District Court New South Wales Medium Neutral Citation: R v Dixon [2020] NSWDC 646 Hearing dates: 7 July 2020 Decision date: 07 July 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to a term of imprisonment of 4 years; non-parole period 1 year 8 months. Recommend prisoner undertakes Intensive Drug and Alcohol Treatment Program at Dillwynia Women's Correctional Centre Catchwords: CRIME – sentence – aggravated robbery and inflict actual bodily harm – offence committed whilst on parole for similar offence – not planned – breach of conditional liberty - criminal history dating back to childhood – disadvantaged and dysfunctional upbringing – Aboriginality - 'Bugmy' principles– drug use – poor mental health – guarded prospects of rehabilitation – plea of guilty - contrition and insight – plans for the future – special circumstances – Bar Book Project. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Mental Health Act Cases Cited: Blackman & Walters v R [2001] NSWCCA 121 Bugmy v The Queen [2013] HCA 37 Callaghan v R [2006] NSWCCA 58 DPP v De La Rosa [2010] NSWCCA 194 Millwood [2012] NSWCCA 2 Munda v Western Australia [2013] HCA 38 R v Henry (1999) 46 NSWLR 346 R v Moffitt (1990) 20 NSWLR 114 Thomson and Houlton v R [2000] NSWCCA 309 Veen (No 2) [1988] HCA 14; 164 CLR 465. Yardley v Betts (1979) 22 SASR 108 Category: Sentence Parties: Regina (Crown) Alana Dixon (Offender) Representation: Counsel: Mr N Broadbent (Offender) Solicitors: Ms L Jones File Number(s): 2019/00300208 Publication restriction: No Judgment 1. The prisoner, Alana Dixon, appears today for sentence in relation to an offence pursuant to s 95(1) Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period. 2. Particularised, the offence is that the prisoner on 3 September 2019 at Waterloo robbed a taxi driver, who was named in the "charge", of certain property, namely a money bag containing $200 in Australian currency, the property of the taxi driver, and immediately before the robbery of the taxi driver, recklessly inflicted actual bodily harm upon that person. 3. The prisoner apparently was "scheduled", that is admitted under the Mental Health Act, to a hospital on 15 September but released from hospital on 25 September 2019 upon which event she was arrested and has been in custody ever since. 4. Apart from the seriousness of the offence, the reason she has been in custody ever since is because she was in breach of parole in respect of an offence for which she was sentenced in the District Court by a Judge of this Court in February 2019, according to the criminal history. 5. Her parole was revoked. The particulars of the revocation I need not dwell upon. We discussed that and it was recorded if in the future a transcript is required. I obviously do not have a transcript of what happened this morning. But the effect of the revocation of the parole of the prisoner, bearing in mind that she had only been released to parole approximately a month before the commission of the offence with which I am now concerned, was to place her back in custody for the balance of parole which expired according to the "Custody Record" on 28 August 2021. There are no other offences to be taken into account. 1. The facts of the matter are set out in an Agreed Statement of Facts and I need not dwell upon them in detail. But there are some features of the facts in the context of assessing the objective criminality that need to be identified, also matters pertinent to the operation of s 21A Crimes (Sentencing Procedure) Act 1999, which hereon after I will refer to as "the Act". 2. The victim and the prisoner were unknown to each other. The prisoner being born in April 1992, as I best calculated was 27 years old at the time of the crime. She is now 28. The victim was a cab driver. He picked her up at 10am, so the offence was committed in daylight hours. It would seem to me, having pretty good knowledge of the area, coming from a family living in Raglan Street, Waterloo for 60 or 70 years, playing football at Waterloo Oval as a boy and driving down Elizabeth Street every day to and from work, I am very familiar with where this happened. It is not an "isolated area" where the crime was eventually committed. 3. The victim picked up the prisoner in Broadway, but when they got to where she indicated she wanted to go, which was "Waterloo Oval" on the corner of McEvoy Street and Elizabeth Street, Alexandria or Waterloo. She indicated that she had no money, although the cab driver had indicated to her that he would give her a discount. 4. The prisoner indicated that she had a card at her home, as I would understand what the Agreed Facts state, so the cab driver drove her to the area that she had indicated her home was located. But as soon as he stopped the prisoner produced a knife, which was concealed in her pants, and made an immediate demand for money. The victim said, "I have no money, I call the police". The prisoner repeated, "Give me the money", then a struggle ensued. 5. It is quite clear that the recklessness involved in the infliction of actual bodily harm, the injuries suffered by the victim are relatively minor thankfully, was of a low level indeed. I am satisfied that although the prisoner threatened the victim with a knife on the presentation of the knife, it was entirely unintended that she should injure him. She was concerned to threaten him in order to obtain the money. 6. The victim was trying to push her away and the palm of his right hand came into contact with the knife. The prisoner took a money bag from the console. She again struggled with the driver and dropped the knife or threw it away. 7. She did hit the victim in the head twice during the subsequent struggle after she had obtained the money bag, because the victim was trying to get the money back from her. Eventually the victim disentangled himself and sought assistance from a passer-by. 8. The knife and a pink bag that she was carrying at the time she was in the cab were discarded, and it is clear on the basis of the material available to me that it was not difficult to identify the prisoner as the offender. There was CCTV footage from the cab and the prisoner had not sought to disguise herself. Obviously she could clearly be seen by the victim as it was daylight hours. As I said, she was arrested a comparatively short time later in relation to this matter. There is some evidence of treatment of the hand of the victim but there is no specific detail of the character of the injury and certainly it is not a serious injury. 9. Having regard to what has been put to me in the submissions of the parties, and they have both very helpfully identified various features of the offending. I would regard this offending as not low range offending, but certainly at a lower level of objective seriousness than what might be described, by reference to an offence carrying the standard non-parole period, as an offence within the middle range of objective seriousness. Although of course that term does not apply in this sentencing exercise. 10. The Crown sought to identify the offending at a higher level. But there are a number of features about robbery offences that need to be taken into account, particularly this offence. One is the amount of property that has been taken, the degree of planning involved, the character of the actual bodily harm, the character of the recklessness involved. Some recklessness can border on intentional conduct. The vulnerability of the victim, if vulnerability is an issue. 11. In this matter whilst I accept as a general proposition that taxi drivers are "vulnerable" as an aggravating factor, it is not a significant matter because the vulnerability of the victim has to be seen in the context of the offence occurring in daytime in an area well-populated. It would be a different matter of course if this offence had been committed at 3am when the victim could not expect to obtain the assistance that he did on this particular occasion. 12. I bear in mind of course that even though she was carrying a knife, I do not accept this was an impulsive offence, it was clearly not a "planned" offence. She obviously had, in my view, no intention of paying for the cab fare, but as to when she determined that she would use the weapon that she was carrying in order to secure the money held by the taxi driver I could not conclude beyond reasonable doubt. I am prepared to find arising under s 21A(3) Crimes (Sentencing Procedure) Act that the offence was relatively "unplanned". 13. Of course the offending conduct with which I am now concerned was not uncharacteristic conduct. I have already indicated that the prisoner was on parole for an offence committed in August 2016 of robbery whilst armed with an offensive weapon. 14. The offence being committed on parole gives rise to consideration of the aggravating factor under s 21A(2) of the Act of an offence committed on conditional liberty. I acknowledge that to commit a similar offence whilst subject to parole in relation to a robbery-style offence is a significant aggravating factor to be taken into account. Not in judgment perhaps of the objective facts, but as an aggravating factor to be considered in the sentencing equation. 15. The prisoner is no stranger to committing these types of offences. She has been offending since she was 16 years old. I acknowledge from the outset however that a consideration of her criminal history, and many other aspects of this case including the circumstances of the offending, has to occur in the context of an understanding of her social circumstances and because she is a person who has clearly been damaged by many events completely beyond her control. I will come back to that aspect of the matter later. 16. She has a finding of guilt as a juvenile for an aggravated robbery inflicting actual bodily harm in June 2008. That was dealt with in the Children's Court. She does have findings of guilt in relation to assaults and assault occasioning actual bodily harm. She has a finding of guilt in the Youth Drug Court in respect of an offence of demanding property with menaces with intent to steal. She has a finding of guilt in the Children's Court in regard to having custody of a knife in a public place. 17. In 2012, when she would have been 20 years of age, she was convicted in the Sydney District Court of assault with intent to rob, and sentenced to two years imprisonment suspended pursuant to s 12 of the then Crimes (Sentencing Procedure) Act 1999. 18. She has findings of guilt through 2015 and 2016 that ultimately led to an aggregate sentence of 15 months imprisonment commencing on 9 September 2016 with a non-parole period of eight months. Many of those offences are offences of dishonesty, some offences of common assault. She has a finding of guilt in June 2016 for dishonestly obtaining financial advantage by deception, for which she was placed on a two year good behaviour bond. 19. She came before the District Court to be sentenced in respect of the matter that I have earlier referred to. The precise custodial history of the prisoner over that period of time, 2016 until her appearance for sentence in February 2019, I have not analysed to the day. But it would be clear from the detail of the sentences imposed and the criminal history and other material available to me, that the prisoner since 2016 has largely been in custody in respect of sentences imposed for various offences. This matter that I am dealing with now will be the third substantial sentence imposed on her since 2016. 20. Another matter to bear in mind in this matter, as it relates to identifying a commencement date, is the fact that the prisoner apparently was charged with an offence of common assault. The date of that offence is 30 September 2019. That would suggest to me it was an offence committed whilst in custody, the details of which I do not know. For that she was sentenced to three months imprisonment commencing on 30 September 2019, expiring on 29 December 2019. 21. Thus it transpires, by the time she appears before me with her parole revoked, the calculation of the revocation of parole has occurred without regard to the three month sentence for the common assault. That term of imprisonment running concurrently with the balance of parole that she would be required to serve subject to further order of the Parole Authority. 22. I make the point in relation to her from her evidence, most of which I accept, and from history that is available to me, that it seems that, although she had been in custody for an extended period of time up until her release to parole in August 2019, she was not ready for release to the community. It seems quite apparent to me that her speedy return to the use of prohibited substances reflected either continuing drug use in custody or an inability to cope with the outside world on her release. 23. Evidence contained within the Crown bundle which is absent a report from the Community Corrections Service that should have been ordered given the prisoner had previously been on parole. Another matter missing from the material available to me, which could have readily been provided although I have not made a fuss about it except now, is the fact that the remarks on sentence in February 2019 could readily have been made available to me for consideration of what issues were the subject of attention by the sentencing Judge. Because without knowing the facts of the previous robbery whilst armed with an offensive weapon, it is quite clear that that sentencing Judge had regard to a range of matters that I believe I am being asked to consider now. 24. Certainly that Judge made a generous finding in relation to "special circumstances" pursuant to s 44 of the Act and accorded the prisoner a very generous adjustment of the relationship of the non-parole period to the balance of sentence. 25. A key to the fact, that without it being confirmed by having the remarks in front of me, the previous sentencing Judge was considering material not dissimilar to that which I am considering, as was drawn to my attention by counsel for the prisoner, is the fact that when the prisoner was sentenced by the District Court Judge in February 2019, the order of the Court notes a copy of a psychologist report dated 19 February 2018 was to be provided to Corrective Services. The author of that particular report is the author of the very helpful report which has been provided in these proceedings. 26. It seems to me, by regard to the detailed history, apart from some additional comments about the recent time in custody, very little would have changed in relation to the personal circumstances of the prisoner. 27. The prisoner's affidavit is detailed. It fills in some gaps that are not immediately addressed in the psychologist report. I am prepared to accept, most of the evidence of the prisoner although I bear in mind that I must approach her account of the commission of the offence with some circumspection, considering particularly what she said about her memory of relevant events. But the matter is to be addressed with regard to the Agreed Facts, rather than what the prisoner's memory may be at the present time. 28. The prisoner has had a very unfortunate life. Not just because she is an Aboriginal person, or indigenous Australian, but because she has led a life of disadvantage and dysfunction of great significance. Both the evidence of the prisoner in conjunction with the history which she adopts given to the psychologist reflects disrupted education and financial disadvantage. 29. It reflects she is a victim of personal and sexual violence on a number of occasions. The detail of those matters I do not propose to state in open Court, but I am prepared to accept that history is true. 30. She was in a violent domestic relationship from the age of 19 and the child of that relationship is now in foster care. It is quite clear that she has been a user of prohibited drugs in various forms since her mid‑teens. The experience of disadvantage and particularly sexual assault upon her would no doubt have contributed to her significant dependence upon prohibited drug. 31. I am mindful of course that being a drug user, or a drug addict, or drug dependent, depending upon how one wants to categorise a particular individual, is not a mitigating factor in sentencing for offences of this type. The matter is not only addressed in legislation but it was the subject of specific comment in the ratio of the guideline judgment in respect of armed robbery, R v Henry [1999] 46 NSWLR 346. 32. I do not propose to dwell upon the guideline itself, although it is the subject of comment in the submissions and I will deal with that in due course. But importantly the majority of the Court approved what Wood J had said in that case at [273], where his Honour whilst disabusing the notion that drug addiction or drug dependency was a mitigating factor, identified the ways in which drug dependency can be relevant to the sentencing exercise. 33. One particular matter he identified that might be said to be relevant in his words to the "subjective circumstances" of an offender was the fact that a particular offender's dependence upon drug may not have been a matter of personal choice, but may have been a matter that arose out of life circumstances or situations beyond the control of the offender. 34. I appreciate that Spigelman CJ and Simpson J had a debate in the judgment about issues of personal choice. I greatly admire the views that Simpson J expressed, although she may have been in a minority in that particular regard. But it does not really matter much for the purposes of this particular sentencing exercise because, as I said, Wood J's observations were accepted by the majority of the Court. I accept the pertinence of what he said about circumstances where a person's drug dependency may be for reasons beyond their control as being a relevant matter to take into account in a subjective basis. 35. The prisoner's education has been greatly disrupted. Reading through the litany of schools that she has attended she has not had advantage certainly in regard to educational opportunity, but she tells me that she reads well and without difficulty. There is no doubt that she is a person of intelligence. She reflected in her evidence before me some insight in respect to the circumstances of her offending and her circumstances so far as they relate to drug dependency, both in and outside of custody. 36. She seems to me, in a manner that probably was not apparent when she was released to parole on the last occasion, to have developed a plan for the future. She says she is artistically talented, and she would wish to pursue that matter. Of course the life of an artist is not necessarily the life of a person leading a secure financial existence. But I accept that she has abilities that she might be able to convert to her advantage on her release in circumstances that might prevent her from offending in this manner in the future. Certainly her lack of educational opportunity is through no fault of hers. 37. She has a history of very poor mental health. It seems in part contributed to by her amphetamine and other drug use, as well as her life experiences. She has other medical conditions which I need not read onto the record which impact upon her circumstances in custody. 38. One of the features of this psychological report prepared for these proceedings by the psychologist from Duffy Robilliard, Ms Hübner, is that it is not just a report entirely captive to a history provided by the prisoner. There is a very extensive record of treatment of the prisoner at various mental health units and hospitals by various medical professionals since the age of 16. 39. Many of these admissions and treatments occurring before the course of offending commencing in 2016 that culminated with the offending with which I am now concerned. There certainly has been increased intensity in the offending of the prisoner over the last four or five years. I am very grateful to the extensive records that have been provided in relation to these other treatments. 40. The prisoner on 15 September 2019, as I earlier mentioned, had to be scheduled after an act of self-harm. She was suffering delusions or perhaps psychotic episodes primarily arising out of methylamphetamine and alcohol abuse. There is evidence of the fact that she received a dose of depot 'Abilify' on 31 August 2019 when she was under the care of a local Aboriginal mental health training team for symptoms of psychosis. Her engagement with that team has been inconsistent. 41. In the history that she gave, entirely consistent with histories and observations previously taken in May, she described symptoms of emotional dysregulation, depressed mood with suicidal ideation and self-harm. In fact she, just prior to the assessment by the psychologist had been involved in an act of self-harm. There is an extensive history held by Department of Corrective Services of treatment for her in relation to acts of self-harm and acts of mental disturbance. 42. The psychologist undertook some psychometric testing. She concluded on the basis of the assessment she made that the prisoner's profile contained scores in the significant range of the measures of depressive attitudes and antisocial attitudes. She noted that individuals with depressive personality traits can perceive themselves as worthless, vulnerable and inadequate and react vigorously to perceived slights. 43. The addition of existing antisocial traits suggests the presence of behaviour aimed at countering the pain and depredation expected from others. This can include duplicitous and illegal behaviour designed to exploit her environment and that seems to be reflected in her criminal history. 44. Other problems associated with her personality characteristics in the opinion of the psychologist, apart from mood dysregulation, were greater susceptibility to substance abuse. She said that the prisoner reflected symptoms of what she - the psychologist - described as "delusional disorder". 45. The psychologist opined that most of the prisoner's mental health deterioration can be dated back to the sequelae of her first sexual assault, aggravated by a subsequent sexual assault when she was 17 years of age. The domestic dysfunction, the loss of a child, have contributed to her instability as has her regular use of both prescription and non-prescription drugs. 46. In the opinion of the psychologist, she said at the time of the offence the prisoner suffered from symptoms of major depressive disorder with what she described as: "Anxious(sic). Distress and substance use disorders, underpinned by ingrained Cluster B personality traits. Cluster B personality disorders are characterised by dramatic, overly emotional or unpredictable thinking or behaviour. They include antisocial personality disorder and borderline personality disorder". for which the psychologist gives problematic prognosis. 1. Of course, it is to be borne in mind these various matters identified by the psychologist reflect upon risks the prisoner presents to the community in the future. 2. There is evidence of regular drug-induced psychosis, although the psychologist does not think it was apparent in this particular offending. The prisoner's recall of relevant events did not involve any history of voices directing her behaviour or committing the offence arising out of any delusional belief. She said nonetheless symptoms of drug-induced psychosis can include disorganised thoughts, emotional ability and violent and erratic behaviours which could have contributed to her offending. It is to be borne in mind that within a very short time, a matter of less than two weeks, she was scheduled in the manner that I described. 3. The psychologist was of the view that if the prisoner was to avoid substance use and antisocial peers, find stable employment or useful occupation, continue with her medication, then her risk of re-offending would most probably be lowered. However there are risks; demonstrated criminal tendencies, problematic personality traits, substance dependence and association with antisocial peers. Her prognosis must be seen as "guarded" particularly if she was to continue with illicit substance abuse. 4. It is in this context, if I might just go to another topic briefly, that when one has regard to s 21A(3) of the Act one could not conclude that the prisoner was unlikely to re-offend on the current state of evidence, or had good prospects of rehabilitation. That having been said of course, that does not disqualify her from a consideration of s 44 of the Act and a determination that there are 'special circumstances'. People with the complexity of this prisoner's presentation are the very people that intensive supervision and extended supervision can assist. 5. The psychologist goes into a bit of social theory in her report, and I do not necessarily disagree with the detailed analysis. This includes the relationship of her Aboriginality to her offending, the relationship of her Aboriginality to her social circumstances, the disruptions to her life and dysfunction in her life which have contributed to her offending and also her related drug abuse. 6. The psychologist opines, and I am prepared to accept that this is true, that trauma, abuse and domestic violence can have a profoundly negative effect on an individual's health and wellbeing. Survivors of trauma and abuse have high rates of mental illness, relationship problems, occupational instability and substance abuse than the general population. That has been my experience as a judge and lawyer over 40-odd years and it is reflected in the profiles of people who come before this Court charged with particular offences. 7. The psychologist observed that in the aftermath of a life-threatening experience a person can suffer from a variety of psychiatric illnesses that can significantly detract from that person's quality of life, placing them at risk of depression, suicidal behaviour and drug and alcohol abuse. 8. The psychologist noted that the prisoner was becoming institutionalised. Institutionalisation involves inclusion of the norms of prison life into ones patterns of thinking, feeling and acting. Adaptation to imprisonment can create habits of thought and behaviour that can be dysfunctional in periods of post‑prison adjustment. It seems very much so given that the prisoner resorted to offending so shortly after her release to parole. Particularly her return, even before offending, to drug dependency reflects this as well. 9. The psychologist said that institutionalisation renders some people so dependent on external constraints that they gradually lose the capacity to rely on internal organisations, self-imposed personal limits to guide their actions and restrain their conduct. If and when this external structure is taken away, institutionalised individuals may find that they no longer know how to do things on their own or how to refrain from doing those things that are ultimately harmful or self-destructive. 10. In that regard I note one of the earlier judgments in relation to the meaning of "special circumstances" shortly after the passing of the Sentencing Act in 1989 the decision of R v Moffitt (1990) 20 NSWLR 114, and contained three leading judgments from Samuels JA, Badgery-Parker J and Wood J. Included were observations by Wood J about the need for people having spent extensive time in custody to obtain professional assistance when they are released from custody to adjust to community living. 11. The psychologist makes various recommendations about the placement of the prisoner in custody, which I have taken into account, and will be reflected in some recommendations that I make. For example, being placed in the 'Mum Shirl Unit' which provides specialised care for people with complex psychological, behavioural and personality issues. Also placement in a program called the Intensive Drug and Alcohol Treatment Program (IDATP) provided, as I understand it from the information at the bar table, at the John Moroney Centre for both women and men. 12. This is not to be confused with the Compulsory Drug Treatment Program that can be ordered by the Drug Court. It is a program where candidates are chosen by the Department of Corrective Services. I will be recommending if it were possible for the prisoner to have the opportunity to undertake that program before the completion of a non-parole period. 13. That program is facilitated in a rolling format lasting approximately six to eight months, however length of time spent in the program may vary depending on participant programs. She obviously, as the psychologist observes, needs professional assistance both in and out of custody. 14. It is clear that any sentence I impose would need to be partially accumulative upon the balance of parole. Partial accumulation of a sentence or accumulation of a sentence, is of itself capable of being a 'special circumstance' pursuant to s 44 of the Act, but in this particular matter I have provided for an even more extended balance of parole than previously ordered by my colleague at the District Court who is unknown to me. Because events since that sentencing exercise have demonstrated, as does the report from the psychologist, the significant professional assistance this prisoner needs to adjust to community living. 15. In respect of the material that was available to me, just putting aside the evidence of the prisoner for the moment, I had some statistics from the JIRS system. They are effectively meaningless and are of little assistance here. 16. I have material from the Bar Book project. Chapters from that source of information with which I am familiar, dealing with the effect upon individuals of childhood sexual abuse and early exposure to alcohol and other drug abuse. I have again read through those chapters. I have been to some presentations on the Bar Book project. 17. In relation to childhood sexual abuse, it is well accepted both from the findings of public inquiries and from decisions of Courts of much higher authority than this Court, that childhood sexual abuse can have a profound and devastating effect upon individuals. The impacts of these experiences can last for the whole life of the relevant victim. It is to be recognised that this can manifest itself in a range of ways with an effect upon mental health with increased risk taking and impulsivity, with alcohol and substance abuse, difficulties in interpersonal relationships, physical health, negative outcomes in terms of educational achievement and employment. These are just some of the impacts of abuse that are suffered by young people that they have to carry for the rest of their lives. 18. Likewise growing up in a community where drug and alcohol abuse is widespread can lead to physical abuse. It can have significant psychological impact and maltreatment upon particular individuals. It may reflect, as I believe is the case here, intergenerational cycles of disadvantage. It also is the case, without seeking to reflect adversely upon the upbringing of the prisoner, that people to whom the prisoner may look for guidance are not people that provide adequate modelling for future behaviour. 19. Of course, the very strong links between crime and drug and alcohol dependence are well-known to the Courts. When we are dealing with offences of violence, dishonestly, particularly robbery-type offences, the vast majority of people who, before the Courts, claim drug dependency or use as a contributing factor to their criminality. This is why, of course, Courts are obliged to fix substantial penalties for those who traffic in prohibited drugs causing this profound damage to our community and to the individuals in our community. 20. I must compliment both the Crown and the defence on the detail of their helpful written submissions. They have also made supplementary oral submissions which I have taken into account. In fact, I made some comment about some of the matters that have been the subject of special oral submission. 21. To just deal with a number of those matters very quickly, although not seeking to downplay the significance of one or other matter, the prisoner is entitled to a 25% discount upon the otherwise appropriate sentence for the utilitarian value of the plea of guilty. 22. To return to her evidence, initially on reading the psychologist's report and reading the Agreed Facts, I was not of the view that the prisoner necessarily demonstrated remorse. That is, the remorse required to be established pursuant to s 21A(3) of the Act. But having heard her evidence, noting the very fair concession by the Crown in that regard, I am prepared to find that as a mitigating factor under that particular subsection. 23. The parties both agree that the breach of parole is a substantial aggravating factor, particularly in the subjective sense, although it also reflects upon the relevance of her criminal history to this sentencing exercise. In that regard, it was a bit difficult to understand precisely what the defence was saying in its written submissions. Certainly prima facie, her criminal history does not entitle her to any leniency. It may be, and it seems to be conceded, an aggravating factor pursuant to s 21A(2)(d) of the Act. However, that provision is to be considered, or interpreted in a manner consistent with the 'proportionality' principle discussed by the High Court in Veen (No 2) (1988) 164 CLR 465. 24. Amongst other things of course, apart from proportionality, the majority of the High Court discussed the purposes of sentencing. They identified four, we now have seven or eight under s 3A. But they made the point that the purposes of sentencing were like guideposts that sometimes pointed in different directions. 25. Be that as it may, I am not prepared to find that her criminal history is an aggregating factor per se in this particular matter. But I do acknowledge that whilst it might not entitle her to any special leniency, her criminal history has to be seen in the context of her life experience and her background of disadvantage. 26. In that regard, the observations of the High Court of Australia in Bugmy v The Queen [2013] HCA 37 particularly at [43]-[44] are of some pertinence. There the High Court observed: "The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person had a long history of offending". 1. I might add that it may be relevant to the assessment of moral culpability, although that is perhaps what their Honours are referring to but not expressly. Their Honours went on to say: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision". 1. It is worthy of note on the same day as Bugmy was handed down, the High Court handed down a decision Munda v Western Australia [2013] HCA 38. Amongst the observations made by the majority in that judgment, which involved dismissing the appeal, whereas Mr Bugmy's appeal was upheld, their Honours observed in similar terms the fact that general deterrence had little role to play in sentencing people in communities where the community was so damaged through causes beyond the community's control, that regard to lessons to be learnt for example, from prior sentencing exercises, was of little moment in the sentencing exercise. 2. I appreciate Munda was a very bad case of domestic violence and it did not ultimately affect the outcome of the appeal, but the observations in that judgment are in line with the observations made by a slightly different majority comprised in Bugmy. 3. There is also, as I have been reminded in the helpful written submissions of counsel for the prisoner, the observations of Simpson J in Millwood [2012] NSWCCA 2 particularly at [69] where her Honour noted: "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions". 1. It is interesting to note, coming back to what I said about moral culpability, that her Honour in effect anticipated what the majority of the High Court was to observe in different words in Bugmy v The Queen. 2. The mental health of the prisoner is of course relevant in a range of ways. I agree with the submission made that the principles summarised by McClellan J in DPP v De La Rosa [2010] NSWCCA 194 [177]-[178] are apposite in my view, in the overall circumstances of the matter, given analysis I have made of the cause of the prisoner's mental health issues. Lesser weight should be given in this matter to general deterrence, although it is still obviously a relevant matter in the sentencing exercise. Section 3A dictates that that be so. 3. There is not a need for a greater weight to be given to specific deterrence, although it might be said in later years if the prisoner wants to continue committing offences of this type another judge might take a different view of that. The moral culpability of the prisoner is likewise to be seen to be compromised. 4. The circumstances of custody may be more arduous for her, although in the context of her being institutionalised that may not be necessarily true in this particular case. But it is the case from her evidence that now in custody she seems to be on a medication regime which has accorded her the opportunity to be more settled in her mind and more insightful of her circumstances. 5. By reference to the purpose of sentencing under s 3A I have already dealt with general and personal deterrence. I have to make her accountable for her actions, denounce her conduct and recognise the harm, such as it can be divined from the Agreed Facts, to the victim. I am sure that the victim was greatly frightened by what happened, albeit it that it was in daylight hours. Fortunately the injury to him was not significant, but then again, he suffered the loss of hard-earned money. Driving a cab nowadays in Sydney is a very difficult occupation at the best of times with little reward, particularly with the onset of Uber. At the same time, I am also required to promote the rehabilitation of the offender, which I acknowledge. The s 5 threshold has obviously been crossed and that is acknowledged by the parties in their submissions. 6. I have referred to some of the submissions made by the learned Crown Prosecutor both orally and in writing. The Crown correctly refers me to the fact that in considering an appropriate sentence for this matter the 'guideline judgment' in Henry from 1999 to which I have referred for other purposes remains a relevant matter. There are some subtle distinctions drawn with that proposition in the submissions of the defence. 7. I bear in mind that the guideline fixed by the Court was in the context of calculating a discount that could be seen at that time as limited in its utilitarian value. It is also to be noted that the guideline judgment of Henry was delivered before there had been determined a fixed percentage discount was appropriate for the utilitarian value of the plea of guilty. It was decided in the subsequent case of Thomson and Houlton v R [2000] NSWCCA 309. Of course this case was caught by s 25B of the Act, but there is no dispute there is a discount. 8. The Crown properly points out the breach of conditional liberty so soon after release to parole was a significant matter and reflects upon the extensive criminal history of the prisoner. It notes the circumspection both in oral submissions and in written submissions that one should have about the prisoner's prospects of rehabilitation. There is acknowledgement of the significance of the psychological report. It is a very thorough report and not a skinny self‑serving pre-sentence document without substance, as some psychological reports are from time to time. The Crown correctly points out that drug usage is not a mitigating factor and I have dealt with that. 9. There is reference by the Crown in relation to the prisoner's background. I do not need to dwell upon what the Crown has put. There has been some development since the Crown wrote its submission. The Crown now has the benefit of the oral evidence of the prisoner and matters that arise from that. 10. As I said, I accept the Crown's submission put in general terms that one should approach an assessment of future prospects with some caution. I think the prisoner's evidence sheds more light on matters of insight and contrition. 11. The Crown does not oppose a finding of 'special circumstances' either by reason of partial accumulation or having regard to other matters that are relevant to that. Those other matters include an extensive period of supervision to adjust to community living and to seek guidance and treatment in relation to mental health and drug dependency. 12. One of the aspects of sentencing that should never be lost sight of in my view, is the fact that it has been said on a number of occasions by Courts of higher authority, starting with King CJ in South Australia in the case of Yardley v Betts (1979) 22 SASR 108 and reiterated by the great Wood J in case called Blackman & Walters [2001] v R [2001] NSWCCA 121, one of the first cases to consider the newly introduced suspended sentences brought in under the Sentencing Procedure Act, that sometimes Courts can make orders that will serve to assist an offender towards the course of reform. 13. Of course I cannot release the prisoner now. I do not think that would be correct. It would not give sufficient weight to factors I have already identified. But rather than impose a crushing sentence on the prisoner or impose a sentence that might have been, by regard just for example to the commencement, date substantially longer than I am proposing. I propose a significant backdate. 14. What I am trying to do in this particular matter is to provide the prisoner with what I would regard as the earliest opportunity to be released to parole, to take advantage of what she identifies as the need for her to change her life and to take positive steps towards rehabilitation which includes of course maintaining a proper regime of medication, avoiding the use substances and endeavouring to develop the skills that she believes that she can make use of in the wider community. 15. As to the point that is made in Yardley v Betts, being adopted specifically by Wood J in Blackman and Walters v R and adopted in other cases as well, if Courts can assist an offender on the way to reform, that not only assists the offender, it assists the community. Because if a person is turned away from a life of crime the community benefits from that because it does not have to suffer the consequences of people acting in an antisocial fashion or acting violently or dishonestly. 16. I approach this task with full knowledge of the fact that there will be challenges for the prisoner but I cannot just simply accept her at face value and say that everything is going to be 'hunky dory' and that she is definitely going to make a go of it. But I am trusting that when the chance arises in the future for her to be released to parole she will take the opportunity to do things which might prevent her coming into custody again. 17. Overarching all of this is of course, notwithstanding whatever is said about 'purposes of sentencing', whatever is said about s 21A of the Act, is recognition of a background of disadvantage about which we non-Aboriginal middle-class people really have no knowledge whatsoever. Trying to understand this is a difficult task, bearing in mind we have to weigh up not only the interest of the prisoner, but the victim and the community in this particular sentencing exercise. 18. Hopefully subject to the right of appeal of the prisoner and the right of appeal of the Crown the order that I am proposing will provide some guidance and opportunity for the prisoner to take a different course on her release from custody. 19. Thus, Ms Dixon in relation to the offence you have pleaded guilty to, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of 20 months. That is one year, eight months to commence on 28 December 2019 expiring on 27 August 2021. I fix a balance of sentence of two years, four months, expiring on 27 December 2023. I have adjusted that non-parole period to include consideration of the effect of partial or complete accumulation as well as the other matters relevant to a finding of special circumstances. I further recommend on classification you be admitted to the Mum Shirl Unit for psychological treatment. I recommend you undertake the Intensive Drug and Alcohol Treatment Program at the Dillwynia Women's Correctional Centre. 1. Do you understand what I've ordered in terms of the sentence? 2. OFFENDER: Yes. 3. I forgot to mention, of course, that in considering the breach of conditional liberty I am not permitted to double-dip. Whilst there is some authority referred to in the written submissions I am particularly mindful of what Simpson J said in the decision of Callaghan v R [2006] NSWCCA 58 as to mechanisms by which you can avoid being accused of double-dipping. ********** Amendments 18 May 2021 - Corrected spelling of offender's name at [100]; from Nixon to Dixon DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2021