SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0186

BENJAMIN LUCHIAN	Appellant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	MAXWELL ACJ and BEACH JA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	19 June 2019	
DATE OF JUDGMENT:	25 June 2019	
MEDIUM NEUTRAL CITATION:	[2019] VSCA 145	
JUDGMENT APPEALED FROM:	[2018] VCC 1179 (Judge McInerney)	

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CRIMINAL LAW – Appeal – Sentence – Armed robbery – Sentence of 6 years’ imprisonment with non-parole period of 4 years – Early guilty plea – Remorse – Offender intellectually impaired – Unsophisticated offending – Drug and alcohol addiction – Specific error – Resentencing – Community protection – Importance of rehabilitation – Combination sentence imposed – 3 year CCO with conditions requiring residential treatment, judicial monitoring, curfew.
 
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APPEARANCES:	Counsel	Solicitors	
			
For the Appellant	Mr P J Smallwood	Leanne Warren & Associates	
			
For the Respondent	Ms R L Harper	Mr J Cain, Solicitor for Public Prosecutions	

MAXWELL ACJ
BEACH JA:
1	On 26 June 2018, the appellant pleaded guilty in the County Court to one charge of armed robbery contrary to s 75A of the Crimes Act 1958.  The maximum term of imprisonment for armed robbery is 25 years.
2	On 2 August 2018, the appellant was sentenced to a term of imprisonment of 6 years, with a non-parole period of 4 years.  Pursuant to s 18(1) of the Sentencing Act 1991 (the ‘Act’), the judge declared that a period of 210 days was to be reckoned as the period of imprisonment already served by the appellant under the sentence imposed.
3	On 11 February 2019, this Court granted the appellant leave to appeal against the sentence imposed upon him on the following grounds:
1.	The sentencing judge erred by failing to have regard to the appellant’s impaired mental functioning when assessing:
(a)	the appellant’s moral culpability, the punishment that was just in all of the circumstances and the weight that fell to be given to denunciation (Verdins proposition 1);
(b)	the kind of sentence that was to be imposed (Verdins proposition 2);
(c)	the weight that fell to be given to general deterrence (Verdins proposition 3) and specific deterrence (Verdins proposition 4);
and by failing to have regard to the evidence that established that the appellant’s time in custody would be more burdensome for him because of his intellectual impairment and his unstable psychological state (Verdins proposition 5).
2.	The sentencing judge erred by finding that the ‘only time that [the appellant is] going to demonstrate true and actual remorse is when [he] finally [rids himself] of the scourge of drugs, so that [he is] not committing these serious crimes’, an error that reveals that:
(a)	an incorrect approach was taken in the sentencing task to the consideration of the appellant’s remorse;  and
(b)	insufficient weight was given to the appellant’s remorse.
3.	The sentence imposed is manifestly excessive, in that:
(a)	the sentence imposed and the non-parole fixed are manifestly too long;  and
(b)	a ‘combination sentence’ — that is, a term of imprisonment in combination with a community correction order — ought to have been imposed.
4	In the course of the hearing granting the appellant leave to appeal, we stated that, subject to full argument on the appeal, we were considering the possibility of a disposition that involved the imposition of a community correction order (‘CCO’), to which we might attach a condition directing the appellant to participate in the services specified in a justice plan, and a residential treatment order.  As a result, and in addition to granting leave to appeal, we ordered that a pre-sentence report be prepared in compliance with s 8A(2) of the Act.
5	We also directed that the pre-sentence report needed to address the matters set out in s 80(3)(b) and (c) of the Act — which provides that a court that is considering making an order attaching a justice plan condition may request:
(b)	a statement from the Secretary to the Department of Human Services that the person has an intellectual disability within the meaning of the Disability Act 2006;  and
(c)	a plan of available services designed to reduce the likelihood of the offender committing further offences and that is in accordance with the objectives and principles of Part 2 of the Disability Act 2006.
6	In compliance with our orders made on 11 February 2019, the appellant was assessed by Disability Justice, and a report was produced on 30 April 2019 (‘the Disability Justice report’).  The appellant was also assessed by Community Correctional Services officers, and a report was produced on 2 May (‘the pre-sentence report’).  Of course, the contents of these reports only become relevant if the appellant establishes one or more of the errors he contends for in his grounds of appeal.  We turn now to consider that aspect of the proceeding. 
Circumstances of offending
7	The appellant was born on 17 October 1992.  On 16 November 2017, he was sentenced to 42 days’ imprisonment on charges of handling stolen goods, obtaining property by deception and dealing with property suspected of being the proceeds of crime.  On 27 December 2017, the appellant was released from custody, whereupon he commenced to reside at an address in Reservoir — some 500 metres from where the armed robbery the subject of this proceeding was committed.  
8	At about 7:00 pm on 31 December 2017 (some four days after his release from custody), the appellant walked the 500 metres from where he was residing to a liquor store in North Road, Reservoir.  He entered the store and walked directly towards an employee who was stacking shelves, Mr James Yang.
9	Mr Yang enquired whether the appellant needed assistance, whereupon the appellant removed a large 20 centimetre kitchen knife from the front of his pants, held it towards Mr Yang, and said, ‘Quick, I want the money’.  The appellant then walked Mr Yang around behind a counter on which there was a cash register and, when Mr Yang opened the register, required Mr Yang to take out all the notes and give them to him.
10	In total, the appellant took $450 before he walked out of the store.  The whole of the event was captured on CCTV.  Mr Yang ran out of the store following the appellant, and observed the direction in which he ran.  Other CCTV footage captured the appellant as he ran away from the store.
11	Subsequently, police placed the relevant CCTV footage on the Crime Stoppers Facebook page, and the appellant (who had not made any attempt to disguise himself at the time of his offending) was identified from this footage.  On 4 January 2018, police located the appellant hiding behind a bookcase at the premises at which he was residing.  He was arrested and taken into custody.  A record of interview was conducted, during which the appellant remained mute.  
Appellant’s background
12	The appellant was 25 years of age at the time of his offending and at the time of sentencing.  From an early age, both drugs and alcohol have been a problem for the appellant.  In the appellant’s words, he has tried ‘just about everything’.  He commenced smoking cannabis at the age of 13, commenced using heroin on a consistent basis at 17, and commenced using amphetamine and methamphetamine on a daily basis in his early 20s.  He has also abused prescription drugs such as OxyContin.  Additionally, he has ‘chromed paint and glue’.
13	Prior to his offending, the appellant had, on occasions, received treatment (methadone and suboxone) for his opioid addiction.
14	The appellant has a significant criminal history which, according to the criminal record filed in the court below, commenced with a Children’s Court appearance in November 2008.  His history includes convictions for the offences of armed robbery (four charges), attempted armed robbery (one charge), robbery (three charges) and various other offences including theft, burglary, criminal damage, intentionally causing serious injury, assault, affray, breaching various court orders and failing to answer bail.  
15	On 20 August 2014, the appellant was sentenced to a total effective sentence of 26 months, with a non-parole period of 16 months, in respect of his conviction for attempted armed robbery and a conviction for common law assault.  Upon his release from custody at the conclusion of that sentence, the appellant was offence-free for approximately 12 months, until he committed the offences for which he was sentenced on 16 November 2017.
Plea hearing
16	On the plea hearing, counsel for the appellant filed a written plea outline, and tendered a report from a clinical neuropsychologist, Ms Jane Lofthouse, who had examined the appellant on 30 May 2018.
17	Ms Lofthouse’s report contained a history of the appellant having been assaulted on many occasions, and also of having been involved in several motor vehicle accidents — in one of which, the appellant suffered a laceration to his forehead as he hit his head on the windscreen.  As Ms Lofthouse put it:
In addition to his drug and alcohol use Mr Luchian described some events that may have resulted in him sustaining a brain injury.
18	Ms Lofthouse also took a history of the appellant having been removed from the family home at around the age of 13, and coming under the care of Children’s Services — which led to him being placed ‘in various residential units’.  
19	On the plea, counsel for the appellant relied upon the following findings and opinions of Ms Lofthouse in relation to the appellant:
•	he presented with ‘a moderate level’ of depression and stress;
•	his full-scale intelligence quotient was 69 which is ‘within the extremely low range’ and is ‘indicative of the presence of intellectual impairment’;
•	he may have a verbal processing disorder;
•	his ability to process verbal material is below average and ‘he may struggle to process the nonverbal aspects of his day-to- day life and … this may place him in a position where he may become confused’;
•	his intellectual impairment is likely ‘related to longstanding factors against [sic] brain damage as the result of acquired brain injury’;
•	he is likely to find a period of incarceration more difficult due to his level of intellectual impairment and unstable psychological state, in contrast to a person who does not have these conditions;
•	he ‘may possibly benefit from receiving intensive case management in the community to facilitate referrals and monitor his progress’;
•	he should be referred to the Department of Health and Human Services ‘for further assessment to establish his possible eligibility to receive disability services’;  and
•	his intellectual impairment ‘is likely to have been one contributing factor in his criminal offending [in] December 2017’.
20	Counsel for the appellant submitted to the judge that the appellant had entered a plea of guilty at the earliest possible opportunity, ‘prior to the matter even being listed for a committal mention’.
21	In relation to the appellant’s offending occurring so soon after his release from custody at the conclusion of his 42-day sentence, counsel told the judge that her instructions were that:
•	the appellant did not have stable accommodation at the time of his offending;
•	upon his release from custody, the appellant had tried to obtain Centrelink funding and methadone treatment, but had been unsuccessful ‘due to it being between Christmas and New Year’.
22	Counsel then said:
This offending has then occurred on 31 December.  Mr Luchian said he considered handing himself in, but ultimately decided not to and was arrested a couple of days later.  One of the unusual things that Mr Luchian raised was that part of the motivation for this offence was to go back to gaol.
The reason for that is because I think my submission from Mr Luchian’s prior history I think it’s fair to say he’s somewhat institutionalised, having spent a lot of his life there and he is only 25 years of age, whether that be in juvenile detention or adult.
But in custody there’s no issues with the homelessness, there is some support for Mr Luchian and he’s able to be on methadone.  He instructs that in the 42-day period that he tried to get back onto the methadone but spent approximately the first 14 days in the cells of the court as opposed to a prison and it’s the prison policy that you need to be there for at least six weeks before methadone will actually be provided.  
So he wasn’t able to be given it at that stage.  He’s then been released into the community for approximately four days, again still not taking his methadone and that’s when this offending has occurred.
23	Later in her plea, counsel again emphasised the appellant’s instructions to her that he was released from custody on 27 December without any money or family support;  that there was no help readily available to him;  and that ‘in fact he wanted to go back to gaol’.  No issue was taken by the prosecutor on the plea with these submissions.
24	In her oral submissions, counsel for the appellant returned to Ms Lofthouse’s report, noting Ms Lofthouse’s opinion that the appellant would find a period of incarceration more difficult in contrast to a person of normal psychological health.  The judge responded:
It sort of doesn’t meet reality though, does it?  He actually wants to go back in, because he gets his methadone and he gets accommodation.
25	During the course of her plea, counsel for the appellant also submitted that it was relevant that the appellant had been offence-free for a period of approximately 12 months following his release from custody after the sentence imposed on 20 August 2014 expired.  That said, counsel also conceded that the present offending was serious.  Her ultimate submission was that a combination sentence (period of imprisonment coupled with a CCO) was within range — the important factors to be considered in sentencing the appellant being:
•	the appellant’s early plea of guilty;
•	his youth;
•	his remorse;  and
•	the matters raised in Ms Lofthouse’s report.
Reasons for sentence
26	The judge commenced his reasons for sentence with a description of the offending and references to the appellant’s criminal history.  The judge then turned to the question of whether he could pass a combination sentence on the appellant.  The judge concluded, however, that the offence was too serious given all the circumstances, and that the only appropriate sentence was a term of imprisonment with a non-parole period.
27	The judge accepted that it was an ‘unfortunate aspect of this case’ that the appellant’s crime was committed, at least in part, by his motivation to go back to gaol.  The judge accepted that, upon his release from custody on 27 December, the appellant had no permanent place to live and ‘had difficulties even after [his] … release’.  The judge also accepted that one of the appellant’s difficulties was that, when he was free from the prison environment, he was not able to obtain methadone.
28	Next, the judge accepted the submission that had been made to him that the appellant had become institutionalised ‘both by way of care organisations as a child, sentences while a young child — or a young youth — and sentences in [his] adult life’.
29	As to the seriousness of the offending, the judge said:
The offending itself, as I have said, was serious — albeit quick and no injuries caused, it was submitted to me that I should accept that it is the lower level.  It is perhaps lower in some forms than some more dramatic armed robberies that we have in this Court, however it [has got] to be underscored that this is an offence abhorred by the community, often committed upon soft targets — which you did — upon persons carrying out their normal activity, and an offence committed, as in this instance, by an armed weapon, which was a knife.  It has to be recalled that the maximum penalty prescribed by Parliament because of the views of Parliament and the community as to the need for appropriate penalty, is one of 25 years.
30	Next, the judge said that he accepted that the matters that had been put by the appellant’s counsel on the plea had to be taken into account.  The judge described the appellant’s plea of guilty as ‘remarkable’ insofar as it had enabled the appellant to be brought before the court on 26 June, having only committed his offence some six months earlier.  
31	The judge dealt with the issue of remorse in a passage in his reasons that is the subject of the complaint made under ground 2.  The judge said:
It was put that you are still youthful.  At your age, 26, you are relatively youthful.  It is put that you have demonstrated genuine remorse.  I think that proposition has to be accepted on a somewhat guarded basis, given your background.  The only time that you are going to demonstrate true and actual remorse is when you finally rid yourself of the scourge of drugs, so that you are not committing these serious crimes.
32	The judge then referred to Ms Lofthouse’s report, noting that she said in her report that the appellant took responsibility for his crime and expressed remorse.  While the judge made reference to Ms Lofthouse’s report, he said:
It is to be pointed out that your counsel did not put these matters upon a Verdins type proposition, but just as an explanation of the life that you led.
It is this statement by the judge that forms part of the appellant’s argument under ground 1 in relation to his Honour’s failure to have regard to any of the principles in Verdins.
33	The judge then referred to relevant authority, McCarthy v The Queen, Lord v The Queen and Director of Public Prosecutions v Dalgliesh (a pseudonym).  The judge said that he found none of the appellant’s circumstances to be comparable to those taken into account by this Court in McCarthy.
34	The judge concluded with a reference to Dalgliesh, both in the High Court and in the subsequent Court of Appeal decision, saying that ‘[t]he most important thing for a sentencing judge [was] to deliver individualised justice based on the particular circumstances of the case’.  The judge then said that, balancing all of the relevant matters ‘as mercifully’ as he could, and taking into account the seriousness of the crime, the appellant would be sentenced to a period of imprisonment of 6 years, with a non-parole period of 4 years.
Parties’ submissions
35	Under ground 1, the appellant contended that the judge erred by failing to have regard to his impaired mental functioning in accordance with the principles set out in Verdins, and in particular Verdins propositions 1–5.  In Verdins, this Court said:
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1.	The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility.  Where that is so, the condition affects the punishment that is just in all the circumstances;  and denunciation is less likely to be a relevant sentencing objective.
2.	The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.	Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.	Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.	The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.	Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
While, as we have said, the appellant relied upon propositions 1–5, he placed no reliance upon proposition 6.
36	The appellant contended that the opinions expressed by Ms Lofthouse enlivened, and informed the application of, the first five of the propositions set out in Verdins.  The appellant submitted that his capacity to reason as an ordinary person was compromised by his intellectual impairment, and his impaired mental functioning in combination with his background rendered ‘the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing’.  Moreover, imprisonment would be more burdensome for him because of his intellectual impairment and his unstable psychological state.
37	The appellant submitted that the judge failed to properly consider or apply any of the relevant Verdins propositions, and that this was revealed by the lack of any relevant reference by the judge to Verdins considerations in his reasons for sentence.  Moreover, the specific reference by the judge to matters not being put on a Verdins basis, told in favour of the conclusion that his Honour had not properly considered and applied Verdins in the sentencing synthesis.  
38	Under ground 2, the appellant contended that the judge erred when he said that the only time that the appellant was going to demonstrate true and actual remorse was when he ‘finally rid [himself] of the scourge of drugs’ so that he was not committing serious crimes.  This was submitted to be an incorrect approach to the issue of remorse.  Additionally, the judge’s statement also demonstrated that he gave insufficient weight to the appellant’s actual remorse as disclosed by the evidence.
39	The judge’s statement was said to be erroneous because it:
•	wrongly assumed that people with a history of drug use cannot be truly remorseful for their offending — an assumption of a kind that has the tendency to overlook historical factors personal to an offender that have contributed to that history;  and
•	wrongly suggested that genuine remorse cannot be demonstrated until an offender has established over a period of time in the community that there is no risk that they will reoffend. 
40	Under ground 3, the appellant submitted that the sentence imposed upon him was manifestly excessive, and that this manifest excess was apparent when proper consideration is given to:
•	the appellant’s early guilty plea;
•	the appellant’s impaired mental functioning;
•	the appellant’s remorse;
•	the deprivation and disadvantage that the appellant experienced during his formative years;
•	the appellant’s relative youth;
•	the significant support that the appellant will require upon his return to the community;
•	the reality that the opportunities for rehabilitation in gaol are limited;
•	the ability to advance the appellant’s rehabilitation — which ultimately will benefit both him and the community — by imposing a CCO to commence upon his release from custody;
•	the appellant’s history, which gives rise to the very real concern that — without appropriate intervention and support — the appellant might never break the cycle of institutionalisation;
•	the insight that the appellant has into the nexus between his drug use and his offending, and his expressed desire to engage in rehabilitation;  and
•	the fact that the offending, while serious, lacked a number of otherwise aggravating features (such as planning, sophistication, lengthy duration or any attempt to conceal his identity).
41	The respondent, on the other hand, submitted that the judge made no error in sentencing the appellant.  While the judge recognised that Verdins propositions were not enlivened by the appellant’s history of drug use, he then took into account the appellant’s low intelligence throughout his sentencing remarks as a relevant underlying factor.  The respondent also noted that there was no express submission from the appellant’s counsel to the judge on the plea that Verdins was enlivened.
42	At the same time, the respondent acknowledged the plea submission to the extent that imprisonment would be more burdensome for the appellant because of his impaired mental functioning.  The respondent submitted, however, that the appellant’s contention that his motivation for the offending was that he wished to go back into custody contradicted any assertion that he would find imprisonment unreasonably burdensome.  The respondent submitted that ‘this contradiction made it difficult for the sentencing judge’.
43	In relation to the judge’s treatment of the issue of remorse, the respondent contended that the judge was correct to take a guarded approach having regard to the appellant’s history.  The respondent submitted that the judge did not reject the remorse expressed by the appellant.  Rather, he had limited it, as was appropriate in the specific circumstances of the case.  
44	In relation to the issue of manifest excess, the respondent submitted that it could not reasonably be contended that the sentence imposed was wholly outside the permissible range of sentences open to the judge.  A combination sentence was not open to the judge because the maximum term of imprisonment available (being one year and the time already served in custody) was insufficient in all the circumstances of this serious offending.
Was there an error in the sentence imposed by the judge?
45	In our view, the appellant has established error on the part of the judge in relation to his treatment of the appellant’s impaired mental functioning (ground 1) and the issue of remorse (ground 2).
46	It is, of course, the responsibility of defence counsel on the plea to make clear if — and the extent that — any of the principles in Verdins are said to be engaged.  In this case, defence counsel’s submission specifically drew the judge’s attention to the following statement in Ms Lofthouse’s report:
Given Mr Luchian’s level of intellectual impairment and his unstable psychological state it is likely that he will find a period of incarceration more difficult in contrast to a person who does not suffer from these conditions. 
47	As can be seen, the language used here by Ms Lofthouse unmistakably alludes to the now-familiar terms of Verdins 5:
The existence of the condition at the date of sentencing … may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
With great respect to his Honour, counsel’s reliance on that passage from the report should likewise have been understood — or treated — as a reference to Verdins 5.  It is clear that his Honour had Verdins in mind when considering sentence, as he expressly referred to its inapplicability to the appellant’s problems of addiction.
48	Nor, with respect, was it correct to say that, because the appellant committed the offending (in part) in order to go back into custody, he could not advance the argument that imprisonment would be more burdensome for him than for someone who did not suffer from his impaired mental functioning.  All that could be said is that, in the circumstances in which the appellant found himself in late December 2017, incarceration seemed to him to be the better of two unsatisfactory options.  
49	Turning to the issue of remorse, the appellant had pleaded guilty at the earliest possible opportunity.  As the judge observed, this allowed his matter to come on for hearing in unusually quick time.  In the circumstances of this case, the plea of guilty was, of itself, indicative of significant remorse.  In our respectful view, it was not open to the judge to find that ‘true and actual remorse’ would only be demonstrated when the appellant ceased taking drugs and ceased committing serious criminal offences.  The appellant’s actual, and significant, remorse had to be taken into account.  
50	Having regard to our conclusions in respect of ground 1 and ground 2, it is unnecessary for us to consider the appellant’s complaints of manifest excess (ground 3).  The question will now be whether some different sentence should be passed.  That said, we do not think the judge was correct to dismiss, as he did, this Court’s decision in McCarthy.  There are parallels between the present case and McCarthy — not the least of which is what appears to have been the similar motivation for the offending in each case (in order to go back into custody).  That was (and is) a significant matter in the sentencing synthesis.
51	It was not disputed on the plea, or in this Court, that the appellant’s reason for his offending was (at least in part) motivated by a desire to go back into custody.  Acceptance of this proposition required considerable care to be exercised in determining the appropriate disposition.
Should a different sentence be imposed?
52	Section 281(1) of the Criminal Procedure Act 2009 requires an appeal against sentence to be allowed if the court is satisfied that there is an error in the sentence first imposed, and that a different sentence should be imposed.  For the reasons given above, we have concluded that there is an error in the sentence imposed by the judge.  The question now becomes whether a different sentence should be imposed.
53	The offence of armed robbery is always serious.  In this case, while no victim impact statement was tendered on the plea, it takes little imagination to appreciate the terrifying effect the appellant’s crime must have had on his victim.  At the same time, the crime was naïve and unsophisticated, with the appellant making no attempt to conceal or hide his identity.  It was properly to be viewed as towards the lower end of the range of seriousness.  Additionally, as we have said, it is significant that the appellant’s crime was committed (at least in part) because of the circumstances he found himself in and a desire on his part to go back into custody.  
54	The sentencing of the appellant involves analysing and synthesising serious and difficult competing sentencing considerations.  On the one hand, there is the seriousness of the offending and the significance of the appellant’s prior criminal history, which suggests that protection of the community is a significant sentencing consideration.  On the other hand, in the absence of some step or process designed to break the cycle of the appellant’s offending, the community will continue to require protection from his offending indefinitely.  Moreover, the appellant’s deprived background must be given full weight.  It was for this reason that we thought it necessary to investigate sentencing options which would seek to break the appellant from his drug and alcohol problem and address his institutionalisation.
55	While Ms Lofthouse concluded that the appellant’s IQ was indicative of the presence of intellectual impairment, the authors of the Disability Justice report did not so conclude.  The Disability Justice report explained Ms Lofthouse’s conclusion as resulting from the appellant’s ‘comparatively poor verbal skills likely stemming from an inadequate education associated with an unstable upbringing and substance abuse’.  The Disability Justice report concluded, on the basis of appropriate testing, that the appellant had ‘a borderline to low average ability that fell outside the criteria indicative of an intellectual disability under the [Disability Act 2006]’.  
56	The authors of the pre-sentence report concluded that ‘it is with reservation this service finds [the appellant] suitable for a community correction order at this time’.  That said, the authors of the pre-sentence report have recommended that, if a CCO is imposed by the Court, conditions to be attached to the CCO as follows:
•	assessment and treatment for drug abuse;
•	assessment and treatment for alcohol abuse;
•	mental health treatment;
•	offending behaviour program;
•	supervision condition;
•	residence restriction or exclusion condition;
•	curfew condition;  and
•	judicial monitoring.
57	One of the issues that led to the appellant offending on 31 December 2017 was what he described as ‘a lack of stable or undesirable accommodation’.  The authors of the pre-sentence report, however, have concluded that the accommodation in which the appellant resided upon his release from custody in December 2017 is suitable accommodation for him.  What is described as a ‘past problem’ with that accommodation is said now to have ‘been resolved’.  
58	The pre-sentence report contains matters that are both favourable and unfavourable to the appellant.  Unfavourably, enquiries of the Prisoner Information Management System have revealed ‘a number of incidents that related to positive urine screens, possession of tobacco and nicotine, an assault, fights and general unruly behaviour’.  Additionally, the appellant has been assessed as being a high risk of reoffending because of his substance abuse problem, ‘antisocial pattern’ and his low level and participation in both education and employment.
59	Favourably for the appellant, he has expressed a desire to work and to receive further education.  The pre-sentence report notes that ‘employment and education are one of [the appellant’s] highest criminogenic needs and [he] has expressed a desire to work which is positive as employment will assist him to reintegrate with the community and can be a protective factor’.
60	It is of considerable importance to note that the offending for which the appellant fell to be sentenced — and ‘most of his past offending of a similar serious nature’ — occurred while he was under the influence of alcohol.  Plainly, the treatment of the appellant’s substance abuse problems is of critical importance if he is ever to be successfully rehabilitated — and the community thus protected in the long term from his offending behaviour.
61	Additionally, since turning 18 in 2011, on each occasion the appellant has fallen to be sentenced the sentence imposed has been incarceration.  No sentencing disposition since that time has involved any attempt to treat the appellant’s underlying addiction or mental health issues.  Moreover, the appellant has never been offered the chance of appropriate treatment in a residential facility, where a real and concerted effort can be made to address the root causes of his offending.
62	Notwithstanding the view expressed in the pre-sentence report that the accommodation proposed to be provided by the applicant’s partner is suitable, we remain of the view — expressed tentatively when granting the appellant leave to appeal — that it would not be appropriate to impose a combination sentence on the appellant unless the CCO that formed part of such a sentence included treatment of the appellant’s substance abuse problems in a residential facility.  Release back into the general community, without treatment in a residential facility, is simply not an option.
63	In the somewhat unusual circumstances of the present case (which include the fact that the appellant’s offending was, at least in part, motivated by a desire to be taken back into custody), we are persuaded that a combination sentence is appropriate.  The CCO we will impose will have attached to it most of the conditions recommended in the pre-sentence report.  It will also contain a condition requiring the appellant to undergo assessment and treatment for his alcohol and drug dependency issues at a residential facility.  As his counsel submitted, such a condition, enabling the appellant to be appropriately treated, is essential.  The inclusion of a residential treatment condition, however, obviates the need for conditions involving a lesser regime of treatment for substance abuse.
64	In the course of argument, there was debate about the length of the term of imprisonment that could be ordered by this Court to be served in combination with a CCO.  Section 44(1) of the Act relevantly provides:
when sentencing an offender in respect of one, or more than one, offence … a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period in custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is one year or less.  
65	The point debated in argument before us was whether the maximum period of imprisonment that this Court could order was the sum of one year and pre-sentence detention to the time at which the appellant was sentenced in the County Court, or the sum of one year and the pre-sentence detention to be declared by this Court at the time we make orders disposing of the appeal.  Ultimately both parties were prepared to accept that this Court, on resentencing the appellant, may impose a combination sentence containing a term of imprisonment of one year and the pre-sentence detention declared at the time this Court resentences the appellant.  In the absence of argument, we are prepared to accept the position as contended for by the parties.  
66	At the hearing of the appeal, we were informed that the appellant has now spent 531 days (not including that day) in custody.  In the circumstances, we propose to resentence the appellant to a term of imprisonment of 19 months.  Once his pre-sentence detention is declared under s 18 of the Act, this will result in a term of imprisonment (after deduction of the pre-sentence detention) of less than one year.
67	Additionally, we will impose a CCO of three years’ duration, commencing on the day of the appellant’s release from custody.  The CCO will contain the mandatory conditions set out in s 44 of the Act, together with conditions that require the appellant:
•	to undergo assessment and treatment at a residential facility in relation to his drug and alcohol dependency issues;
•	to undergo mental health assessment and treatment;
•	to engage in programs that address the factors related to his offending behaviour;
•	to be supervised, monitored and managed as directed by the Secretary to the Department of Justice;
•	to be the subject of a residence restriction;
•	to be the subject of a curfew, requiring him to be and remain in his place of residence between the hours of 7:00 pm and 7:00 am each day;  and
•	to be the subject of judicial monitoring.
68	The conditions we will attach to the CCO will necessarily lack precision.  We cannot know how long the appellant will require assessment and treatment at a residential facility, or on what terms and conditions he might ultimately be released upon the completion of treatment at such a facility.  We agree with the authors of the pre-sentence report that the appellant should be the subject of a residence restriction, both during the time of his admission at a residential facility and upon his release.  In the circumstances, we propose that the residence restriction will require the appellant to reside at an address approved by the Secretary.  
69	As we have made clear, the exercise of the sentencing discretion in this case is not easy.  Critical to the disposition we propose is the existence of appropriate treatment in a residential facility.  The sentence of 19 months’ imprisonment that we will impose is sufficient, in combination with the CCO we will make, to satisfy relevant sentencing principles, including the principles of denunciation, deterrence and just punishment, in the circumstances of this case.  As we have sought to emphasise, it is greatly in the public interest that the causes of the appellant’s offending be addressed.  That will minimise the risk of re-offending.
70	The term of imprisonment we will impose will result in the appellant being released from custody in late July/early August.  We expect that this will give the Secretary sufficient time to arrange for the admission of the appellant to an appropriate residential treatment facility.  For obvious reasons, there must not be a repeat of the unsupervised release which occurred on 27 December 2017.  This is critical to the orders we are about to make.
Conclusion
71	The appeal will be allowed.  The sentence imposed in the County Court on 2 August 2018 will be set aside, and the appellant will be resentenced to a term of imprisonment of 19 months and a CCO of 3 years on the conditions referred to above.