STATE OF TASMANIA v CHEYENNE MARGARET McGUIRE 23 JULY 2025
COMMENTS ON PASSING SENTENCE CUTHBERTSON J
Cheyenne Margaret McGuire, an application has been made by the State seeking orders pursuant to s 42AV(4)(e) of the Sentencing Act 1997 in respect of your failure to complete community service hours you had been ordered to perform as part of a sentence imposed by Estcourt J on 24 May 2021. At that time, you were sentenced on your plea of guilty to a charge of trafficking in methylamphetamine between 23 August 2018 and 11 April 2019. You admitted being involved in selling an average of six point deals for between $50 and $100 each day during the period between 1 December 2018 and 11 April 2019. It was apparent from intercepted telephone calls that you were already engaged in selling methylamphetamine as at 23 August 2018. The evidence suggested you were engaged in a similar volume of sales between that date and 1 December 2018. You were sentenced on the basis that during the period of the indictment, you sold between $69,300 and $138,600 of methylamphetamine. It was accepted by the sentencing judge that you were recruited by others to participate in this business because you were someone who did not have an association with drugs and were known to be struggling to meet financial commitments. You were paid $50 a day, kept none of the proceeds of the sales and did not use the drug yourself.
You were sentenced to a term of 18 months’ imprisonment, which was wholly suspended for a period of two years on condition that you commit no offence punishable by imprisonment within that time. In addition, Estcourt J made a community correction order for a period of two years, with a special condition that you perform, within the operational period of that order, 98 hours of community service. It may be inferred that his Honour considered it appropriate that the sentence imposed upon you include some form of immediate punishment to address the sentencing considerations relevant to this sort of offending.
Your response to your obligations pursuant to the community correction order has been most unsatisfactory. On 11 July 2022, an application was brought by the State to review the order due to your failure to comply with the lawful and reasonable directions of a probation officer or supervisor. The particulars of the breach concerned your failure to satisfactorily perform community service as directed by a probation officer. As at that time, you had attended a two hour induction at Community Corrections but otherwise failed to complete any of the hours of community service. You failed to attend Community Corrections as arranged on 12 occasions. Of those 12 occasions, five were considered authorised absences and seven were unauthorised. The facts in support of this first application disclose a number of opportunities were provided to you to comply with the conditions of the order, but without success. The application was dealt with by Estcourt J on 15 March 2023. On that occasion, he made an order extending the community correction order made against you until 15 March 2024.
On 11 November 2024, the State filed a further application pursuant to s 42AV(1) of the Sentencing Act due to your ongoing failure to satisfactorily perform community service. You do not show cause in respect of the application.
Following the order made by Estcourt J on 15 March 2023, you were directed to attend community service on every Thursday, commencing 30 March 2023. You attended on that first occasion, completing four and a half hours of community service as directed. The following week you failed to complete community service as directed. This was considered an unauthorised absence. You later contacted Community Corrections and indicated that you had wisdom teeth pain and that you would get a medical certificate. No medical certificate was received. On the following week, the supervisor was absent and you were not required to attend. On Thursday, 20 April 2023, you advised Community Corrections you could not attend on that date as you were unable to find childcare. This was deemed an unauthorised absence. On the following week, you advised you had a medical appointment and could not attend community service. You again indicated you would provide a medical certificate, but did not did so. This was also considered an unauthorised absence. On 4 May 2023, you told Community Corrections you tested positive to COVID 19 and could not attend community service that day. You indicated you would send a screenshot of your positive result, but this was never received. This was also considered an unauthorised absence. On 11 May 2023, you contacted Community Corrections at 9.12am. You were called back at 9.37am but did not answer the phone. You did not attend community service as required that day. This was another unauthorised absence. You completed a further four and a half hours of community service on 18 May 2023. This was the last occasion on which you completed any of the outstanding hours.
Following 18 May 2023, a further eight unauthorised absences were recorded. In light of your failure to attend, you were contacted by a probation officer on 28 July 2023. The probation officer advised you that there were other rostered days available if that suited you better. You advised that it suited you to change your community service day to Monday. Accordingly, you were given a formal direction to attend community service every Monday, beginning 7 August 2023. You did not attend on that date. On 14 August 2023, the community service list was stood down and you were not required to attend. You did not attend community service as required on 21 August 2023.
As a consequence of the significant number of failures to attend as directed, you were sent a formal warning by Community Corrections. You contacted Community Corrections and indicated that Thursdays in fact suited you better. A formal direction was given to you to attend on Thursdays, commencing 24 August 2023. On that day, you contact Community Corrections indicating you could not attend the roster that day. You attempted to organise an appointment to discuss the formal warning you had received, however, you did not confirm your availability and never attended. A formal appointment was scheduled for 29 September 2023. You received a formal direction to attend on that date, but did not do so. On that day, you contacted Community Corrections indicating you could not attend due to the care of your children. The meeting was rescheduled but you did not attend on the next occasion. Contact of that kind continued between you and Community Corrections until November 2023, however you did not attend any more community service hours or appointments.
By the time the order expired on 15 March 2024, you had managed to complete only 11 hours of the required 98 hours.
Since the original sentencing date, you have not been convicted of any further offences. I am told you have no outstanding matters. The community service hours you completed entailed gardening work, including installing watering systems. At the time of the original sentence, you had two children in your care, aged 4 and 5. Those children are now four years older. You have been in a relationship throughout that time. Your partner has mental health issues. I have sighted a letter from your partner’s occupational physician, indicating he has requested your assistance to enable your partner to attend his appointments, provide him support and also supervise his medication regime. His issues are described as “serious physical and psychological health problems”. I am also told that your partner had been sentenced to a home detention order during the initial operational period of the Community Correction order imposed upon you which affected his capacity to assist you with the children outside of the home.
I have also been provided information concerning your eldest child. He presents with significant psychological and emotional issues. His behaviour at school has been problematic and has resulted in him being put on an individual learning plan where he attends school part time and is closely supervised by learning support specialists. There is no question that you have experienced challenging personal circumstances during the operational period of the order. Your counsel tells me that you acknowledge you have a poor record in respect of the community correction order, but that this is not reflective of you not wanting to do the orders. You explain that your environment at home and difficulties with your children have contributed to your failure to complete the orders. Your counsel urges that any order I make in response to your failure to complete the community service falls short of a period of actual imprisonment.
It was suggested that you would be eligible for a home detention order as your partner is no longer on such an order. I had you assessed for suitability for such an order. Community Corrections have indicated that you are not suitable. The address you nominated for the purposes of assessment is the one you share with your partner and two children. While electronic monitoring was found to be operational at the residence, there have been reported instances of family violence occurring between you and your current partner between 2018 and 2025. Child Safety Services have also expressed concern about your children being at the nominated address owing to previous exposure to family violence behaviours and criminal activity, including illicit substance use. Given the risks and safety concerns for you and the listed co-residents, which may be exacerbated by the nature of home detention order conditions, Community Corrections are unable to recommend home detention at this time.
The home detention assessment report otherwise reported the difficulties you experience in relation to caring for your children and partner, together with your own health issues including depression, anxiety and dental problems. I am now told that you are eight weeks pregnant. This is a factor that I also take into account.
I am satisfied that you have breached the conditions of the community correction order in that you failed to satisfactorily complete 98 hours of community service. Although I accept performance of community service for you may be difficult, it is trite to say that such orders are expected to impose a burden on those who are subject to them. That is the nature of the punitive intention of such orders. Given that a number of your unauthorised absences were unexplained, I am far from satisfied that you had a reasonable excuse for failing to attend on each occasion that you failed to do so. I note that Community Corrections appear to have taken a number of steps to accommodate your circumstances, attempting to consult with you about changing the dates for your attendance, but none of that contact resulted in your improved performance.
Given the order is now expired, s 42AV(4)(e) provides that I must:
- if I consider it appropriate, cancel any other order in respect of the offence in relation to which the community correction order was made; and
- whether or not I cancel any other order, deal with you, in respect of the offence in relation to which the Community Correction order was made, in any manner in which I could deal with you had I just found you guilty of that offence.
Section 42AV(5) provides that I am to take into account the extent to which you have complied with the community correction order.
There is no community correction order to cancel. To the extent the application brought by the State requests that such an order be made, it is misconceived. It is quite clear from the terms of s 42AV that the power of cancellation relates to orders currently in force. Neither the suspended sentence nor the community correction order remain in force. I am, however, required to deal with you in respect of the offence of trafficking in any manner in which I could deal with you had I just found you guilty of that offence.
It is quite clear it would be inappropriate to impose any form of Community Correction order in relation to this matter. None is recommended and, quite frankly, you appear incapable of complying with any such order. Not only have you demonstrated an inability to perform community service, your poor level of communication with Community Corrections suggests that any other form of supervision would be unlikely to be complied with. I also do not intend to impose a home detention order. I consider the reasons proffered by Community Corrections as to your unsuitability for such an order to be compelling. There are a number of concerns about your personal circumstances and your relationship that render such an order untenable.
It is apparent to me that the sentence originally imposed upon you was designed to encourage you to rehabilitate and not commit similar offences in the future, reflected in the imposition of the suspended sentence, but it was also intended to have an immediate bite. That appears to be the principal reason to impose the community correction order with conditions that you perform community service. To date you have only performed 11 hours of community service. I take that into account. I also take into account generally that you have satisfied the conditions of the suspended sentence imposed upon you in that you have not committed a further offence punishable by imprisonment during the operational period of that order. The deterrent nature of that order appears to have had the intended effect.
In determining what I should so with you in respect of this application, I am mindful that you pleaded guilty to a serious offence. The trafficking you engaged in occurred over a considerable period of time. Methylamphetamine is a serious drug of addiction. You supplied the drug to end users for reward. You were not a user of the drug yourself. Trafficking in that substance at the level at which you were engaged frequently attracts immediate periods of imprisonment for good reason. You have no prior convictions for drug trafficking but have prior matters for drug related driving offences and possession and use of drugs dating from 2017 and 2019. In light, however, of the totality of your circumstances, and your compliance with the previous suspended sentence, I have determined that it is appropriate to impose a further period of imprisonment upon you in respect of this application, which I will wholly suspend. The length of the sentence has been adjusted to reflect the length of the sentence previously imposed.
In respect of the State’s application dated 8 November 2024 made pursuant to s 42AV(1) of the Sentencing Act, I order pursuant to s 42AV(4)(e) that you serve a period of six months’ imprisonment. The execution of that six-month period of imprisonment is wholly suspended for two years on condition that you do not commit another offence punishable by imprisonment during the period the order is in force. If you breach that order, I must activate it unless it would be unjust to do so.