Rich v The Queen
[2012] VSCA 273
•13 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0205
| PIA RICH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE and HARPER JJA and WILLIAMS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 November 2012 |
| DATE OF JUDGMENT | 13 November 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 273 |
| JUDGMENT APPEALED FROM | DPP v Pia Rich (Unreported, County Court of Victoria, Judge Hogan, 3 August 2012) |
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CRIMINAL LAW — Application for leave to appeal against sentence — Two charges of attempted armed robbery — Guilty plea — Sentence of two years and six months’ imprisonment with non-parole period of 10 months — Long history of mental illness and drug induced psychosis — Whether judge erred in refusing to defer sentence — Sentencing Act 1991 s 83A — Diagnosis of particular mental illness uncertain — Whether judge erred in refusing to adjourn matter to allow provision of further psychiatric report — Whether sentence manifestly excessive — Application refused — No point of principle.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D Grace QC | Peter Monagle Lawyers |
| For the Respondent | Mr T Gyorffy QC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
HARPER JA:
WILLIAMS AJA:
The applicant, Pia Rich, seeks leave to appeal against a sentence of two years and six months’ imprisonment, with a non-parole period of 10 months, which was imposed on her by a County Court judge following her plea of guilty to two counts of attempted armed robbery. The maximum penalty for this offence is 20 years’ imprisonment.[1]
[1]The applicant was granted an extension of time in order to file the application.
Circumstances of the offending
The offending occurred on the morning of 7 November 2011. The applicant was then 23 years old.
At around 6.39 am, the applicant flagged down a taxi along Elizabeth Street in Melbourne. She sat in the rear passenger seat of the taxi and directed the driver to a location in South Melbourne. As the driver was telling her the amount of the fare, the applicant placed the hood of her jacket over her head, and held a knife (described by the victim as approximately 1 foot in length) to the driver’s right shoulder, saying ‘give me fucking whatever you have’. The driver said he had no money, and ran away from the vehicle (charge 1).
At around 6.54 am, the applicant flagged down a second taxi from South Melbourne. She sat in the rear passenger seat of the vehicle and directed the driver to Coventry Street. When they reached that destination, the applicant asked the driver to stop and moved directly behind his seat. She produced a knife (described by the victim as approximately 30 cm in length) and said ‘take out all of the money’. She then held the knife to the driver’s neck and said ‘give me your money’. The victim pushed the knife away, cutting the palm of his hand. He then got out of the vehicle and ran away (charge 2). He later drove himself to hospital, where the wound in his hand was stitched.
Both incidents were recorded by CCTV cameras located in each of the vehicles.
On 13 November 2011, the applicant was arrested and provided a ‘no comment’ record of interview to police. On 14 November 2011, she appeared before the Magistrates’ Court where she indicated an intention to plead guilty to charges of attempted robbery and was released on bail.
On 3 January 2012, the applicant committed further offences of burglary and theft, when she stole a laptop from her parents’ home.
Her Honour’s sentencing reasons
In her reasons, the learned sentencing judge said that the applicant was 24 years old and had had a ‘good upbringing’.[2] As a teenager, she was difficult and challenging, and was ultimately diagnosed as having Attention Deficit Hyperactivity Disorder. Although she was prescribed Ritalin, her behaviour did not improve when placed on this medication, and she became ‘nocturnal’ and was unable to function during the day.[3]
[2]DPP v Pia Rich (Unreported, County Court of Victoria, Judge Hogan, 3 August 2012) (‘Reasons’) [7].
[3]Ibid.
The applicant left school at the age of 15, and undertook a beauty therapy course. By the time she was 18, her parents became aware that she was abusing drugs.[4] As the result of a psychiatrist’s advice that she should live apart from her family because of the effect her behaviour was having upon her parents and siblings, she left home in 2005. From that time, she had a history of poly-substance abuse. During some of these periods, she was homeless and worked as a prostitute.[5]
[4]Ibid [8].
[5]Ibid [9].
At the plea hearing, reliance was placed on the applicant’s psychiatric history to support the argument that Verdins[6] factors must be taken into account in sentencing her. The judge summarised the applicant’s history, which included approximately 20 admissions to private and public hospitals as a psychiatric patient since 2005.[7]
[6]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 (‘Verdins’).
[7]Reasons [9].
Her Honour said that the applicant was admitted to the Alfred Hospital Psychiatric Unit as a psychiatric patient on nine occasions between August 2008 and 6 January 2012. The ‘Psychiatry Discharge Summaries’ prepared for some, but not all, of these admissions were tendered as an exhibit. The summaries variously recorded an ‘Axis 1 diagnosis’ of drug induced psychosis, poly-substance abuse, and schizophrenia. A diagnosis of borderline personality order was also recorded as an ‘Axis 2 diagnosis’ in 2009, and an ‘Axis 1 diagnosis’ in 2011.
The judge referred to the discharge summary from 26 July 2011, which covered the period from 21 to 26 July 2011. This described the applicant as an ‘inconsistent historian’, in relation to her reports of auditory hallucinations and noted that she was still using drugs, had undergone multiple attempts at rehabilitation in the past and that immediately after successful detoxification, she would begin using drugs again. Under the heading ‘treatment and progress’, the report said:
Impression: borderline personality disorder with polysubstance dependence. No objective evidence to suggest [any] underlying psychotic process or a primary mood disorder. Subjective experience of AHs [auditory hallucinations] likely inconsistent and driven by practical difficulties in Pia’s life.
Pia is having ongoing difficulties recently and often presents in crisis when she has a lack of money, unable to source drugs or unstable accommodation. She is easily becoming attached to the hospital environment.
At that stage, the applicant was discharged to the Junction Clinic, a case manager was appointed for her, and it was planned that she would be referred to a private psychiatrist.[8] She was later taken by her mother to the Melbourne Clinic to be treated by Dr Peter Doherty, but continued to use drugs and only 10 days later committed the offences for which she was sentenced by her Honour.[9]
[8]Ibid [16].
[9]Ibid [17].
The applicant presented again to the Alfred Hospital on 5 January 2012 ― that is, shortly after she burgled her parents’ home. She was admitted to the Royal Melbourne Hospital from 6 to 13 January 2012. At that time, she did not refer to any psychotic symptoms, but because of her history, she was admitted to the hospital on the basis of a presumed drug-induced psychosis.
The Royal Melbourne Hospital record states that a discussion had been held with the applicant’s previous case manager, whose impression was recorded as:
borderline personality disorder with episodes of probably drug-induced psychosis (unconvinced of dx [diagnosis] of schizophrenia); noted previous admissions with psychosis-like symptoms for possible secondary gain.[10]
[10]Ibid [19].
It also referred to a discussion with a private psychiatrist (possibly Dr Peter Doherty) suggesting that the anti-psychotic medication be terminated because of ‘prominent personality component’. The psychiatrist’s impression was recorded as ‘likely drug-induced psychosis with quick resolution. Likely past history of drug induced psychosis’.
Following her discharge from the Royal Melbourne Hospital, the applicant spent a week at the Melbourne Clinic and was readmitted to the Royal Melbourne Hospital on 7 April 2012 until about 19 April 2012. The admission record referred to the applicant’s poly-drug abuse and to a past diagnosis of schizophrenia. The discharge summary noted that the frequency of her presentation to hospital had increased and that there was a ‘temporal association of these presentations with court cases against her for assault’.
It was noted that she had failed to engage with the Crisis Assessment and Treatment Team, and that she had a history of leaving emergency departments without an assessment and leaving wards after admission. The discharge summary stated that:
the impression of the past treating team was that of Borderline Personality Disorder with episodes of probable drug-induced psychosis and noted previous psychotic-like symptoms were in the context of possible secondary gain.[11]
[11]Ibid [20].
After she was discharged from the Royal Melbourne Hospital on 19 April 2012, the applicant’s parents obtained $30,000 from her grandmother to pay for her admission into the private Raymond Hader Clinic.[12] She was admitted on 23 April 2012 for detoxification and was living in the residential rehabilitation section of the Clinic when she was sentenced on 3 August 2012.[13]
[12]Ibid [46].
[13]Ibid [23].
Tendered on the plea was a letter from Ms Kaye O’Toole, a case manager at the clinic, who said that the applicant was progressing well, that her urine screening had shown she was drug-free and that her treatment would continue in a half way house. Another counsellor from the Raymond Hader Clinic, Mr Jason Quigley, who was not directly involved in the counselling of the applicant, but had discussed her case with the residential manager, said that it had been decided that the applicant should not be moved to transitional housing for another two or three weeks. He gave evidence that the dosage of the anti-psychotic medications which had been prescribed for the applicant had been reduced, but could not explain how this related to the applicant’s report of suffering new auditory hallucinations in the week prior to sentencing. Neither Ms O’Toole or Mr Quigley had qualifications as a psychologist or psychiatrist.
Her Honour also considered a report dated 19 July 2012 from psychiatrist, Dr Bernard Hickey, who is associated with the Raymond Hader Clinic. In the report, Dr Hickey stated that the applicant had ‘a diagnosis of schizophrenia, with a history of a full range of psychotic symptoms including auditory hallucinations, thought broadcasting and paranoid delusions’, but did not state by whom such diagnosis was made, or what symptoms formed the basis of that diagnosis. The judge noted that this did not accord with the material from the Alfred Hospital and the Royal Melbourne Hospital, where clinicians had expressed doubts about the diagnosis of schizophrenia.[14]
[14]Ibid [30].
Her Honour found Dr Hickey’s report to be ‘deficient in a number of respects’, stating that:
it at no stage mentions his own diagnosis of your problem or even the medication which he had prescribed for you. It makes no reference to the alternative diagnosis of Borderline Personality Disorder and the question mark over your diagnosis of Schizophrenia which appears in the hospital discharge summaries to which I have earlier referred. He also makes no mention of a report of recent auditory hallucinations or the need to change your anti-psychotic medication as mentioned by Mr Quigley, stating instead that your psychosis was well-controlled at the present time.[15]
[15]Ibid [33].
The judge said that:
I considered whether it might be useful to have another psychiatric assessment conducted by Forensicare but, in the light of the very detailed histories from both the Alfred Hospital and the Royal Melbourne Hospital, and given the length of your psychiatric history, I am of the view that it is unlikely that such an assessment would be able to enlighten the Court to any great extent.[16]
[16]Ibid [35].
Her Honour was not satisfied on a balance of probabilities that the applicant suffered from schizophrenia, but in the course of the plea hearing, she noted twice that the application of Verdins[17] principles did not depend on a precise diagnosis of the mental illness from which the applicant was suffering. She concluded that the applicant suffered from ‘some form of mental disorder which is difficult to define, but which is most likely a Borderline Personality Disorder exacerbated by poly‑substance abuse’.[18] The judge accepted that the applicant at times suffered from psychotic symptoms, including auditory hallucinations, but said that the nature and extent of those symptoms were difficult to assess as the applicant was an ‘unreliable historian’, and had used these symptoms for secondary gain.[19]
[17]Verdins (2007) 16 VR 269, 276.
[18]Reasons [39].
[19]Ibid.
During the plea hearing, there was considerable discussion between counsel and the judge as to the applicability of the six Verdins principles. The first principle recognises that a mental impairment may reduce the offender’s moral culpability. At the plea hearing, counsel for the applicant did not rely on this factor, presumably because of the purposeful nature of the offending and the lack of any psychiatric evidence showing a causal link between the applicant’s offending and her mental condition.
The third and fourth principles recognise that a mental impairment may require moderation or elimination of either general or specific deterrence or both as a relevant sentencing consideration. Her Honour noted defence counsel’s concession that there was ‘no material before the Court to establish that your state of mind at the time of offending’ was such as to require moderation of the principles of general and specific deterrence,[20] and said that there ‘should still be a considerable emphasis on specific and general deterrence’, given that the applicant’s offending was caused by her drug abuse and refusal to engage in treatment. Nevertheless, her Honour accepted that ‘probably there should be some moderation of the emphasis’ to be placed on these matters.
[20]Ibid [38].
Her Honour said she had taken account of the fifth principle in Verdins, which recognises that a mental impairment in existence at the date of sentencing may result in the sentence weighing more heavily on the applicant than a person in normal mental health. No reference was made by counsel or her Honour to the sixth principle in Verdins, which requires the judge to take account of a serious risk that imprisonment will have an adverse effect on an offender’s mental health.
Her Honour went on to note that:
Unhappily, attacks against taxi drivers are prevalent in our community. Taxi drivers perform a valuable service, albeit a paid one, to the community. They are particularly vulnerable targets for assaults and robberies because they are working alone in a vehicle. Their work necessitates them being in close proximity to total strangers, and attacks on drivers often occur early in the morning or late at night when few other people are about on the streets or on the roads. In sentencing you, a message must be sent to other drug addicts who might be minded to attempt to rob taxi drivers, particularly using a weapon, that such conduct will not be tolerated and will attract appropriate punishment by way of a term of imprisonment.[21]
[21]Ibid [49].
Her Honour took account of the fact that the three months spent by the applicant at the Raymond Hader Clinic was the longest time she had remained in drug rehabilitation.[22] However, the judge did not accept defence counsel’s submission that sentencing should be deferred to see whether the applicant continued with her treatment because she considered that ‘the gravity of [the applicant’s] offending is such that the only appropriate sentence is a term of imprisonment with an immediate custodial component’.[23]
[22]Ibid [45].
[23]Ibid [47].
The judge took into account in the applicant’s favour her early guilty plea,[24] the continued support of her family, her relative lack of serious offending,[25] and her relatively young age.[26] As we have said, she also accepted that her mental/personality disorder would make imprisonment more difficult for her than for someone without those difficulties.
[24]Ibid [52].
[25]The applicant was convicted on 7 April 2009 for driving while suspended and fined $100. On 3 August 2010, charges of dishonestly receiving stolen goods, fraudulently using a registration label, using an unregistered motor vehicle, driving while suspended, theft and attempted burglary were adjourned for six months on condition that she comply with any current Community Treatment Order and all treatment recommendations of treating psychiatric staff: ibid [5].
[26]Ibid [52].
The judge was ‘very guarded’ regarding the applicant’s prospects of rehabilitation given her ‘woeful history’ of failing to engage with drug rehabilitation opportunities. Her Honour concluded that ‘supervision on parole for as long as possible is in your best interests and in the best interests of the protection of the community.’[27]
[27]Ibid [51].
The judge declared pursuant to s 6AAA of the Sentencing Act 1991 that but for the applicant’s pleas of guilty, she would have been sentenced to a total effective sentence of five years’ imprisonment, with a non-parole period of three years.[28]
[28]Ibid [61].
Proposed ground of appeal 1
This proposed ground provides that:
The learned sentencing judge erred in refusing to defer sentencing under section 83A of the Sentencing Act 1991 until the applicant had completed the Raymond Hader Clinic drug and alcohol treatment program and ongoing psychiatric treatment from Dr Bernard Hickey.
As a ‘particular’ to this ground, the applicant states that ‘a six month deferral of sentence to pursue the applicant’s drug rehabilitation and ongoing psychiatric treatment was warranted to effect rehabilitation’.
Under s 83A of the Sentencing Act 1991, the Court may defer sentencing of an offender for a period not exceeding 12 months if the deferment is ‘in the interests of the offender’.[29] Sentencing may be deferred for one of the following purposes:[30]
(a) to allow the offender's capacity for and prospects of rehabilitation to be assessed;
(b) to allow the offender to demonstrate that rehabilitation has taken place;
(c)to allow the offender to participate in a program or programs aimed at addressing the underlying causes of the offending;
(d) to allow the offender to participate in a program or programs aimed at addressing the impact of the offending on the victim;
(e) for any other purpose that the court considers appropriate having regard to the offender and the circumstances of the case.
[29]The offender must also agree to the deferment.
[30]Under s 83A(1A).
During the plea, defence counsel sought a deferral of sentence to allow the applicant to continue with drug rehabilitation, and to obtain a psychiatric assessment of her in a drug free state, so that consideration could then be given into a Community Corrections Order.
In his oral submissions on the application, counsel for the applicant placed particular emphasis on the weight that must be given to rehabilitation in sentencing youthful offenders.[31] Counsel submitted that the failure to defer sentence indicated that her Honour had erroneously placed greater weight on the seriousness of the offence and the protection of the community than on the applicant’s rehabilitation. Counsel submitted that drug users usually make many attempts to recover from their addiction before they ultimately succeed, and that her Honour had wrongly taken the view that the applicant’s past failures to overcome her addiction made it inappropriate to defer her sentence.
[31]R v Mills [1998] 4 VR 235.
A complaint about the failure to give adequate weight to a sentencing consideration is, in effect, a complaint that the sentence is manifestly excessive.[32] We will discuss that proposed ground of appeal later in these reasons.
[32]Gorladenchearau v The Queen [2011] VSCA 432, [34].
Of course, the fact that drug abusers commonly try and fail to rehabilitate themselves on many occasions before they succeed in overcoming their addiction does not prevent a sentencing judge from deciding that an addict is now sufficiently committed to recovery to be given a further chance to do so.
In this case, however, the judge was entitled to be sceptical about the applicant’s prospects of rehabilitation, in light of the fact that she had not taken advantage of earlier attempts to assist her and the suggestion in psychiatric reports that in the past she had behaved manipulatively for ‘secondary gain’.
The question for resolution is not whether this Court would have deferred the imposition of the sentence, but whether the trial judge erred in exercising her discretion to decline to do so. Her Honour did not take account of any irrelevant consideration, or fail to consider relevant matters. Nor is it reasonably arguable that the sentence imposed by her Honour shows that her decision not to defer sentence must necessarily have been infected by error.
For these reasons, leave to appeal is refused on the basis of this proposed ground.
Proposed ground of appeal 2
This ground alleges that:
The learned sentencing judge erred in refusing to adjourn the matter so a Forensicare assessment and report could be prepared by Dr Danny Sullivan and provided to the court, thereby giving rise to procedural unfairness.
In written submissions, the applicant contended that a Forensicare report should have been ordered to ‘resolve the precise nature of the applicant’s psychiatric condition’, given the uncertainty regarding her diagnosis. It is submitted that the judge viewed the alternative diagnoses to schizophrenia as having less mitigatory weight than other possible diagnoses, and that if the applicant was actually suffering from schizophrenia, she may have been sentenced on a false basis. A Forensicare report could have been ordered after the applicant had been off drugs for a period and the failure to adjourn had given rise to procedural unfairness as ‘[t]here was potentially a substantial mitigating factor that would flow from a proper psychiatric diagnosis and report’.
At the hearing of the application, counsel for the applicant submitted that there was an inconsistency between the judge’s refusal to order a Forensicare report and her remark at the end of the plea hearing that the applicant should have a psychiatric assessment when she went into custody. Counsel also relied on her Honour’s acknowledgement that the prescribed drugs which the applicant was taking should be reported to Corrections.
No such inconsistency arises. It was entirely appropriate for the applicant to be psychiatrically assessed to determine how she should be managed in prison, and for the correctional authorities to be advised of her prescribed drugs so that they could consider whether any change should be made to the applicant’s medication.
Nor is it reasonably arguable that the judge erred by failing to order a Forensicare Report. As her Honour acknowledged in her remarks during the plea hearing, the application of Verdins principles is not dependent on a precise diagnosis of the mental impairment from which an offender is suffering. What matters is ‘what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.’[33] Her Honour’s sentencing reasons set out the applicant’s history of private and public hospital admissions in considerable detail and the application of the six principles in Verdins was thoroughly explored during the plea hearing. Her Honour took some account of the third and fourth principles in Verdins and accepted the submission that the fifth principle was relevant in sentencing the applicant.
[33]Verdins (2007) 16 VR 269, 271 [8]. See also Leeder v The Queen [2010] VSCA 98.
Counsel for the applicant at the plea hearing eschewed any reliance on the first principle in Verdins. Even if a further report had expressed the view that the applicant was suffering from schizophrenia, rather than a borderline personality disorder, this would not have led to any automatic mitigation of her sentence. As this Court said in R v Zander:
Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.[34]
[34][2009] VSCA 10 [29] (Dodds-Streeton JA, Nettle JA agreeing).
There was no evidence of any connection between the applicant’s mental condition and the offences. It seems to have been simply assumed by counsel at the plea hearing that Dr Hickey’s report was sufficient to attract the operation of Verdins.
Further, the applicant did not claim that she had held a knife to the two taxi-drivers because she was suffering from any auditory hallucination or other symptom of schizophrenia.
The applicant gave the first taxi driver coherent instructions about where she wanted to go and having failed to obtain money on her first attempt, tried to rob a second taxi driver. The applicant’s possession of a knife suggests some degree of premeditation and the offences were committed for monetary gain. No evidence was put before the trial judge that the applicant’s mental state impaired her ability to express appropriate judgement, to make calm and rational choices or to appreciate the wrongfulness of her conduct at the time the offences occurred.[35]
[35]Verdins (2007) 16 VR 269, 275 [26].
For these reasons, this proposed ground is not reasonably arguable.
Proposed ground of appeal 3
This ground alleges that ‘the sentence imposed in respect of both charges is manifestly excessive’. The written submission argued that the judge failed to give sufficient weight to the following factors:
·Early pleas of guilty;
·Youthfulness (the applicant was 23 at the time of offending and 24 at the time of sentence);
·Remorse;
·Lack of similar or related prior convictions;
·Willingness to participate in rehabilitative programs;
·The need for rehabilitation where this would more readily occur in the community with family support; and
·The applicant’s psychiatric condition at the time of the offending and at the time of sentencing, and Verdins principles.
Unlike the argument at the plea hearing, which placed primary emphasis on the applicant’s mental illness, counsel at the application relied mainly on the applicant’s addiction. It was argued that, in addition to the factors to which reference has already been made, the sentence was manifestly excessive having regard to the importance of rehabilitating a youthful offender, and the fact that the applicant had, for the first time, begun a process of rehabilitation. Counsel for the applicant contended that the excessive weight which the judge gave to the seriousness of the offence and the protection of the community had resulted in the imposition of a manifestly excessive sentence.
It is trite to remark that the ground of manifest excess is very difficult to make out. The individual sentences and total effective sentence were well within the range of sentences which could be imposed for this offence. Her Honour was not persuaded that the applicant was remorseful,[36] but all of the other factors on which counsel relied were appropriately taken into account by the learned sentencing judge.
[36]Reasons [52].
In essence, the applicant’s complaint was that she was not given another chance to rehabilitate herself from her drug addiction before being sentenced to a term of imprisonment. Dr Hickey said that ‘it is likely that her criminal behaviour is related to her substance dependence, and were this controlled, her chances of re-offence are low’. But reliance on addiction as a mitigating factor is a double-edged sword. Although the applicant’s addiction might be regarded as a mitigating factor to some extent, the evidence as to that addiction might well have reinforced her Honour’s reservations about the applicant’s prospects of rehabilitation.
Further, the applicant’s prospects of rehabilitation did not trump all other sentencing factors. The judge had to balance this consideration against the gravity of the offences, the need to deter an applicant whose criminal conduct had escalated in seriousness over time, and the protection of the community.[37]
[37]Azzopardi v The Queen [2011] VSCA 372.
It was not inappropriate for her Honour to give weight to the fact that the applicant had a ‘woeful history of failing to engage in drug rehabilitation opportunities on countless occasions over seven years.’[38] The applicant has been fortunate to have support from her family over this period. If she had wished to persuade her Honour that the offences were a product of her drug addiction and that she is now well on the way to recovery from her drug addiction, she could have given evidence to that effect.[39]
[38]Ibid [51].
[39]As to the importance of calling evidence from an offender, rather than relying on the assertions of counsel or on letters sent to the judge: see Mune v The Queen [2011] VSCA 231, [32] (Harper JA, Hansen JA agreeing); R v Benbrika [2009] VSC 21 [152] (Bongiorno J).
Her Honour was well justified in concluding that the applicant’s rehabilitation depended on her being drug free and in taking a guarded view as to whether that would occur in the future. Nevertheless, the judge imposed a short non-parole period in order to give the applicant a lengthy period of supervision. No doubt the judge hoped that this would give the applicant an incentive to take a new direction in her life.
Proposed ground of appeal 3 is not reasonably arguable.
For these reasons, the application for leave to appeal against sentence is refused.
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