R v De Sousa and Lafferte

[2023] NSWDC 613

District Court

New South Wales

Medium Neutral Citation:

R v De Sousa and Lafferte [2023] NSWDC 613

Hearing dates:

23/10/23, 30/11/23

Date of orders:

30 November 2023

Decision date:

30 November 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

LAFFERTE:

Count 3 Reckless GBH in company - Convicted and sentenced to a term of imprisonment of 2 years 5 months, with a NPP of 19 months (19/5/22-18/12/23). I find special circumstances. A discount of 25 percent has been taken into account.

DE SOUSA:

Convicted and sentenced to an aggregate term of imprisonment of 3 years 2 months, with NPP of 2 years 2 months (2/3/22-1/5/24). I find special circumstances.

The indicative sentences are:

Count 1 Affray – 1 year 10 months (a 5 percent discount has been taken into account).

Count 3 Reckless GBH in company – 3 years (a 5 percent discount has been taken into account).

Catchwords:

Crime – Sentence – Affray – Recklessly cause GBH in company

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

DS v R; DM v R [2022] NSWCCA

Category:

Sentence

Parties:

NSW DPP – Crown
Michael De Sousa – Offender
Johanna Marjory Lafferte - Offender

Representation:

Mr R Cooley for Crown
Mr T Skinner for De Sousa
Mr A Cassels for Lafferte

File Number(s):

22/12573
22/17702

remarks on sentence

1. The offenders Michael De Sousa and Johanna Lafferte are for sentence today in relation to offences committed on 30 December 2021. In Mr De Sousa’s case, there are two offences. Firstly an offence under s 93C(1) of the Crimes Act 1900 being an offence of affray. The maximum penalty for that offence is ten years imprisonment. The second offence in his case which is the same offence upon which Ms Lafferte is to be sentenced is under s 35(1) of the Crimes Act being an offence of recklessly causing grievous bodily harm in company with another person. The maximum penalty for that offence is 14 years imprisonment and a standard non-parole period of five years is specified. The maximum penalties and where applicable, standard non-parole period are important guideposts in the sentencing exercise to which I have had regard.

2. The offenders have each pleaded guilty to the offences but at different stages. Ms Lafferte pleaded at the first opportunity and so I will allow a 25% discount on account of the utilitarian value of that plea of guilty. That is an agreed position. It is also an agreed position that in relation to Mr De Sousa that given that he pleaded guilty at a later stage that the appropriate discount in his case is 5%.

FACTS

3. Turning to factual matters. These sentence proceedings as I have said, arise out of an incident that took place on 30 December 2021. On that day as set out in the agreed facts relating to both offenders, Mr De Sousa and Ms Lafferte attended the Bankstown Hotel where they sat with the victim Mr Moir and two other males. The two offenders did not know the victim before this time. Everyone was drinking alcohol and the offender De Sousa told the victim that he needed to travel to Padstow “to see a friend to get some gear”, in other words, drugs. De Sousa and the victim then took a taxi to an address in Padstow with the intention of obtaining drugs, however the person they intended to meet was not at home.

4. After this, they caught a bus back to Bankstown where they arrived between 5.30 and 6pm. Upon returning to the hotel, they met a male at the table where they had been sitting. He was described as Caucasian about six feet tall with blond hair and wearing a tracksuit. The victim and De Sousa gave this male some money to buy drugs and the male said he would return in about an hour. However, he never did return, and others sitting at the table said this male had a reputation for not coming back in such a situation. The parties however, remained and continued to consume alcohol.

5. At about 8pm the victim told De Sousa that he had to go home but De Sousa said words to the effect of “if the fellow doesn’t come back with the gear I’m going to bash you”. When the victim queried this, De Sousa added “someone has to pay for this guy not coming back”. De Sousa and the victim began walking towards the bus stop, ahead of Ms Lafferte and another male named Paul. At that time, Lafferte had in her possession under a cardigan she was carrying, an empty glass beer bottle which she had taken with her from the hotel. At a point where Ms Lafferte and the other male were about five metres away, De Sousa waived the victim over and the victim approached De Sousa where he was standing on a garden bed near a bus interchange. De Sousa then threw about eight punches towards the victim’s head, three of which connected, resulting in the victim falling to the ground, hitting his head on the pathway. De Sousa then punched the victim to the head again while he was on the ground and grabbed his t-shirt and whilst standing over the victim. CCTV footage examined by police showed that this incident occupied about ten seconds. This altercation is the factual basis for the count 1 offence of affray for which Mr De Sousa is to be sentenced.

6. The offender Ms Lafferte then smashed the glass bottle she was carrying and walked towards the victim who was on the ground. She held the broken beer bottle to the victim’s temple, grabbed him by the t-shirt and lifted his torso so that he was sitting with his legs in front of him. Mr De Sousa then punched and kicked the victim which caused him to fall back, flat to the ground. During this incident, Ms Lafferte caused a laceration to the victim’s left ear which amounted to grievous bodily harm. Ms Lafferte then again sat the victim upright and De Sousa who was wearing thongs kicked him in the face, causing him to again fall backwards. Mr De Sousa, Lafferte and the other male Paul then walked away. CCTV examined by police showed that this incident took place over about 18 seconds. These are the essential agreed facts for the count 3 recklessly cause grievous bodily harm in company offence to which both offenders have pleaded guilty.

7. After this, the two offenders and the male Paul walked away and the victim stood up and attempted to walk but was unsteady on his feet. At this point, the male named Paul returned to the victim and called triple-0. After police attended, he told them that “the big girl smashed a glass and she hit the ear”. In doing so, he used a gesture which was interpreted as a stabbing motion. The victim was taken to hospital for emergency treatment.

8. There, he was found to have a full thickness laceration 5 centimetres in length, transversely through the outer part of the left ear, extending inferiorly along the base of the ear for a few centimetres and with the “lower half of the ear/lobule perfused through” but with 2 centimetres still attached. In other words, much of the victim’s ear was effectively left hanging from the side of his head. He also had superficial lacerations, 1 centimetre lacerations in the right temple and also a laceration to the right upper lip. The ear was stitched by plastic surgeons and the victim was discharged on 1 January 2022. Other than some minor scarring to the left ear, the victim has made a full recovery.

9. As part of the police investigation, CCTV footage from the Lidcombe Hotel where De Sousa had been residing showed the two offenders arriving at the hotel in the same distinctive clothing they were seen wearing in the CCTV from the bus interchange. Police arrested De Sousa on 15 January 2022. Lafferte was arrested on 20 January 2022 and made certain admissions, including that she was drinking with the victim and De Sousa at the relevant time, that De Sousa and the victim had paid a dealer for drugs but that he did not return and that this had made De Sousa very agitated and that De Sousa had hit the victim two or three times. She also said:

“I was a stupid idiot though, I’ admitting to like yes I hurt the guy. I had a beer bottle. When I walked away from the tables outside of Oscars and I smashed it on the way there because I knew what was going to happen. And I held the broken piece of glass to his temple and I think another, another spot on his face. I can’t actually remember where it was but I do remember holding a piece of glass to his temple. And that’s it.”

10. She also said when spoken to by police that Mr De Sousa did not know anything about the glass and asked her “why he was bleeding. I didn’t do that to him” or words to that effect.

11. Ms Lafferte also told police that she thought herself to be “not a normal person” and referred to having been diagnosed with borderline personality disorder. Those are essentially the agreed facts upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

12. The seriousness of an offence of recklessly causing grievous bodily harm in company is clearly marked by the significant maximum penalty and standard non-parole period. However, it is important that I make an assessment of the relative seriousness of the particular example of that offence that is before the Court. That requires an examination of all of the circumstances and also the role that each offender played. It requires also that I keep in mind that the offence is one involving reckless and not intentionally infliction of grievous bodily harm. The grievous bodily harm in this case involved the infliction of a very serious full thickness cut of the victim’s left ear, as well as some other injuries. Fortunately, however, apart from some scarring, the victim has made a full physical recovery.

13. The severe injury to the ear was inflicted in the course of an unprovoked attack which had been commenced by De Sousa but in which the offender Lafferte intervened using a makeshift weapon with which she had armed herself. The presence and use of this weapon indicates some level of premeditation by Ms Lafferte, the infliction of violence by both offenders continued even after the injuries to the victim’s ear and head had been inflicted, also the victim was in a somewhat helpless situation at the time that grievous bodily harm was inflicted on him, having been effectively punched to the ground by De Sousa.

14. I assess the offence committed by Ms Lafferte as being below the mid-range of objective seriousness but above the low range. In the case of the offender De Sousa, I regard his offence to be in a similar range, although to a limited extent less serious than the offence committed by Lafferte. I regard his offences as being slightly less serious than Lafferte’s offence because De Sousa did not arm himself with a weapon and because the agreed facts suggest by reason of the comment made to police by Lafferte that De Sousa did not know about the weapon at the time the injuries to the victim’s ear and head were inflicted. I do not however, lose sight of the fact that both offenders have pleaded guilty to an “in company” offence and were essentially engaged in a joint enterprise.

15. I accept in Mr De Sousa’s case that the offending was fairly spontaneous and did not involve planning. Nonetheless, he took part in and continued the “in company” attack on the victim by kicking him in the face even after the serious injuries arising from the broken bottle had occurred. It is for these reasons that I regard the objective seriousness of De Sousa’s offending as being similar to but slightly less than that of Ms Lafferte.

16. Turning to the offence of affray which applies only in relation to Mr De Sousa. The seriousness of the offence of affray is also marked by the maximum penalty which as I have said is ten years imprisonment. In this particular case, the offence occurred in a very public area near a transport hub at a time when members of the public were in the vicinity. The violence making up the affray was committed by a single offender but it involved multiple punches being thrown, three of which connected with the victim’s head and caused him to fall to the ground. It was an unprovoked and unjustified outburst of violence. However, it was quite brief, and as I have said, only involved this one offender. In my view, the objective seriousness is below the mid-range and towards the lower range.

17. Although not relevant to the objective seriousness of any of the offences before the Court, the seriousness of each offender’s overall criminality is increased by the fact that they were both subject to conditional liberty at the time. In this regard, Ms Lafferte was on bail and Mr De Sousa was subject to an intensive corrections order and a community corrections order.

18. In terms of mitigating factors, I accept subject to what I’ve already said about Ms Lafferte arming herself with the bottle, that none of the offending involved planned or organised criminal activity. In terms of any other mitigating factors, these will be addressed as I discuss the subjective circumstances of each offender, commencing with Ms Lafferte.

SUBJECTIVE MATTERS - LAFFERTE

19. Ms Lafferte is now 42 years of age. Before the age of about 36 she had no relevant criminal history. Since then however, she has a history of convictions for dishonesty, assault, assaulting police, damaging property, intimidation and most seriously, damaging property by fire for which she was sentenced in 2019 to a head sentence of two years. After being released and shortly before the offence now before the Court, she committed more offences and was on bail for an offence of obtain financial advantage by deception.

20. Furthermore, she committed other offences after the offence now before the Court. Her criminal history in recent years is such that it does not provide support for any requests for leniency.

21. Her background and subjective circumstances are set out in the report of psychiatrist Dr Furst. She was born in Chile and came to Australia with her parents when she was aged about three, her family having left as refugees because of political unrest. She reported a history of some neglect and also domestic violence between her parents when she was a child. She left school in Year 9 and was in a relationship with a man from about the age of 14 to 17 during which she gave birth to her first child who is now aged 25.

22. She later entered relationships with other men and has, as I recall, two sons arising from those relationships. Her two eldest children were apparently removed from her care and this led to some psychiatric problems including a suicide attempt. She has a long history of depression, going back to childhood and has some history of admissions to mental health units including treatment for paranoid delusions. Her youngest son was taken into care in 2016 when he was aged about five. Dr Furst notes that this had a further adverse effect on the offender’s mental health and coincided with her abusing alcohol. I note that the offender’s criminal history appears to have commenced not long after these events.

23. Significantly, Ms Lafferte reported a history of sexual assault as a child and also in one of her adult relationships. More significantly, she told Dr Furst that she was raped by a man on 27 December 2021, that is three days before the offence now before the Court. She reported the matter to police but was too distressed to complete a statement, but says that she plans to pursue this upon release to parole. She still has nightmares about the rape and experiences anxiety and low mood. She reported drinking very heavily in the following days and had been drinking alcohol all day on the date of the offence, that is her own offence before the Court. Dr Furst diagnosed the offender with Post-Traumatic Stress Disorder, persistent depressive disorder and alcohol use disorder. He concluded that the offender’s heavy drinking around the time of the offence was a maladaptive means of coping with her stress over the rape a few days earlier and her ongoing depression and distress arising from the loss of her children and her overall background.

24. Ms Lafferte’s background of exposure to neglect and abuse as a child along with the adverse nature of her life since then are of obvious relevance in this sentencing exercise. In my view, this background added significantly to the distress experienced by the offender, arising from her rape a few days before committing the offence now before the Court. These circumstances also provide an explanation for her serious abuse of alcohol in the days leading up to the offence and on the day of the offence.

25. In my view, her serious distress and anger and her heavy intoxication provides some explanation for her committing this serious and unprovoked offence against this victim. Of course, intoxication does not mitigate an offence. However, it does in this case, provide some explanation for such serious behaviour which appears to have involved a significant escalation of her prior pattern of offending.

26. In my view, the history of rape on 27 December 2021 is a matter that contributed in a material way to the offence in that it no doubt left the offender angry and distressed and contributed to her serious abuse of alcohol. In my view, the offender’s general history, combined with the circumstance of being raped shortly before committing this offence, is a matter that reduces her moral culpability to some degree by reducing her ability to overcome the impulse to act in the violent way that she did. This conclusion is supported by the comments at the top of p 9 of Dr Furst’s report.

27. The Crown submitted that Dr Furst has engaged in a form of advocacy in referring to the concept of moral culpability. I agree with the Crown’s submission that it was inappropriate for the psychiatrist to have gone so far as to offer his conclusion about moral culpability, which ultimately is a matter for the Court. Nonetheless, the opinion that Dr Furst offers in the relevant paragraph reflects the conclusion to which I have come independently. This reduction in the offender Ms Lafferte’s moral culpability is a matter I have taken into account as part of her subjective case. This is not a case however, where the objective seriousness of the offence is reduced by reason of her subjective circumstances. In this regard, I have had reference to the principles discussed in DS v R; DM v R [2022] NSWCCA 156 at para 96.

REMORSE AND REHABILITATION

28. I am satisfied that Ms Lafferte has shown genuine remorse. Her remorse is noted in Dr Furst’s report and to some degree also in the Sentencing Assessment Report. She has expressed remorse also in a letter to the Court in which she describes her behaviour as unacceptable and says she wants to break the cycle of offending. Her remorse and motivation to change are also demonstrated by the significant steps she has taken since being in custody. This has included attending AA meetings, engaging in counselling and participating very successfully in a range of short courses. She has also completed with distinction her participation in the Dillwynia arts pilot project earlier this year which involved a focus on moral thinking through philosophy and literature. She has also indicated a willingness to continue with any necessary treatment upon her release.

29. On the other hand, the Sentencing Assessment Report notes that the offender is assessed as a high risk of reoffending. Balancing all of these matters and the fact that it is still early days in the offender’s acceptance of and treatment for her problems, I think her prospects of rehabilitation are reasonable but guarded. They will essentially depend on whether she can avoid abusing alcohol and drugs, find employment and remain focussed on her desire to seek the restoration of her youngest son.

30. Having regard to the various mental health problems with which the offender still struggles, I accept, as noted by Dr Furst, that her time in custody has been and will continue to be rendered significantly more difficult than if she was not suffering from those problems. In that regard, I make reference to the principles discussed in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.

SUBJECTIVE MATTERS – DE SOUSA

31. Turning the to the subjective matters relating to Mr De Sousa. Mr De Sousa is now aged 37. He has a relatively limited criminal history with most of his offences being committed since 2018. In June 2020, he committed offences of assault and assault occasioning actual bodily harm for which he was placed on a 12 month Intensive Corrections Order which expired in September 2021. However, on 19 July 2021, during the currency of that ICO, he reoffended by committing a domestic violence related offence of damaging property, the victim being his mother, for which he was placed on a Community Corrections Order for two years, and he also offended on 23 October 2021 when he was found in possession of a prohibited weapon.

32. His subjective case is set out largely in the report of psychologist Sam Albassit. He is one of four children to his parents marriage. However, he has not had contact with any of his family for about two years. He described a difficult childhood with his family having little money and his parents separating when he was aged about 12.

33. He has a history of being bullied at school where he had few friends. After leaving school, he studied motor mechanics and worked as a mechanic for about 12 years before being employed as a dogman.

34. Since about the age of 28, he has experienced anxiety and panic attacks and has previously been prescribed medication to assist with this. He told Mr Albassit that in the period leading up to the offences, he had become heavily addicted to “ice” and was consuming also large quantities of alcohol and living his life with “reckless abandonment”. At that time, he was also experiencing significant disturbance in his mental health.

35. Mr Albassit reached the conclusion that the offender showed symptomatology of anxiety and substance dependence, as well as cyclothymic disorder, a brain disorder which can cause manic and depressive symptoms and changes in a person’s mood, energy and general ability to function, especially with respect to personal relationships and employment. That condition is also associated with poor impulse control. Mr Albassit says that the offender needs intensive psychiatric and psychological therapy for a period of about 18 months to treat his disorder, which should include a number of elements including anger management.

36. In relation to his offending, Mr De Sousa told the psychologist that he had drunk a large amount of alcohol and was consumed with the need to obtain drugs and that in this context, he became very agitated when the drugs that had been paid for did not arrive.

37. In my view, while the offender’s self-control and other problems made him more prone to commit impulsive offences like those before the Court, it was the offender’s high degree of intoxication which was the major contributor. Self-induced intoxication is however, no mitigation.

38. In my view, the offender’s history indicates that he chooses to abuse drugs and alcohol rather than obtain treatment for these and other problems. I do accept however, that his less than ideal upbringing made him less able to resist the temptations of abusing substances and to that extent, I find that his moral culpability is reduced to a limited degree. I have taken this into account as part of his subjective case.

39. Mr De Sousa has provided a brief letter to the Court in which he offers apologies to the victim and the court and says he is deeply sorry. There is little else by way of remorse, given the offender apparently described the incident to Mr Albassit and to the author of the sentencing assessment report as a “fight” which is not consistent with the unprovoked attack, set out in the agreed facts. In my view, there is limited remorse in his case.

REMORSE AND REHABILITATION

40. In terms of prospects of rehabilitation and future risk, it seems to me that at least or until the offender receives the sort of intensive treatment recommended by Mr Albassit that he will continue to present a material risk of reoffending, especially if he returns to abusing drugs and alcohol. I note also the assessment in the Sentencing Assessment Report of a medium/high risk and that the offender has limited insight into his offending and the link to abusing drugs and alcohol. In my view, his prospects of rehabilitation are at best described as guarded.

HARDSHIP IN CUSTODY

41. In coming to the ultimate sentence, I have regard to the fact that both offenders have been in custody since early 2022 and that this has coincided with the Covid pandemic. Admittedly, the effects of the pandemic were not as great from that time on but nonetheless, I accept that it likely did involve some impact upon their experience of the custodial environment. The Court is well aware of the adverse consequences that have applied in custodial environments by reason of limited access to services and visits and also frequent lockdowns.

42. In determining the ultimate sentence in each case, I have had regard to the terms of s 3A of the Crimes (Sentencing Procedure) Act 1999 which set out the important purposes of sentencing. These include the need for adequate punishment, the need to prevent crime by deterring the offender and others, to protect the community, to make the offender accountable, to denounce their conduct, and recognise the harm done to the victim and the community, but also to the extent possible to promote the rehabilitation of each offender.

43. I am satisfied in each case that the s 5 threshold referred to in that same Act is crossed in relation to all of the offences before the court.

44. In Ms Lafferte’s case I impose the following sentence.

45. A head sentence of two years five months. That sentence has been arrived at from a starting point of three years three months from which 25% has been deducted by reason of the plea of guilty.

46. I have made a finding of special circumstances for varying the ratio of non-parole period to head sentence, based upon her difficult experience in custody arising from her Post-Traumatic Stress Disorder and other conditions and the need for a reasonable period of supervision on parole.

47. I impose a non-parole period of 19 months, that is one year seven months. That will date from - they will each date from 19 May 2022. The head sentence therefore, will expire on 18 October 2024 and the non-parole period will expire on 18 December 2023.

48. In Mr De Sousa’s case, I intend to impose an aggregate sentence given that there are two matters for which he is to be sentenced. In those circumstances, I am required to set out the indicative sentences for each offence. I note for Mr De Sousa’s purposes that what I am about to set out are not the ultimate sentence, that will be made clear in a few moments. Indicative sentences for Mr De Sousa’s matters are as follows.

49. For the grievous bodily harm offence, three years imprisonment and I note that that has been reached, based on a starting point of three years two months from which 5% has been deducted. The indicative sentence for the affray offence is one year ten months imprisonment, based on a starting point of two years imprisonment from which 5% has been deducted.

50. In his case of course, I have had regard to totality principles, namely the need to, amongst other things, assess whether some notional accumulation is necessary and if so, to what extent. That involves a consideration of to what extent a sentence for the two offences ought to be concurrent or cumulative, at least to some degree. In my view, there is a need for some notional accumulation so as to acknowledge the fact that two offences were committed. However, given that the offences were in a sense part of the one incident and involved the same victim, the level of accumulation should be limited.

51. In his case, I impose an aggregate head sentence of three years two months. I have made a finding of special circumstances to vary the ratio between non-parole period and head sentence. That is based on Mr De Sousa’s psychological condition, and the need for a reasonable period of monitoring in the community. I impose a non-parole period of two years two months.

52. The offender has been in custody since his arrest on 15 January 2022. However, due to the revocation of an ICO, his custody during the period from 15 January 2022 to 1 March 2022 was also due to be serving the sentence for an earlier offence.

53. It is agreed that his custody since 2 March 2022 has been solely due to the matters before the Court and I consider it appropriate to date the sentence from that date. The head sentence therefore, will commence on 2 March 2022 as will the non-parole period. The head sentence will therefore, expire on 1 May 2025. The non-parole period will expire in 1 May 2024.

54. Do the parties have anything to raise arising from those orders?

55. ROSEN: May it please the Court.

56. HIS HONOUR: Any factual matters?

57. SPEAKER: No your Honour thank you.

58. HIS HONOUR: All right thank you, the Court will adjourn and we’ll terminate the link.

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Decision last updated: 21 March 2024