Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Johnston v R [2021] NSWCCA 86 Hearing dates: 14 July 2020 Date of orders: 30 April 2021 Decision date: 30 April 2021 Before: Ward JA and Wilson J at [1]; Ierace J at [115] Decision: 1. Leave to appeal is granted. 2. Appeal dismissed. Catchwords: CRIME — Appeals — Appeal against sentence — Application for leave to appeal CRIME — Appeals — Appeal against sentence — Manifest excess Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 17B, 17C, 44(2); Pt 4, Div 1A Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 12A Crimes Act 1900 (NSW), s 112(2) Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3) Cases Cited: Aslan v R [2014] NSWCCA 114 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Fernando v R (1992) 76 A Crim R 58 Firth v R [2018] NSWCCA 144 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ingrey v R [2016] NSWCCA 31 JM v R [2014] NSWCCA 297 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 LN v R [2020] NSWCCA 131 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Johnston [2019] NSWDC 607 R v Millwood [2012] NSWCCA 2 Tuncbilek v R [2020] NSWCCA 30 Category: Principal judgment Parties: Sarah Johnston (Applicant) Regina (Respondent) Representation: Counsel: C Wasley (Applicant) R Rodger (Respondent) Solicitors: Aboriginal Legal Service (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/251817 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Citation: [2019] NSWDC 607 Date of Decision: 20 September 2019 Before: Colefax SC DCJ File Number(s): 2018/251817 Judgment 1. WARD JA and WILSON J: This is an application by the applicant (Sarah Lee Johnston) for leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence imposed by his Honour Judge Colefax SC in the District Court sitting at Campbelltown on 20 September 2019 in respect of two offences (see below). It is accepted that the application has been brought within time. 2. The applicant was sentenced to an aggregate term of imprisonment of 5 years and 6 months imprisonment (66 months) commencing on 4 February 2019 and expiring on 3 August 2024, with an aggregate non-parole period of 4 years imprisonment (48 months). The applicant will be eligible for release to parole on 3 February 2023. 3. The first offence was one of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Crimes (Domestic and Personal Violence) Act), which attracts a maximum penalty of 5 years imprisonment and/or 50 penalty units. 4. The second offence was of aggravated break and enter in company, and commit serious indictable offence (namely, intimidation), contrary to s 112(2) of the Crimes Act 1900 (NSW) (Crimes Act), which attracts a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. 5. The indicative sentence for the offence of intimidation was 13 months imprisonment. The indicative sentence for the offence of aggravated break and enter, and commit serious indictable offence, was 5 years and 3 months with an indicative non-parole period of 3 years and 11 months. These indicative sentences incorporated a discount of 25% for the applicant's pleas of guilty. Factual Background 1. The facts upon which the applicant was sentenced were before the Court by way of Agreed Facts tendered as a part of Exhibit B on sentence and were summarised by the sentencing judge (R v Johnston [2019] NSWDC 607 at [6]-[34]) (the sentencing judgment). They may be summarised as follows. 2. On 15 August 2018, the applicant was on bail on a charge of affray. On that day, the two victims (Ms Sylvia Zarbo and her friend, Ms Stevie Cock), who had been shopping together, returned to Ms Zarbo's home at about 8pm, where each consumed an unknown quantity of the drug 'ice'. 3. Earlier that day, the applicant had contacted Ms Cock about a debt. The applicant told Ms Cock that she was coming to get the money that was owed and that a mutual friend, Tegan, would drive her to Ms Zarbo's residence. Ms Cock informed the applicant that she had no money until midnight, at which time she expected a deposit to be made from Centrelink into her bank account. 4. Sometime between 10pm and 11pm, Ms Cock left Ms Zarbo's home and was walking to her house. Ms Zarbo remained at her home watching television. As Ms Cock was walking home, Tegan arrived in a motor vehicle. Ms Cock got into the car and was driven to Ms Cock's home. The applicant was waiting in Ms Cock's front yard with an unknown male (now known to have been Mr Neil Sharpley). The applicant told Ms Cock that Ms Cock's partner (James) had not let them into the house. Ms Cock got out of the car and went into her house. The applicant followed Ms Cock inside. A short time later, Ms Cock managed to usher the applicant out of the house and James closed the door after her. 5. Although not stated clearly in the Agreed Facts, the sentencing judge assumed that Ms Cock also left the premises with the applicant before James shut the door. 6. The applicant demanded to know where her money was. Ms Cock told the applicant that, as it was after 12:39am, there should be money in her account. Ms Cock checked her bank account. Ms Cock saw that she had not received any Centrelink payment. Ms Cock told the applicant this, who then asked whether Ms Cock had drugs to provide in lieu of payment. Ms Cock said that she did not have any but that she knew someone who might. 7. Ms Cock felt concerned for her safety. The applicant remained in close proximity to her. The applicant continually made reference to having bashed a person, which is why she was in gaol. (In the sentencing remarks, the sentencing judge referred to the applicant having said that she had bashed people while she was in gaol. The applicant says that this is an error but not of any consequence.) 8. At one point the applicant yelled at Ms Cock, "We've got no fuel money, no drugs and no cash. Stevie, I'm not fucking joking around, you have to fix this now". 9. In an attempt to locate drugs, Ms Cock returned to Ms Zarbo's home with the intention of going inside on her own. The applicant said that she wanted to accompany Ms Cock, although she did not know Ms Zarbo. 10. While inside Ms Zarbo's home, the applicant said to Ms Cock, "What's going to happen now, are you going to ask her or what?". Ms Zarbo became aware that Ms Cock owed the applicant something and heard a car horn outside, at which point she realised there were others outside her home. 11. Mr Sharpley knocked at Ms Zarbo's door and the applicant answered it. Ms Zarbo said she did not want Mr Sharpley in her house. The applicant became angry with Ms Cock and shouted at her, "You're going to get hurt". 12. Ms Cock accompanied the applicant and Mr Sharpley back to the motor vehicle and, after a time, Ms Cock and Ms Zarbo were back inside the house and Ms Cock said that she would call the police. 13. While Ms Cock was on the phone, the applicant knocked on the door and tried to open it. The door having been locked, the applicant said, "Why the fuck did you lock the door?". Ms Zarbo tried to stall to allow time for police to arrive. 14. After two loud bangs, Ms Zarbo's front door burst open. The applicant, Tegan and Mr Sharpley were standing there, with Mr Sharpley holding a star post picket. The three began to rummage through Ms Zarbo's possessions looking for drugs. Mr Sharpley picked up a tomahawk, which belonged to Ms Zarbo, and said words like, "Go and get it or I'll bash the fuck out of you with this". The applicant continued to ask for drugs. Fearful of being assaulted, Ms Zarbo found a small quantity of a drug and gave it to the applicant and her co-offenders. 15. Following this, the applicant's demeanour changed and she became amicable. She and her co-offenders left Ms Zarbo's house. 16. Shortly thereafter, police arrived. A broken wooden pole was found lying on the nature strip and a metal star picket lying in the gutter of Ms Zarbo's house. The applicant was arrested the following day. Proceedings on sentence 1. The sentence proceedings commenced on 12 February 2019, together with an appeal against the severity of a sentence imposed upon the applicant in the Local Court for the offence of larceny. 2. The severity appeal was allowed. The sentence of imprisonment for larceny was reduced from 4 months to just over 2 months, expiring on 14 February 2019. The applicant applied for and was granted bail, pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Crimes (Sentencing Procedure) Act), and deferral of the sentence proceedings to allow the applicant's participation in a residential rehabilitation programme at Odyssey House commencing on 14 February 2019 (see Exhibit 1). 3. The applicant was released to bail upon the expiration of the fixed term on 14 February 2019, with conditions requiring that she attend residential rehabilitation. She did not comply with those conditions. The applicant absconded on bail and failed to attend Odyssey House. The applicant was arrested and had her bail revoked on 20 February 2019. The sentencing judge ordered a sentencing assessment report but did not direct that the sentencing assessment report address any particular matters (see ss 17B, 17C of the Crimes (Sentencing Procedure) Act; cl 12A of the Crimes (Sentencing Procedure) Regulation 2017 (NSW)). 4. The sentencing proceedings continued on 18 April 2019. 5. The sentencing assessment report was tendered by the Crown (Exhibit C). The sentencing assessment report stated that: the applicant was motivated to attend residential rehabilitation to address her long standing heroin and methylamphetamine addiction (Exhibit C, p2); Justice Health confirmed that the applicant was "abiding by her medication regime for ongoing issues with depression, anxiety and bi-polar" (Exhibit C, p2); the applicant "did not fully agree with the Police facts", attempted to rationalise her behaviour on the basis that the victims initiated the contact and she had no control over what happened, and she had displayed limited insight into the impact of her offending (Exhibit C, p2); the applicant demonstrated a less than satisfactory response to supervision in the past, displaying a lack of motivation to complete any programmes or interventions (Exhibit C, p3); and that the applicant was assessed at a high risk of re-offending (Exhibit C, p3). 6. The sentencing assessment report provided recommendations around intervention to address the applicant's criminogenic needs via addressing her drug addiction. Apart from reference to compliance with medication, the sentencing assessment report did not address the applicant's mental health issue; nor did it address the applicant's family and social circumstances beyond the potential availability of accommodation upon release. 7. The applicant tendered a medical report dated 30 August 2015 of Dr Joanna Rutzen, Loxton Health Centre, (Exhibit 2), and gave further oral evidence. 8. Dr Rutzen's 2015 medical report (Exhibit 2), prepared in the context of prescribing suboxone to treat the applicant's heroin dependence in 2015, confirmed that the applicant reported that she had been a victim of domestic violence for 10 years, and was the victim of kidnapping that was significantly impacting upon her mental health. 9. The applicant notes that during the course of her oral evidence regarding her mental health conditions, the sentencing judge said "[w]Wy would I accept anything she said which was not otherwise corroborated? In fact I'm not going to because she has such a long history of dishonesty" (18.04.19, T 10.42-4); and, in a discussion about an adjournment to facilitate the preparation of an expert report, the sentencing judge said that the applicant "is facing a very substantial period of imprisonment on the material before me and unless she has some compelling subjective circumstances she will receive a substantive period of imprisonment. So if you want to protect her interests, I would, if I were you, get an expert's report, even at this late stage" (18.04.19, T 11.26-30). 10. The sentencing judge requested that the Crown follow up on a 2015 pre­sentence report to which the applicant referred in her evidence. The proceedings on sentence were adjourned on the applicant's application to obtain a report to 8 July 2019. 11. On 8 July 2019, the applicant was medically unfit to travel to Court. On that occasion, the sentencing judge enquired as to the 2015 pre-­sentence report to which reference had been made on 18 April 2019; and indicated that the absence of such a report would have implications for the applicant. (8.07.19, T 1-2). The proceedings were adjourned to 20 September 2019. 12. The proceedings on sentence concluded on 20 September 2019, during which the applicant gave further oral evidence and tendered a psychological report dated 24 June 2019 (Exhibit 3). No 2015 pre-­sentence report was tendered by either party. 13. The applicant gave evidence, in summary, that: 1. she grew up in Broken Hill; her mother was a drug addict, an alcoholic and very violent towards her and she did not meet her father until she was 11 years old (18.04.19, T 4.15-33); that when she was 8 years old, she was sent to live with her mother's sister (Sonia Gray) for a number of years (18.04.19, T 4.35-50); that Ms Gray's husband used to sexually assault her (18.04.19, T 5.4-50); that Ms Gray's husband was never charged, but things improved for the applicant when she was later moved into foster care when she was 12 or 13 years old (18.04.19, T 6.1-8); 2. she started experimenting with cannabis and alcohol as a 13 year old in foster care; used cannabis until she was 16 years old when she fell pregnant with her first daughter; started using ecstasy in her late-20s and later began using amphetamines and heroin (18.04.19, T 6.24 - T 7.4); and that her alcohol use continued until she began substituting alcohol with drugs at the age of 30 or 32 years (18.04.19, T 6.20-40); 3. she had experienced domestic violence in a number of relationships (and said that she had provided the court with such information in previous matters); and that in about 2015 when she was at Broken Hill gaol, a person interviewed her for a pre-sentence report, where she had given a consistent history (18.04.19, T 7.6-T 8.35); 4. she was scared of the father of her four children (Clayton Langdon); that he did not let her talk to her daughter; that Mr Langdon's mother's husband had raped her daughter, in relation to which a prosecution occurred in Adelaide; and that she was estranged from her family except her step-father (18.04.19, T 9.3-10.9); and 5. she had been told that she had bipolar, schizophrenia, obsessive compulsive disorder and post-traumatic stress disorder (18.04.19, T 10.17-23). 1. The sentence proceedings were adjourned to allow the parties to adduce evidence concerning aspects of the applicant's evidence, including a report addressing her mental health issues. 2. On 20 September 2019, the applicant's evidence on sentence continued to the following effect: 1. in June 2019, the applicant spoke with psychologist Clara Fritchley, who prepared a report for her case on sentence; and that her account to Ms Fritchley was truthful (20.09.19, T 3.5-13); 2. the applicant was petrified of her male co-offender, Mr Sharpley, who was related to her ex-partner; that Mr Sharpley's cousin broke her nose in gaol (20.09.19, T 4.18-T 5.5); but, in cross-examination, the applicant accepted that she was not frightened at the time of the offending when they broke through the door (20.09.19, T 9.44). 3. when asked what she would say to the victims if she could, the applicant said that "I'd apologise so much 'cause I know how scared they both would've been. I was scared. I would have been very scared" (20.09.19, T 5.16-18); 4. the reason that the applicant absconded on bail instead of taking the opportunity to go to rehabilitation was because she was scared; that she ended up going to an ex-partner's house and was assaulted; that she had heard things about rehabilitation and "knew [that she] would be kicked out"; and that she was sorry and had learnt her lesson having spent some time in gaol (20.09.19, T 5.20-T 6.24); 5. in the past when the applicant had been offered counselling, she would claim willingness to participate and then never go because she would go straight back to "Mervyn", instead, who would not allow her to leave; and that she felt good about speaking with Ms Fritchley because she appreciated hearing that "some of it" was not her fault (20.09.19, T 7.1-20); 6. in custody she was taking prescription medication (Seroquel, Avanza and another antidepressant) (20.09.19, T 7.25-34); 7. asked questions as to her attitudes towards the offending, including as expressed to the author of the sentencing assessment report (Exhibit C) and Ms Fritchley, the applicant gave evidence that, whereas previously she "kept trying to justify… what happened", later (in her interview with Ms Fritchley) she was owning her mistakes (20.09.19, T 10.5-T 11.46); and 8. the applicant agreed that she would sometimes fabricate stories, which placed stress on her relationship with her mother and other family members and that she had frequently been deceptive in the past (20.09.19, T 12.26-36). 1. The psychological report of Ms Fritchley (Exhibit 3) was prepared with access to Dr Rutzen's medical report (Exhibit 2). Ms Fritchley psychometrically assessed the applicant, and set out the results of the testing as follows: 1. the applicant scored in the low average range on the verbal subtests of the Wechsler Abbreviated Scale of Intelligence Scale (noting that only verbal subtests were able to be administered as the assessment took place over audio-visual link) (Exhibit 3 at [40]); 2. the applicant was in the severe range for stress and anxiety and the extremely severe range for depression based upon her completion of the Depression Anxiety and Stress Scales (DASS), which measured her mood over the past week (Exhibit 3 at [41]); and 3. the applicant's "trauma profile was clinically elevated, indicating multiple features of trauma. She endorsed intrusive and distressing experiences of trauma, an avoidance of reminders of the trauma, high levels of anxiety and hypervigiliance and depressive symptoms"; this profile being based upon the applicant's completion of the Trauma Symptom Inventory (TSI), a self-report scale designed to assess the experience of posttraumatic stress disorder and other psychological sequelae of exposure to trauma (Exhibit 3 at [41]). 1. Ms Fritchley's report stated (at [42]-[46]): 42 Ms Johnston presented as a 38 year old woman who was highly distressed, crying throughout the interview, with few skills to soothe or compose herself. She appeared open and showed little defensiveness when answering questions, though said that she felt very worried about how she was being perceived and feared negative judgement. Ms Johnston is a woman with a traumatic childhood history and significant mental health struggles presenting with symptoms of a depressive disorder, post traumatic stress disorder and borderline personality disorder. She has a severe amphetamine and opiate dependence. She is a woman of below average verbal ability. 43 Ms Johnston has endured extreme childhood instability and trauma. Her biological father left her life very early and she has had almost no contact with him in her life. Her mother was alcohol and drug dependent which negatively interfered with her ability to parent Ms Johnston. Ms Johnston's early childhood was characterised by chaotic living arrangements and exposure to violence and drug use. Her basic emotional and physical needs were not met nor her fundamental need to safety as a child. From the age of 8 years old she was left by her mother at various people's home where she reportedly endured physical and sexual abuse. Ms Johnston described her efforts at trying to disclose this abuse as met by denial and punishment from her family members. She expressed coping by suppressing her emotions, trying to push them down and then behaving in ways she thought other people wanted her to behave in an effort to be accepted and avoid conflict. Because of her chaotic childhood experiences Ms Johnston's school attendance was inconsistent, she moved school frequently and was unable to form strong peer relationships. 44 Ms Johnston is a mother to 4 children. She described a period of some stability when she was parenting her young children and expressed a strong desire to be a good mother to her children. However, she has struggled in this role and the relationships with her children have been damaged as a result of her behaviour. The lack of contact with her children and other family members and the breakdown of these relationships because of her drug use has further damaged her sense of self and reinforces her feelings that she is not wanted by her family. She expressed feeling intense shame and hopelessness and sadly at times resorts to dishonesty in her relationships to make herself more accepted and liked. She feels worthless in herself as she is and has little confidence in her ability to manage her life or to have control over her life circumstances. 45 It is my opinion that the severely damaging early childhood experiences Ms Johnson experienced, as well as a likely genetic vulnerability, placed her at a high risk of developing a mental health and addiction difficulties. She currently meets criteria for diagnoses of major depressive episode, post traumatic stress disorder and borderline personality disorder. These disorders are untreated and her symptoms are severe and underly her drug dependence, as she resorts to drug use to cope with her emotional difficulties as a form of self medication. 46 Ms Johnston's offence occurred in the context of her poor mental health and severe amphetamine and opiate dependence. In her desperation to obtain drugs when she had no money she became involved in the situation for which she is now charged. She expressed remorse and regret around her involvement in this offence and she appears to have an understanding as to the gravity of her offence. 1. Ms Fritchley was of the opinion that the applicant required treatment within a highly structured and supportive inpatient treatment programme to address her complex needs and co-morbid diagnoses (Exhibit 3 at [47]-[50]). 2. The Crown tendered the following documents throughout the course of the proceedings on sentence: 1. Exhibit B: the applicant's New South Wales (NSW) and South Australian criminal history, NSW custodial history, and an "Alcohol and other drug Residential Rehabilitation Assessment Report" dated 9 November 2018, contained within the Crown Bundle, tendered on 12 February 2019; 2. Exhibit C: Sentencing Assessment Report dated 8 April 2019, tendered on 18 April 2019; 3. Exhibits D; F: updated NSW custodial histories, tendered on 18 April 2019 and 20 September 2019, respectively; and 4. Exhibit E: updated NSW criminal history (bail report), tendered on 20 September 2019. 1. The material tendered by the Crown established that the applicant had a record of offending in both NSW and South Australia, commencing in the Children's Court in 1996, but included a number of periods during which she was not charged with any offences. The records demonstrated poor compliance with court orders and (as noted above) that the applicant was on bail for the offence of affray when she committed the instant offences (Exhibit B; Exhibit E, p19, p22). It is noted that the instant offence pursuant to s 112(2) of the Crimes Act is the most serious matter on the applicant's criminal history, and resulted in the applicant's first appearance for sentence in the District Court and the lengthiest sentence of imprisonment imposed upon her by a substantial measure. 2. On 20 September 2019, the evidence on sentence was concluded and submissions were made by the parties. The sentence judgment was handed down that same day. Sentencing judgment 1. The sentencing judge referred to the maximum penalties for each offence, and the 5 year standard non-parole period applicable to the offence under s 112(2) of the Crimes Act. The sentencing judge stated (at [4]) that he disregarded any evidence adduced by the applicant that was inconsistent with the agreed statement of facts; and recounted the agreed statement of facts (at [5]-[33]). 2. His Honour made the following findings regarding the objective seriousness of the offences. As to the intimidation offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act, that it "hovers somewhere equidistant between the middle and bottom of the range" of objective seriousness (at [24]). As to the aggravated break and enter offence under s 112(2) of the Crimes Act, that it was a mid-range offence (at [34]). His Honour noted that the aggravated break and enter offence was "additionally aggravated" by the facts that: the offending occurred in the home of the victim; a weapon was used; and the applicant was on bail (at [35]). 3. No issue is here taken with the sentencing judge's assessment of the objective seriousness of these offences. 4. The sentencing judge then considered the applicant's subjective case (at [35]ff) and noted the following: that the applicant was on bail at the time of the offending (which was an aggravating factor); that there was a 25% discount for the utilitarian value of the pleas of guilty; and that the applicant was 38 years of age. Due to the applicant's significant history of convictions for dishonesty; the absence of corroboration by her step-father in respect of significant details regarding her childhood; and the applicant's history of fabricating stories about family members, his Honour said that he did not accept the "fine detail" provided by the applicant regarding her background on the balance of probabilities. 5. Although not satisfied of that detail, his Honour accepted (at [42]) that the applicant's long history of drug abuse commencing in childhood, and the objective testing that established a clinically elevated trauma profile consistent with multiple features of trauma, attracted the application of the principles in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 (Bugmy). His Honour said (at [43]-[44]) that the application of the Bugmy principles reduced the applicant's moral culpability and reduced the application of the principle of general deterrence, though general deterrence remained a relevant consideration, but his Honour considered of more relevance the fact that, by reference to the applicant's long criminal history, and the escalating nature of the violent aspects of that criminal history, specific deterrence and the protection of the community are principles which were here fully engaged. 6. His Honour accepted the conclusion of Ms Fritchley that the applicant had "significant mental health issues, including depressive disorder, post- traumatic stress disorder, and borderline personality disorder - together with severe amphetamine and opiate dependence" (at [45]). 7. His Honour noted that the applicant had never sought treatment in connection with her drug use, and found implausible the applicant's evidence that she did not attend residential rehabilitation, when provided with the opportunity, because she was assaulted by her partner (at [46]-[48]). 8. Although his Honour referred to the 25% discount for the utilitarian value of the pleas of guilty, his Honour did not accept that the applicant had demonstrated any genuine remorse in relation to those pleas as a mitigating factor. His Honour noted that there were poor prospects of rehabilitation unless the applicant received treatment for her long term drug use, and the underlying causes. His Honour made reference to the following statement in the psychologist's report (at [48] of that report): Given Ms Johnston's fear and avoidance of treatment it is recommended that this support commence whilst she is incarcerated as indicating that "even the psychologist" recognised the need for the applicant to spend a period of time in custody in order that the custodial setting may provide the structure for the applicant to commence rehabilitation because, without the structure of the custodial setting, the applicant would continue to avoid it. 1. In respect of a finding of special circumstances, his Honour noted the submission on behalf of the applicant that her prospects of rehabilitation would be enhanced by a longer period on parole, but accepted the Crown's submission in that regard, and said that there would be "a very minor adjustment to the non-parole period" (at [55]). 2. As noted above, the applicant was sentenced to an aggregate term of imprisonment of 5 years and 6 months, commencing on 4 February 2019 and expiring on 3 August 2024, with a non-parole period of 4 years; and is eligible for release to parole on 3 February 2023. 3. The sentence was partially accumulated upon other sentences served by the applicant. The effect of that accumulation was an effective term of imprisonment of 5 years, 11 months and 19 days (71 months and 19 days), commencing on 16 August 2018 and expiring on 3 August 2024 and an effective non-parole period of 4 years, 5 months and 19 days (53 months and 19 days), commencing on 16 August 2018 and expiring on 3 February 2023. 4. The applicant has been in custody since 16 August 2018 (except for the period between 14-20 February 2019 when she was released on bail to enter residential rehabilitation by the sentencing judge and failed to do so, as referred to above, resulting in the revocation of her bail). Grounds of Appeal 1. The applicant seeks leave to appeal on the following two grounds: Ground 1: The sentencing judge erred in his approach to the applicant's mental condition. Ground 2: The sentence imposed was manifestly excessive, having particular regard to the applicant's subjective case, including her mental condition and history of dysfunction and deprivation. Ground 1: alleged error in approach to applicant's mental condition Applicant's submissions 1. The applicant points to the discussion in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 (De La Rosa) (at [177]) of the applicable principles governing the assessment of the impact that a mental condition or illness may have upon the sentence to be imposed upon an offender. 2. It is noted that the applicant addressed the evidence tendered regarding her mental condition (20.09.19, T 13) and relied upon her mental condition in the following ways in mitigation of sentence, consistent with the applicable De La Rosa principles: moderation of moral culpability as a result of a causal connection between the offending and her mental condition (20.09.19, T 17- 18); that the case was not a good vehicle for general deterrence (20.09.19, T 16; T 21.24-25); and the onerousness of custody (referring to Exhibit 3 at [39]) (20.09.19, T 21.18-22). 3. As noted above, the sentencing judge accepted (at [45]) that the evidence established that the applicant had "significant mental health issues, including depressive disorder, post-traumatic stress disorder, and borderline personality disorder - together with severe amphetamine and opiate dependence". Complaint is made that his Honour did not make any express findings in relation to the factors in mitigation advanced by the applicant in respect of the applicant's mental condition. 4. It is said that the only further finding made by his Honour regarding the applicant's mental health diagnoses was the mischaracterisation of the recommendation of the psychologist (Exhibit 3 at [48]) that the applicant was highly distressed, and isolated, and had limited coping mechanisms; and that she would benefit from regular psychological treatment commencing in custody, which (in the context of her fear and avoidance of treatment in the past) would provide her with an understanding of what is involved in such treatment and prepare her for attendance at a long term rehabilitation. As noted above, his Honour read this (at [51]) as indicating that even the psychologist recognised the need for the applicant to spend a period of time in custody (in order that the custodial setting may provide the structure for the applicant to commence rehabilitation because, without the structure of the custodial setting, the applicant would continue to avoid it). 5. The applicant submits that his Honour fell into error in the House v The King sense (see House v The King [1936] HCA 40; (1936) 55 CLR 499) in that his Honour failed to take into account a material consideration, namely, the evidence (that he accepted) regarding the applicant's mental condition. It is submitted that, taking into account the applicant's subjective case, some lesser sentence is warranted (see s 6(3) of the Criminal Appeal Act 1912 (NSW)). 6. On the issue of re-sentence, reliance was placed on an affidavit sworn by the applicant on 9 July 2020 and an affidavit affirmed 13 July 2020 by Morgan William Hunter, the solicitor acting on behalf of the applicant. 7. In the applicant's affidavit, she makes reference to an ongoing back problem; and to the drug and alcohol issues she has suffered. The applicant admits that during her incarceration she has obtained drugs illegally but that she is now on an opiate replacement treatment. She has deposed to the work and courses she has undertaken in custody; to her inability (as at the time of her affidavit) to access any drug and alcohol programmes, recovery programmes or counselling but that she has been told she will be able to access those programmes when closer to her release date. She acknowledges that she has been poorly behaved at times since being sentenced but says that her behaviour has been much better since she was placed on the opiate replacement treatment and that she has not been in any trouble at all since February 2020. 8. The applicant has also deposed to the difficulties and stress experienced by her during the Coronavirus pandemic (when she has been unable to have personal visits and her concern when her son contracted the virus and more generally as to the virus); and that her children are all very disappointed at her for being in gaol and sometimes quite angry. The applicant missed the birth of her first grandchild while she was in custody and says upon release she intends to try and make amends with her children. She has deposed that she wants to stay on opiate replacement therapy and stay clean. Respondent's submissions 1. The respondent says that, contrary to the applicant's assertion, the sentencing judge explicitly considered the applicant's mental health issues in his Honour's findings that her moral culpability was reduced and that general deterrence, while relevant, was moderated in her case (pointing to the sentencing judgment at [42]-[43]). 2. It is submitted that, although declining to accept the applicant's specific accounts of her dysfunctional upbringing, the sentencing judge was satisfied on balance that the principles enunciated in Bugmy applied to the applicant's case by having regard to her history of drug use since childhood, "together with the psychometric testing conducted by the psychologist (particularly on the depression, anxiety and stress scales); and… that [her] trauma profile was clinically elevated indicating multiple features of trauma" (see at [42]). It is noted that, after turning to considerations of moral culpability, general and specific deterrence and the protection of the community, the sentencing judge noted his acceptance that the applicant had significant mental health issues consistent with Ms Fritchley's report (see at [45]). 3. Accordingly, the respondent says that this is not a case where the sentencing judge made particular findings concerning the applicant's mental condition without any meaningful elaboration as to how such matters impacted on sentence (cf Tuncbilek v R [2020] NSWCCA 30 (Tuncbilek) at [65]-[66] and LN v R [2020] NSWCCA 131 at [66], [75]). The respondent notes that the sentencing judge was not required to provide "elaborate reasoning"; and that a "brief explanation" as to how the mental condition was treated in the sentencing process was sufficient (referring to Tuncbilek at [66]). 4. The respondent says that the sentencing judge evidently viewed the applicant's mental health issues as a function of her dysfunctional upbringing (the former taken as evidence in establishing the latter in circumstances where the details of the applicant's evidence could not be accepted on balance). It is said that, in this way, the applicant's mental condition directly impacted the sentencing judge's findings concerning moral culpability and general deterrence; and that there is no available inference that the sentencing judge inadvertently disregarded the applicant's mental condition. 5. It is noted that the sentencing judge's finding of lesser moral culpability was a finding in favour of the applicant in circumstances where there was no clear evidence that any mental condition materially contributed to the applicant's offending in relation to the instant offending. It is said that the height of evidence in this regard is derived from the report of Ms Fritchley (at [45]-[46]), to the effect that the applicant's early childhood experiences likely predisposed her to mental health and drug addiction difficulties, and that her drug dependence was born out of an attempt to self-medicate her emotional difficulties. The respondent notes that the report continued (at [46]) to state that: [The applicant's offending] occurred in the context of her poor mental health and severe amphetamine and opiate dependence. In her desperation to obtain drugs when she had no money she became involved in the situation for which she is now charged. 1. The respondent says that the applicant did not submit in the court below that her offending had a causal connection to any mental illness; rather, the applicant submitted (20.09.19, T 17.45-T 18.12), that: I ask your Honour to accept that her culpability is somewhat lowered in this regard… she has, according to Ms Fritchley, had a severely dysfunctional upbringing. She suffered significant psychological unsafety as a child. She reports that she's been sexually abused on multiple occasions. She's been the beneficiary of almost no maternal love. Your Honour, most offenders that come before the Court at least enjoy the benefit of at least some familial love from their father or mother. Ms Johnston has received none of that. She seeks approval in men. She buries herself in methylamphetamine and she has extremely low self-esteem and that's perhaps one reason why she lies and engaged in deception. I suggest that these factors did lead in some way to the offence. She has an inability to set appropriate boundaries. She has an impulsive nature and she has a lack of emotional regulation. 1. The respondent says that this submission may properly be characterised as an assertion that the applicant's moral culpability was reduced because of her dysfunctional upbringing, which led to drug abuse and other emotional maladaptation in her adult life (and that so much was accepted by the sentencing judge, notwithstanding that his Honour could not be satisfied on balance of the details of the applicant's accounts to Ms Fritchley and in the evidence). 2. It is said that the sentencing judge treated the applicant's mental health difficulties, drug use and dysfunctional upbringing as interconnected and impacting upon the applicant's moral culpability and the application of principles of general deterrence; and that this approach was not only open to the sentencing judge, but was that which was urged by the applicant during the sentencing hearing. 3. The respondent says that the fact that the sentencing judge did not make a finding that custody would be onerous for the applicant does not, in this case and context, support the applicant's argument that the sentencing judge failed to take into account her mental health issues on sentence. 4. The respondent notes that the principles stated in De La Rosa do not give rise to presumptions or automatic consequences in the presence of mental impairment or disability (citing Aslan v R [2014] NSWCCA 114 at [34]). It is said that, in the present case, a finding that custody would weigh more heavily upon the applicant was asked to be inferred from [39] of Ms Fritchley's report (Exhibit 3) (see 20/09/20, T 21.21), which stated that "[the applicant was] not receiving any support inside the prison" but also stated that the applicant was prescribed an antidepressant and mood stabiliser, which "help[ed] her a little", and that the applicant was reluctant to engage in psychological support. 5. The respondent says that, having regard to the judgment as a whole and the caution with which the sentencing judge approached the applicant's own evidence, it may be inferred that the sentencing judge was not satisfied on the evidence before him that the applicant's custodial conditions were such that custody was more arduous for her. It is said that a judge is not required in his or her reasons to refer to every argument made by the parties, or to state that which is tolerably clear by inference (referring to Firth v R [2018] NSWCCA 144 at [61]). The respondent submits that, in all the circumstances, including that the judgment was delivered ex tempore, the absence of an express finding concerning the applicant's experience of custody does not reveal error; and that this ground should be dismissed. 6. The respondent further says that, if (contrary to its submissions) error were to be found in respect of ground 1, and the Court is therefore bound to exercise the sentencing discretion afresh (see Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601) (Kentwell), in the present case no lesser sentence than that imposed is appropriate. Determination 1. In oral submissions, Counsel for the applicant (see T 2) referred to the submission made at the sentencing hearing as to the applicant's severely dysfunctional upbringing (relevant to the application of the Bugmy principles) and to the factors relating to aspects of the applicant's psychological condition, which it is said were relevant in terms of a causal relationship with the offence (namely, an inability to set appropriate boundaries and that the applicant had an impulsive nature and a lack of emotional regulation). Counsel for the applicant accepted that one of the ways in which the sentencing judge might have reflected his finding in relation to the applicant's mental health issues was in varying the non-parole period ratio (see T 2.35-40); and said that his Honour had rejected a submission to that effect essentially on the basis that the applicant had failed to take the opportunity to attend residential rehabilitation and because of a misconstruction of the psychologist's opinion regarding the type of treatment required in relation to the applicant's drug addiction and longstanding untreated mental health conditions. 2. Counsel for the applicant did not submit that a non-custodial sentence was appropriate but emphasised that the psychologist's opinion needed to be considered as a whole and in the context of the applicant's reported difficulties with "opening up in the manner required" in order successfully to engage in both psychological intervention and drug addiction treatment (see T 3.22). 3. In essence, it was submitted that the complex problems suffered by the applicant underpinned the psychologist's opinion as to the applicant's previous avoidance of engaging in treatment for her drug and mental health conditions and also her tendency for deception (see T 3.43-46). In other words, it was suggested that, but for the applicant's complex problems, it might have been appropriate to place significant weight on her absconding but, because of those complex issues, it was necessary to evaluate the various components of punishment in a different light. 4. Therefore, while it was accepted by the applicant that it was unfortunate that she did not take the opportunity to undertake the Odyssey House rehabilitation programme when released on bail, this was not reflective of an unwillingness to address what the applicant recognised were lifelong issues that had escalated significantly in the few years preceding sentence (see T 4.22-32). 5. Counsel for the applicant emphasised that, although his Honour declined to accept much of what was said by the applicant about her childhood experiences, his Honour did accept that the applicant had suffered significant mental health issues (see T 5) and there was objective evidence to that effect. Further, it is submitted that criticism by the sentencing judge as to the lack of corroboration by the applicant's stepfather (Matthew) was problematic in circumstances where there appeared to have been some confusion as to the particular stepfather at the time – Matthew not being in a relationship with the applicant's mother at the time that some of the reported incidents occurred. 6. The crux of the complaint made by the applicant on ground 1 is that, despite the sentencing judge accepting that the applicant had significant mental health issues, his Honour did not address the submissions made on behalf of the applicant as to the manner in which the existence of those significant mental health issues bore upon the sentencing process – namely, that the applicant's experience of incarceration would be more onerous as a result of her mental condition (which was supported by the psychologist's observations in relation to the applicant's severely limited coping skills and difficulties with emotional regulation). Further, it is said that the causal relationship between the offending and the applicant's poor mental health and severe drug dependence was a foundation for a reduction in the applicant's moral culpability. 7. The difficulty with the applicant's submission is that his Honour did in fact have regard to the applicant's significant mental health conditions and did make the finding sought to the effect that there was a reduction in moral culpability and that the principles of general deterrence had less application. Whether those findings were made in addressing the application of the Bugmy principles (as, in the applicant's submission, is the context in which they were addressed) or otherwise (it being the applicant's submission that this could not simply be "rolled into one" by referring to moral culpability and general deterrence), it is clear that his Honour did give specific consideration to the applicant's mental condition. 8. As to the complaint that his Honour did not specifically address the onerousness of custody, it is clear that his Honour did address the consequences of incarceration for the applicant – in the sense that his Honour considered that there would be an advantage to the structure that would be offered and the ability to deal with treatment that the applicant was otherwise likely to refuse. Implicit in this was a recognition that there would be issues that needed to be addressed in order to treat the applicant's drug and mental health problems. 9. His Honour, despite reservations as to the reliability of the "fine details" of the applicant's assertions concerning her history, clearly accepted (and made findings) as to the trauma profile of which the psychologist gave evidence and those findings were reflected in a lesser degree of moral culpability (and the reduced application of the principle of general deterrence). It should be accepted that, in balancing the competing considerations, there were legitimate concerns on the part of the primary judge as to the applicant's likelihood of reoffending and prospects of rehabilitation. 10. True it is, that the sentencing judge appears to have misconstrued (or perhaps, more accurately, has incorrectly drawn support from) the psychologist's recommendation that support for the applicant's drug use and the underlying causes commence while the applicant is incarcerated (i.e., that even the psychologist recognised the need for the applicant to spend time in custody). However, in circumstances where it is not suggested that anything other than a custodial sentence was here warranted, nothing turns on this. 11. The respondent submits that in the submissions to his Honour, the applicant did not explicitly draw a causal connection between her offending and her mental illness (although it may be noted that there was reference to the applicant's "severely dysfunctional upbringing" (see T 17.50-T 18.1) and it was suggested that the factors referenced to, one of which was the dysfunctional upbringing, "did lead in some way to the offence"). His Honour appropriately took into account the applicant's mental issues, dysfunctional upbringing, drug dependency and other such issues. Although his Honour did not expressly refer to or make a finding that the applicant's subjective circumstances were such that custody would be more onerous for her, his Honour did indicate the perceived advantages of a custodial sentence (which implicitly takes into account the conditions for which treatment in custody would be more likely to be taken advantage of by the applicant). 12. In our opinion, ground 1 has not been established. 13. Since preparing these reasons, we have had the opportunity to consider Ierace J's dissenting reasons in draft. His Honour has concluded that the sentencing judge's remarks on sentence disclose significant errors in his understanding of the applicant's evidence and personal history given to the psychologist, Ms Fritchley, which his Honour considers would inevitably have affected the weight given by the sentencing judge to the effect of the applicant's mental disorders on sentencing considerations (including a misunderstanding that was not the subject of submission by the parties at the hearing concerning the applicant's expressed reasons for absconding on bail). His Honour considers that it was necessary for there to be an explanation as to how the applicant's mental condition was treated in the sentencing process (see his Honour's reasons below) and that, it is likely that the application by the sentencing judge of the Bugmy principles would have differed but for the said misunderstandings. 14. With respect, we do not agree that error in the House v The King sense has been established. The sentencing judge took into account the applicant's mental condition and made the finding sought in that regard. It was taken into account in the sentencing process. The sentencing remarks were ex tempore and in those circumstances the acknowledgment of the applicant's mental condition (brief as it is said to have been) does not to our mind indicate that it was not given appropriate weight in the sentencing process. Ground 2: manifestly excessive sentence Applicant's submissions 1. The applicant submits that the aggregate sentence imposed is manifestly excessive, noting that it is necessary in order to make out this ground of appeal to show that the sentence is "unreasonable or plainly unjust" (citing Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 (Dinsdale) at 325) and noting the following matters identified by R A Hulme J (Hoeben CJ at CL and Adamson J agreeing) in JM v R [2014] NSWCCA 297 (at [40]) as being applicable to appellate review of the aggregate sentence imposed upon the applicant. First, that indicative sentences are not themselves amenable to appeal but may act as a guide as to whether error is established regarding the aggregate sentence. Second, that an excessive indicative sentence does not necessarily result in an excessive aggregate sentence. Third, that manifest excess will be determined primarily on whether the aggregate sentence reflects the totality of the criminality involved. 2. It is noted that the aggregate sentence involved almost substantial concurrency (reflecting the concession made by the Crown). It is submitted that consideration of the starting point, the indicative sentence, and the indicative non-parole period for the s 112(2) aggravated break and enter offence, supports the contention that the aggregate sentence was manifestly excessive when consideration is given to the applicant's subjective case (noting the application of the 25% discount for the pleas of guilty). 3. The maximum penalty for the s 112(2) offence was 20 years imprisonment; and a standard non-parole period of 5 years applied (Crimes (Sentencing Procedure) Act, Pt 4, Div 1A). It is noted that the standard non-parole period reflects the non-parole period that applies to an offence at the mid-range, after trial and before consideration of the offender's subjective case. The applicant submits that, when regard is had to the objective gravity of the offences and the subjective case of the offender, as well as the maximum penalty and standard non-parole period, a starting point of 7 years (with a non-parole period of approximately 5 years and 3 months) is manifestly excessive. 4. It is said that, applying the discount in the present case (25%) to that 5 year standard non-parole period, the standard non-parole period for an offence at the mid-range should attract a non-parole period of approximately 3 years and 9 months (before consideration of an offender's subjective case other than the 25% discount). 5. The applicant received an indicative non-parole period of 3 years and 11 months. It is noted that this non-parole period was indicated after the discount for the plea, and after consideration was purportedly given to her subjective case. It is said that this reflects that, upon a finding that the offence was of mid-range objective seriousness, the indicative sentence prior to discount for the plea of guilty would have resulted in a non-parole period in excess of the 5 year standard non-parole. 6. The applicant points to the evidence that was accepted by his Honour as to her deprived and dysfunctional background warranting, on the basis of the Bugmy principles, a reduction in moral culpability and the application of the principle of general deterrence. The applicant also points to the evidence (which was accepted) as to the applicant's mental condition that it is said ought to have been taken into account in a number of ways (see ground 1 above). It is said that these were matters of mitigation that should have formed a significant part of the sentencing exercise, particularly in the assessment of moral culpability. 7. The applicant submits that (taking into account the objective seriousness of the offending, the applicant's subjective case, and the principle of totality), the aggregate sentence arrived at is such that it could not be characterised as the product of a sound sentencing exercise, and that it is unreasonable or plainly unjust. 8. The applicant says that the intervention of this Court is warranted on the basis that error has been established and that on the exercise of this Court's independent discretion to determine whether the sentence is appropriate for the offender and the offence (see Kentwell at [42]), some lesser sentence should be found to be warranted. Respondent's Submissions 1. The respondent similarly refers to Dinsdale (see above) and also refers to Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian) (at [25]) for the proposition that the applicant must demonstrate that the sentence was unreasonable or plainly unjust. It is noted that it is not sufficient that this Court might have exercised the sentencing discretion in a manner different from the judge at first instance (see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]); and that the conclusion of manifest excess is to be established in a context where there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle (see Markarian at [27]). 2. The respondent contends that the applicant's submissions (that the indicative sentence of 5 years and 3 months, with a non-parole period of 3 years and 11 months, for the offence of aggravated break and enter, and commit serious indictable offence, reveals error in the aggregate and that the pre-discount non-parole period (of 5 years and 3 months) for an offence held to fall in the mid-range of objective seriousness, when held against the standard non-parole period of 5 years, is incongruent with proper consideration of her subjective case) are misconceived for two reasons. 3. First, the respondent says that this impermissibly attributes determinative significance to the standard non-parole period. It is said that the standard non-parole period is not to be treated as a starting point for offences that fall within the mid-range of objective seriousness but, rather, as a statutory guidepost to be taken into account, together with the maximum penalty. 4. Second, the respondent says that the applicant's contention apparently assumes that certain mitigatory consequences follow from her subjective case, which required the sentencing judge to balance countervailing considerations (referring to Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [58]-[59]; Bugmy (2013) 249 CLR 571 at [44]; Ingrey v R [2016] NSWCCA 31 at [35]). 5. The respondent submits that the aggregate sentence imposed by the sentencing judge was within his Honour's proper sentencing discretion, and that, contrary to the applicant's submissions, the sentence and non-parole period indicated for the aggravated break and enter offence reflect both the sentencing judge's finding of objective seriousness, as well as the other factors which were required to be taken into account, including aggravating factors and the applicant's subjective case. 6. The respondent submits that, having regard to the following considerations, the aggregate sentence of 5 years and 6 months with a non-parole period of 4 years imposed upon the applicant is not unreasonable or plainly unjust. 7. First, that the applicant was sentenced in relation to two offences, each against a separate victim, that attracted respective maximum penalties of 5 years imprisonment and 20 years imprisonment with a standard non-parole period of 5 years; and that the objective seriousness was found to fall, in the case of the intimidation offence, about equidistant between the middle and bottom of the range (see at [24]) and in the case of the aggravated break and enter, and commit serious indictable offence, within the mid-range (see at [34]). 8. Second, that, distinct from the assessment of objective seriousness, three aggravating factors applied to the second offence (see at [35]): the offence was committed in the home of the victim; a weapon was used; and the applicant was on bail at the time of the offence (for an offence of affray). 9. Third, that the applicant's personal circumstances reduced her moral culpability and the importance of general deterrence on the one hand, and on the other, determined that considerations of specific deterrence and protection of the community were "fully engaged" (see at [44]). 10. Fourth, that a discount of 25% was applied for the utilitarian value of the applicant's pleas of guilty (see at [49]). 11. Fifth, that the applicant did not have the benefit of a finding of genuine remorse (see also at [49]). 12. Sixth, that the sentencing judge determined that the applicant had poor prospects of rehabilitation unless and until she received treatment for her drug use (treatment in respect of which she had demonstrated an attitude of avoidance) (see at [50]-[51]); and, consistent with the evidence before the sentencing judge of the applicant's avoidance of rehabilitation, it was not accepted that her prospects of rehabilitation would be enhanced by a longer period on parole (see at [55]). 13. Accordingly, it is submitted that this ground should be dismissed. Determination 1. In our view, it cannot be said that the aggregate sentence imposed was unreasonable or plainly unjust. There is no dispute as to the sentencing judge's assessment as to the objective seriousness of the respective offences (as set out earlier). These were offences committed in the homes of the respective victims, a weapon was used, and the applicant was on bail at the time of the offences. The offences were committed in company. A discount of 25% was applied for the utilitarian value of the guilty pleas; and there was no finding of genuine remorse. The sentencing judge also considered that there were poor prospects of rehabilitation. 2. The starting point (indicative sentence) adopted was not in our opinion manifestly excessive. 3. It follows that ground 2 has also not been made good. Conclusion 1. For the above reasons, leave to appeal should be granted and the appeal should be dismissed. 2. IERACE J: The applicant seeks leave to appeal against an aggregate sentence of imprisonment imposed on her by his Honour Judge Colefax SC in the District Court on 20 September 2019, following pleas of guilty to one count of intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and one count of break, enter and commit serious indictable offence in circumstances of aggravation, being in company, contrary to s 112(2) of the Crimes Act 1900 (NSW). 3. The applicant received an aggregate sentence of 5 years and 6 months, with a non-parole period of 4 years, commencing on 4 February 2019 and expiring on 3 August 2024. She is eligible for release to parole on 3 February 2023. 4. The applicant advanced the following two grounds of appeal: 1. The sentencing judge erred in his approach to the applicant's mental condition; and 2. The sentence imposed was manifestly excessive, having particular regard to the applicant's subjective case, including her mental condition and history of dysfunction and deprivation. Background 1. The applicant is an Indigenous woman originally from far western New South Wales who has spent much of her adult life in South Australia. She was aged 37 at the time of the offences, which occurred in Blayney in central western New South Wales, where she was living at the time. The agreed facts which were before the sentencing judge were to the following effect. 2. On 15 August 2018, sometime after 8pm, Sylvia Szabo and Stevie Cock consumed an unknown quantity of methylamphetamine at Ms Szabo's residence at Blayney. 3. Earlier that day, Ms Cock received a Facebook call from the applicant in relation to a debt Ms Cock allegedly owed her. Ms Cock told the applicant that she would not be able to pay her until midnight, at which time she expected a deposit to be made by Centrelink into her bank account. It was agreed that a mutual acquaintance, "Tegan", would drive the applicant to meet Ms Cock later. 4. Between 10pm and 11pm, Ms Cock left Ms Szabo's residence and started walking to her own residence to meet the applicant. On the way, Tegan picked her up and they drove together to Ms Cock's residence, where the applicant and an unknown male, later identified as Neil Sharpley, were waiting in the front yard. 5. At around 12:39am, whilst at Ms Cock's residence, the applicant demanded to know where the money was, as it was past midnight. Ms Cock checked her bank account, but the money had not been paid into it. The applicant subsequently asked Ms Cock if she had any drugs to provide in lieu of the money owed. Ms Cock said she did not have any drugs but that she knew someone who might. 6. Around this time, the applicant remained in close proximity to Ms Cock and continually made reference to having "bashed a person", which is why she had been in gaol. This made Ms Cock feel concerned for her own safety. 7. The applicant, Ms Cock, Tegan and Mr Sharpley then drove around the town attempting to locate drugs. The applicant yelled at Ms Cock, "We got no fuel money, no drugs and no cash. Stevie, I'm not fucking joking around you have to fix this now!". 8. In an attempt to locate drugs for the applicant, Ms Cock returned to Ms Szabo's residence and went inside, accompanied by the applicant. Ms Cock again checked her bank account and realised that the money was to be paid the following day. The applicant stated, "What's going to happen now? Are you going to ask her or what?". 9. Ms Szabo reported hearing a car horn and, shortly afterwards, a knock on the front door. She opened the door to find Mr Sharpley standing there. Ms Szabo said to the applicant that she did not want Mr Sharpley entering her residence. The applicant then began to get angry at Ms Cock, stating "you're going to get hurt". This statement formed the basis for the count of intimidation. 10. After some time, while the applicant and her co-offenders were outside Ms Szabo's residence, Ms Cock told Ms Szabo that she was going to call the police. As Ms Cock was making that call, the applicant knocked on the door and stated, "Why the fuck did you lock the door?". 11. Ms Szabo then heard two loud bangs to her front door, after which the door burst open and the applicant and her co-offenders entered the residence. Mr Sharpley was armed with a star picket. The co-offenders began to rummage through Ms Szabo's belongings searching for drugs. In doing so, Mr Sharpley picked up a tomahawk belonging to Ms Szabo, placed it in his pocket and said words to the effect of, "Go and get it or I'll bash the fuck out of you with this". 12. The applicant continued to ask Ms Szabo for drugs and, after some time, Ms Szabo gave the applicant a small quantity of an unidentified drug. The applicant immediately became amicable and left the premises with her co-offenders. 13. The police arrived shortly after and observed damage to the front door and a broken wooden pole and a metal star picket outside Ms Szabo's residence. This conduct formed the basis for the count of aggravated break, enter and commit serious indictable offence, namely, intimidation, the victim of this count being Ms Szabo. 14. The applicant's co-offenders were not charged in respect of the offences. The proceedings on sentence Pre-sentence hearing procedural history 1. The sentence proceedings were first set down for hearing on 12 February 2019, together with a severity appeal against a sentence for larceny (shoplifting) imposed on the applicant in the Local Court on 3 December 2018. His Honour allowed the severity appeal, imposing a fresh sentence of 2 months and 12 days, which was to expire on 14 February 2019, being two days after the hearing. His Honour stood over the sentence hearing to 18 April 2019 and granted the applicant bail to operate from 14 February 2019 to the fresh sentencing date, conditional upon her being resident at Odyssey House and partaking in their drug and alcohol rehabilitation program. A further condition was that, on her release to bail, she was to travel directly to the Odyssey House Redfern office from her place of custody in the company of staff of the Aboriginal Legal Service (ALS). 2. On 14 February 2019, en route to Odyssey House, the applicant absconded. She was arrested a few days later and on 20 February 2019, his Honour revoked her bail and ordered a sentencing assessment report. The sentence hearing 1. The proceedings resumed on 18 April 2019. The Crown bundle included the applicant's criminal history from New South Wales and South Australia, her custodial history from New South Wales, an alcohol and drug residential rehabilitation report and the sentencing assessment report. 2. The applicant's criminal history in New South Wales commenced with appearances in the Children's Court from the age of 15, for matters including break, enter and steal, assault, destroying or damaging property, resist police officer and breaching control orders. The applicant's adult convictions in New South Wales include assault, drive unlicensed, drive whilst disqualified, drive with low-range and mid-range prescribed concentration of alcohol, drive with an illicit drug in her blood, goods in custody, shoplifting, dishonestly obtain financial advantage by deception and use intimidation or violence to unlawfully influence a person. She first served a sentence of imprisonment in 2015, on a call-up for breaching conditions of a suspended sentence of 7 months imprisonment with a non-parole period of 3 months that had been imposed for an assault occasioning actual bodily harm. A sentence of 3 months for a common assault was served concurrently with the non-parole period. Subsequent sentences of imprisonment in New South Wales have been in 2017 for driving while disqualified (9 months with a 4 month non-parole period) and shoplifting (3 months fixed term) and in 2018 for two counts of shoplifting (1 month fixed term each, served concurrently) and larceny (2 months and 12 days fixed term). 3. The larceny (shoplifting) charge which was the subject of the severity appeal on 12 February 2019 involved the theft of a computer valued at $729 from a shop in Kelso, which was committed on 30 July 2018; that is, a fortnight before the instant offences. 4. I note that a condition of a bond imposed in 2009 for an offence of destroying or damaging property was that the applicant was to "obey all reasonable direction for counselling, education development or drug and alcohol rehabilitation". 5. The applicant's criminal record from South Australia discloses the following offences: a common assault in 2004 for which she received a good behaviour bond without a conviction being recorded, driving unlicensed (without authorisation) in 2005, receiving a restraining order in April 2007 with which she failed to comply in June 2007 (discharged without penalty) and in the same year a conviction of damaging property, for which she was discharged without penalty. In 2008, she was obliged to pay a surety of $300 for breach of a bail condition (an estreatment). There are no further entries until 2015, when she was convicted of multiple counts of dishonestly taking property without consent, being offences committed in 2014 and 2015, for which she served a sentence of imprisonment of 4 months, and was released on an 18 month good behaviour bond. 6. The applicant's criminal records in both New South Wales and South Australia also have multiple entries for breaching bail conditions. Her New South Wales custodial record includes seven disciplinary matters, which occurred between 2016 and 2018, including for assault, intimidation and disobeying a direction. 7. As an adult, the applicant has had two significant periods of non-offending: 1999-2004 and 2009-2014. Many of her offences have resulted in a conviction or penalty not being recorded or a minor penalty, such as a bond or fine. Her first offence of violence as an adult was an assault occasioning actual bodily harm in 1999, for which no conviction was recorded. The next violent offence was in 2008, assault occasioning actual bodily harm, for which she received a suspended sentence of 7 months imprisonment. She was called up on that sentence in 2016 and served it, with a non-parole period of 3 months. She received another sentence for a violent offence (affray) committed in 2018. 8. The break and enter offence that is the subject of the present application is the most serious matter in her criminal history. The applicant's background 1. The applicant gave brief evidence in support of the application for bail on 12 February 2019, stating that she had used drugs heavily from age 31, after experiencing "a pretty bad thing" whilst residing in South Australia. She stated that she had been married for five years and had four children aged between 14 and 21 with her ex-partner Clayton, from whom she had been estranged until recently. She stated that her married life consisted of "drugs and domestic violence" and that she had been "stabbed and kidnapped 16 times". Her "drug of choice" was heroin, because it "numbed you" and she would use methylamphetamine to: "… get up and do my daily things, and then everything just started slipping and falling apart. Like I lost my kids to their dad and the drugs just absolutely took over from there." 1. The applicant gave further evidence in chief on 18 April 2019. She said she grew up in Broken Hill and met her biological father when she was 11. She described violent behaviour by her mother towards her, until she was sent to live with an aunt, whom she named, when she was aged eight. She remained there for "a few years". She claimed on-going sexual assault by her aunt's husband, who she also named, starting when she was aged "nearly nine". She said she complained to her aunt and mother, and they "swept it under the carpet". She was placed in an Aboriginal boarding school by the New South Wales Department of Children's Services ("DOCS"), as it then was. School fees ceased to be paid, and when she was aged about 12 or 13, or perhaps earlier, she was transferred to an Aboriginal foster home in Broken Hill; "Things started getting better then". After that placement, she lived with a woman called "Aunty" who was not a blood relative, but a family friend. 2. The applicant's evidence was that she started drinking alcohol when aged 13. She smoked cannabis until she fell pregnant at age 16 and started taking ecstasy in her late twenties. When aged between 30 and 32, she started a relationship with an ex-partner, Slade, who introduced her to methylamphetamine and heroin. 3. His Honour expressed a preliminary view that he was disinclined to accept uncorroborated evidence from the applicant on such matters and noted that the community corrections officer who prepared the sentencing assessment report had not canvassed her background in the report. His Honour appeared to be of the view that it was incumbent on the applicant to have provided the history to the Community Corrections officer who had prepared the report. He asked her solicitor: "His Honour: … can I ask why none of this is in the sentencing assessment report, the purpose of which is to assist the Court to sentence somebody? … What is the explanation for none of this being in the sentencing assessment report? [Solicitor for the applicant]: Your Honour, I understand the sentencing assessment took place in custody. I was not at the correctional centre when this occurred. His Honour: Have you asked your client why none of this is in the sentencing assessment report? Did she tell the author of that report any of this material? [Solicitor for the applicant]: She said she had to rush it so it could be handed in. … His Honour: If [the applicant] sought to give this information to the sentencing report author then it's not worth the paper it's written on." [Applicant]: I don't like to talk about it." 1. His Honour asked the applicant if she had ever provided the information to a court before. She replied that she was "pretty sure" it would have been in a pre-sentence report that was prepared in "I think 2015" for an appearance in court at Broken Hill, because "they sat with me for a fair while". 2. Examination in chief continued, in which the applicant related a sexual assault against one of her four children whilst in the care of Clayton's family, for which the alleged perpetrator, who she named, was prosecuted. Her solicitor then sought to lead evidence of past diagnoses of the applicant's mental state and his Honour again intervened, stating: "His Honour: Why would I accept anything she said which was not otherwise corroborated? In fact I'm not going to because she has such a long history of dishonesty." 1. His Honour invited the applicant's solicitor to seek an adjournment to obtain "an expert's report", which he did. His Honour invited the Crown, in the interim, to locate the earlier pre-sentence report that "the Crown might rely on", although the applicant's solicitor noted to the Court that the applicant's criminal record had no entries for her appearing in court in Broken Hill in 2015. The matter was adjourned to 8 July 2019. 2. On 30 April 2019, the applicant was sentenced on the affray, which was committed four months before the instant offences. The sentence, 18 months imprisonment with a non-parole period of 10 months, was backdated to commence on 4 December 2018. The applicant was on bail for that offence at the time she committed the instant offences. 3. On 8 July 2019, the applicant was unwell and was not brought to Court from the prison. His Honour inquired of the Crown if it had located the 2015 pre-sentence report and was advised that it had no instructions. His Honour said to the solicitor for the applicant: "I'm assuming then that the Crown's endeavours either weren't made or they weren't successful. That will have implications for your client if nothing can be found ..." 1. The matter resumed on 20 September 2019. Nothing further was said by his Honour or either party as to whether the Crown had located an earlier pre-sentence report. A report by clinical psychologist Clara Fritchley, dated 24 June 2019, which extensively canvassed the applicant's background, was tendered on behalf of the applicant, and is considered below. The applicant gave further evidence, the parties addressed and judgment was delivered the same day. 2. In her further evidence, the applicant was asked about the instant offences. She named her co-offenders and said that she was in the company of the co-offender with the star picket because, like her, he wanted drugs. She expressed remorse, saying, "I'd apologise so much 'cause I know how scared they both would've been. I was scared. I would have been very scared." 3. The applicant accepted she treated others badly, particularly being a bully: "… I was a ward of State and they said I had a major chip on my shoulder and anger because of the neglect that my mum did." 1. The applicant said she absconded on bail when given the opportunity to attend Odyssey House because: "I ended up going to my ex's house who I was in a relationship at that time and got bashed pretty bad. … I was scared. … Everyone had told me all different things and, I don't know, I just listened to Mervyn and went straight to Mervyn. … They just kept saying like I was going to fail because I couldn't listen to authority and then there was this … like a rate system where it goes from one to five where apparently you have to dob people in and if you don't then you get kicked out and I had had anxiety and I knew would be kicked out." 1. The applicant expressed regret for having absconded. She agreed that she had been offered bonds with supervision and counselling, and said: "I'd say, yeah, I'd do it but I'd never go, never allowed to, 'cause I'd go straight back out to Mervyn and I'm not allowed to leave his sight. If I do I'd get bashed." 1. In cross-examination, the applicant was asked about some of the disciplinary matters in custody, in response to which, it is reasonable to conclude, she sought to minimise her behaviour. Ms Fritchley's report 1. Ms Fritchley's curriculum vitae presented her as an eminently qualified and experienced clinical psychologist. The history the applicant provided to her was as follows. She was born in Broken Hill, of an Indigenous mother and Caucasian father, who she did not meet for the first time until after she was 10 years old. When she was "very young", her mother formed a relationship with "Neville", with whom her mother had two more children, a girl and a boy. Her mother had a fourth child, who was given up for adoption as a baby and with whom there has been no further contact by her or her family. The applicant was led to believe that Neville was her biological father. She had an "okay relationship" with him, saying that "he was more stable and caring towards her than her mother was". 2. The applicant said that her mother was dependent upon alcohol and cannabis and became a heavy user of methylamphetamine, as a result of which her childhood was "very chaotic. The family did not have a permanent home and would move around staying with various family and friends". When the applicant was aged five, her mother and Neville separated, which resulted in an escalation in her mother's drug and alcohol use. She and her two siblings would be left at various people's homes while her mother would "take off", on one occasion for over six weeks. The applicant claimed she was exposed to drug use and violence in the various places where she was left, as well as being sexually assaulted. At one location, a man would lock her brother in a cupboard and not release him until the applicant touched him sexually. Ms Fritchley reported that the applicant said that "when she told her mother that this had occurred her mother hit her and told her to stop lying". 3. The applicant said her mother would hit her with objects and repeatedly put her down verbally, calling her worthless. Ms Fritchley reported that the applicant said "she has always felt that her mother has disliked her and did not want her". When she was about 10 years old, her mother, whilst intoxicated, screamed at her and told her that Neville was not her biological father. This news distressed the applicant. She subsequently met her biological father, but he showed no interest in her and she had "very little contact" with him thereafter. 4. By the time the applicant was aged 11, her mother had commenced a relationship with "Matthew". The family, including Matthew, moved to the Northern Territory. When the applicant's mother was periodically unable to look after her, she would send her back to New South Wales to live with relatives. 5. When the applicant was aged about 12, she was sent to live with a maternal aunt and her husband, on and off, for a period of two years. She described this new environment as "horrific". Her aunt would physically assault her and verbally abuse her and her uncle "began to sexually abuse her and rape her". She attempted to tell her aunt and grandmother what was occurring, but they did not believe her and denied that it had happened. Ms Fritchley reported that the applicant said that "she stopped trying to tell them what she was going through and begin to pretend that nothing was happening to her". 6. The applicant was sent to an Aboriginal boarding school, which she suspects was prompted by her family realising she could no longer remain with her aunt. She said that she was teased and excluded by the other children because she was the "only fair red haired kid" in the school. She was withdrawn after approximately a year and returned to Broken Hill. By then, child protection services had become involved. She was made a Ward of the State and placed in foster care for a year. Thereafter, she was placed with another "maternal aunt", Deidre, who she described as "excellent - the person I wanted as my mother". 7. The applicant began high school in Broken Hill. By then, her behaviour had become disruptive in class. She would truant, spending time with friends who she described as a "bad crowd". 8. The applicant told Ms Fritchley that she began drinking alcohol and smoking cannabis at the age of 13. By the time she was 14, she was smoking cannabis heavily throughout the day. When she was 15, she stopped attending school. As a teenager she experimented with LSD and ecstasy. 9. When aged 16, the applicant fell pregnant. She reduced her cannabis and alcohol use but resumed daily use of both substances after she gave birth to her first child, a daughter, when she was aged 17. She was living with her aunt Deidre, who gave her "a lot of support". 10. When the applicant was aged between 19 and 24 years old, she had three more children, all with her then partner, "Clayton". They lived in South Australia, where she described having a period of "relative stability", bringing up her children and working in an abattoir, although she was a "closet drinker", being her way that she "coped with the day". Clayton was "an intimidating and emotionally and physically abusive man who was extremely jealous and controlling of her". Through this period, she and Clayton would smoke cannabis. As the relationship began to break down, she spent time with drug users. She left, taking the children with her and moving in with another man. Ms Fritchley stated: "20. … She described her behaviour as increasingly chaotic and said that her drug use had been escalating. She said that for some time the children were back and forth between herself and Clayton, who was increasingly aggressive and threatening towards her. She said that on one visit he then took the children and would no longer allow her to see them. After this her drug use escalated and her behaviour became 'hectic'. She expressed a lot of distress about the fact that she wasn't there for her children saying 'I had become my mother, I wasn't there for my children'. Clayton then took full custody of the children and moved back to NSW where he currently lives with her two youngest children. [The applicant] also left South Australia and returned to NSW. She said that she has had little contact with her children in the last few years. Her son and one of her daughters no longer speak to her because they are disappointed by her drug use and unstable behaviour." 1. By the time the applicant was 31 years old, she was injecting methylamphetamine daily and had also begun to inject heroin, as a way of coping with her negative emotions, particularly around the loss of her children. 2. The applicant said that an incident occurred in which the applicant was kidnapped by associates of Clayton's family because of money that was owed to them. The applicant did not go into details of this event with Ms Fritchley except to say that she was held hostage and beaten, and that she escaped and contacted police. Ms Fritchley noted that the applicant had spoken about the kidnapping previously with her medical practitioner, although she did not receive ongoing treatment for the trauma associated with it. The applicant said that her drug use escalated after this event. 3. The applicant told Ms Fritchley that in her mid-thirties, she started a new relationship, with her ex-partner Mervyn, who she described as "extremely physically violent and verbally abusive" towards her. Ms Fritchley reported: "22 … She said that he would 'flog' her every day and he would become particularly violent if there were no drugs available. She said that she would do anything to make sure that there were drugs available for him so as to avoid his violence. She was also using large amounts of drugs to cope with the violence. She expressed feeling trapped in this relationship and terrified of leaving. She also described an intense fear around being alone without anyone in her life saying 'I need someone to be there for me who loves me, I'm terrified of being alone.' She and Mervyn are currently separated." 1. She said that throughout her 30s, she used drugs daily and had also begun using OxyContin regularly and benzodiazepines. She described the previous eight years as "hectic" and "chaotic", resorting to crime as a way to support her drug use. 2. The applicant told Ms Fritchley that the instant offences were motivated by her desperation to obtain drugs; she was dependent upon heroin and methylamphetamine at the time. With respect to insight into the offending conduct, Ms Fritchley noted that the applicant: "expressed remorse and regret around her involvement in this offence and … appears to have an understanding as to the gravity of her offence". 1. Ms Fritchley asked the applicant about her absconding when she was released on bail, conditional upon her partaking in drug rehabilitation at Odyssey House: "She was unable to explain why she did this except to say that she felt she would fail at treatment anyway". Ms Fritchley observed that the applicant has had limited treatment for her drug use, although she engaged briefly with a Dr Rutzen, who was the author of a report tendered to the Court. 2. The applicant told Ms Fritchley that Matthew was the only person in her family with whom she has regular contact. Her mother continues to use methylamphetamine heavily: "She said that she ruminates about her relationship with her mother all the time and why her mother doesn't love or accept her". Her sister, with whom she does not have a close relationship, has been drug dependent and now lives with Matthew. She has a good relationship with her brother, but he is in prison. Her aunt will not have contact with her because of her drug use and behaviour. She continues to have no contact with her biological father. Her first stepfather, Neville, died when the applicant was in her 20s. She said that many of her extended family have addiction difficulties and mental health struggles and have been in prison. 3. Ms Fritchley interviewed Matthew. With respect to the applicant's claim that her mother was verbally and physically abusive towards her, Ms Fritchley stated: "[Matthew] was unable to recall [the applicant's] mother being physically violent towards her but acknowledged that [the applicant's] needs were often not met by her mother because of her mother's drug use." 1. I note that the applicant's account was that her mother's relationship with Matthew post-dated the first decade of her life, when she alleged this behaviour occurred. As to the applicant's evidence that her aunt's husband sexually assaulted her whilst she was living with them at around the age of 12, Ms Fritchley stated: "… [Matthew] said that he had no knowledge of this abuse occurring at the time though [the applicant] has disclosed this abuse to him more recently." 1. Matthew told Ms Fritchley that the tension between the applicant and her mother was: "… partly because of [the applicant's] own behaviour. [Matthew] said that [the applicant] can be demanding and feels that 'she is owed something from other people'. He also said that her emotions are intense and she will fabricate stories which places stress on the relationship with her mother and other family members." 1. Later in the report, Ms Fritchley noted: "[Matthew] recounted an incident where she pretended to speak on the phone for an hour to her biological father when in fact there was no one on the other end of the line. He expressed believing that she does this to make people think better of her and to accept her however this behaviour ends up affecting her relationships negatively." The applicant's cognitive ability and mental health diagnoses 1. Ms Fritchley administered psychometric testing to the applicant, assessing her as scoring in the "low average range" for intellectual ability (verbal domain) on the Wechsler Abbreviated Scale of Intelligence, and in the "severe range for stress and anxiety and the extremely severe range for depression" on the Depression Anxiety and Stress Scales. The applicant completed the Trauma Symptom Inventory, which yielded the following assessment: "[The applicant's] trauma profile was clinically elevated, indicating multiple features of trauma. She endorsed intrusive and distressing experiences of trauma, an avoidance of reminders of the trauma, high levels of anxiety and hypervigilance and depressive symptoms". 1. Ms Fritchley diagnosed the applicant as having a "Major Depressive Disorder, severe" and a "post-traumatic stress disorder", according to the diagnostic criteria of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 5 ("DSM-5"), and a "severe amphetamine and opiate dependence". 2. Ms Fritchley noted that the applicant presented with symptoms of a borderline personality disorder, which she described as: "… a disorder of emotion regulation which can develop as a result of prolonged trauma and invalidation in childhood where the child's emotional and physical needs are not met." 1. Ms Fritchley's consideration of whether that diagnosis was established, and reasons for concluding that it was, is helpful in understanding the applicant's presentation and criminogenic influences: "30 … [The applicant] experienced an invalidating, neglectful, abusive and overall highly traumatic childhood environment. Her care givers were not responsive to her basic needs of safety and emotional validation needs and she reports physical, emotional and sexual [abuse]. These experiences meant that [the applicant] did not have the opportunity to develop healthy ways to regulate and cope with her emotions nor develop a healthy sense of identity or self-worth. [The applicant] described unstable emotions and she said that her mood can alter rapidly in response to her circumstances. She said that she becomes easily overwhelmed by her emotions and then she cannot manage them effectively. She said that 'small things' which other people could cope with become extremely consuming for her and she experiences great distress and despair which other people then struggle to understand. She said that she will tend to avoid difficulties or conflicts and run away when things become difficult or overwhelming and she has very limited ability to problem solve or resolve conflict. 31. Overall [the applicant] described extremely emotion driven and impulsive behaviour acting upon her first impulses and emotions without thinking about the consequences of her actions. Her relationships tend to be unstable and she has extreme difficulties setting healthy boundaries with people. Her romantic relationships have been with partners who are controlling and abusive and have been characterised by violence. She expressed a lack of self identity and a desperate need to be in a relationship as a way to feel worthwhile. She said that she feels empty inside and a 'worthless, ugly and broken' person. This leads her to have very poor boundaries in her relationships, giving everything to people as a way to have them like and accept her. She expressed a lot of confusion about wanting and craving acceptance from people even when they harm her and treat her poorly. 32. [The applicant] also said that she struggles to know what to say to people and to be honest in her interactions with them because she is hypervigilant to how they will perceive her. I note that dishonesty has been raised as an issue and Matthew acknowledged that [the applicant] has frequently been deceptive at times in the past. He recounted an incident where she pretended to speak on the phone for an hour to her biological father when in fact there was no one on the other end of the line. He expressed believing that she does this to make people think better of her and to accept her however this behaviour ends up affecting her relationships negatively. [The applicant's] deception and dishonesty can be best understood in the context of her symptoms of borderline personality disorder. Her intense emotions are likely to at times cloud her thinking so that she will view the world through an emotional lens that, may be different from how other people see a situation, but will feel true and correct to her such that she will believe it. Her impulsivity will mean that at times she does not think about the consequences of her dishonesty and her deep sense of shame and sensitivity to rejection is likely to lead her to at times resort to deception in an attempt to cover up mistakes so that other people will not reject her. 33. On assessment I found that [the applicant] meets criteria for a diagnosis of borderline personality disorder as outlined in the DSM, 5. I do note from [the applicant's] records that there is mention of her having a potential diagnosis of bipolar. There is significant overlap in the symptoms of bipolar disorder and borderline personality disorder though it is my opinion that given her unstable emotions in response to events, her impulsivity and her lack of sense of self, her pattern of symptoms is more consistent with a diagnosis of borderline personality disorder. Though assessment over a longer period of time is recommended to confirm this diagnosis." (emphasis added) 1. Ms Fritchley concluded: "45. It is my opinion that the severely damaging early childhood experiences [the applicant] experienced, as well as a likely genetic vulnerability, placed her at a high risk of developing a mental health and addiction difficulties. She currently meets criteria for diagnoses of major depressive episode, post traumatic stress disorder and borderline personality disorder. These disorders are untreated and her symptoms are severe and underly her drug dependence, as she resorts to drug use to cope with her emotional difficulties as a form of self medication. 46. [The applicant's] offence occurred in the context of her poor mental health and severe amphetamine and opiate dependence. In her desperation to obtain drugs when she had no money she became involved in the situation for which she is now charged. She expressed remorse and regret around her involvement in this offence and she appears to have an understanding as to the gravity of her offence. 47. Given [the applicant's] complex history and long dependence history of addiction she requires intensive long-term treatment for these difficulties which will reduce her risk of recidivism. She has few skills to manage her life and emotions drug free and at this point … she has little confidence in her ability to do so. Because of her poor boundaries and lack of self protection she is vulnerable to forming unhealthy relationships with an abusive partner which would also be a potential risk for a relapse to drugs and reoffending behaviour. She also appears to have a tendency towards deception as a way to manage her intense feelings of shame and as a way to gain acceptance from others and avoid conflict, albeit unhealthily. A highly structured and supportive inpatient treatment program with treatment providers who understand [the applicant's] sequalae of emotional and interpersonal difficulties and are skilled in managing complex emotional needs and comorbid diagnoses such as those she presents with will be necessary in the early days of her recovery. Recommendations 48. Whilst in custody [the applicant] would benefit from regular sessions with a prison psychologist. … Ongoing psychological support will allow [the applicant] to begin to address her emotional and interpersonal difficulties within a safe relationship. Given [the applicant's] fear and avoidance of treatment it is recommended that this support commence while she is incarcerated. This will provide her with an understanding of what treatment involves and can be used to prepare her for attendance at a long-term rehabilitation centre. Treatment should also focus upon increasing [the applicant's] ability to regulate her emotions, reduce her impulsivity and to soothe her distress without the use of drugs. Treatment using a Dialectical Behaviour Therapy for people with borderline personality disorder will be most effective to address [the applicant's] pattern of difficulties in the early stages. 49. The applicant will benefit from being assessed by a Justice Health psychiatrist to determine if her current psychiatric medication is appropriate. 50. [The applicant should] engage in a long-term residential rehabilitation program to continue to address her drug use and offending behaviour. She has had limited treatment for her drug use or mental health and would benefit from engaging in a structured and supportive inpatient treatment program." 1. As to the applicant's current experience of incarceration, Ms Fritchley said: "At the time of assessment [the applicant] was in custody in the Mid North Coast Correctional Centre. She is currently prescribed an antidepressant and mood stabiliser which she says helps her a little. However, her mood remains very low and she is highly distressed and overwhelmed by her emotions. She expressed feeling worthless and desperate and discouraged about making changes in her life. She is not receiving any support inside the prison and it appears that she is avoiding people and isolating herself. She said that she is somewhat reluctant to engage in psychological support because she feels scared of talking about what she has been through. She said that she would like to repair the relationship with her children and her aunt … and to gain stability and abstinence in her life. However, she expressed feeling unsure and scared about how to go about this and lacks confidence in her ability to succeed." The sentencing assessment report 1. The sentencing assessment report, which was written on 18 April 2019, noted the applicant's significant criminal history; her 10-year history of methylamphetamine and heroin use, for which she has received little treatment; and that she was abiding by her medication regime for depression, anxiety and bipolar whilst in gaol. The report also noted that the applicant had been supervised by Community Corrections on four separate occasions and that her response to supervision was "less than satisfactory". She was assessed as having a high risk of re-offending. The report stated that she has limited insight into the impact of her offending: "[The applicant] stated she did not fully agree with the Police facts. She further attempted to rationalise her behaviour by claiming that the victims initiated the contact and she had no control over what happened." The applicant's submissions on sentence 1. The applicant's solicitor submitted that on the basis of the report of Ms Fritchley and the adoption of its history by the applicant in sworn evidence, the principles of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Fernando v R (1992) 76 A Crim R 58; and R v Millwood [2012] NSWCCA 2 at [69] apply, so that the applicant's moral culpability was reduced. 2. The applicant's solicitor submitted that the evidence established that the applicant's mental health diagnoses and poor relationship decisions were a consequence of that childhood history which, together with her limited cognitive ability and absence of treatment, were key to understanding her history of offending behaviour including the instant offences, her significant drug dependence and failed counselling programs. It also bespoke a need for a longer than usual period on parole, thus comprising special circumstances, for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. The applicant's solicitor submitted that, because of the applicant's mental state, custody was a more onerous experience for her. 4. As to the applicant's culpability, the applicant's solicitor submitted that it was an "unplanned event" that occurred as a result of a debt that was owed to her, and that the amount of property stolen was not significant. He submitted that the offence was "below the midrange" in terms of objective seriousness, and that the applicant's evidence of remorse she gave to the Court and Ms Fritchley should be accepted, despite the lack of remorse she displayed to the author of the sentencing assessment report. In that regard, the sentencing judge again expressed a disinclination to accept the applicant as a truthful witness, because of her "history of dishonesty", and referred to Matthew's account to Ms Fritchley that she "makes stories up". The applicant's solicitor countered: "It is borne of very low self-esteem. It may be borne from a borderline personality disorder. She, in fact, sees the world differently to other members of the public. This is why she is not a good vehicle for general deterrence." 1. His Honour accepted that proposition, but when the applicant's solicitor outlined the history of her severely dysfunctional upbringing including child sexual abuse, the absence of maternal love, her seeking approval in inappropriate relationships and seeking escape in drug use, his Honour responded to the effect that the history and the psychologist's conclusions depended entirely on the applicant's account, which was contradicted by what Matthew had told Ms Fritchley, as follows: "HIS HONOUR: You see, here's where I'm having some trouble. What is the source of the dysfunctional upbringing? It's [the applicant]. … What is the source of her being sexually abused? It's [the applicant]. … What is the source of the information that she was physically abused by her own mother? It's [the applicant]. But within the psychologist's report we have [Matthew's] insight and … when the question was asked of [the applicant's] mother being verbally and physically aggressive towards [the applicant], [Matthew] says he was unable to recall [the applicant's] mother being physically violent towards her. … This is why I keep coming back to the point … that the basis for the dysfunction upbringing is based only on the word of someone with a proven history of dishonesty and there are some contradictions … to her account by someone who was there at the time, [Matthew]. [Solicitor for the applicant]: … He does acknowledge that her mother is a drug addict. HIS HONOUR: That doesn't seem to be in dispute. I was focusing on the history given by [the applicant] to the psychologist and it's that history upon which the psychologist has based her conclusion. Part of the history is that her mother was physically aggressive towards her and a person who was there at the time who this offender holds out is a witness of truth says that he doesn't recall [the applicant's] mother being physically aggressive towards her." 1. It was submitted on behalf of the applicant that her explanation for not absconding on bail should be accepted, to the effect that she believed "she would fail anyway", but was disappointed with herself for not having followed through and that she was keen to try again with counselling, in light of what she regarded as a beneficial experience with Ms Fritchley. 2. In light of the sentence that the applicant was presently serving for two shoplifting offences and the offence of affray, as to the principle of totality, it was submitted that the sentence should be backdated to start "somewhere towards the start of the year, perhaps before it". The case for the respondent on sentence 1. The respondent noted that the applicant has a history of violent offences, the first in 1999, and then 2008 and 2009, after which there is a significant gap until the affray in 2018. The respondent agreed with the applicant's solicitor that the escalation in the applicant's violent offending appeared to be related to her drug use. 2. It was submitted that the applicant had guarded prospects of rehabilitation, given the assessment of her having a high-risk of re-offending, because of the difficulties she has experienced successfully addressing her drug dependence issues, although she desired to do so. 3. As to the applicant's remorse, the respondent submitted, referring to the sentencing assessment report: "She shows some obvious remorse; however, your Honour might find that also, given her limited insight into the offending that was identified by the report writer, may be more situational in terms of giving remorse here because that is what you say. However, today she's expressed further remorse." 1. The respondent submitted that a finding of special circumstances may not be warranted or useful, given that, in the absence of positive signs, there was nothing to suggest that a longer period on parole would actually facilitate the applicant's rehabilitation. 2. With respect to totality, having regard to the sentence that the applicant was presently serving for the affray offence, the respondent submitted that it should be "later than the beginning of this year … around March". The remarks on sentence 1. In the relatively brief ex tempore remarks on sentence, the sentencing judge found that the intimidation offence "hovers somewhere equidistant between the middle and the bottom of the range" of objective seriousness. The aggravated break and enter offence was further aggravated by the fact that the offending occurred in the home of the victim, the use of a weapon and the applicant being on bail at the time the offence was committed. His Honour concluded that: "In terms of its objective seriousness for an offence of its kind, it is a midrange offence". 2. The sentencing judge expressed caution in approaching the evidence of the applicant's background, which his Honour accepted was relevant to a determination of the applicant's moral culpability, in the sense identified in Bugmy. His Honour said. "37. It is difficult to have a clear picture of your background … because, to a very large degree it is you, and you alone, who is the source of the information about your background. And in this context, you have a significant history of convictions of dishonesty. 38. Moreover, to the extent that there is any purported corroboration of your version of your life, it is not helpful. It would seem that the only member of your family to whom you are now close, and upon whom you can rely, is your former step-father, Mr Matthew McMahon. Mr McMahon was interviewed by the psychologist who interviewed you - and to whom you gave what, at face value, is a very distressing family background. But Mr McMahon was unable, in some significant respects, to assist you. For example, you told the psychologist that your mother was a drug addict; that she had both verbally and physically abused you as a child; and that that abuse, verbal and physical, had increased as you got older and your mother's drug use worsened. Significantly, Mr McMahon, although he confirmed that your mother was a drug addict, was unable to recall your mother being physically violent towards you. In addition, whilst he acknowledged that your mother was a drug user, he said that tension in the relationship between you and her was also partly because of your own behaviour. Furthermore, he said that you would fabricate stories about your mother and other family members. 39 So, when I read that you were sexually abused by family members and others, I have had to pause and think very carefully … 40 I am unable to be satisfied, on the balance of probabilities, as to the fine detail of what you have asserted. 41 I have noted, however, that you have been drinking since 13; that you have been smoking cannabis since you were 14; that you have been using ice and heroin since you were 31; and that you have also abused Oxycontin and benzodiazepine. 42 By having regard to that long history of drug use since childhood (which is consistent with some form of abuse as a child), together with the psychometric testing conducted by the psychologist (particularly on the depression, anxiety and stress scales); and by having regard to the fact that that psychologist was able to determine from objective circumstances that your trauma profile was clinically elevated indicating multiple features of trauma, I have concluded (with some reservations) that, although I cannot be confident as to the detail, there were some things in your childhood which would (more likely than not) attract the application of the principles in [Bugmy]." 1. The sentencing judge accepted that these factors reduced the applicant's moral culpability and the application of general deterrence, although the latter remained a relevant consideration. Specific deterrence and the protection of the community were "fully engaged", given the applicant's long criminal history and "the escalating nature of the violent aspects of that criminal history". 2. The sentencing judge accepted, on the balance of probabilities, Ms Fritchley's evidence that the applicant had "significant mental health issues", including a depressive disorder, post-traumatic stress disorder and a borderline personality disorder, together with severe amphetamine and opiate dependence. 3. The sentencing judge did not accept the applicant's explanation for absconding on bail, stating: "You told me today that the reason you bolted was because your ex-partner, [Mervyn], had bashed you. I do not believe that … You were taken to your house (in breach of s.11 bail). You went in the front door and you went out the back door. There was no opportunity for you to be bashed between the front and the back door, in the company of the officer of the ALS. I am certainly not persuaded of that fact on the balance of probabilities. It seems to me an implausible statement." 1. The sentencing judge recorded that a 25 per cent discount would apply by reason of the applicant's pleas of guilty. However, his Honour did not accept that the applicant was genuinely remorseful. 2. Immediately before announcing the sentence, his Honour characterised Ms Fritchley's recommendation that the applicant's support for her drug dependence commence whilst she is incarcerated as a need for incarceration: "I have noted the following sentence in paragraph 48 in the psychologist's report tendered on your behalf. 'Given [the applicant's] fear and avoidance of treatment it is recommended that this support commence whilst she is incarcerated.' In other words, even the psychologist recognises the need for you to spend a period of time in custody in order that the custodial setting may provide the structure for you to commence rehabilitation because, without the structure of the custodial setting, you will continue to avoid it." 1. The sentencing judge found the applicant's prospects of rehabilitation to be poor and preferred the respondent's submission that a lengthier period of supervision was unlikely to be of assistance to the applicant in this respect. Nevertheless, his Honour made a minor adjustment to the non-parole period. 2. The sentencing judge gave indicative sentences, after the discount of 25 per cent, of 13 months imprisonment in relation to the intimidation offence, and 5 years and 3 months imprisonment with a non-parole period of 3 years and 11 months in relation to the aggravated break and enter offence. 3. The sentence handed down to the applicant was an aggregate term of imprisonment for 5 years and 6 months, commencing on 4 February 2019 and expiring on 3 August 2024, with a non-parole period of 4 years, expiring on 3 February 2023. 4. The ratio of the non-parole period to the total sentence was 72.7 per cent. It is apparent from the indicative sentences that there was a high degree of concurrency. In accordance with the principle of totality, there was an eight-month overlap of the aggregate sentence with the sentence that was imposed on 30 April 2019 for the offence of affray of 18 months imprisonment with a non-parole period of 10 months, which commenced on 4 December 2018. Ground 1: The sentencing judge erred in his approach to the applicant's mental condition Applicant's submissions 1. The applicant submitted that, although the sentencing judge accepted the applicant's mental condition as established by the expert evidence of Ms Fritchley's report, he did not make any findings as to how it bore on the appropriate sentence, other than what was submitted to be a mischaracterisation of Ms Fritchley's recommendation that drug treatment commence whist the applicant is in prison. Rather, it was submitted that Ms Fritchley's recommendation was an opinion of the best practice approach to managing the applicant's complex trauma issues and longstanding and untreated drug dependence whilst she is custody, so as to provide her with the best chance of success when she is released into the community. 2. It was submitted that the applicant's solicitor on sentence made submissions on the relevance of the applicant's mental condition consistently with three of the principles identified in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], to the effect that, firstly, where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; secondly, it may have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed; and, thirdly, it may mean that a custodial sentence will weigh more heavily on the person, because the sentence will be more onerous. 3. Accordingly, it was submitted that the sentencing judge failed to take into account a material consideration, being the evidence of the applicant's mental condition, being an error of the type in House v The King (1936) 55 CLR 499; [1936] HCA 40, warranting intervention. 4. It was submitted that the applicant's failure to attend residential rehabilitation when the opportunity was provided to her cannot be taken to reflect an unwillingness on her part to address her drug dependence issues, given Ms Fritchley's findings that the applicant's use of illicit drugs is essentially a form of self-medication. Instead, the applicant's evidence as to why she failed to attend residential rehabilitation should be taken as a "candid expression … of her fears about what will be required of her to deal with the psychological factors that underlie her drug addiction". 5. Counsel for the applicant also submitted that, although Ms Fritchley's opinion was in part founded on assertions of fact by the applicant that the sentencing judge did not accept as truthful, his Honour expressly accepted that the applicant had significant mental health issues based on objective evidence in Ms Fritchley's report and the sentencing assessment report. 6. In any event, it was submitted that his Honour's reliance on the lack of corroboration provided by the applicant's former stepfather was "problematic in circumstances where he wasn't a presence in the applicant's life until she was aged eleven". Respondent's submissions 1. The respondent submitted that the application for leave to appeal should be dismissed but that, should leave to appeal be granted in respect of ground one, a no lesser sentence than that imposed is appropriate: Criminal Appeal Act 1912 (NSW), s 6(3). 2. The respondent submitted that the applicant's mental health issues were explicitly considered by the sentencing judge's findings that her moral culpability was reduced and that general deterrence, whilst relevant, was moderated in her case. Accordingly, this was not a case where the sentencing judge had failed to meaningfully elaborate as to how such matters impacted on sentence: Tuncbilek v R [2020] NSWCCA 30 at [65]-[66]. 3. The respondent submitted that "there was no clear evidence that any mental condition materially contributed to the applicant's offending in relation to the instant offending" and that "the applicant did not submit in the court below that her offending had a causal connection to any mental illness", although: "The sentencing judge treated the applicant's mental health difficulties, drug use and dysfunctional upbringing as interconnected and impacting upon the applicant's moral culpability and the application of general deterrence." 1. The respondent submitted that the fact that the sentencing judge did not make a finding that custody would be onerous for the applicant did not support the argument that his Honour failed to take her mental health issues into account. Further, the principles stated in Director of Public Prosecutions (Cth) v De La Rosa do not automatically give rise to presumptions because of mental impairment. Ground 2: The sentence imposed was manifestly excessive Applicant's submissions 1. The applicant noted that an indicative sentence, although not appealable, may be a guide as to whether error is established: JM v R [2014] NSWCCA 297 at [40]. It was submitted that the indicative sentence of 5 years and 3 months, with a non-parole period of 3 years and 11 months, for the aggravated break, enter and commit serious indictable offence, having regard to the maximum penalty of 20 years imprisonment and the standard non-parole period of 5 years, reveals error in that it does not reflect the objective gravity of the offence and the applicant's subjective case. 2. It was submitted that an application of the 25 per cent discount to the standard non-parole period suggested that an appropriate indicative non-parole period for an offence at the mid-range would have been approximately 3 years and 9 months, before consideration of the applicant's subjective case. The non-parole period received by the applicant was determined after consideration of her subjective case, and therefore suggests a starting point that would have been in excess of the standard non-parole period. 3. Counsel for the applicant submitted that, taking into account the objective seriousness of the offending, the applicant's subjective case, and the principle of totality, the aggregate sentence is "unreasonably or plainly unjust" in accordance with Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325. Respondent's submissions 1. The respondent submitted that the applicant's reasoning was misconceived for two reasons. Firstly, the applicant's contention impermissibly attributed determinative significance to the standard non-parole period, which is not to be treated as a starting point for offences that fall within the mid-range of objective seriousness but, rather, as a statutory guidepost to be taken into account, together with the maximum penalty. 2. Secondly, the applicant appeared to assume that certain mitigatory consequences flow from her subjective case, which in fact required the sentencing judge to balance countervailing considerations: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [58]-[59]; Bugmy v The Queen at [44]; Ingrey v R [2016] NSWCCA 31 at [35]. 3. The respondent submitted that the aggregate sentence imposed by the sentencing judge was within his Honour's proper sentencing discretion and that, contrary to the submissions of the applicant, the sentence and non-parole period indicated for the aggravated break and enter offence reflected both the sentencing judge's finding of objective seriousness, as well as other factors required to be taken into account, including the aggravating factors and the applicant's subjective case. 4. The respondent submitted that the aggregate sentence imposed on the applicant was not "unreasonable or plainly unjust", having regard to the relevant considerations, which include that she was sentenced in relation to two offences, each against a separate victim and with respective maximum penalties of 5 years imprisonment and 20 years imprisonment (with a standard non-parole period of 5 years), the findings of objective seriousness of the offences and the aggravating factors of the more serious offence, namely, it was committed in the home of the victim, a weapon was used, and the applicant was on bail at the time of the offence. Consideration 1. The remarks on sentence were brief and to the point, comprising 58 paragraphs. They were delivered ex tempore on the final day of the sentence hearing, which warrants latitude in their consideration. 2. The focus of the application is on the sentencing judge's assessment of the applicant's subjective case; there is no dispute as to his Honour's determination of the objective seriousness of the two offences or findings of aggravating factors. 3. While it was open to the sentencing judge to not accept the applicant's oral evidence and the history she provided to Ms Fritchley as reliable, his Honour's reasoning for not doing so, as explained in his remarks on sentence, is problematic. 4. The applicant's evidence and history to Ms Fritchley was consistently to the effect that her mother had been violent towards her in the years before her mother commenced a relationship with Matthew, which was by the time she was aged 11. When that relationship commenced, the family moved to the Northern Territory, but the applicant was returned to New South Wales by her mother and placed in the care of other family members, so that Matthew was not a part of her daily life. 5. It follows that Matthew's response to Ms Fritchley, to the effect that he was unable to recall the applicant's mother being physically violent towards her, is irrelevant to the question of whether the applicant's account of childhood violence by her mother up to the age of 11 was corroborated, although the sentencing judge expressly accepted it as contradicting the applicant's account. 6. The sentencing judge referred to the applicant having absconded on bail rather than attend Odyssey House, stating, as noted at [201] above, that the reason she gave in evidence was that her partner had "bashed her". This was also incorrect. The applicant's evidence was that she did not attend Odyssey House because of her anxiety that she would fail the program at Odyssey House and, therefore, saw no point in attending. The applicant said that after she deserted the field officer who was to accompany her to Odyssey House, she went to her ex-partner's residence and, at some point before she was re-arrested five days later, he bashed her. The manner in which his Honour mistakenly described her evidence on this point suggests he understood it to be illustrative of her supposed propensity to fabrication. 7. Although the sentencing judge rejected the applicant's evidence of her history, he nevertheless accepted Ms Fritchley's diagnoses as to the applicant's mental conditions and low intelligence, even though the psychologist's opinions were clearly based, at least in part, on the history she received. 8. In my view, the first ground of appeal is made out. Although the sentencing judge accepted the evidence of Ms Fritchley as to the applicant's mental disorders and low intelligence, and acknowledged the effect of that finding on the applicant's moral culpability and the application of general deterrence, in light of the sentencing judge's misunderstandings of the applicant's evidence and personal history, that brief acknowledgement left unresolved a concern that it was given appropriate weight. It was necessary that there be some brief explanation at least as to how the applicant's mental condition was treated in the sentencing process, in those circumstances: Tuncbilek at [66]. 9. His Honour found that the principles established in Bugmy were applicable, on the expressed basis of "the long history of drug use since childhood (which is consistent with some form of abuse as a child)", as well as the psychometric testing and psychologist's assessment of the applicant having "multiple features of trauma", leading to the conclusion that "there were some things in your childhood which would (more likely than not) attract the application of the principles in R v Bugmy". 10. That principle was stated in the majority judgment in Bugmy as follows: "43 … 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 has a long history of offending. 44 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. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." 1. It is apparent from this passage that an application of the Bugmy principle is dependent upon the offender's personal history. Although the applicant had the benefit of a finding by the sentencing judge that the principle applied, it is likely that it would not have had the same force of application if the applicant's personal history had been accepted, or at least considered without misunderstandings of some of the evidence. 2. In the same way, the sentencing judge's reliance on Ms Fritchley's diagnoses, without an acceptance of the applicant's personal history which Ms Fritchley had expressed as the reason for the applicant's mental disorders, likely deprived those mitigatory factors of appropriate weight. 3. The sentencing judge, correctly in my view, accepted evidence and submissions to the effect that the applicant's prospects of rehabilitation are low, until she receives treatment for her use of prohibited drugs. 4. However, his Honour was also mistaken in attributing to Ms Fritchley an observation that the applicant would benefit from an extended period of incarceration, so that treatment for her drug use could begin in the regulated environment of a prison. Instead, Ms Fritchley made a recommendation as to what treatment ideally should occur whilst the applicant is serving her sentence in custody; she did not state or imply that a custodial sentence was to be preferred. 5. Further, his Honour appears to have assumed that the treatment recommended by Ms Fritchley would be available to the applicant in prison, whereas there was no evidence before the Court as to whether it was or not. 6. In my view, error is established. The remarks on sentence demonstrate several significant errors by the sentencing judge in assessing the evidence of the applicant and the report of Ms Fritchley which impacted on the appropriate weight to be attributed to those factors, warranting a lesser sentence. 7. Accordingly, it is unnecessary to consider the second ground advanced by the applicant. Conclusion 1. As to whether a lesser sentence would have been warranted, I note material tendered by the applicant for the Court's consideration in the event that she was to be re-sentenced, which included evidence of physical health issues suffered by the applicant in prison and no treatment having been made available for her drug and alcohol use issues, other than opiate replacement therapy in February 2020, although she has been advised that they will be made available closer to her date of release. 2. I would make the same findings as the sentencing judge as to the objective seriousness of the offences and the aggravating factors he identified, and as to the applicant's prospects of rehabilitation; namely, they are poor, unless and until she engages in rehabilitative treatment for her use of prohibited drugs, which will inevitably involve therapy for her mental health disorders. I would find a degree of remorse, in that it was necessarily constrained by the limited insight she has, as a result of her borderline personality disorder. 3. I would have accepted the applicant's evidence as to her personal history, which I note closely corresponds to the detailed history she gave to Ms Fritchley. I am partly persuaded to that conclusion by Ms Fritchley's academic qualifications (a Bachelor of Psychology (Hons), a Master of Clinical Psychology and, at the time of her report, was in her final years of Doctoral research, following the award of a scholarship by the University of Sydney for a PhD candidacy) and her 17 years' experience of clinical work within the forensic, clinical and substance misuse fields of psychology, including 10 years' experience providing psychological assessments and medico legal reports to courts. 4. It is unremarkable that victims of child sexual assault are not forthcoming with complaints of this abuse until well into adulthood. The Royal Commission into Institutional Responses to Child Sexual Abuse has made society at large aware of this phenomenon. Accordingly, I would not regard her late complaint to others of her sexual assault as reflecting on the reliability of her allegations. 5. The principle enunciated in Bugmy, to the effect that moral culpability is substantially reduced, is applied in light of the applicant's personal history, which I would accept. The applicant's moral culpability would also be reduced by a causal connection directly and indirectly between her offending behaviour and her mental disorders; in particular, her borderline personality disorder, post-traumatic stress disorder and her severe amphetamine and opiate dependence. 6. I would have considered the applicant to be a poor vehicle for general deterrence as a consequence of those disorders. Having regard to the applicant's situation in prison as explained in Ms Fritchley's report at [183] above, as well as the applicant's affidavit, I would take into account her onerous conditions and experience of custody. 7. I would find special circumstances, in order to provide a longer period of parole to ensure that the applicant does not lapse into criminal offending as a result of her mental health issues and returning to the use of prohibited drugs. 8. As noted in Director of Public Prosecutions (Cth) v De La Rosa, a continuing, unmitigated mental condition may also present a danger to the community and, in that way, may warrant an increased sentence through considerations of specific deterrence. See also, in relation to the Bugmy principle, Bugmy at [44]. The applicant's criminal record since 2014 has involved violent offences of increasing seriousness, coinciding with the loss of custody of her children and her descent into on-going use of methylamphetamine and heroin. These factors must also be taken into account in fashioning the appropriate sentence, by way of specific deterrence and the protection of the community. 9. Balancing those considerations, I would have sentenced the applicant to a lesser sentence than she received at first instance. ********** Amendments 30 April 2021 - [111] 'custody' to 'company' 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: 04 May 2021