Regina v Lois Williams
[2005] NSWCCA 100
•24 March 2005
Reported Decision:
152 A Crim R 405
62 NSWLR 481
New South Wales
Court of Criminal Appeal
CITATION: Regina v Lois Williams [2005] NSWCCA 100
HEARING DATE(S): 29 October 2004
JUDGMENT DATE:
24 March 2005JUDGMENT OF: McClellan AJA at 1; Adams J at 2; Smart AJ at 3
DECISION: See paragraph 85
CATCHWORDS: Condition as to total abstention from alcohol is a condition relating to treatment and should not be imposed as a matter of course - need for Court to comply with cl 6 of Crimes (Sentencing Procedure) Regulation 1999 - effect of termination of supervision component of bond by Probation and Parole Service
LEGISLATION CITED: Crimes (Sentencing Procedure) Act 19099
Crimes (Administration of Sentences) Regulation 2001
Crimes (Administration of Sentences) (Periodic Detention, Home Detention, Community Service Work and Parole) Regulation 1995.CASES CITED: R v Fernando (1992) 76 A Crim R 58
R v Leete 125 A Crim R 37PARTIES: Regina v Lois Williams
FILE NUMBER(S): CCA 2004/1833
COUNSEL: (A) S Corish
(C) B Knox SCSOLICITORS: (A) M Schneider
(C) S Kavanagh
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 01/41/0039
LOWER COURT JUDICIAL OFFICER: Twigg DCJ
McCLELLAN AJA04/1833
ADAMS J
SMART AJ
1. McCLELLAN AJA: I agree with Smart AJ.
2. ADAMS J: I agree with the orders proposed by Smart AJ and with his Honour's reasons.
3. SMART AJ: Lois Williams seeks leave to appeal against the length of the sentence of 18 months with a non-parole period of 6 months which expired on 12 August 2004 and a condition imposed by the parole order. At the time of hearing her application she had served the non-parole period and been released to parole. The sentence was imposed by Judge Twigg on 13 February 2004 consequent upon her breach of a bond that had been entered into pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999.
4. The principal area of debate centred upon the condition of parole that the applicant abstain from taking any alcohol.
5. On 1 November 2001 Judge Morgan convicted the applicant of the offence of, on 22 October 2000 at Queanbeyan, assaulting Lex Johnson occasioning to him actual bodily harm. Over 21 and 22 October 2000 the applicant drank very heavily with a number of friends, including Mr Johnson. At some stage on the afternoon of 22 October an altercation occurred between a number of people. Mr Johnson in his statement, said that he saw the applicant at one stage armed with a knife outside the flat where they had all been drinking, that he went out to take the knife from her and was stabbed once in the chest. He was taken to hospital and stayed there for a couple of weeks, mainly because of complications which ensued.
6. When the police spoke to the applicant on 25 October 2000 she had no recollection of the incident on 22 October. She said that it had been brought to her attention the next day by her son who told her what had happened. She told the police that she had been drinking very heavily over 21 and 22 October and that because of her drinking she has blackouts. She was aware of that happening to her over a period of some years, she having been addicted to alcohol for many years.
7. She accepted what the police said they were told had happened on 22 October. She expressed her deep remorse for causing any injury to Mr Johnson, as he was a close friend of her and her family and the last person she would have wished to harm. She said that she realised that she had a great problem with her drinking.
8. The applicant was born on 22 November 1960. She had been before the Local Court and the District Court on many occasions since 1984. She has been fined and placed on bonds for a variety of offences including assaults and dishonesty offences. In August 1992 she was sentenced in the Supreme Court to a minium term of 2 years with an additional term of 2 years for assault with intent to rob with striking. There were no offences between August 1994 and about mid-1997 and between mid-1997 and October 2000. The applicant pleaded guilty at the first opportunity.
9. The applicant was in poor health suffering from significant cardiovascular disease, and particularly severe hypertension which had proved extremely resistant to treatment. She also suffered from kidney disease. She was hospitalised regularly. She had been taking Naltrexone since August 2001 to assist her recovery from alcohol.
10. Prior to her appearance before Morgan DCJ, the applicant had abstained from alcohol use for a period. The Probation and Parole Service intended to prepare a case management plan focusing on assisting the offender with relapse prevention strategies for her alcohol addiction.
11. Morgan DCJ held that it was best to give the applicant the opportunity of continuing with the tentative steps she had taken in her own rehabilitation and to accept the recommendation of the Probation officer to place her on a bond with supervision. The bond was in the following terms:
"i. Be of good behaviour for 4 years, to date from 1.11.2001 and expire 31.10.2005;
ii. Appear before court if called upon to do so at any time;
iii. Advise registrar/clerk of the court of any change of residential address;
iv. Report to the Officer-in-Charge of the Probation and Parole Service at Queanbeyan on 1.11.2001; and
v. Accept supervision and obey all directions of the Probation and Parole Service during the term of the bond, particularly with regard to any counselling in respect of alcohol problems and undertaking any preventive strategies and recommendations made to attend any rehabilitation centre."
12. Morgan DCJ did not impose a condition that the applicant abstain from consuming any alcoholic drink.
13. On 11 January 2003 the applicant committed the offence of driving a motor vehicle with mid-range prescribed concentration of alcohol. She also committed the offence of being an unlicensed driver. She was released without any bail conditions.
14. On 22 February 2003 she committed a further offence of driving a motor vehicle with mid-range prescribed concentration of alcohol. She also committed the offence of being an unlicensed driver and that of stating a false name and address.
15. On 16 September 2003 as to the PCA offence of 11 January 2003 the applicant was granted a bond for 12 months with conditions. As to the PCA offence of 22 February 2003 she was granted a bond for 2 years with conditions.
16. On 27 November 2003 Morgan DCJ directed that the applicant be called up before any judge for the breach of the bond imposed on 1 November 2001.
17. In opening the Crown case at the hearing before Twigg DCJ on 13 February 2004 the prosecutor stated:
"The alleged breach … is that firstly there was a failure to maintain contact with the Probation and Parole Service. And secondly there were further offences committed during the currency of the bond."
18. The offences particularised were "driving with mid-range PCA and unlicensed driver." They arose out of the one event. The prosecutor stated that the report of 26 November 2003 of the Probation and Parole Service contained details of the breach.
19. At the hearing before Twigg DCJ the solicitor for the applicant admitted the conviction and the failure to report.
20. That report referred to Ms Williams being convicted in the Queanbeyan Local Court of two offences of drive with middle range PCA, Unlicensed Driver (never licensed x 2); the drink driving offences occurred within six weeks of each other.
21. The report continued:
"Ms Williams' overall response to Supervision has been less than satisfactory. She continues to fail to attend for scheduled appointments for supervision. Ms Williams failed to attend her first subsequent supervision appointment after receiving 2 supervised Section 9 Bonds on the 16th September 2003. Ms Williams also failed to attend the first two sessions of the Sober Driver Program as per the conditions on both Section 9 Bonds. She was withdrawn from that Program and will be referred to the next Program scheduled in January 2004.
Unless Ms Williams' response to supervision substantially improves, she faces further Breach action in relation to her current Court Orders.She has phoned this Service on a number of occasions with excuses usually medically related for not attending appointments for supervision. She has only attended this Service on 2 occasions since 16 September 2003.
As noted in the Update Pre Sentence Report dated 18th July 2003, there has been a general reluctance on Ms Williams part to attend this Service and that her criminal history is alcohol related.
22. The Probation and Parole Service by a further report of 11 February 2004 stated:
"As noted in the Breach Report dated 26/11/2003, Ms Williams' overall response to supervision has been less than satisfactory. She has failed to attend for two further appointments for supervision and it is noted with concern that she failed to attend on the 9th February 2004 knowing that the interview was for the purpose of this Update Report for the District Court.
- Unless her attitude to supervision and her overall compliance improves, Ms Williams is at risk of breaching her current Section 9 Bonds x 2 she received on the 16th September 2003 from the Queanbeyan Local Court.
- Ms Williams also failed to attend the Sober Driver Program as directed by the Queanbeyan Local Court on 16th September 2003. She was further directed to attend the following program and failed to attend the first session and has thus far attended two sessions.
- Given Ms Williams current medical status and her blasé attitude towards supervision, she is assessed as unsuitable for any community based sentencing options".
23. During her evidence before Judge Twigg the applicant corrected the judge's understanding of the facts based on what the prosecutor had told him by pointing out that there were two PCA offences.
24. The applicant told the judge that she was suffering from angina, high blood pressure and blockages in the legs. She said that she spent much of her time assisting her children with their young children. She said that she did not get on with her Parole Officer and explained that she could not afford the costs of enrolling in a drink driver education course. She said that she was now doing such a course and had attended three sessions. It is not clear whether the second course involved any payment. She also attended an Aboriginal cultural camp where alcohol and drugs and their effect were discussed. The camp went for three days.
25. She said that at the time she committed the two PCA offences she had forgotten about the bond because it was long ago. She thought that she was given the bond because of the violence which had occurred. She did not think drink driving came under the bond.
26. In cross-examination, she said that the alcohol "got my brain". She has not had a drink for about a month and had attended some AA courses. She said that she was an alcoholic. She asserted that the Probation and Parole Service had done nothing to assist her with her alcohol problems and that she wanted help. She said that she would stay off alcoholic drinks as she now only had one kidney which was functioning and she was having problems with the other kidney.
27. Twigg DCJ expressed his concern at the applicant's extensive criminal history. The judge referred to the many bonds on which she had been placed. He noted that she had started drinking when she was thirteen years of age. Her father was also an alcoholic. The judge, after noting the applicant's medical condition commented:
- "The Probation Report shows a complete disdain for the efforts that have been made by authorities over a long period of time to assist Ms Williams".
28. Twigg DCJ found:
- "there has been a serious breach of the terms of her Honour's bond not only by the commission of criminal offences but also by the failure to take the proffered help. Even if one considers that she has been getting some help, and looks at what Roslyn Brown says, it says that she is an active member of the workshops, and has openness concerning problems that alcohol has created in her life. Notwithstanding that, it would seem to me that the offender still continues to drink."
- "… after offers of assistance … this offender continues to ignore the law …"
29. The judge expressed the fear that something very serious would occur if the applicant continued to breach the law.
30. The judge found that there were special circumstances for varying the parole and non-parole periods including her health problems and need for rehabilitation. He determined that the conditions applying during the period of parole were as follows:
2. To accept the supervision and guidance of the New South Wales Probation and Parole Service, and obey all reasonable directions of that service, particularly directions regarding drug and alcohol treatment and counselling, and psychological treatment and counselling."1. To be of good behaviour.
3. To abstain from taking any illicit drugs and/or alcohol.
4. To enable such supervision and guidance to commence, the Offender is to report to the New South Wales Probation and Parole Service within seven days of her release from custody."
31. The evidence before the judge established that the applicant had sought some help to overcome her alcoholism. Whether it was sufficient was a matter for debate. Whether she continued to drink remained to be seen. Her history did not provide any cause for optimism that she would cease alcoholic drinking long term.
32. Appeal Ground 1 reads:
- "The learned sentencing judge was incorrectly informed that a breach of the section 9 bond was, in part, based on the applicant's failure to report to the NSW Probation and Parole Service when, in fact the supervision component of the section 9 bond has been terminated in October 2002."
33. The applicant relied upon the "Update Pre Sentence Report" dated 15 September 2003 prepared by Franc Woods of the Probation and Parole Service, which states:
"In November 2001 Ms Williams received a four year supervised section 9 bond … The supervision component attached to that order was early terminated in October 2002 as the supervising officer considered that Ms Williams held insight into her offending behaviour."
34. The report of 26 November 2003 of Mieke Barton wrongly stated the offence on which the bond was granted was malicious wounding. The report also stated:
- "The Probationer appears to be in breach of the above good behaviour bond by virtue of re-offending condition (1) and failure to comply with condition 4."
Conditions 1 and 4 are set out earlier (para 9).
35. The applicant submitted:
1. On the evidence before Twigg DCJ it was not open to him to conclude there was any obligation on her to submit to supervision after October 2002.
2. It was erroneous to take into account any alleged failure to respond to supervision after October 2002 or any failure to attend appointments for supervision (ROS 2.3) and erroneous to conclude that she showed complete disdain for the efforts of the Probation and Parole Service (ROS 5.4) and any failure to take the proffered help (ROS 6.9).
3. There was no failure by the applicant to submit or respond to supervision after October 2002.
4. Even if any supervision obligations had been reimposed there was no evidence that any such obligation had been communicated to her.
5. The concession made by the applicant's legal representative (see para 7 above) as to the basis for the breach was incorrect in part.
6. As a consequence of Twigg DCJ incorrectly taking into account a matter which, at least, he regarded as a serious factor, if not an aggravating one, the sentencing discretion has miscarried and an excessive sentence has been imposed.
36. Twigg DCJ acted on the admissions made by the applicant's legal representative who had obviously done a considerable amount of work on the brief. Perhaps in making the admissions, she was aware of facts of which the courts were not told. Nobody at the hearing before Twigg DCJ seemed to address the significance of the Service, in October 2002, terminating the supervision component attached to the bond ordered by Morgan DCJ. There was no satisfactory evidence of the Service restoring the supervision component and notifying the applicant accordingly.
37. The various reports from the Probation and Parole Service mentioned the unsatisfactory response of the applicant in the past to supervision and her failure to attend appointments so reports could be prepared as to each of the PCA offences. However, there is no detailed analysis of the position from October 2002 to 16 September 2003. A lot of the material deals with her response to the bonds granted on 16 September 2003.
38. There is some doubt whether the applicable Regulation is the Crimes (Administration of Sentences) Regulation 2001 which commenced on 1 September 2001. the sentencing by Morgan DCJ taking place on 1 November 2001, or the Crimes (Administration of Sentences) (Periodic Detention, Home Detention, Community Service Work and Parole) Regulation 1995. Clause 71(3) and (4) of the latter Regulation provide:
"(3) An offender's probation and parole officer may, with the concurrence of the officer's District Manager, direct that the conditions of the offender's parole order in relation to supervision are suspended.
(4) Such a direction takes effect when notice of the direction is given to the offender."
Clause 217(3) and (4) of the 2001 Regulation is in the same terms as cl 71(3) and (4) of the 1995 Regulation. The effect of Ms Williams' evidence is that she was given such a direction. There is no evidence whether the District Manager concurred.
39. While the two PCA offences and the associated offences constitute clear breaches of the condition of the bond to be of good behaviour the evidence as to the non-compliance with the supervision component was less than convincing because it seems that the Service terminated that component in October 2002.
40. When considering the breach of the 2001 bond attention should be focused on the two PCA offences. The materials as to the supervision component of the bond being in effective force are not satisfactory and reliance should not be placed on the alleged breach of the supervision component.
41. Appeal Ground 2 reads:
The condition of parole that the applicant abstain from taking any illicit drugs and/or alcohol is harsh and excessive and the condition should not have been imposed as there was no evidence that it was feasible to secure compliance, per Reg 6(1)(b) Crimes (Sentencing Procedure) Regulations 2001.
42. The applicant submitted:
1. Given the evidence as to her effective addiction to alcohol it was harsh to impose a condition that will inevitably be breached by the mere consumption of alcohol and where the consumption of alcohol will result in the reimposition of a full time custodial sentence.
2. The pre-sentence Report provided to the Court as to the breach proceedings did not provide a proper foundation for the view that there was any meaningful prospect, let alone any feasible prospect of compliance, with any condition of parole as to abstinence from alcohol. The available evidence pointed to the opposite conclusion.
43. The applicant had a chronic alcoholic problem of long standing. She had in the past, on occasions, when faced with the prospect of gaol, been able to abstain for one or two months and perhaps a little longer. Unfortunately, she had always returned to taking alcohol.
44. The applicant contended that the condition requiring abstinence was a condition relating to treatment and that because of the terms of cl 6 of the Crimes (Sentencing Procedure) Regulation 1999 consultation was required before that condition was imposed. Clause 6(1) provides:
"6 (1) Before a court makes a parole order containing terms or conditions relating to residence or treatment, the court:
(a) must consider a report from a probation and parole officer as to the offender's circumstances, and
(b) must satisfy itself, having regard to the probation and parole officer's report, that it is feasible to secure compliance with the terms or condition."
45. The Crown submitted that a condition to abstain from taking any illicit drugs and/or alcohol is not such a condition. The Shorter Oxford English Dictionary, 3rd Edition lists a number of meanings of the word "treatment". The third and apt meaning in the circumstances of the present case is:
"Management in the application of remedies; medical or surgical application or services."
The fourth meaning reads:
"Subjection to the action of a chemical agent."
46. Total abstention is often required as part of the rehabilitation of an alcoholic but this is often accompanied by the provision of aids of varying kinds and support from other people, for example, counsellors. Medical treatment sometimes involves abstaining from eating various foods and beverages, including alcoholic ones.
47. Twigg DCJ imposed a condition that the applicant accept the supervision and guidance of the NSW Probation and Parole Service, and accept all reasonable directions of that Service, particularly directions regarding drug and alcohol treatment and counselling and psychological treatment and counselling and that the applicant abstain from taking any illicit drugs and/or alcohol.
48. Clause 6 refers to conditions relating to treatment. The words "relating to" are words of wide import. The judge has imposed separate treatment and abstention conditions, but they form part of the one order. Semantic exercises should be avoided. An abstention condition "relates to" treatment and readily forms part of a treatment regime. Under the former condition the Probation and Parole Service could take steps to provide the applicant with the necessary support and assistance.
49. I conclude that cl 6 of the Regulation does apply and that the abstention condition is one relating to treatment.
50. It emerged from the several Probation and Parole reports that the applicant had a severe alcohol problem, that she had been resistant to any attempt to address this and that her criminal history was alcohol related. She was described as having a nonchalant attitude to her alcohol dependence. The Service was not optimistic that its supervision would have a salutary effect. The applicant needed to cease taking alcohol. A very difficult situation existed. Her history with the Probation and Parole Service suggested that she cannot or will not abstain from taking alcohol.
51. Despite what Morgan DCJ did on 1 November 2001 the applicant committed further alcohol related offences in January 2003 and February 2003, that is, two mid-range PCA offences. Her driving of a car when she was affected by alcohol and unlicensed is disturbing.
52. Under cl 6(1)(b) of the Regulation the Court could not, having regard to the reports of the Probation and Parole officers, be satisfied that it was feasible to secure compliance with the condition as to abstention from alcohol by the applicant.
53. In R v Leete, 125 A Crim R 37 at 40 Hulme J (with whom Giles JA and Sully J agreed) recognised that there may be cases where the circumstances of the case render the requirement of cl 6(1) otiose, but pointed out that as the law makers have prescribed them the Court must follow the law when an action done in contravention of them is challenged.
54. I prefer to decide this case upon the narrower basis that in imposing the abstention condition the judge did not comply with cl 6(1)(b) of the Regulation.
55. The submissions of the Crown proceeded on the basis that a condition requiring an offender to abstain from taking any alcohol was not treatment. That has been rejected.
56. The Crown was concerned about the practical implications of any ruling of this Court making sentencing more difficult and more complicated. That is undesirable.
57. The Crown pointed out that the standard terms and conditions of parole as set out in the report of the Parole Board for 2001 contained these provisions:
"11. The offender shall totally abstain from intoxicating liquor
…
13. The offender shall following his/her release, undertake and maintain a program directed towards controlling his/her abuse of alcoholic liquor which has been or shall be arranged by his/her Probation and Parole Service Officer".
There is also this provision:
"21. The offender shall enter a rehabilitation/residential centre as directed by his Probation and Parole Service Officer and shall not discharge himself/herself without the consent of the Probation and Parole Service Officer."
58. The Board's officers would presumably select those terms and conditions which were relevant to the particular offender. The Board deals with cases of parole where the sentence imposed exceeds 3 years.
59. The Standard Terms and Conditions of Parole appended to the NSW Parole Board Annual Report 1997 contained conditions similar to clauses 11, 12 and 13 set out above.
60. The Crown made these submissions:
8. There is a great range of programs and a variety of strategies available for those involved in the sentencing, treatment and rehabilitation of those with alcohol related problems. Orders and conditions requiring the abstention from alcohol may be an integral part of rehabilitative orders as well as programs involving the use of facilities such as sobering up shelters. In earlier submissions filed in this matter the Crown referred to the consideration of "… more subtle remedies than the criminal law can provide by way of imprisonment" per Wood J in R v Fernando (1992) 76 A Crim R 58 at 62-3. The Crown submits that great caution should be exercised before any order is made in these proceedings which may have the effect of eliminating or restricting the capacity to impose conditions requiring the abstention from alcohol by an offender as a part of a sentence or other order.
9. The Crown further submits that the condition in relation to the non-consumption of alcohol in this case was clearly intended to provide a structure within which there could be appropriate and proper supervision of the application by the Probation and Parole Service. It appears from the affidavit of Madeleine Schneider sworn 26 October, 2004 that, since the imposition of the condition, the applicant has attended the Service on a regular and apparently effective basis. It is submitted that without such a condition there is a real risk that any further supervision or rehabilitative purpose would be ineffective.
10. It is further submitted that it has not been shown by the applicant that the imposition of the condition for the non-consumption of alcohol was unreasonable. There was a clear and continuing nexus between alcohol abuse and the offences which precipitated the breach proceedings and the original stabbing offence. No reason has been shown why the condition should be removed or ameliorated in any way.
11. The Crown submits that placing the responsibility of enforcing an alcohol ban on the Probation and Parole Service officers by making the applicant subject to such directions as such officers think fit is inappropriate. It is the function of the courts as the sentencing authority to impose penalties and orders which reflect principles of general and personal deterrence. That function cannot be delegated. The condition was part of the sentence and was a proper exercise of the sentencing discretion. The Crown submits it should not be deleted or varied."
61. Apart from cl 6 of the Regulation the applicant relied on a series of statutory and regulatory provisions.
62. There are two kinds of parole orders. One is made by the sentencing Court under s 50 of the Crimes (Sentencing Procedure) Act 1999 and the other is made by the Parole Board under Pt 6 of the Crimes (Administration of Sentences) Act 1999. Under s 3 of the latter Act:
"parole order means an order in force under:
(a) sections 138, 141, 149, 150, 154A, 159 or 160 of the Act
(b) section 50 of the Crimes (Sentencing Procedure) Act 1999."
All orders mentioned in (a) are those made by the Parole Board.
63. Some of the provisions found in the Crimes (Sentencing Procedure) Act 1999, for example, s 51A, are replicated in the Crimes (Administration of Sentences) Act 1999, for example s 128A. Clause 6 of the Regulation under the Crimes (Sentencing Procedure) Act 1999 is replicated in cl 212 of the Crimes (Administration of Sentences Act) 1999.
64. Section 51(1)(1A) and (2) of the Crimes Sentencing Procedure) Act 1999 provides
"(1) A Court may impose such conditions as it considers appropriate on any parole order made by it.
(1A) The conditions of a parole order may include conditions requiring that the offender to whom the order relates be subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 during the period specified by or under the order or those regulations.
(1AA) If, in making a parole order the court does not impose any such conditions in relation to the supervision of the offender, the parole order is, unless the court expressly states that the offender is not to be subject to supervision, taken to include conditions requiring that the offender be subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 while released on parole.
…
(2) The conditions imposed by the court must not be inconsistent with the standard conditions imposed by the regulations under the Crimes (Administration of Sentences) Act 1999 :"
65. Section 51A(1) provides that the conditions to which a parole order is subject may include either or both of conditions prohibiting or restricting the offender from associating with a specified person or from frequenting or visiting a specified place or district.
66. Section 128 of the Crimes (Administration of Sentences) Act 1999 provides:
"(1) A parole order is subject to the following conditions:
(a) the standard conditions imposed by the regulations,
(b) any additional conditions imposed by the sentencing court (including any conditions that are under section 51(1AA) of the Crimes (Sentencing Procedure) Act 1999, taken to be included in the order,
(c) any additional conditions imposed by the Parole Board under this section.
…
(3) The conditions of a parole order may include conditions requiring that the offender to whom the order relates be subject to supervision prescribed by the regulations, during the period specified by or under the order or the regulations
(4) This section does not permit the Parole Board:
(a) to revoke any standard conditions imposed by the regulations, or
(b) to impose any additional conditions, or vary any additional conditions imposed by it or by the sentencing court, so as to be inconsistent with any standard conditions imposed by the regulations."
As earlier mentioned s 128A(1) is in similar terms to s 51A(1).
67. Clause 215 of the Crimes (Administration of Sentences) Regulation provides:
"For the purposes of section 128(1)(a) of the Act the following are standard conditions of parole:
(a) the offender must be of good behaviour and must not, while on release on parole, commit any offence,
(b) the relevant parole order may be revoked if the offender contravenes any of the terms and conditions of the order,
(c) the relevant parole order may be revoked if the Parole Board determines that it has sufficient reason to believe that the offender, having been released from custody, has not adapted to normal lawful community life."
68. Clause 216(1) of the Crimes (Administration of Sentences) Regulation provides:
"A condition of a parole order may require the offender to be subject to supervision for up to 3 years from the date on which the offender is released in accordance with the order."
69. Clause 217(1) and (2) provide:
"(1) This clause applies to an offender whose parole order includes a condition requiring that the offender be subject to supervision.
(2) While the offender is subject to supervision by a probation and parole officer under such a condition, the offender has the following obligations:
(b) to report to the officer (or to another person nominated by the officer) at such times and places as the officer may from time to time direct,(a) to obey all reasonable directions of the officer,
(c) to be available for interview at such times and places as the officer (or the officer's nominee) may from time to time direct,
(d) to reside at an address agreed on by the officer, and to receive visits at that address by the officer at such times as the officer considers necessary.
(e) not to leave New South Wales without the permission of the officer's District Manager,
(f) not to leave Australia without the permission of the Parole Board,
(h) to notify the officer of any intention to change his or her employment:(g) if unemployed, to enter into employment arranged or agreed on by the officer, or make himself or herself available for employment, training or participation in a personal development program as instructed by the officer,
(i) if practicable, before the change occurs, or
(ii) otherwise, at his or her next interview with the officer,
(i) not to associate with any person or persons specified by the officer,
(j) not to frequent or visit any place or district designated by the officer,
(k) not to use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained".
70. These provisions do not contain any restriction or prohibition on the consumption of alcohol. The consumption of alcohol is not in itself an illegal activity, whereas using prohibited drugs is.
71. As has been seen earlier, while s 51 empowers a court to impose conditions when it makes a parole order, cl 6 of the Regulation effectively prescribes limitations when the condition relates to residence or treatment.
72. In view of the statutory and regulatory provisions earlier mentioned it would be anomalous for a Probation and Parole Officer to direct that an offender abstain from taking any alcohol.
73. There may be cases where a judge, having considered a Probation and Parole report as to the offender's circumstances and having satisfied himself or herself having regard to the report that it is feasible to secure compliance with the condition imposes one that he abstain from taking any alcohol. An abstention condition should not be imposed as a matter of course. Clause 6 of the Regulation must be observed.
74. As the applicant has served the custodial portion of her sentence and well over half the parole period, the preferable course is to delete that part of condition (c) which requires the applicant to abstain from taking any alcohol. It would not be prudent to remit this matter for re-sentencing to the District Court.
75. Appeal Ground 3 reads:
The sentence is manifestly excessive in the circumstances
76. The applicant submitted that the sentence of 6 months non-parole should be regarded as a significant sentence in itself and that the imposition of a relatively lengthy term of parole with the current conditions is an unduly harsh component.
77. The applicant stabbed the victim in the chest. That is a serious offence. She has an extensive criminal history and does not have the benefit of good character to assist her. She suffers from poor health and an acute alcohol disorder.
78. There is substance in the complaint that the judge was strongly influenced by her lack of co-operation with the Probation and Parole Service and that he did not take into account that the Service appears to have terminated supervision. Further, the requirements of cl 6 of the Regulation were not observed.
79. The affidavit of Madeleine Schneider (solicitor) of 26 October 2004 gives some cause for hope. Mr David Steptoe, the applicant's case officer advised her that:
"[the applicant] attends the Queanbeyan office of Probation and Parole each Wednesday for a scheduled appointment."
80. Mr Steptoe further advised that the applicant visits at other times seeking guidance on various matters. Mr Steptoe said that she was doing well and keeps regular contact with him. This suggests that Mr Steptoe has been able to establish an accord with the applicant and that part of the previous difficulties was a personality clash between the applicant and Ms M Barton, the previous case officer.
81. The evidence before Twigg DCJ from the Probation and Parole Service emphasised the applicant's lack of co-operation with the Service and pointed to the abstention condition not being feasible. The evidence on re-sentencing coming from the Probation and Parole Service reveals that there has been a change and that the applicant is now co-operating with the Service. There is no specific evidence about her current drinking habits but both she and Mr Steptoe state that she is doing well. She is trying to obtain a cleaning job in a local hotel.
82. Notwithstanding the seriousness of the offence the parole period of 12 months is excessive. The correct parole period is one of nine months.
83. The debate before the Court and the further submissions of both parties concentrated upon the requirement of abstinence from taking any alcohol. No objection was raised to the requirement that the applicant abstain from taking any illicit drugs.
84. This judgment does not deal with the position which would arise if the requirements of cl 6 of the Crimes (Sentencing Procedure) Regulation had been satisfied. Clause 6 requires both the Probation and Parole Service and the sentencing Court to give careful and individual consideration as to the imposition of any condition relating to the treatment of alcoholism. The Court must satisfy itself having regard to the Probation and Parole Officer's report that it is feasible to secure compliance with the condition. It may be thought that this matter requires further statutory and regulatory consideration.
85. I propose the following orders:
1. Leave to appeal granted.
2. Appeal allowed in part.
- 3. Quash the parole period of 12 months and in lieu thereof substitute a parole period of 9 months to date from 13 August 2004 and expire on 12 May 2005.
4. Quash condition (c), namely "To abstain from taking any illicit drugs and/or alcohol; and"
5. Substitute in lieu as condition (c) "To abstain from taking any illicit drugs; and"
6. Otherwise dismiss the appeal.
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