27 May 2002, Solomon DCJ sentenced the respondent to imprisonment for five years, and ordered that she be released forthwith upon entering into a recognisance, self in the sum of $5,000.00, to be of good behaviour for a period of five years.

12 The Crown appeals to this Court against the inadequacy of that sentence.

EARLIER COURT OF APPEAL JUDGMENT

13 In the Court of Appeal judgment determining the first appeal in this case, Spigelman CJ agreed with Grove J that the sentence imposed by Woods DCJ was manifestly inadequate in the circumstances. He said that the District Court should have deferred sentencing until the respondent had been assessed for entry into the relevant programme, so that the Court knew whether or not separation of the mother from the child would occur. His Honour pointed out that s.16A(2)(p) of the Crimes Act 1914 (Cwth) authorised consideration of “the probable effect” of the sentence on the offender’s family, and not consideration of what was merely a possible effect; and also that the authorities indicated that such consideration could be given effect to only if exceptional hardship was shown.

14 Grove J stated that Woods DCJ erred in not adjourning the matter, so that the sentence could be decided on the basis of firm evidence of what conditions would pertain in relation to this respondent and her child in the event that an order committing her to prison was made. Grove J considered that the sentence of three years was so far below the lower extreme of the Court’s discretionary sentence as to manifest error, an error compounded by suspension of the entire sentence. His Honour did not indicate what he considered would have been an appropriate sentence, apart from considerations of hardship to the child, although he did set out a number of cases tending to suggest an appropriate sentence in the order of about six years.

15 Grove J also dealt with a submission by the respondent’s Counsel to the effect that periodic detention and home detention were available options, even in respect of a sentence exceeding three years, because of the provisions of s.20AB(1A) of the Crimes Act 1914. Grove J rejected that submission, and Spigelman CJ concurred in that rejection.

16 Einfeld AJ agreed with the orders proposed by Grove J, although his reasons varied to some extent from those of the other judges.

DECISION OF SOLOMON DCJ

17 Having regard to the nature of the Crown’s submissions, it is appropriate to set out at length the substantive reasons given by the sentencing judge for his decision:

I have had the benefit of closely reading the Court of Criminal Appeal decision and also the analysis by Justice Grove of the schedule of cases which was supplied to the Court by the Director of Public Prosecutions at the time of the appeal. In arriving at the sentence for this prisoner I have considered each of the cases contained in the schedule.

In sentencing the prisoner I have considered each of the matters contained in s 16A of the Commonwealth Crimes Act. I will now deal with a number of those matters.

The prisoner was born on 28 December 1977 and at the time of the commission of the offence did not have any criminal record. I am satisfied the prisoner's involvement in the importation of the prohibited drug was that of a courier.

I have considered the material contained in the three reports of a forensic psychiatrist Dr Roberts. Those reports indicate that the prisoner has had a disturbed background. Her biological father and mother were divorced when the prisoner was four years of age. I am satisfied the prisoner was the subject of abuse by her father. I am satisfied that, as an adult, the prisoner has suffered from depression and that three months prior to the commission of this offence the prisoner attempted to commit suicide.

I am satisfied the prisoner pleaded guilty to the offence at the earliest opportunity. The prisoner is entitled to a discount for the early plea. The early plea also indicates contrition on the part of the prisoner.

The prisoner has attempted to assist police. In this regard I refer to the letter of Federal Agent Smith of 21 July 2000, which is to be sealed with the registry papers. The sealed envelope is not to be opened except by leave of a Judge of this Court or by a Judge of the Court of Criminal Appeal. The prisoner is entitled to a discount on her sentence in regard to the assistance given by her to police, even though the assistance was of little value.

I further take into consideration that this is the third occasion on which the prisoner has been dealt with in relation to this offence. The prisoner therefore faces triple jeopardy. There is material before me which indicates that the uncertainty as to the prisoner's future has caused her physical and psychological harm. In this regard I refer to the evidence of the prisoner's mother Annette Mochan in which she indicated that from the time the prisoner was advised of the intention of the Crown to appeal, the prisoner has suffered from significant weight loss and that she now appears physically to be similar to persons who are inmates of German camps in World War II. Further, Ms Mochan gave evidence that the prisoner, from the time she was advised of the Crown's intention to appeal, became very depressed and indicated at times that she did not wish to live. The anxiety of the prisoner has been aggravated by the delay in the sentencing process.

The prisoner has indicated positive signs of rehabilitation from the time of her arrest. In this regard I refer to the report of Dr Roberts of 22 March 2002 (exhibit O) in which Dr Roberts indicated that since her arrest in 1999 the prisoner has given birth to a child, the prisoner has cared for the child and the prisoner has established a natural foods supplement business with her partner Wayan Subakti. Further, the prisoner has proceeded to a partial completion of a degree in biotechnology at the University of Western Sydney. Further, the prisoner has adhered to all reporting conditions imposed upon her by the Courts involved in her sentence and has adhered to all probation and parole requirements.

Dr Roberts on p 6 of the report of 22 March 2002 (exhibitO) opined:
"Ms Togias regrets her behaviour in this regard and having regards to the effects upon her of the legal processes including incarceration and her fears of incarceration as set out in my previous reports as well as the fact that she's matured and has achieved a stability in lifestyle, the probability of her reoffending is most remote."

I agree with the doctor's opinion and am of the view that it is unlikely that the prisoner will reoffend. Insofar as the prisoner's rehabilitation is concerned, I further refer to the Probation and Parole report of Margaret Murdoch of 18 March 2002 in which Ms Murdoch opined:
"Following her appearance in the Sydney District Court on 2 March 2001 the prisoner has complied with the conditions of the order issued by the Sydney District Court on 30 March 2001. She was referred to the Women's Positive Programme (WPP) which was presented by the Probation and Parole Service. Records show she has attended the programme between 23 July 2001 and 19 November 2001 and her participation was assessed as satisfactory.”

Ms Murdoch further opined:
“The offender is unlikely to benefit from supervision by this Service as there does not appear to be any further underlying issues that can be addressed by extended supervision or programmes administered by this Service."


I now turn to s 16A(2)(p) of the Crimes Act which provides that I must take into consideration and into account the probable effect of any sentence order under consideration by me would have on any of the prisoner's family or dependants. The prisoner and Mr Subakti’s child Summer is now sixteen months of age and is cared for by the prisoner who resides with her mother. There is evidence from a general practitioner, Dr Hannif (exhibit L) and from a psychiatrist, Dr Marilyn Moore (exhibit K) that the prisoner is breastfeeding Summer. Dr Moore has practised as a child psychiatrist from 1987 and was requested by the prisoner's solicitors to assess the degree of attachment between the prisoner and Summer. Dr Moore's opinion was also sought as to the effect on Summer in the event of there being separation between the prisoner and Summer for a period not less than one month. The prisoner, her mother Mrs Mochan and Summer attended upon Dr Moore's rooms on 17 April 2002. Dr Moore gave evidence in this case in which she indicated the procedures used by her in arriving at her opinions in relation to the degree of attachment between the prisoner and Summer and the effect of a separation of Summer and the prisoner. Dr Moore's report sets out important material which includes the following: Summer has been breastfed from birth and is now breastfed three or four times per day particularly at night. Summer has not been left with any other person including the prisoner's mother for more than a couple of hours from the time of her birth. Summer's father suffers from a condition known as sleep apnoea which causes him to spontaneously fall asleep during the day. The prisoner does not leave with Summer's father as she fears for Summer's safety if she was left in his care. The prisoner and Summer were found to interact extremely warmly. Dr Moore's testing revealed that when Summer was separated from her mother that Summer cried immediately and that she was able to be comforted by her grandmother, whereas when Summer was separated from her grandmother and not from her mother, Summer showed no signs of distress.

Dr Moore opined on p 6 of her report (exhibit K) as follows:

"In summary, Summer presents as a securely attached child who is developing normally. Her mother's behaviour is sensitive, not intrusive or controlling and is likely to facilitate Summer's cognitive and emotional development.

A disruption in this bond is likely to lead to a regression in Summer's development and to a form of grief in the face of the loss of her most significant attachment figure it is likely to manifest as a form of childhood depression. Because of Summer's cognitive immaturity, she would not be able to understand the reason for her mother's apparent abandonment of her and is likely to be grief stricken. This is likely to have a significant impact on her emotional development and may render her vulnerable to the development of depression and possibly to personality dysfunction in later life. It may alter her secure attachment to an insecure attachment which has an inherent risk of psychopathology childhood and in later life.

Clearly, it is not in the best interests of Summer for her to be separated from her mother. Separation of a week for a young child is likely to be very traumatic. Summer does not have the cognitive maturity to understand the concepts of time or why her mother is absent.

If she is separated from her mother and can only visit her in gaol she is likely to be distressed and protest when she's reintroduced to her mother."


In her evidence before the Court Dr Moore opined that in the event of there being separation of Summer from the prisoner for a period of more than one week it is probable that Summer would suffer psychological harm. The prisoner's mother Annette Mochan gave evidence that insofar as her looking after Summer was concerned that she could not, on a full time basis, care for Summer due to the fact that she was employed by Interlink Roads Pty Limited, a company which has the control of the M5 Motorway in Sydney. Mrs Mochan indicated she works four shifts per week and that she was on call twenty-four hours a day. Mrs Mochan indicated she works approximately thirty hours per week. Mrs Mochan indicated that if she was required to have the full time care of Summer that she may have the assistance of her sister. However, sister's assistance would only be forthcoming if her sister, who was in employment, was not working. Mrs Mochan gave evidence that she had observed Summer's father and was of the opinion that having regard to his condition of sleep apnoea that Summer could not safely be left in his care. Insofar as Summer's father's sleep apnoea is concerned there is material before me from the Sleep and Chest Disorder Centre to the effect that the prisoner's partner Mr Subakti undertook a sleep study on 27 March 2002.

I now turn to the facilities which are available in the New South Wales prison system for the incarceration of mothers and young children. I have heard evidence from Madeleine Loy, the co-ordinator of the Mother's and Children's Programme at the Emu Plains Correctional Centre and from Nicholas Kailis, an employee of the Department of Corrective Services, who has had extensive knowledge as to the classification of female prisoners. The effect of the evidence of Ms Loy and Mr Kailis is that it is not possible for the prisoner to be assessed as suitable to be accepted in the Mother and Children's Programme at Mulawa prior to the prisoner being incarcerated. I comment that I find such a position to be most undesirable.

A number of procedures have to be completed prior to an inmate being accepted into a Mother's and Children's Programme with her child. The procedure takes a minimum of four to six weeks.

The prisoner's mother has indicated her willingness to care for Summer during the initial period of her daughter's incarceration should she be incarcerated while she is being assessed as being suitable for Mother's and Children's Programme. However, I am concerned whether Mrs Mochan will be given the care of Summer during that period of time she would not be able to care for the child on a full time basis due to work commitments. Summer's father would also not be able to care for the child over the period of time due to his sleep apnoea condition. As I indicated earlier, Dr Moore in her evidence was of the opinion that it was probable that even after one week's separation between the prisoner and her daughter Summer, that Summer would probably suffer from psychological damage.

There is a facility available at Mulawa in which a child can visit its mother on a daily basis. However, Dr Moore was of the opinion this facility should not be utilised in the interests of Summer, as Summer would suffer trauma from daily separation from her mother.

I have formed a view that a full time custodial sentence would have the probable effect of causing Summer future psychological damage. I find exceptional circumstances and will not sentence the prisoner to a full time custodial sentence.

I now turn to the sentence. I am aware that this State does not have remissions and that the sentence imposed by me will not be reduced by remissions. I have formed the view that in this case no sentence other than a sentence of imprisonment in some form is appropriate.

SUBMISSIONS ON APPEAL

18 Mr. Bugg QC submitted that the sentencing judge’s decision showed an error of principle which this Court should correct, namely that he treated a finding of “exceptional circumstances” as justifying a non-custodial sentence, without weighing this against the objective seriousness of the offence and the need for general deterrence. Mr. Bugg also submitted that there were errors in giving undue weight to subjective factors, in finding that were exceptional circumstances or exceptional hardship to the child, and in misinterpreting and not having proper regard to the previous judgment of the Court of Appeal.

19 Mr. Bugg submitted that considered objectively the offence called for a full-time custodial sentence. The offence was of the utmost seriousness, reflected in the maximum penalty of life imprisonment. The quantity of drug imported was nearly double the commercial quantity. The case was one in which the need for general deterrence carried great weight. The earlier cases referred to by the Court of Appeal in its earlier judgment showed a range of head sentences for this type of offence of five to nine years, with non-parole periods of three to six years. The judgments of the Court of Appeal indicated that a custodial sentence was required in this case.

20 Mr. Bugg submitted that the effect of a sentence on the offender’s family could be taken into account only in exceptional circumstances or cases of exceptional hardship: R v. Edwards (1996) 90 ACrimR 510, R v. Carmody (1998) 100 ACrimR 41. There was nothing unusual in sending to prison offenders who had the care and support of young children, even very young children: R v. Niga NSWCCA 13/4/94, R v. Lux NSWCCA 26/8/88, R v. Capper [2000] NSWCCA 63. Full-time custodial sentences were imposed on pregnant women in R v. SLR (2000) 116 ACrimR 150 and R v. White [1999] NSWCCA 60.

21 Mr. Bugg submitted that the evidence before the sentencing judge was that the respondent’s mother could care for the child in the four to six week assessment period, and Dr. Moore said she would not have any concerns with the child being looked after by the respondent’s mother for this period. Neither the respondent nor the child’s father gave evidence, and the sentencing judge’s finding that the latter suffered from sleep apnoea and so could not look after the child was not supported by evidence. Also, the respondent conceived the child when these proceedings were on foot and the risk of a custodial sentence must have been apparent to her.

22 Mr. Bugg submitted that although this was a case where the proper sentence would have been about five to six years full-time custody, having regard to double jeopardy and the cumulative effect of the several sentencing hearings in this case, the appropriate sentence now would be three years’ periodic detention. Mr. Bugg submitted that s.20AB(1A) of the Crimes Act (Cwth) meant that the Court did not have to find first that three years was an appropriate sentence: it could consider all sentencing options, and if it considered three years’ periodic detention the best option, it could directly impose that sentence.

DECISION

23 Mr. Odgers SC for the respondent concurred in the last submission of Mr. Bugg, and I accept that submission. The Court of Appeal in its previous judgment held that s.20AB(1A) did not mean that periodic detention could be imposed for a sentence longer than three years; but it did not hold that the provision was not effective to take away the necessity of first fixing an appropriate term of imprisonment before considering whether it should be served by way of periodic detention. Thus I accept that, in the case of Commonwealth offences, the Court can consider directly whether a three year sentence of periodic detention is the preferable option.

24 As noted by Spigelman CJ in the previous Court of Appeal decision, s.16A(2)(p) of the Crimes Act refers to the “probable” effect of a sentence on family members, not to possible effects. It is plain that a full-time custodial sentence would mean at least a four to six week separation of the respondent and her child, whilst she was being assessed for suitability for inclusion in the relevant programme. Dr. Moore did give the answer referred to by Mr. Bugg in his submissions, to the effect that she would not have any concern with the child being looked after by the respondent’s mother for this period. However, in the context of the whole of her evidence, this does not mean there would be no significant ill-effects from such separation, but rather that the respondent’s mother would be an appropriate carer if there had to be such separation. In re-examination, Dr. Moore assented to the proposition that “there is still the probability that there will be significant psychological damage if the separation is more than one week”.

25 More significantly, evidence from prison authorities as to the process for assessing the respondent for inclusion in the relevant programme did no more than set out in general terms what were the criteria that would be applied. Despite the previous judgment of the Court of Appeal, which contemplated that sentencing should be carried out with reliable information as to whether the respondent would be admitted to such a programme, there had not even been any preliminary assessment of the respondent’s suitability by the prison authorities.

26 Ms. Loy, the co-ordinator of the Mothers’ and Children’s Programme, gave evidence that for admission to the programme a woman had to be of the appropriate security classification, drug-free, stable, not violent, and so on. These are of course appropriate concerns. There are no doubt substantial administrative reasons why it was not possible to carry out even a preliminary assessment of the respondent between 14 December 2001 and 28 March 2002, and why it is not possible to make even a provisional determination of suitability prior to the commencement of full-time custody. However, the result of all this is that the Court has no reliable material on which to base a judgment as to whether the respondent would be admitted to the programme. The respondent is totally unable to assist the Court further on that matter. While as I have said there are no doubt substantial administrative grounds why this is so, the fact remains that the authorities responsible for prosecution and punishment, who could possibly assist the Court further, have not done so.

27 In those circumstances, there is in my opinion material upon which an inference can be drawn that there is a probability, not necessarily a greater than fifty percent probability, but nevertheless a substantial probability, that the respondent will be separated from her child for the whole of her sentence; and in circumstances where the respondent is helpless to take the matter further but the prosecuting and punishing authorities could possibly do so, fairness between the parties makes it reasonable to draw that inference. That is, the Court should proceed from the basis that there is a probability and not merely a possibility that the child will be subjected to separation from her mother for the whole of any full-time custodial sentence. I do not overlook that this is a Commonwealth prosecution, and that the matter of punishment is in the hands of New South Wales State authorities. I do not think this significantly affects the considerations I have given: the Commonwealth has chosen to leave the execution of punishment to the State authorities.

28 There is evidence that such separation from the mother and primary carer of a child of this age is likely to cause long-term and significant deleterious effects on the psychological makeup of the child. The case is different from those of SLR and White, because it was assumed that in these cases the child could remain with the mother in custody. In all the circumstances, in my opinion there was no error in the sentencing judge finding exceptional circumstances, or exceptional hardship to the child. I should add that this view is not based on the lack of availability of another carer, such as the respondent’s mother or her partner; but rather is based on the evidence about the severe effects of separation from the mother and primary carer.

29 Apart from hardship to the child, there were other significant subjective factors referred to by the sentencing judge; but in my opinion, even giving full weight to those factors, the objective seriousness of the offence and the need for general deterrence, coupled with the consideration of the matter in the previous Court of Appeal judgment, indicate that, apart from the question of hardship to the child, a sentence of less than about five years with a non-parole period of about three years would have been inadequate.

30 Mr Bugg submitted that the sentencing judge was in error in not weighing the objective seriousness of the offence against the hardship to the child. In my opinion, on a fair reading of the judgment as a whole, it should not be inferred that the sentencing judge did not have regard to the objective seriousness of the offence and did not weigh it against the considerations relating to hardship to the child.

31 The question then is whether, in a case otherwise requiring something like a five year sentence with a three year non-parole period, hardship to the child justified suspending the whole sentence. But for considerations of double jeopardy, I believe I would have taken the view that anything less than three years’ periodic detention would have been outside the range of reasonable exercise of discretion. However, this is the second Crown appeal and the fourth sentencing hearing which the respondent has faced, and in all the circumstances, I do not think interference by this Court with the sentence imposed below is now justified.

32 For those reasons, in my opinion, the appeal should be dismissed.

33 SIMPSON J: I agree with Hodgson JA.

34 SMART AJ: The facts, circumstances and submissions of the parties are set out in the reasons of Hodgson JA. I will supplement that account.

35 On 7 October 1999 Ms Togias arrived at Sydney International Airport on board a flight from Indonesia. She was travelling alone. After a baggage search Customs officers performed a frisk search of Ms Togias and located a bulky item underneath her clothing around her waist. On her incoming passenger card Ms Togias had answered "No" to the question, "Are you bringing into Australia goods that maybe prohibited or subject to restrictions, such as medicines, steroids, firearms, weapons of any kind or illicit drugs?" When questioned by Customs officers about the nature of the bulky item around her waist Ms Togias stated, "No I don't know. You know that German guy, you know that he raped me, he put this on." That story was an invention.

36 Five sealed clear plastic body packs containing small circular off white tablets were taken from her body. There were about 8282 MDMA (or ecstasy) tablets, weighing about 2,1645 grams gross. Their approximate street value was $400,000. The calculated pure MDMA was 967.5 grams. This is nearly twice the commercial quantity. The offence was thus a serious one. The maximum penalty is life imprisonment. She was in custody for a week before being granted bail.

37 On 22 March 2000, having pleaded guilty, she was committed for sentence by the Local Court to the District Court. A Pre-Sentence Report was prepared on 12 July 2000 for a Court hearing on 24 July 2000. Nothing was said in this report about her having become pregnant or the relationship which she had formed.

38 On 31 August 2000 a further Pre-Sentence Report was prepared for a Court hearing on 4 September 2000. It noted that she had been in a stable relationship for the past 18 months (that is, from well before the commission of the offence) and that she had stated that she was about six months pregnant. On 4 September 2000 the sentence hearing was adjourned to 2 March 2001, against the Crown's opposition, by Woods DCJ to enable Ms Togias to have the baby in the meantime. The baby was born on 7 January 2001.

39 The objective seriousness of the offence demanded a full time custodial sentence of five to six years with a non-parole period of three to four years. A suspended sentence could not be contemplated for an offence of this gravity. The question is whether a suspended sentence was permissible because of the baby. There is the further question of the delay which has occurred.

40 One matter which was investigated at the further sentencing hearing before Solomon DCJ in March-May 2002 was whether, if Ms Togias was sent to gaol, she could take her child with her. As at May 2002 the child was 16 months old. In about late 1996 the NSW State Government established the Jacaranda Cottages at Emu Plains Gaol. Those cottages are for prisoners with low security ratings, that is, a C rating. The cottages allow mothers sentenced to prison to have very young children, that is, under 5 years of age, with them. There are 20 places available but no more than about 13 places are usually occupied.

41 To ensure that the Scheme continues to be successful and that the applicant mother will fit in at the cottages and with the mothers there, the Department engages upon an extensive process of assessment. This includes observation of her in a custodial setting. Thus the assessments are made after the mother has entered into custody. The reasons for that are explained in the evidence. The process of assessment and running a custodial unit for mothers with young children are not as simple or straightforward as may appear at first sight. It takes not less than about four weeks after the mother is put in prison before a decision is made whether to place the mother in the Jacaranda Cottages. It may take considerably longer. Meanwhile the mother and the baby are separated. The officers of Corrective Services were unable to say whether Ms Togias would be accepted into the Cottages. There appeared to be no way of avoiding the separation of Ms Togias and her baby for four weeks or a much longer period if she were sent to prison. There were indications that Ms Togias was likely to meet the selection criteria but this was far from certain.

42 It is not possible to say one way or the other whether Ms Togias would have been ultimately admitted to the Jacaranda Cottages but what was clear was that the mother and the baby would be separated for a substantial period and this would probably prove harmful to the child. She was still being breast fed at the time of the hearing before the judge in May 2002, It was Ms Togias' plan to continue to breast feed her daughter until she was about two years of age.

43 The judge was confronted with a very difficult situation and one which was probably not envisaged by this Court in its earlier decision. On the one hand the serious offence warranted a substantial custodial sentence. On the other hand the expert medical evidence was that the separation of Ms Togias from her child for more than a week was likely to cause significant long term psychological damage to the child. There was no evidence to the contrary.

44 Faced with that evidence the judge could hardly impose a sentence of full time custody on the applicant. It is true that Ms Togias fell pregnant about March/April 2000, some six months after the offence was committed. However, this case turns on the likelihood of significant damage to a child which could have long term consequences for her and the community.

45 The Crown was concerned about the creation of a special class of offender who, although she had committed a serious offence (and one for which the maximum penalty was life imprisonment) nevertheless would not be sent to gaol because of a very young baby. Was falling pregnant after committing an offence the way to avoid effective and timely punishment? Much the same question could be asked of a lady who gave birth to a baby shortly before or shortly after the commission of an offence. A suspended sentence of 5 years holds the sword over a person's head for 5 years to be of good behaviour. However, if the offender behaves she does not go to gaol at all.

46 In real and practical terms a sentence of periodic detention of 3 years exceeds the impact on the offender of a suspended sentence of 5 years. Section 20AB(1A) of the Crimes Act 1914 (Cth) enables a Court when dealing with a Commonwealth offence to impose a sentence of periodic detention direct without having to first pass a sentence of imprisonment and then order that it be served by way of periodic detention. In this respect the Crimes Act 1914 (Cth) differs from the NSW legislation.

47 The sentence imposed by the judge failed to reflect adequately the objective gravity of the offence. It was manifestly inadequate. In the face of the medical evidence it was open to the judge to take the view that a sentence of full time custody should not be imposed. However, it was erroneous not to impose a sentence of periodic detention of 3 years. No non-parole period should have been fixed. This is not adequate punishment for a serious offence but it was pre-eminently the only solution in this difficult case. Such a sentence goes some way to reflecting the gravity of the offence and avoids significant damage to the child. The appellant's mother and her de facto husband (and the father) could have looked after the child while her mother was serving her weekend detention. The evidence as to the de facto husband suffering disabling sleep apnoea was tenuous.

48 The question remains as to what should now be done. The troubled history of three proceedings has resulted in a delay of about 17 months since Woods DCJ sentenced Ms Togias. The delay prior to that was the result of Ms Togias' application not to be sentenced prior to the birth of her baby. As a result of the delay she has now had the advantage of being able to rear her baby from birth until now, a period of nearly 20 months. It is true that she has had the stress of these proceedings continuing but that is more than offset by the benefit of not going to prison so far and not being separated from her baby.

49 The appellant has suffered jeopardy on four occasions. In addition to the welfare of the baby she has strong subjective features. Nevertheless the gravity of the offence remains as does the need to impose a sentence reflecting that gravity at least in part. Ms Togias should be sentenced to 3 years periodic detention. No non-parole period should be fixed as this is the least sentence that should be imposed. I have proceeded on the basis that Ms Togias would not be able to take her baby with her while she serves her periodic detention on weekends and that her mother and husband would care for the child on those weekends.

50 This case has revealed serious problems in the sentencing of mothers with babies. The medical evidence given in this case could probably be repeated in almost every case where a mother has a baby shortly before or after the commission of an offence and prior to sentencing. The Commonwealth Crown is concerned about drug dealers recruiting women of prior good character, as here, to act as couriers and then being met with the situation which has arisen in the present case. Both Federal and State authorities should anticipate that in the future expert medical evidence will be led to the same effect as in this case with possibly the same result. They may wish to consider whether in the interests of the administration of justice steps should be taken whereby the Court can be assured that a mother will be able to take her baby with her from the date of her sentence or first incarceration except, of course, where that would pose dangers to the mother or the child.

51 I propose that Ms Togias be sentenced to periodic detention for 3 years from a date to be fixed by this Court and that no non-parole period be fixed.

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