Director of Public Prosecutions v Hartley
[2017] VCC 690
•31 May 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-00385
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CELINA HARTLEY |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 May 2017 |
| DATE OF SENTENCE: | 31 May 2017 |
| CASE MAY BE CITED AS: | DPP v Hartley |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 690 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Livitsanos | OPP |
| For the Accused | Mr D. Hallowes S.C | Stary Norton Halphen |
HIS HONOUR:
1 Celina Hartley, you have pleaded guilty to one charge of intentionally cause injury. The maximum penalty for this offence is ten years' imprisonment.
2 I have heard a summary of the offending. It is not my intention to repeat the whole summary; it has been tendered as Exhibit A in these proceedings.
3 Briefly, the victim in this matter is your husband. At the time of the offence, you had been in a relationship with him for approximately 16 years and married for 12 of those. You have a five-year-old son.
4 On 9 August 2016, you were at home with the victim and your son. You had dinner, your son was put to bed and at approximately 9.30 pm you and the victim went to bed. You had sexual relations after which you began to argue. At approximately 10 pm the victim went to sleep and you got out of bed to write some thank you cards for your son’s birthday. You then made a pot of soup. You were standing at the bench in the kitchen when you picked up a large chopping knife. At about 11.40 pm you walked to the bedroom where the victim was sleeping. You started stabbing him to the head and neck as he slept. You stabbed him approximately three times before he woke and a further two or three times before he could rise out of bed. The victim got out of bed and after some further interaction between the two of you, he eventually took possession of the knife. He used his mobile phone to call 000 for assistance. Whilst he was on the phone, you can be heard yelling, "I'm sorry." You then commenced assisting the victim with his injuries. You used your first aid kit and tried to stop the bleeding and covered the wounds you had inflicted. You ran to the road on two occasions to check the progress of the ambulance and you attempted to mop up the blood in the bathroom.
5 Police arrived and you were subsequently arrested. The victim was treated by paramedics and taken to hospital.
6 When interviewed by the police, you made full admissions to stabbing the victim several times while he slept and after he awoke. You denied trying to kill him and stated that you just wanted to hurt him or shock him. You acknowledged that you were aware of what you were doing but you could not explain why you chose to stab him. You were highly emotional during the interview.
7
The victim suffered a number of injuries. In a report dated 19 August 2016,
Dr Jo Parkin summarised them in the following terms:
·There were incised wounds bilaterally to the neck, to the back of the head and the left ear. There were also incised wounds on the right side of the back and the right hand. The injuries to the neck and head were described as superficial, following the results of a CT scan. Superficial in this context means that they did not damage important structures below such as muscle, major blood vessels, and nerves.
·Despite being described as medically superficial, the injury to the ear caused damage to a small artery which required suturing in the emergency department to control the blood flow.
·Despite being described as medically superficial, the injuries to the neck did breach the epidermal and dermal layers of the skin to expose the subcutaneous fat beneath. The injuries to the head and neck required exploration and repair in surgery. All of these injuries required suturing.
·The victim’s blood pressure dropped quite low upon his arrival at hospital. Such a drop is suggestive of a compromise to the circulatory system via blood loss. He required a transfusion of two units of packed red blood cells to maintain his blood pressure.
·The injuries to the neck region were at a location where there was a genuine risk that major blood vessels may have been damaged. If the wounds had been slightly deeper, such injuries were likely to have resulted in serious injury or death.
·According to the outpatient notes from the Alfred Hospital, the victim’s injuries have healed well without any complications. However, scarring from these injuries would be permanent.
8 Ms Hartley, clearly this is serious offending. You struck the victim a number of times with a chopping knife. You did so when he was most vulnerable, namely, when he was asleep in bed and as he woke up. You stabbed him to the face and neck with the intention of causing injury.
9 The victim read his impact statement to the court. He detailed how your offending has affected him emotionally, physically, and socially. He stated that apart from some scarring issues, he has made a good physical recovery. The emotional impact is ongoing. Even so, he presented as remarkably forgiving, asking that I not imprison you. This is something that I will come back to later in these remarks. The victim also said this in his statement, "In the hospital, I tried to comprehend what and how all this occurred – something I couldn’t understand. I did believe though that this was not a rational action and could see that once I had taken the knife off her, she became frenetic/panic stricken with care and help running around trying to clean, attend to me with first aid and also going out the front to flag down the ambulance."
10 The victim’s incomprehension at what had occurred is not surprising. It is consistent with the assessment of your character, made by many family members and friends, who provided character references to the court. For example, your sister in law, Ms Pennie McKinley, says this in her reference, "I've always known Celina to be a very peaceful person and this is the first time she has ever been in trouble with the law. It is utterly out of character and came as a complete shock to our family." In reference after reference, the words "loving", "caring", and "supportive" are the words used to describe you. You had been, up until you committed this offence, a woman of good character, who had devoted her working life as a nurse and midwife, to supporting others. You were a good mother to your son. No one who knew you could have anticipated that you would behave in the way you did. This is what makes this an unusual case.
11 Your lawyers arranged for you to be assessed by Dr Danny Sullivan, Consultant Forensic Psychiatrist and the Assistant Clinical Director of the Victorian Institute of Forensic Mental Health. He provided two reports to the court and also gave oral evidence.
12 In his first report he identifies a number of issues that effectively interacted on the night in question to undermine your mental and emotional wellbeing and compromise your capacity to exercise appropriate judgement.
13
He noted your long-term difficulties with severe chronic pain. This is also discussed in the medical report of 4 May 2017 provided by Dr Judith Kirkwood. You have been a patient at the medical centre where Dr Kirkwood works since 2008, and you have been her patient since July 2015. She says this in her report, "When I first met Celina, she was being treated by a gynaecologist for severe pelvic pain, and had a procedure to try and lessen her pain in
February 2015. She has been under a team of specialists since then to try to alleviate her severe chronic pain, which necessitated admission to hospital and a further nerve injection in February 2016. Her continued severe pain was a major problem in her daily life, limiting her walking at times, and she had pain during and especially after intercourse. In November 2015, she did complain of vaginal pain, and her physiotherapist has also made note of pain during and after intercourse."
14 Dr Sullivan identified the difficulties, as you perceived them, in your relationship with the victim. They had been present for some years and seemed to have become more pronounced after the birth of your son. Certainly, many of your friends and family members were concerned at the health of the relationship. One referee states that she contacted the Domestic Violence Resource Centre in 2013 to obtain advice about how she might support you. Other referees spoke of their concerns about what they perceived to be your husband’s extremely controlling behaviour. Many of the referees expressed concern that you had "lost your sense of self" or "lost your sense of identity." When you spoke to the police, you stated that your husband had been controlling you and your son emotionally for your entire marriage. Dr Sullivan referred to the victim’s statement to the police, where he says an argument took place on 4 August 2016 where you accused him of being controlling. The next day you made the same accusation.
15 Dr Sullivan opined that your personality structure appears dependent. He explained how this is relevant in explaining why you remained in a marital relationship in which you describe longstanding and fundamental disagreements about housing, finances, childrearing, social life, leisure activities, and work.
16 Dr Sullivan also commented on the impact your chronic pain problems had on the maintenance of a healthy sexual life. He said in his evidence that you had to balance the fact that sexual intercourse caused you pain with the fact that sex is part of a healthy relationship. He said this, "Ms Hartley indicated that there were some things she found difficult to do but would still potentially do in order to satisfy or please her husband." He noted that sexual relations can be a point of tension in any relationship, but in this relationship it was complicated by the fact that vaginal sex could be a painful experience for you and that at times you felt manipulated into forms of sexual activity that you were unhappy with. Dr Sullivan opined that this was a relevant issue, given that the sexual experience on the night in question was, at least from your point of view, far from satisfactory.
17 Dr Sullivan reported that in the days preceding this offence, you had been sleep-deprived and that on the day in question, you cancelled your work shift at the last minute.
18 Dr Sullivan also opined, "Although she has not previously been treated for depression, it seems likely that Ms Hartley has suffered intermittent depressive symptoms which have at times impacted on her relationship and her ability to function. The most likely diagnosis is of recurrent depressive disorder, mild in severity. The evidence base for treatment of depression of this severity supports counselling, psychological and psychosocial interventions as more effective than medications."
19 Dr Sullivan provided a second report updating the first report. In relation to the issue of your recurrent depressive disorder, he says this, “I consider this is now in substantial remission and compared to my first meeting with her, she had limited symptoms, predominantly of mild anxiety. She is appropriately treated with counselling and lifestyle interventions."
20 When Dr Sullivan gave evidence, he agreed with your counsel’s assessment that there was an emotional maelstrom at the time the offence was committed. Dr Sullivan referred to the evidence of your highly emotional state on the night in question and the emotional difficulty for you in formulating a course of action. He said that the extract of the record of interview - that he heard played in the courtroom - showed the level of your emotionality. He went on to say that the level of your distress was clear and how your account of the factors that played into that on the particular day provide some level of explanation for another person to understand why you might have acted in the way you did. He continued in his evidence as follows, "However, the actions still remain something which is very unusual for this woman. This is not a woman who is used to resolving conflict by picking up a knife or threatening people with a knife. There’s no history of physical violence in the relationship, although there are some suggestions of relationship difficulties. Those don’t appear to have been manifest in threats of physical violence or actions of physical violence. So for such a dramatic thing to have occurred in the context, I look to the difficult emotional situation that she found herself in and as I said, I don’t think it’s as straightforward as looking at the knife, weighing up the pros and cons, considering what might be the legal consequences for her, what might be the consequences to her contact with her child, what might be the consequences to her husband. I think rather, it’s an ill-considered and ill-thought through action, after which Ms Hartley realises that something very drastic has happened and really doesn't know how to respond and that again, is clear from all the witness statements for those who observed Ms Hartley afterwards."
21 I have spent some time on Dr Sullivan’s reports and evidence because his assessments are important in understanding his conclusions about your offending.
22 In his second report he opines, "The offence as described was impulsive and occurred in the context of sleep deprivation, chronic pain, marked relational problems, and her perceived sexual humiliation and helplessness. Ms Hartley does not appear to have considered the consequences or possibility of serious harm to her husband. Her description of her mental state in the record of interview indicates her unclear motivation and intent at the time. Her subsequent actions after stabbing her husband involved helping him, restating her love for him, waiting for the ambulance and cleaning up so their son would not see the blood."
23 Dr Sullivan goes on to say that you were "somewhat impaired" in your mental functioning at the time of the offence, "by virtue of the interaction" between your mood disorder, personality vulnerabilities, and the situation. He opines that both your ability to appreciate the wrongfulness of your conduct and your ability to think clearly and make calm and rational choices were compromised. He states that your "capacity to exercise appropriate judgement was reduced."
24 Given the opinions expressed by Dr Sullivan, I accept that there must be some reduction of sentence in recognition of your reduced moral culpability. In addition, there must be some moderation of general deterrence in accordance with the third principle of Verdins. On this latter point, the moderation can only be modest because your mood disorder was only a part of the matrix of factors influencing your behaviour on the night in question.
25 I also accept Dr Sullivan’s opinion that should you be imprisoned, your personality will render you particularly vulnerable to exploitation and that, as a consequence, prison will be more onerous for you than for someone without your vulnerabilities.
26 There are other matters in mitigation.
27 You have no prior criminal history.
28 You pleaded guilty to the offence and you did so as soon as the prosecution withdrew more serious charges. Your plea of guilty is an acceptance by you of responsibility and is indicative of remorse. The full extent of your remorse is apparent from your behaviour in assisting the victim, comments you made to the police and from comments you have made to family members. I am satisfied that you are truly remorseful for your offending. Your plea has also saved the victim from the trauma associated with giving evidence and saved the community the costs associated with a criminal trial. You will be given credit for all these matters.
29 I regard you as having excellent prospects of rehabilitation. You have no prior convictions. You and the victim are now separated and an intervention order is in place. Dr Sullivan opines that your mood disorder is now in substantial remission and you have very strong support from family and friends.
30 You have already suffered significantly as a result of the commission of this offence. True enough, your behaviour has produced these consequences. However, the loss of the custody of your son and your inability to work in your chosen career are matters that have profoundly impacted on your life and are not to be ignored.
31 I do give some weight to the attitude of the victim in this matter. There are some cases where a court will give little or no weight to the views of the victim because that victim is not able to best determine what is in his or her best interests. This is not such a case. Here, I have a mature, forgiving adult male, who strongly expresses a view about what he wants and what he thinks is in the best interest of his, and your, child. His views should be given some weight in the sentencing process.
32 Ms Hartley, notwithstanding the serious nature of this offending, I have come to the conclusion that the circumstances of the offending, together with the matters in mitigation, make it appropriate to convict you and place you on a community corrections order.
33 The order will be for a period of two years and will have two conditions attached. First, you must perform 360 hours of community work, and secondly, you must participate in treatment and assessment for mental health.
34 In relation to this latter condition, I note that the assessment conducted by the Office of Corrections says this, "Ms Hartley is currently engaged in psychological counselling. Under this condition, treatment in this area can be monitored therefore." What I understand will happen is your current treatment will continue and it will be monitored by the Office of Corrections.
35 This order will require you to report to the Bendigo Community Correction Centre within two working days.
36 I make the disposal order sought by the prosecution. Is there anything else, gentleman?
37 COUNSEL: No, there is not, Your Honour.
38 HIS HONOUR: Ms Hartley, the papers will be printed and you will have to sign them.
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