R v Ford

[2023] NSWDC 86

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v FORD [2023] NSWDC 86

Hearing dates:

3 March 2023

Date of orders:

13 April 2023

Decision date:

13 April 2023

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced – see paragraph [79]-[83]

Catchwords:

Sentence – wound with intent to cause grievous bodily harm – sustained attack with zombie knife – serious injuries - provocation – victim continues to suffer ongoing issues as a result of the offending – assault police by biting

Legislation Cited:

Crimes Act, 1900

Crimes Act, 1900

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Cahyadi v R [2007] NSWCCA 1

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

DS v R; DM v R [2022] NSWCCA 156

Mayberry v R [2022] NSWCCA 233

Nowak v R [2008] NSWCCA 89

R v Tuala [2015] NSWCCA 8

The Attorney General’s Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 2 of 2002 (2002) 137 A Crim R 196

Category:

Sentence

Parties:

Rex
Alisa Marie FORD

Representation:

Counsel:
Ms Clare O’Neill for the Offender

Solicitors:
Ms J Dawson for the Director of Public Prosecutions
Mr Z Tankard for the Offender

File Number(s):

2021/279587

Publication restriction:

No

Judgment

1. The offender appeared at the Wagga Wagga Local Court on 3 June 2022 and pleaded guilty to one count contrary to s 33(1) of the Crimes Act, 1900, namely that (she) “on 30 September 2021 at Glenfield Park in the State of New South Wales wounded Wayne Birch with intent to cause grievous bodily harm”.

2. The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court on 3 March 2023. Although there was an issue as to the facts on which the offender was to be sentenced the Crown submitted, appropriately, that that dispute did not affect the offender receiving the full 25% discount for the utilitarian value of the plea of guilty. The factual dispute related to the issue of provocation as a mitigating factor. The offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. There is a further factual dispute relating to whether the victim suffers ongoing difficulties as a result of the injuries he sustained.

3. The maximum penalty for the offence is one of 25 years imprisonment. Parliament has specified a standard non-parole period of seven years in respect of the offence. Further ,the offender is to be sentenced in respect of one count of assaulting a police officer in the execution of duty contrary to s 60(1) of the Crimes Act, which attaches to a certificate pursuant to section 166 of the Criminal Procedure Act, 1986. The maximum penalty if dealt with on an indictment is one of five years imprisonment, however as the matter attaches to a section 166 certificate the jurisdictional limit of two years imprisonment that applies in the local Court applies to this matter. In this regard see for e.g. Park v The Queen [2021]HCA 37 and Greaves v R [2020] NSWCCA 140 at [66] per Cavanagh J.

Facts

4. The facts set out that the offender was born on 12 September 1984 and the victim, Wayne Birch, was born 3 December 1962. The two of them had been friends, the two of them having met each other when they were both living in Narrandera. The offender moved out and had been living in the suburb of Glenfield Park, a suburb of Wagga Wagga.

5. The offender had sold her house and was in the process of packing in order to move. The offender called the complainant and asked him to help her move on 29 September 2021. Although the victim had packed up his truck to go fishing, he agreed to help and unpacked his fishing gear from his truck and went to get to assist the offender with the move.

6. The victim arrived at the victim’s home at about 5 pm. The offender, who had been asleep, woke and told the victim that she had had a few beers. They then did some packing and both consumed some alcohol before they went to a hotel for a meal and where they consumed more alcohol before they returned to the offender’s residence later that night. The facts recite that they had both consumed a lot of alcohol and both were intoxicated. The victim had also smoked some cannabis and the offender had consumed some cocaine.

7. In the early hours of the morning of 30 September 2021, sometime about 1 am to 1:30 am the offender and the victim were in the lounge room of the offender’s home packing her belongings. The offender was holding a large green “zombie” knife which had a serrated edge and was playing with it. The facts recite that she pulled it in and out of the sheath. In evidence the victim denied doing this.

8. It is at about this point in the narrative the issue the subject of the disputed facts hearing becomes relevant. The offender maintained that the victim started to touch her on the breasts on the outside of clothing, which caused her to become very upset and distressed. I will return to the factual dispute later in these reasons.

9. Returning to the facts, they recite that the victim said that the offender suddenly lunged at him with the knife and that she had “had come at me with like a rage, just anger.” The offender stabbed the victim number of times, the first stab wound being to the top of the shoulder. The victim was able to fight off the offender and he went to the next-door neighbour’s residence where he asked them to call for an ambulance.

10. The victim lay on the ground in the neighbour’s yard. The neighbour, Mr Evans, saw blood was pooling at the complainant left shoulder and applied a towel. The police arrived some few minutes later at 1:33 am. The victim told police, “I just come over to help a sheila pack up some stuff”. Paramedics arrived and began treating the victim. The victim told police that the incident occurred next-door.

11. Police observed a large pool of blood on the floor in the lounge room between the lounge seat and the coffee table. There were large droplets of blood and blood spatter through the kitchen and then outside, towards where the complainant was at the next-door premises. A large, green zombie knife with a 25 cm blade was located on the lounge near the pool of blood. The knife appeared to police to be wet as if it had been washed. There was an empty black knife sheath on the coffee table. Police could not locate the offender.

12. At 2:57 am (approximately 1.5 hours after the offending) the offender called an ambulance to her address for the victim. It was determined that that call was in relation to the victim who had been attended to earlier. Later that same day (that is 30 September 2021) members of the offender’s family received electronic messages from the offender in which she told them, “don’t go to the house, it’s a mess,” and “I am in trouble”.

13. The victim was conveyed to the local base hospital by ambulance. On arrival at the emergency department the victim’s condition was stable but his injuries were considered severe with ongoing blood loss. The required transfusion of multiple blood products and emergency surgery to explore, control and close the wound is to ensure his condition did not deteriorate.

14. There were seven wounds:

1. superior anterior left shoulder stab wound that was 8 cm deep and 5 cm wide. This wound had two arterial bleeds which were tied.

2. superior posterior left shoulder stab wound that was 5 cm deep and 4 cm wide;

3. left scapula stab wound which was 6 cm wide and 6 cm deep with tracking superficially towards axilla;

4. posterior left midline stab wound which was 4 cm deep and 5 cm wide;

5. left chest wall stab wound which was 4 cm deep and 5 cm wide;

6. right flank wound which was 20 to 25 cm deep and 10 cm wide. This wound had extensive tissue disruption damage to muscular layers; and

7. right chest wall wound that was 7 cm deep and 4 cm wide with superficial tracking along superior chest wall; haematoma was evident with minor tissue damage to the peritoneum.

15. Three fractures were also identified. The victim had a left caracoid process fracture, a left scapular wing fracture and a left clavicle fracture. He also had paraesthesia at his fingertips which represented possible brachial plexus to ulnar distribution. He had additional scratches and minor lacerations to his abdomen and hands.

16. There is a dispute as to whether the offender will make a complete recovery from the injuries or whether he has ongoing sequelae from the injuries he suffered.

17. Before going to resolve the two matters relating to the facts that are in dispute, I will deal briefly with the assault police matter that attaches to the section 166 certificate. The facts recite that later that night (Thursday, 30 September 2021) police received information from Wagga Taxis that the offender was in a taxi and leaving Wagga travelling towards Narrandera. At about 10:10 pm police stopped the taxi on the Sturt Highway near Galore. Throughout the arrest of the offender the sirens on the police vehicles remained activated. The offender was seated in the rear of the taxi. Police had been advised that the offender could be armed and should be treated as extremely dangerous because of the offence against the victim. Police approached the taxi with the firearms drawn. Police directed the offender to show her hands and told the offender that she was under arrest.

18. Constable Flessenkemper directed the offender to put down her window and put her hands out but she did not do as directed. The officer repeated the direction and the offender replied, “Shoot me, shoot me!” and “Shoot me, I don’t care.” Fearing a violent confrontation police deployed a 2 to 3 second burst of Oleroresin Capsicum spray into the face of the offender. The officer took hold of the offender, who physically resisted police, opened her mouth placing her teeth down on the officer’s left forearm and began to bite his skin. The officer quickly pulled his arm away. The offender was pulled from the vehicle, placed under arrest and conveyed to the Wagga Wagga police station.

The disputed facts

19. The offender was electronically interviewed by police with the interview commencing at 12:54 am on 1 October 2021. Extracts of that interview were tendered at the sentence hearing. In answer to question 104 which was, “How did it all start?” The offender replied, “He was getting, he was getting angry and he started touching me and things and I just, I just lost my shit and just, I can’t deal with it anymore. I’ve been ripped off, cheated on. Fuckin’ I don’t, he was a friend anyway, not…(to q 105)… anything like that so…” A little later in answer to question 108 when asked where was the victim grabbing her she replied “on the chest.”

20. Question 148 is transcribed as, “I’ve got to ask you a very direct question, Alisa. OK, um did you stab Wayne?” The offender replied “I don’t know why”. In answer to question 150 she said something reminded her about her ex who lives in Goulburn.

21. At question 188 the offender was asked, “So what do you think caused you to stab Wayne? Is it him touching you or something else?” The offender replied, “Just the combination of everything, attitude and fuckin’ shit that he was saying and I just can’t deal with shit anymore. I’ve just had enough.” When asked what he was saying, the offender said “He was just stirring me up about shit and just fuckin’ calling me a bitch and this and that and fuckin’ I can’t remember exactly sorry.” When asked whether the victim was violent to her in any way she said that he was grabbing her “and stuff”. A little later (q 193) the offender said “Like we were arguing and that and just pushing and shoving a bit and that’s when I just I fuckin’ lost it. I’m, like I’m not being pushed around anymore, nuh”.

22. The following appears at q 233 and following of the interview:

Q:   And can you remember why you stabbed Wayne, as in not that he was touching you, but why you did that particular…

A:   Cause I was angry. ‘Cause I was angry and he was angry and…

Q:   Did you think he was going to hurt you or…

A:   I can’t take shit anymore from men. I won’t allow it. I’m sorry I just can’t.

Q:   When you say you won’t take shit, do you mean, what do you mean by that?

A:   I’ll stand up for myself

Q:   Yep

A:   When I was with Andrew he hurt me and punched me in the head quite a few times and done everything possible he could…

Q:   Yeah

A:   …to talk me out of fuckin’ ringing the police, and I didn’t, and now everything’s got blamed on me and just, I’m just, I can’t, I can’t take it anymore. It doesn’t matter. Someone that’s built, you know, 7 foot tall, just I won’t, I won’t back down anymore

Q:   So was Wayne trying to hurt you last night physically?

A:   He grabbed me and stuff, arguing and that.

Q:   Yeah. When you say he grabbed you, where did he grab you?

A:   He was grabbing my boobs and that, and I think he had my shoulders for a while. I don’t know. Just I don’t know.

23. Andrew is a reference to a previous partner of the offender, who was apparently violent towards the offender.

24. The offender gave evidence at the sentence hearing. My note of her evidence (noting that I do not have a transcript) is that the offender said that she was upset over a break up with a partner Hilton, they (victim and herself) were sitting on the lounge after coming home from the hotel, the victim attempted to put his arm around her, he touched her, he did not have consent to touch her and that he touched her on the breast and moved his hand around on the breast. The offender was also taken to parts of the record of interview that are extracted above.

25. Under cross-examination the offender said that she did not pick up the knife until after she was touched, she was not pulling the knife out of the cover, they were sitting on the lounge which was L-shaped, the victim was behind her and he touched her on the left breast, the victim reached around and touched her. The Crown Prosecutor cross-examined the offender at some length and she maintained her position that the victim touched her on the breast before she stabbed him. When asked did she accept it was seven stab wounds she replied that she thought it was two or three. She repeated that the victim touched her and that’s what “set her off”. Essentially the victim was not shaken in cross-examination.

26. The victim was also interviewed by police and extracts of that interview were also tendered at the sentence hearing. The victim explained that the offender asked him to assist her moving. They went to the hotel. He had one shot (presumably of spirits) and probably half a dozen schooners. He had a couple of stubbies at her place. After that the victim said to police, “And I honestly, I don’t know nothing much about what goes on from there”.

27. Further, the victim gave evidence that the offender had a knife in her hand, he asked her what she was going to do with that, he thought she was just joking around. The account continued, “But no. She lunged at me and I went, and then just kept going. I end up hitting her to…not that I, I was on my, I don’t know, I was on my back, I reckon…and she’s on top of me. And that’s where these ones here come in…so but I got away from her and I know I got away. But yeah, I thought I was dead…and yeah, she had no reason to do that to me…I’ve never done anything to her. All I’ve ever done since I’ve known her is freaking help her…she just split up with her boyfriend”.

28. It appears from the interview that the victim was a little confused as to where events occurred. Be that as it may, at p 30 of the interview (noting that only extracts were provided) the following appears:

Q:   Um, she says that, um, you, um grabbed her on the breasts area uninvitedly, um, which is why she then attacked you with the knife.

A:   Well, that’s a load of crap.

Q:   OK. Yeah.

A:   That is a load of crap.

Q:   You don’t recall anything like that happening.

A:   No, I’m telling you now. Why would I do that?

Q:   I don’t know.

A:   No. I’m as sure as shit.

….

A:   She’s only looking for a way out of this, I’d say.

Q:   OK. Yep. Um bearing in mind that you have some parts that are missing…

A:   Yeah.

Q:   …do you think that would be possible that that happened in all…

A:   We’ve made out before, so yeah, but, no I wouldn’t deliberately just grab her by the boobs.

…

Q:   So you’ve been intimate before?

A:   Yeah, yeah, yeah.

29. The offender at the sentence hearing denied that the victim and her had been intimate in the past.

30. At the sentence hearing, in evidence in chief, the victim denied touching the offender on the breasts and adopted the contents of the extracts of the record of interview that had been tendered. Under cross-examination however it was clear that he did not have a complete memory of the events. In the circumstances and particularly the injuries that is quite understandable. He could not recall how they got to or from the hotel earlier in the night. The victim was refused service at the hotel because of his level of intoxication.

31. Ms O’Neill of counsel on behalf of the offender submits that I would find on balance that the offender was provoked by reason of the victim touching the offender on the breasts. The Crown submits that I would not find that established on balance. Clearly, there was some catalyst for the offender to act as she did, noting that the offender and the victim had been socialising for several hours without incident. The offender raised the issue of provocation at the first opportunity. The victim does not have a complete memory of the night in question. Not that it is determinative but I found the denials of the victim in his evidence at the sentence hearing less than completely compelling.

32. On balance I am prepared to find that the mitigating factor of provocation is made out – see s 21A(3)(c) of the Crimes (Sentencing Procedure) Act, 1999. Be that as it may the attack on the victim was vicious and sustained. While provocation is made out and achieves some weight in the process of instinctive synthesis it does not achieve significant weight. As Ms McNeill submits in her written submissions this issue (motive for the offending) is also relevant to the finding of the objective seriousness of the matter.

33. I now turn to the other issue over which there is a dispute, namely that the victim has suffered ongoing sequelae as a result of the injuries inflicted by the offender. I note the offence for which the offender appears for sentence is Wounding with Intent to Cause Grievous Bodily Harm. However I observe that the injuries sustained by the victim are well within what it contemplated by grievous bodily harm. In this regard I note the decision of Mayberry v R [2022] NSWCCA 233. The grievous bodily harm was inflicted as a result of the wounding.

34. In the victim impact statement the victim sets out that he suffers constant pain in the shoulder, back and arm and he has constant medical consultations. Tendered at the sentence hearing was a Certificate by Dr Sedrak which sets out that the victim “Suffers from pain, pins and needles in his l[ef]t shoulder, arm and hand after a stabbing injury in 2021. He is [sic] also suffers from recurrent abdominal cramps after the same incident”.

35. At the sentence hearing the victim indicated the position of the seven stab wounds. He also gave evidence, which did not appear to be the subject of challenge, that he has difficulty straightening his left arm, that he cannot hold that arm above his head, he sees a doctor and a counsellor on a regular basis and he regularly takes Endone and Tramadol for the pain. Before the injury he regularly went fishing but can no longer do that because of the ongoing issues with his left arm and hand. His employment is also affected.

36. I note the decision of R v Tuala [2015] NSWCCA 8 on the limits to the use which can be made of victim impact statements. However, in this matter there was the sworn and largely unchallenged evidence from the victim as to the ongoing issues as well as the brief medical certificate.

37. In all of the circumstances in the absence of any meaningful challenge to the victim’s evidence about the ongoing issues I find beyond reasonable doubt that the victim does suffer ongoing difficulties as a result of the injuries inflicted on him. I am certainly not satisfied on balance that there are no ongoing issues or difficulties so far as the victim’s injuries are concerned.

Assessment

38. The provocation has to be factored into the assessment of the objective seriousness of the matter. The wounding involved seven different stab wounds occasioned with a very substantial weapon. The use of a weapon in itself is a factor of statutory aggravation – see s 21A(2)(c) of the Sentencing Act and Nowak v R [2008] NSWCCA 89 at [15]-[18] per Buddin J. Some of the stab wounds were particularly deep. It is a matter of good fortune rather than anything else that major organs were not damaged. I have already observed that the attack was vicious and sustained, bordering on frenzied.

39. Ms O’Neill on behalf of the offender put that the matter was below mid-range but not significantly so. The Crown submitted that the matter was at or above mid-range. I am not of the opinion that the matter is above mid-range. Noting all the circumstances of the offending summarised in the paragraph immediately above, and the issue of provocation I am of the opinion that the matter falls at the lower end of the mid-range of seriousness.

40. If it is necessary to make an assessment of the assault (biting), the matter is below mid-range.

Criminal History

41. The offender was born on 12 September 1984 and accordingly is now 38 years of age. There are matters recorded against her in the Children’s Court, which I ignore. There is a conviction recorded at Goulburn Local Court in 2020 for Enter Inclosed Lands (trespass), Stalk/Intimidate and Destroy or Damage Property. There is a High Range PCA (drink driving) offence at Wagga Wagga Local Court in 2019. In the circumstances the offender is entitled to some small degree of leniency because of her relatively limited record.

42. However, the offender was subject to a Community Correction order at the time of commission of this offence. That is also a factor of statutory aggravation – see s 21A(2)(j) of the Sentencing Act.

Subjective Case

43. The offender gave evidence at the sentence hearing relative to the subjective case as well as to the matters that were in dispute. She said that she had been truthful to Dr Eagle who prepared the very comprehensive psychiatric report and in her letter to the court, both of which are within exhibit 1 on sentence. The offender accepted that she had pleaded guilty to a very serious offence.

44. She said she had some negative experiences in custody, in particular the isolation from her family. She had also had some positive experiences such as now obtaining regular counselling. She works as a payroll clerk at the correctional centre where she is housed. She has undertaken a number of courses while in custody. She now has a better understanding of how alcohol impacts on her mental health.

45. I will initially go to the offender’s letter, which is to be found at tab two of exhibit 1 on sentence. The offender gave birth to a son, Jack in July 2005. He is now 17 years of age and was in court supporting his mother at the sentence hearing. The offender separated from Jack’s father when Jack was 3. She gained a certificate and diploma in agriculture in 2009.

46. She then moved to Hillston to be with Matt with whom she had developed a relationship and to whom she got married in 2011. In 2014 they moved to Narrandera with her husband’s earthmoving business group and were able to purchase a small farm with the house. The offender commenced her own embroidery business. It was in the circumstances she met the offender who lived above the shop next to hers. The offender and her husband Matt attempted to have a baby but the offender suffered multiple miscarriages and two ectopic pregnancies with one of those happening in the remote Kimberley region when they were on holidays. They separated and were divorced in 2021.

47. The offender closed the shop, moved to Wagga Wagga and began a new relationship with a man named Andrew from Goulburn. That relationship however became toxic and the offender was emotionally and physically abused. The offender began drinking alcohol to excess.

48. Some time prior to the offence the offender decided to sell her house in Glenfield Park, a suburb of Wagga Wagga. The offender wanted to travel outback New South Wales and Queensland with her then partner Hilton. She arranged to store her belongings at her mother’s home at Temora. She had an argument with Hilton and the relationship broke up. The offender was drinking to excess and self harming. The offender was an inpatient at the mental health unit at Wagga Wagga for three days.

49. The letter then deals with the offence itself. The offender goes on to say that she is “deeply remorseful for my actions”. She accepted her mental and emotional state combined with the alcohol greatly impaired judgement. She goes on to say that she takes responsibility for the fact that she did hurt the victim and the pain she caused. She also recognises the effect on first responders.

50. She goes on to say that she misses her family, in particular her son who turns 18 this year. She has spent a total of 87 days in Covid isolation. However she also says that her health has improved, being sober and drug-free the entire time in custody and she has learned coping skills. She sets out her achievements while in custody including working as a payroll clerk in the manager of the industry’s office, engaging in counselling sessions, completing a positive lifestyle choices program, attending the remand addictions program and other courses. She looks forward to being released so she can return to her family.

51. It is clear from the people that were present at the sentence hearing the offender enjoys good family support, which goes towards the prospects of rehabilitation.

52. The Covid pandemic impacts on all persons in custody by way of longer and more frequent lockdowns, longer periods of isolation, periods of isolation when being moved from one institution to another, and significant restrictions on face-to-face visits. All of this goes to make custody more onerous, and contributes to a finding of special circumstances.

53. I now go to the report by Dr Kerri Eagle. The report is quite lengthy and with respect to the author I have found it a little difficult to distil the findings. It took the offender about six months to accept a situation of being in custody. She plans to return to the Riverina area upon her eventual release.

54. The offender has had a number of relationships over the years, with some of her partners being abusive towards her. Her partners have been several years older than her. The offender told the doctor (page 5) that “alcohol was always in my life”. She began using illicit substances to help her deal with the abusive relationship she had with her partner Andrew. She used “a bit of ice every 2 to 4 weeks” she had experienced some voices and paranoia in the context of methamphetamine use. She did spend some time in a rehabilitation facility in Queensland. After her business in Narrandera failed she met Hilton, another male from Goulburn. They moved in together in 2020. It was the breakup of the relationship with Hilton that was causing the offender issues at the time of the offending.

55. The offender was admitted to the mental health ward at Wagga Wagga Base Hospital about two weeks before the commission of the offence. The offender reported at the reception screening assessment on 1 October 2021 that she consumed 12+ drinks of alcohol on a daily basis before her admission to custody. At page 9 of the report the author sets out that the offender gave a history of drinking a carton of beer and a bottle of Bailey’s daily leading up to the offence.

56. The offender gave an account of what led up to the offending which was generally consistent with what she told the police when she was interviewed so far as the conduct of the victim towards her was concerned. She said that she bit the arm of the police officer in a reaction to him grabbing her arm and said that she should not have done that. Dr Eagle deals with the facts and also the offenders electronically recorded record of interview.

57. The offender acknowledged to Dr Eagle the alcohol and substances had an effect on her behaviour and likely contributed to her offending. Dr Eagle opines that the offender did not display any signs or symptoms of a major mental illness at the time of the assessment. The offender reported ongoing emotional instability which likely formed part of a number of psychological vulnerabilities arising from her childhood experiences and other traumatic events including her exposure to domestic violence. The offender displayed some maladaptive coping mechanisms.

58. On the issue of childhood experiences, I presume this is a reference to her first intimate relationship with a male who was some nine years older than her. At page 11 of the report it is noted that the offender had a good childhood and nothing dramatic happened. The report however then goes on to recount that when the offender was 11 years of age and running around with a cousin, a 20 year-old developmentally delayed man chased her caught her and tried to kiss her. She denied being exposed to domestic violence as a child but said her father consumed alcohol and could put her mother down. These issues are insufficient, in my view, to enliven the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37. The offender described herself to the author of the report as a “rebellious teenager”.

59. At page 14 of the report there is a heading “opinion”. A number of specific questions are set out. Dr Eagle opines (page 14) that the offender displayed and described signs and symptoms consistent with a moderate to severe substance induced depressive disorder in the period leading up to and around the time of the offending. The intensity of depressive symptoms would have been exacerbated by her excessive alcohol consumption. The offender met the criteria for a substance use disorder and a borderline personality disorder.

60. The second question as to whether the offender is currently suffering from a mental health impairment, mental condition or mental illness, with respect to the author, does not appear to be answered beyond the statement that the offender has ongoing personality and psychological vulnerabilities. The next issue the doctor is asked to address is any causal connection between any mental impairment and the commission of the offence. As I interpret the report there is no mental impairment or illness and accordingly there is no causal connection between any such illness and the offending. However, Dr Eagle opines (page 15) that the offender’s depressive symptoms combined with her alcohol consumption would have distorted her perception of events, impaired her overall judgement and increased her propensity for impulsive behaviour.

61. Dr Eagle was asked whether she believed that the offender’s history of being a domestic violence victim is causally connected with the offending. The doctor opines (page 15) that the offender’s depressed mood combined with her intoxicated state and her experience of previous unstable and possibly violent relationships would have collectively increased her propensity to engage in an impulsive angry response to a perceived advance unwanted contact as described by the offender.

62. The doctor is also asked to recommend a treatment plan and in response to that sets out comprehensive recommendations. This includes that the offender would benefit from a comprehensive psychological assessment with regular ongoing psychological interventions, with any such interventions to continue upon release from custody. It is recommended the offender engage in drug and alcohol rehabilitation in custody and in the community. She may benefit from consultation with a psychiatrist if depressive symptoms return. She could benefit from attending education and support services to help improve relationship skills.

63. Given the history of the significant quantities of alcohol the offender was consuming prior to the offending it is not surprising that the doctor opines that the offender was abusing alcohol and methamphetamines in the period leading up to the offending. The offender reported being intoxicated with alcohol at the time of the offending and also had used cocaine.

64. Dr Eagle was of the opinion that the offender’s mental health condition does not necessarily render her time in custody particularly more onerous than the average inmate.

65. Clearly in this matter there should be a generous finding of special circumstances. The facts that justify such a finding include, not in any particular order, the age of the offender, this is her first time in custody, a need for intensive and extensive supervision to ensure that the offender continues to receive appropriate treatment and counselling for alcohol abuse, substance abuse and relationship issues. The offender will also require some assistance with reintegration into the community following what will be a reasonably lengthy period in custody.

66. Given the offender’s evidence, taken with what she told Dr Eagle, I am satisfied that the offender is remorseful. With some minor hesitation I am prepared to find that the offender is unlikely to reoffend and that there are good prospects of rehabilitation. The hesitation relates to the offender properly engaging with the appropriate authorities and agencies upon release, but despite that hesitation the offender is still entitled to positive findings in her favour that she is unlikely to reoffend and that she has good prospects of rehabilitation. I note in particular the offender has obtained work within the correctional centre and enjoys good family support. She has no other matters of violence on her record.

67. The defence tender bundle, Exhibit 1 on sentence, contains a number of character references. The authors are people that have known the offender for some time and give accounts of her past consistent with the history given by the offender to the court and to Dr Eagle. One of the references is from Jack, the teenage son of the offender. He clearly feels deeply for his mother and the offender will have his support upon release.

Submissions

68. Both parties favoured the court with extensive written submissions. Ms O’Neill goes into some detail on the issue of objective seriousness. I have already made findings as to the seriousness of the matter.

69. Submissions are then made as to the issue of the offender’s moral culpability. In this regard I am referred to the decision of the Court of Criminal Appeal in DS v R; DM v R [2022] NSWCCA 156, in particular at [63] and [96]. I accept that the issues relating to the offender’s mental health and her exposure to domestic violence reduces the offender’s moral culpability and are very much part of the overall subjective mix. However, those issues do not impact on the finding as to objective seriousness. I did not understand Ms O’Neill to submit otherwise.

70. Ms O’Neill submits (para 25 MFI 2) that the mental health issues and the exposure to domestic violence impacts by reducing the impact of general deterrence, retribution and denunciation. I understood counsel to submit in the written submissions that the principles enunciated by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened. In the absence of any causal connection between the mental health condition and the offending I am not prepared to find that this is the case.

71. It is submitted on behalf of the offender that I would find that she is unlikely to reoffend and that there are good prospects of rehabilitation. I have made positive findings in the offender’s favour in this regard.

72. Further, it is submitted that the sentence would commence on 30 September 2021. This is the day on which the offender went to custody and clearly the sentence should date from that date. However, I note Ms O’Neill’s concluding submission is that the court would impose a sentence that would see the offender released in the “near future”. Given the maximum penalty and the nature of the offending despite what should be a generous finding a special circumstances I’m not of the opinion that the appropriate date of release is in the near future.

73. The Crown Prosecutor submitted both in the written submissions and oral submissions that the offending was at or slightly above the midrange of seriousness. I have addressed this issue earlier in these reasons. The Crown also addressed the issue of the offender’s moral culpability including that any finding that the offender’s substance induced depressive disorder contributed to her offending must be considered in light of her prior knowledge of the adverse effects of excessive alcohol consumption. The Crown concedes a finding a special circumstances.

General remarks

74. I will need to give proper effect to the provisions of s 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

75. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the nature of the offending, the maximum penalty provided, the fact that general deterrence is still an issue in the sentencing exercise and the standard non-parole period with the offence contrary to s 33(1)(a) of the Crimes Act, no other sentence than imprisonment is appropriate. No contrary submission was made.

76. Reasonable minds might differ as to whether the threshold within s 5 of the Sentencing Act is crossed so far as the assault police matter is concerned. I note the Guideline Judgment (The Attorney General’s Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 2 of 2002 (2002) 137 A Crim R 196). The assault on the officer occurred in circumstances where the offender was being apprehended some distance from the scene of the crime. The assault involved biting the officer. In these circumstances I am of the view that the threshold is crossed but that in all the circumstances any sentence would be measured in months. It should be wholly concurrent with the sentence imposed in respect of the substantive matter. In this regard I note what has now become the very well-known passage of the judgement of Howie J in Cahyadi v R [2007] NSWCCA 1 at [27].

77. The appropriate starting point for the sentence in respect of the charge contrary to s 33(1)(a) of the Crimes Act is one of 6 years, from which is deducted the 25% discount for the plea, leaving a total sentence of 4 years 6 months.

Formal orders

78. In respect of the offences which the offender has pleaded guilty she is convicted.

79. In respect of the charge of assault police that attaches to the section 166 certificate the offender is sentenced to a fixed term of three months imprisonment to date from 30 September 2021 and which expired on 29 December 2021.

80. In respect of the charge of wound with intent to cause grievous bodily harm contrary to section 33(1)(a) of the Crimes Act the offender is sentenced to a non-parole period of 2 years 6 months to commence on 30 September 2021 and which will expire on 29 March 2024. The balance of term of 2 years commence on 30 March 2024 and will expire on 29 March 2026.

81. The offender is eligible to be released at the expiration of the non-parole period and I recommend that release. I recommend in the strongest terms that any release is subject to supervision and that such supervision includes the offender obeying all reasonable directions as to ongoing treatment and counselling for alcohol abuse and mental health issues.

78. The sentence indicates a generous finding of special circumstances, the reasons which have been set out earlier in these reasons but include the age of the offender, this is her first time in custody, and extended period of supervision and the need for assistance in reintegration into the community. The non-parole period is approximately 55% of the total sentence.

79. A copy of the report of Dr Eagle, tab one of Exhibit 1 on sentence, should be forwarded to the Department of Corrective Services with the relevant warrant.

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Amendments

18 April 2023 - Anonymised

Decision last updated: 18 April 2023