R v Copeland

[2022] NSWDC 545

District Court

New South Wales

Medium Neutral Citation:

R v Copeland [2022] NSWDC 545

Hearing dates:

23 September 2022

Date of orders:

28 October 2022

Decision date:

28 October 2022

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1) The offender is convicted.

(2) The offender is sentenced to fixed term of 6 months commencing on 26 April 2021 and expiring on 25 October 2021.

(3) Taking into account time served, the offender is entitled to immediate release.

Catchwords:

CRIME – sentencing – assault occasioning actual bodily harm – Bugmy principles

Legislation Cited:

Crimes Act 1900 ss 59(1), 94(b)

Crimes (Sentencing Procedure) Act1999 ss 3A, 5, 21A, 25D

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

DPP v De La Rosa [2010] NSWCCA 194

R v Heizzinen [2006] NSWCCA 50

Texts Cited:

The Bugmy Bar Book

Category:

Sentence

Parties:

Rex
Ms Katreana May Copeland

Representation:

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service (Offender)

File Number(s):

2021/115941

Publication restriction:

Unrestricted

JUDGMENT

Remarks on sentence

1. The offender appeared at the Downing Centre Local Court on 18 November 2021 and pleaded guilty to one charge of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900. The maximum penalty for that offence is 5 years imprisonment.

2. The plea of guilty was adhered to in the Local Court on 18 November 2021. Accordingly, pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999, the offender is entitled to the full 25% discount for the utilitarian value of the plea.

3. In determining the appropriate sentence, I acknowledge that I am involved in a one step process in which it is necessary to have regard to all the relevant facts and circumstances as are known to the Court including the facts surrounding the commission of the offences, those matters affecting its relative seriousness and the offender's subjective circumstances.

4. Admitted on behalf of the Crown was the following:

1. Amended Charge Certificate (Ex C1)

2. Signed Agreed Facts (Ex C2)

3. Criminal History (Ex C3)

4. Custodial History (Ex C4)

5. CCTV Footage of Offence (Ex C5)

5. Admitted on behalf of the offender was the following:

1. Psychological report of Vanessa Edwige dated 12 February 2022 (Ex O1)

2. The Bar Book Project – Childhood Exposure to Domestic and Family Violence (Ex O2)

3. The Bar Book Project – Childhood Sexual Abuse Executive Summary (Ex O3)

Agreed facts

6. On 26 April 2021, the offender approached the victim and James Boney in a room of the Injecting Centre located in Kings Cross. The offender was known to Mr Boney but was not known to the victim, although, the victim recalls having seen the offender once before. The offender asked the victim words to the effect of “Hey sister, can you give me some”, to which the victim responded, “I’ll talk to you in the next room”.

7. The victim then started making a mix, with Mr Boney holding the victim’s heroin. At this point, an argument commenced between the victim and Mr Boney. The Centre staff subsequently asked the victim, Mr Boney and the offender to leave the premises. They walked out onto Kellett Street Kings Cross, with the victim walking in front of the offender and Mr Boney. The victim was holding the remainder of the heroin in her right hand.

8. The offender grabbed the victim, reaching for the victim’s right hand and there was a struggle for the drugs. The victim held her right hand closed in a fist. During the struggle with the offender, the victim dropped her bag on the ground, which contained her mobile phone with $120 cash in the back of the phone and several coins. Mr Boney then picked up the offender’s bag from the ground and continued walking along Kellett Street.

9. The offender continued to grab the victim’s hand and the struggle between them continued, moving into the rear entrance of the Vegas Hotel. The assault was captured on CCTV. The offender began the bite the victim’s hand and the victim subsequently fell on the ground. The offender grabbed the victim’s hair and then with her right fist, punched the left side of the victim’s head. The victim and offender continued to struggle, and the offender again punched the victim towards the left-hand side of her face. The victim pushed the offender backwards, at which point the offender punched the victim, using both hands.

10. The offender and the victim continued struggle. The offender grabbed the victim by her right ear and hair, before pushing her into the wall and then onto the ground.

11. With her right hand in a fist, the offender then punched the victim to the centre of her face. The victim raised both her arms in front of her face. The offender pulled the victim’s right arm away from her body and bit into her right hand. While still biting the victim’s hand, the offender again forced the victim towards the ground and with her right hand punched the victims torso.

12. The victim pulled her hand free, and the offender again forced the victim down towards the ground. The offender then bit the victim’s right hand. The offender eventually forced the victim’s hand open by prying her pinky finger open, took the heroin and walked off along Kellett Street.

13. The victim sat on the ground at the Vegas Hotel entrance. Mr Boney then walked back to the victim and returned her canvas tote to her before turning around and re-joining the offender. $120 in cash and approximately $8 in coins were missing. It is not alleged that the offender was responsible for the theft of these items.

14. The victim was brought inside the Vegas Hotel by the manager, where the police then attended. The victim was taken by ambulance to St Vincent’s Hospital Emergency department where the victim was observed to have swelling to the left side of her face, dried blood to her nose and lips, and bite marks to her right hand, although no broken skin on the hand. The victim reported pain to the left cheek and surrounding left eye.

15. The offender and Mr Boney walked together to Darlinghurst Road, where the offender entered Potts Point Hotel and Mr Boney entered McDonalds. The offender was cautioned by police and conveyed to Kings Cross Police Station where she declined to participate in an ERISP.

The offender’s criminal history

16. The offender has a lengthy criminal history dating back to 1995 involving offences of dishonesty and assault, including offences committed as recently as April 2021 (dishonestly obtain financial advantage by deception) and May 2021 (common assault).

Subjective circumstances

17. The offender is a 43-year-old Gamilaroi woman who was 42 years of age at the time of the offending. Her history of offending dates back to 1995 consisting of numerous offences, predominantly involving dishonesty. The offender has served various terms of imprisonment in relation to these prior charges.

18. As of 21 September 2022, the offender had spent a period of 177 days in custody solely referrable to this offence. However, the offender had been in custody for a longer period in relation to other unrelated offences. On 23 September 2022 the offender was released from custody on bail. The offender informed the Court that the death of a relative while she had been in custody had been particularly difficult for her.

19. The offender relies upon a report of Vanessa Edwige, Clinical Psychologist (Ex O1), following a two-hour assessment on 18 January 2022.

20. The offender was born in Moree and has one older brother and one younger sister. The offender’s father did not drink alcohol but did smoke cannabis, outside of the family home, the offender recalls witnessing violence and drug abuse on the mission. While growing up, the offender remembers her parents arguing a lot, and witnessing verbal abuse between them. She completed kindergarten to year nine in Moree and later completed year 12 at Moree Tafe.

21. The offender reports being sexually abused by a family member “a couple of times” when she was approximately 8 or 9 years of age. She says that she did not tell her parents about the offences out of fear, but alleges that her behaviour changed after these assaults. The offender focused less on school and instead started associating with “the wrong crowd in Moree”. The offender started smoking cannabis and drinking alcohol at 13, and was using heroin between 18 and 20 years of age.

22. The offender has also been a victim of prolonged domestic violence over relationships in her teenage and adult life. At 15, the offender left the family home and moved to Lismore, started a relationship and was pregnant at 17. She experienced significant domestic violence in that relationship, resulting in various injuries for which she was frequently hospitalised. Among the injuries, the offender recalls being stabbed several times with a knife.

23. The offender later left her partner and returned to Moree where she had her son. Her son was between 4 – 5 when she met the father of her other three children. She endured over 10 years of domestic violence in this relationship, again sustaining significant injuries for which she was hospitalised multiple times. The offender recalls having her bones broken, being stabbed with broken bottles, and having her head and face split open. During this time the offender’s partner was using ice, cannabis, and alcohol. In 2009, the offender left her partner and children in Moree and moved to Sydney. She allegedly experienced significant grief at having to leave all her children behind in Moree, including her youngest child, who was only two months at the time.

24. When she moved to Sydney in 2009, the offender worked as a professional Aboriginal Dancer in Sydney but stopped when she started using drugs again. The offender states that after moving to Sydney she resumed using heroin as well as ice “all day, every day”. The offender developed a significant habit, which she says impacted her decision making. She had no accommodation and effectively was homeless in Kings Cross. Since 2009, the offender has been in and out of jail, having spent a significant part of her adult life there.

25. In discussing the impact of the offender’s considered disadvantage, namely that the offender’s childhood was marred by early exposure to drugs, alcohol, domestic violence and child sexual abuse, Ms Edwige cites research from various sources, including the Bugmy Bar Book, which she contends is applicable to the offender’s experience. Ms Edwige highlights the established connection between childhood abuse and subsequent substance dependency, and the development of chronic health concerns such as Post-Traumatic Stress Disorder (PTSD). She further draws the connection between PTSD and difficulties regulating emotion, and development of maladaptive coping mechanisms.

26. Ms Edwige cites the offender’s disadvantageous childhood exposures as having impacted on her social and emotional wellbeing, resulting in post-traumatic stress and substance misuse. Ms Edwige expresses the opinion that the offender’s background has deeply affected her psychological state, and significantly impacted her emotional regulation, decision making and judgement. She further states that the offender has externalised her childhood trauma through her conduct and risk-taking behaviours.

27. In effect, Ms Edwige contends that research would support the nexus between the offender’s exposure to adverse childhood experiences childhood exposures, psychological health issues and offending.

28. Ms Edwige concluded that at the time of the offending, the offender was suffering from PTSD, Opioid use Disorder and Stimulant Use disorder. She met the criteria in the DSM 5 for these disorders. In considering whether the diagnosed mental health issues had any impact on the offender at the time of the offending, Ms Edwige states that “these disorders had a significant clinical impact on her emotional and behavioural state impacting her ability to make appropriate decisions and good judgement”.

29. Ms Edwige states that the offender “reported that she wished she had handled the situation better than what she did” and was remorseful for what had happened, however this point was not laboured.

30. The offender is currently on the Buvidal program in which she receives monthly injections of buprenorphine to treat her opioid dependence and cravings. Although the offender has never attended a drug and alcohol rehabilitation facility or counselling service, she has expressed her desire to attend the Glen Drug and Alcohol Rehabilitation Centre.

31. Ms Edwige is positive that, with the intensive support and compliance with a treatment plan, the offender can make positive changes in her life, and prospects of rehabilitation are positive. Ms Edwige states that the offender will require ongoing psychological support for a period of no less than six months, as well as counselling to address her significant mental health concerns and develop skills to learn to manage her symptomology.

32. The offender further relies on the Childhood Exposure to Domestic and Family Violence Executive Summary (Ex O2) and the Childhood Sexual Abuse Executive Summary (O3) of the Bar Book Project, dealing with the impact of childhood adversities on development and behaviour of an individual, as explored by Ms Edwige above, and by the principles in Bugmy v The Queen (2013) 249 CLR 571 to be later traversed.

Submissions

33. The offender submits that the offending falls somewhere towards the low range of objective seriousness, citing the relatively short nature of the assault, the absence of evidence of long-standing harm, and the impulsivity of the offending.

34. Alternatively, the Crown references the actions of the offender, namely the striking, punching, biting, pushing, and kicking, as well as the length of time, time of day and public nature of the offending in considering objective seriousness. The Crown submits that these factors elevate the seriousness to the mid-range.

35. While the Crown does not submit that the victim sustained substantial harm as a result of the offence, it is submitted that the absence of evidence of suffered harm “does not justify an inference that there was no adverse effect on the victim” R v Heizzinen [2006] NSWCCA 50 at [40].

36. In relation to mitigating factors pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act, it is submitted by the Crown and offender that the offender’s remorse (s 21A(3)(i)) and plea of guilty (s 21A(3)(k)) are relevant and applicable to the offence. The offender further submits that the offence was not part of a planned or organised criminal activity (s 21A(3)(d)).

37. The submissions acknowledge aggravating factors of the offence including the offence being committed while the offender was on conditional liberty by way of bail (s 21A(2)(j)) and the offender’s lengthy record of previous convictions (s 21A(2)(d)). However, the Crown submits that while extensive criminal history is not an aggravating factor, the offender’s criminal record serves to disentitle the offender to the leniency that might otherwise have been shown to the offender.

38. By way of subjective circumstances, the offender references the impacts of the background of deprivation and effect of child sexual abuse on the offender’s decision making, psychological issues, drug dependence and subsequent offending. The Crown concedes that the offender’s psychological issues and substance abuse makes her an “inappropriate vehicle” for general deterrence and therefore reduces her moral culpability (DPP v De La Rosa [2010] NSWCCA 194).

39. The Crown concedes that the Court should apply the principles in Bugmy, however, contends that while the principles in Bugmy give rise to a finding of reduced culpability, the sentencing Judge is also bound to give close attention to whether the offender poses a danger to the community (Bugmy at [21]). In this regard, the Crown states that the offender’s persistent offending, and brazen nature of the assault, would enliven this consideration.

40. In relation to rehabilitation, the parties acknowledge that the offender’s prospects are guarded. The Crown further submits that the offender’s expressed interest in engaging with ongoing treatment should be considered in the context of her prior non-participation with the Maaya Mali Rehabilitation Centre while being involved in the Walama List earlier this year. The offender refers to Ms Edwige’s opinion that despite being guarded, prospects are positive, dependent on provision of and engagement with appropriate support services. In addition, the offender notes that no reoffending has occurred during her most recent period spent in the community.

41. Contrary to the offender’s submissions, the Crown submits that the principle of parity is not enlivened in this sentencing exercise. The submission is made on the basis that offences of the offender and the co-offender are substantially disparate, namely, that Mr Boney walked away prior to the assault occurring, albeit taking the victim’s bag with him.

42. While not conceded by the offender, the Crown submits the s 5 threshold has been crossed and as such, the only appropriate sentence is one of full-time imprisonment.

43. However, the Crown concedes that a finding of special circumstances should be made in respect of the offender’s mental health, risk of institutionalisation and onerous conditions. In addition to those factors, the offender also cites the principle of totality and the Bugmy and Fernando type childhood deprivation as factors constituting special circumstances.

44. It is submitted that the offender’s pre-sentence custody is not solely referable to this offence. On 3 February, she was sentenced to the following terms of imprisonment for three unrelated offences:

• Offence 1: Fixed term sentence of 6 months from 26 April to 25 October 2021

• Offence 2: Fixed term sentence of 2 months from 25 April to 25 June 2021

• Offence 3: Fixed term sentence of 3 months imprisonment from 26 April to 25 July 2021

45. The offender has spent two periods of custody solely referable to this offence, being 25 October 2021 to 3 February 2022 (102 days) and 11 July to 23 September 2022 (75 days). As such, this amounts to a combined period of 177 days pre-sentence custody solely referable to this offence.

46. The Crown concedes that backdating is appropriate, and further, that a degree of aggregation with the previous fixed terms of imprisonment is appropriate.

Consideration

47. I accept the Crown’s submission that the offending falls within the mid-range of objective seriousness. It involved an unprovoked and violent attack. The assault was significant in that it involved the offender, over a relatively protracted period, striking, punching, biting, pushing and kicking the offender. The offending occurred in a public space in broad daylight.

48. Given the objective seriousness of the offending, and the offender’s lengthy criminal record, I am satisfied, in accordance with s 5 of the Crimes (Sentencing Procedure) Act 1999, that no penalty other than imprisonment is appropriate, although I have regard to the submissions made by the parties that the sentence should be backdated and aggregated to some degree.

49. Whilst deterrence is an important factor given the offender’s conduct in committing a protracted assault on a person in a public place, I accept, consistent with the Crown’s concession, that the offender’s mental health issues, and substance abuse, make her an inappropriate vehicle for general deterrence, and therefore reduces her moral culpability (De La Rosa).

50. In passing sentence, I note the aggravating factors pursuant to s 21A (2) of the Crimes (Sentencing Procedure) Act 1999 include the offender having a history of previous convictions over a significant period of time. Whilst the offender contends that overwhelmingly they are for non-violent property offences, the criminal history reveals various convictions for assault. A further aggravating factor is that the offence was committed whilst the offender was on conditional liberty in relation to an offence, in the form of bail (s 21A(2)(j)).

47. There are several mitigating factors in that offender has demonstrated remorse (s 21A(3)(i)) and has entered a plea of guilty at the earliest opportunity (s 21A(3)(k)). I further accept the offender’s submission that an additional mitigating factor is that the offence was not part of a plan or organised criminal activity (s 21A(3)(d)).

48. I am satisfied that the experiences suffered by the offender are consistent with the type of disadvantage elucidated in the High Court through matters such as Bugmy and R v Fernando (1992) 76 A Crim R 58. As such, I accept and apply the following Bugmy principles:

1. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].

2. The effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case [42]-[43].

3. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending [43].

4. Attributing “full weight” in every case is not to suggest that it has the same mitigatory relevance for all the purposes of punishment [43].

53. As conceded by the Crown, I am satisfied that there was a causal connection between the childhood adversities experienced by the offender, the mental health issues suffered by the offender at the time of the offending, and the decision-making which led to the offending, as elucidated by Ms Edwige in Ex O1. With consideration of those subjective features, I find that the moral culpability of the offender is reduced.

54. In relation to the Crown’s submissions about community safety, the absence of any fresh offending while the offender has been in the community, and the offender’s expressed interest in attending counselling and rehabilitation is probative. It may therefore be considered that access and compliance with a relevant treatment plan, as outlined in the report of Ms Edwige, would assist to provide the offender with the relevant rehabilitation and counselling, and by extension, reduce the risk to the community.

55. With reference to the evidence of Ms Edwige, I further accept that the offender’s recent experience in custody has been more onerous than the average inmate, as a result of her mental health issues, Covid related restrictions, and her grief related to the deaths of her sister and nephew while she has been in custody.

56. I accept the Crown’s submission that the principle of parity is not enlivened in respect to the co-offender, Mr Boney, who was previously sentenced for one offence of steal from the person contrary to s 94(b) of the Crimes Act. I accept the Crown’s submission that the offending conduct between the co-offender and the offender is substantially disparate, and indeed the co-offender was not present during the assault. I accept the Crown’s submission that the co-offender’s culpability is confined to having taken the victim's bag prior to the assault having occurred.

57. The offence was committed on 26 April 2021 and bail refused from that date until 3 February 2022 being a period of nine months and eight days. The offender was then released on bail and returned to custody on 11 July 2022. The offender spent a further 75 days in custody from 11 July 2022 until released on bail on 23 September 2022. Accordingly, the Crown notes that the offender has spent 177 days (five months and 20 days) in presentence custody referable to this offence, although the offender has spent a total time in custody, since arrest on 26 April 2021, of over 11.5 months.

58. The Crown acknowledges that in the circumstances backdating is appropriate and that a degree of aggregation with the previous fixed terms of imprisonment is also appropriate. In all the circumstances I consider, given some degree of aggregation, that the sentence be backdated reflecting a custody period relating to the offence for which the offender is being sentence of nine months.

59. As noted above, I am satisfied that no sentence other than full-time imprisonment is appropriate. It is also necessary to give proper effect and regard to s 3A of the Crimes (Sentencing Procedure) Act which sets out the purposes of punishment including ensuring the offender is adequately punished, protect the community from the offender, promote rehabilitation of the offender, make the offender accountable for her actions, denounce the conduct of the offender, and recognise harm done to the victim of the crime and the community.

60. As noted above, I am satisfied that the principles enunciated in Fernando and Bugmy are applicable in determining an appropriate sentence. I am also satisfied that the offender is entitled to a finding of special circumstances as contended by the offender being the offender’s mental health diagnosis, acute risk of institutionalisation and the findings in accordance with Fernando and Bugmy.

61. In all the circumstances, an appropriate starting point is 8 months imprisonment from which is deducted 25% for the utilitarian value of the plea of guilty, resulting in a fixed term sentence of 6 months.

Orders

1. The offender is convicted.

2. The offender is sentenced to fixed term of 6 months commencing on 26 April 2021 and expiring on 25 October 2021.

3. Taking into account time served, the offender is entitled to immediate release.

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Decision last updated: 09 November 2022