Twitchin v R [2024] NSWDC 7

Citation: Twitchin v R [2024] NSWDC 7
Court: District Court of New South Wales
Date: 30 January 2024
Judge: Newlinds SC DCJ

Background

The appellant was a 19-year-old former Corrections Officer who, at age 18, attempted on two separate occasions to smuggle illicit drugs into Clarence Correctional Facility at the request of her then-boyfriend, who was an inmate there. The first incident, on 15 October 2023, involved cannabis and occurred while she was still employed as a Corrections Officer. The second, on 19 November 2023, involved buprenorphine and took place after she had already been caught and charged for the first incident.

A Local Court Magistrate at Grafton sentenced her on 9 January 2024 to an aggregate term of 20 months' imprisonment with an 11-month non-parole period. The appellant appealed that sentence on the ground of severity. Because she had been held on remand since sentence, the matter was brought on urgently.

By the time the District Court heard the appeal, the appellant had spent approximately three weeks in custody, held in protective custody at Silverwater Prison due to her prior employment as a Corrections Officer. That custodial experience had been described as, and accepted by the court to be, significantly more onerous than ordinary remand.

Legal Issues

Whether the aggregate sentence of 20 months' imprisonment imposed by the Magistrate was excessive in all the circumstances
Whether the Magistrate had applied the required 25% discount for the appellant's early guilty pleas
What weight should be given to the appellant's age, personal circumstances, time already served in harsh custodial conditions, and prospects of rehabilitation
Whether the principal custodial sentences should be served by way of full-time imprisonment or an Intensive Corrections Order (ICO)

Decision

On a severity appeal of this nature, the District Court did not review the Magistrate's reasons for error but instead considered the fresh evidence before it and determined the appropriate sentence afresh. Notably, the appellant gave sworn evidence before the District Court, which had not occurred at the original hearing, and the circumstances had materially changed given the time already spent on remand.

The court assessed the two smuggling charges (bringing drugs into a correctional facility) as sitting at or slightly above the mid-range of objective seriousness. The aggravating feature of the first offence was that the appellant was herself employed as a Corrections Officer at the time. The possession charges were assessed as falling toward the lower end of the range. The court accepted that the appellant's boyfriend had exercised a psychological hold over her and that his requests drove her conduct, though this did not diminish the seriousness of the offending itself.

Turning to personal circumstances, the court accepted evidence of a prior sexual assault at age 14 whose effects had gone untreated, along with diagnoses of depression, anxiety, and PTSD. It also noted strong family support and found that the three weeks already served in protective custody had provided a significant deterrent effect. The court expressed some scepticism about the depth of the appellant's remorse but was satisfied that subjective deterrence had been sufficiently achieved. The court could not identify from the papers that the Magistrate had applied the mandatory 25% guilty plea discount, noting the arithmetic of one indicative sentence made it very unlikely the discount had been applied.

Taking all factors into account, including the time already served and the two offences being separated in time and circumstance rather than forming a single course of criminality, the court imposed an aggregate sentence of one year's imprisonment to be served in the community under an Intensive Corrections Order.

Orders Made

The appeal from severity of sentence is allowed
The orders of the Magistrate dated 9 January 2024 are set aside
An aggregate sentence of one year's imprisonment is imposed, to commence on the date of the District Court's decision
The sentence is to be served in the community pursuant to an Intensive Corrections Order on the following conditions:
The appellant is not to commit any further offence
The appellant is not to associate in any way with Zachary Albert Ashcroft
The appellant is to reside with her parents at their residential address, or any other address approved in writing by Community Corrections
The appellant is to consult her general practitioner as soon as possible upon release and seek treatment for alcohol issues, PTSD, depression, anxiety, and the issues that caused her to come under the influence of her former partner, and to abide by any recommended treatment plan
Within seven days of release, the appellant is to contact the Community Corrections Centre at Maitland and comply with any supervision directions
The appellant is to be immediately released from custody

Key Takeaways

On a severity appeal, the District Court conducts a fresh sentencing exercise on the evidence before it rather than identifying error in the original tribunal's reasoning, which means materially different evidence can produce a significantly different outcome.
A failure to apply the mandatory 25% reduction for an early guilty plea is a factor capable of rendering an original sentence excessive; the court noted the arithmetic of one indicative sentence effectively confirmed the discount had not been applied.
Where an offender has spent time in unusually harsh custodial conditions (here, protective custody arising from prior employment in the prison system), that experience is a relevant sentencing consideration that can reduce the further term required to meet the sentencing objectives.
The District Court treated the two distinct offending incidents, separated by over a month and by intervening charges, as separate events that could not be characterised as a single continuing course of criminality, which affected how the aggregate sentence was structured.
Relevant personal circumstances considered in mitigation included the appellant's youth (18 at the time of offending), an untreated history of sexual assault and associated psychological disorders, strong family support, and assessed prospects of rehabilitation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1) (possession of prohibited drugs)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 253C(4) (prohibition on bringing drugs into a correctional facility)

Cases: No cases were cited in the judgment.