R v Jasper
[2014] NSWDC 116
•14 March 2014
District Court
New South Wales
Medium Neutral Citation: R v Jasper [2014] NSWDC 116 Decision date: 14 March 2014 Before: Cogswell SC DCJ Decision: For the offence of wound with intent to cause grievous bodily harm, a sentence of 6 years and 9 months in a hospital or Juvenile Detention Centre. Non-parole period of 2 years and 5 months.
Catchwords: CRIMINAL LAW - Sentence - particular offence - wound with intent to cause grievous bodily harm - victim stabbed at school - wounds life threatening - relevant factors - no prior criminality - 15 years old at time of offence - history of serious psychiatric illness - response to charges - remorse - apologised to victim - plea of guilty - 25% discount - rehabilitation - good clinical response to treatment - supportive family - purpose of sentence - mental health condition reduces moral culpability and reduces significance of general deterrence - community protected by offender's continued treatment in custody and within community upon release - sentencing orders - juvenile sentenced according to law - extraordinarily short non-parole period - sentencing procedure - no conviction recorded - victim impact statement. Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) ss 6, 17. Category: Sentence Parties: Regina (Crown)
Darin Jasper (offender)Representation: Counsel:
P Winch (offender)
Solicitor:
K Stanley, Office of the Director of Public Prosecutions (Crown)
File Number(s): DC 2013/00036244 Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the remarks to comply with the statute and the offender's name has been replaced with a pseudonym (which is a colour).
REMARKS ON SENTENCE
Today I have to sentence Darin Jasper who, when he was still only 15 and a half years old, seriously stabbed another boy at his school. It is important for a judge to set out what happened in a crime so that the judge and those listening know exactly how serious an offence was that the judge is imposing the sentence for. I will start with that. Then I will look at the considerations which are personal to the offender and the arguments for the legal representatives. Finally I will impose the sentence.
The crime in this case that Darin Jasper has pleaded guilty to is called wounding with intent to cause grievous bodily harm. The offence is so serious that Parliament has fixed a maximum of 25 years imprisonment to it. Although this does not apply in this case, Parliament has also fixed a standard non-parole period of 7 years imprisonment to the offence. This shows how serious the crime is that Darin Jasper committed.
It happened on 5 February 2013 at Darin's school. He had an argument with another boy over the supply of cannabis. They decided that there would be a fight. There was a fight between Darin Jasper and his victim. During the fight Darin Jasper produced a knife and he stabbed the victim a number of times. They were pulled away from each other but despite this Darin Jasper got back to his victim and kicked him in his head and swung at him again with the knife, stabbing him in the buttocks. The agreement between the Prosecution and the defence as to what happened, and contained in exhibit A, goes on to say that Darin Jasper then "folded the knife away, put the knife up his sleeve, and walked off." Darin Jasper had been seen earlier in the day with the knife.
His victim had to be taken by ambulance to hospital. There were six stab wounds. They were to the victim's abdomen, flank and right buttocks. He had to have surgery, his gall bladder was removed. The stab wound to the abdomen had also penetrated his victim's liver and bile duct. The stab wound to the liver is described in the agreed facts as "imminently life-threatening". The victim had to stay in hospital for 10 days. It is said that he will "suffer permanent scarring due to the stab wounds and the procedures undertaken to preserve his life. There is a potential risk of the common bile duct developing a stricture secondary to the trauma sustained."
Darin was arrested and interviewed by the police. He said that he had voices in his head and was on medication but on that day he agreed that the argument was over cannabis. He denied using the knife.
There is a report from the doctor, a doctor at the hospital about the victim. She confirmed that the injuries were classified in a way that indicated that "his condition was considered life threatening and he was in need of immediate care and resuscitation." As she said, a stab wound to the liver has a potential to cause major blood loss in a very short period of time and was imminently life threatening. She also confirmed that the victim will suffer "permanent and long lasting sequelae" including permanent scarring and the potential risk to the bile duct which I referred to.
Included in exhibit A are the very graphic photographs of the wounds to Darin Jasper's victim. Included also is a victim impact statement from the victim's mother. She pointed out that he grew up in a very caring and loving indigenous family and that what Darin Jasper did "destroyed" her and her son's world. She said that her son has not left the house on his own and cannot finish school despite the fact that he was in year 11. He is afraid of going out. She described her son as "trapped in our house" and he "has nightmares and wakes up in panic. He can't do what normal kids do." She concludes by saying that "[Darin Jasper] has ruined [her son's] life, his mental health, his ability to trust, his education, his ability to go out in public. Every part of his life has been affected." This shows just how serious the crime was that Darin Jasper committed.
Turning to considerations which are personal to Darin Jasper, he had no criminal convictions up until this offence. There is a detailed and very helpful Juvenile Justice report dated 9 December 2013 from two managers of Juvenile Justice. Two things are immediately apparent from that report and the facts of this case. One is obvious, Darin Jasper was 15 when he committed this offence and is still well under 18. The second is that he has a history of serious psychiatric illness. The report gives attention to that history as well as his family background. It noted Darin Jasper's account that he "was experiencing auditory command hallucinations to harm the victim at the time of the offence." It refers to a particular incident which Darin Jasper claimed occurred when he was younger and which prompted him returning to cannabis use.
Darin Jasper attended three schools - high schools - for year 7 before settling at the particular high school where this offence occurred. He had extremely high levels of anxiety and school refusal, but settled in and was generally noted "as a cooperative and respectful student." The report goes on to say that a "significant change in his attendance and behaviour were noted after he commenced using Cannabis and to a lesser extent alcohol. His attendance declined markedly, with many partial day attendances."
Darin Jasper is financially supported by his father, who is in court today and who still supports him. When he is released from custody he is likely to live with his father. His brother and sister are also in court today.
Darin Jasper has been in one form or other of compulsory confinement since his arrest. He is presently in a psychiatric ward of a Forensic Hospital as a non-voluntary patient. His first contact with Mental Health Services was in 2010. He had later admissions to an adolescent mental unit for thoughts relating to suicide as well as auditory hallucinations. He had three separate admissions in 2012. He says that he first had the hallucinations when he was 12 years old. After the earlier particular incident (which I will refer to just in those terms) he had some psychological treatment. He reported commencing cannabis at the age of 11, closely related to that incident. He has experimented as well with ice, ecstasy and alcohol. He was admitted to a residential program in 2012, but discharged himself on 23 October 2012 only a few months before he committed this very serious offence. He is regularly reviewed by the Mental Health Review Tribunal and will be reviewed again a couple of months time. Cannabis is said to be his drug of choice. He is not suitable for a Community Service Order and Juvenile Justice have assessed him as suitable for supervision by them.
HIS HONOUR: I am just going to pause here. When I finish I am going to invite you both just to check the relevant children's legislation. One thing that occurs to me, which I think is referred to in the prosecution written submissions, is whether I convict him or not? So we will turn to that when I have finished. I return now to my remarks on sentence.
There are two very helpful psychiatric reports, one from a Dr M on 16 December 2013 and the other from a Dr K on 10 March 2014. Both are psychiatrists who have treated Darin Jasper. Darin Jasper has been diagnosed with schizophrenia, cannabis use disorder (which is in remission in a controlled environment) amphetamine use disorder (again in remission) post-traumatic stress disorder and social anxiety disorder. He is a described as a "16 year old male of Aboriginal heritage". He has been in a psychiatric ward of a forensic hospital since 4 April 2014 under the care of Dr K, who is a forensic psychiatrist.
There is a history in Dr M's report of his various psychiatric interventions, which I have referred to. It noted that after he self-discharged from the rehabilitation centre he "remained drug free for a period following this period of rehabilitation". It noted that he had been prescribed an anti-psychotic medication of 300mg daily, but had reduced it to 100mg by himself. Darin Jasper acknowledged as much in his interview with the police. Dr M said that it is "possible that [his] psychotic symptoms... at the material time of the offence may have contributed to his heightened perception of fear and of being mortally wounded by the victim." Dr M noted that he has received "four prior therapeutic periods of antipsychotic medications. Each medication did not affect a satisfactory resolution of symptoms, particularly his auditory hallucinations." She was of the opinion that Darin Jasper's schizophrenia "is considered to be treatment resistant". Hence he was recently commenced on Clozapine, which she describes as "an antipsychotic mediation which is reserved for patients that do not respond to at least two different antipsychotic medications at a therapeutic dose". He still had at December 2013 "auditory hallucinations that command him harm himself and others." He is also taking Lithium. Dr M had a guarded prognosis at December 2013, but thought that his prognosis would be "potentially favourable if he were to respond well to clozapine". She thought that he needed to remain at the Adolescent Unit in the forensic hospital "for a minimum of six months whilst his clozapine dose is titrated to an adequate therapeutic dose." She expressed the "medical opinion he has presented as remorseful". She thought there were protective factors "for reduction in future violence risk". They included his enthusiasm for prosocial activities and a strong attachment to his father and a commitment to education. Dr M said that continued engagement with treatment of his mental illness and related factors are "important for his risk management." She added that were he to "relapse into substance use or be non-compliant with the psychiatric treatment for his Schizophrenia, his risk prognosis would worsen."
Dr K, in his much more recent report, described the Clozapine as having "good therapeutic effect". His "voices have reduced in frequency and intensity." Dr K thought that his "prognosis for his mental illness is significantly more favourable given the good clinical response to Clozapine, due to the reduction in his psychotic symptoms since Clozapine." He has been at a therapeutic level in that dosage in that medication for several weeks. He thought that there is a "reduction in his likelihood of re-offending when compared to his clinical state at the time of the report by Dr [M]".
I have also read exhibit 1, which is a letter from Darin Jasper to his victim apologising for what he has done and a letter from Darin Jasper's grandmother, who also thought that her grandson "genuinely regrets what happened" and is "truly remorseful." She pointed out that it was out of character for her grandson to commit such an offence.
I have been significantly assisted by written submissions prepared by the prosecution representative, Ms K Stanley, and Mr P Winch of counsel for Darin Jasper.
Mr Winch emphasises his client's age and psychiatric condition. He emphasises the significance of the psychiatric condition to sentencing, being relevant to a reduction in the moral culpability, because of its effect at the time of the time offending. I accept that submission. It is also relevant to Darin Jasper being an inappropriate vehicle for general deterrence. I accept that submission. I also accept that custody will be more onerous, although I think in this case that factor is less significant, because his custody is in a hospital which is treating his mental health problem.
Both representatives drew my attention to the provisions of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) and I have re-read those provisions and I take them into account.
Mr Winch said that I should pause and pause again before giving significant weight to a risk of future dangerousness, given his client's young age, and also submitted that there are special circumstances for a very wide differential between the non-parole period and the parole period. He emphasised the difference in outlook between the two medical reports and his client's improvement with treatment and urged me to conclude that the treatment is likely to improve his client's position.
Ms Stanley appropriately emphasised the importance of protection for the community. This was, she correctly said, a very serious offence and a member of the community was so seriously injured that his life was put at risk and he will suffer the possible future effects which I have described. She emphasised that Darin Jasper had had psychiatric intervention before but still offended and the issue in the offence were illegal drugs which are related to his psychiatric condition. I have also been assisted by MFI 1, which contains some sentencing statistics but, more significantly, some examples of sentences for this kind of offence committed by persons who are of a young age.
HIS HONOUR: Just before I sentence I just wanted to ask you both - I am looking at the Children (Criminal Proceedings) Act, and I think the first thing is I deal with him at law. I think, Ms Stanley, your submission is that I have to do that. Is that right?
STANLEY: Yes, your Honour.
HIS HONOUR: And s 17. I will deal - that's right I think, Mr Winch?
WINCH: Yes, that's so, your Honour.
I will deal with Darin Jasper according to law, because of s 17 of the Children (Criminal Proceedings) Act 1987.
This offence is so serious that if Darin Jasper were an adult without a psychiatric condition I would regard an appropriate sentence being in the range of 15 or 16 years imprisonment. That is because it carries a maximum of 25 years imprisonment. However in this case the two factors emphasised by Mr Winch and accepted by Ms Stanley as relevant, namely, his mental health and youth, will have a significant impact upon that head sentence. In particular his mental health condition I regard as being related, as I said, to his offence. It reduces his moral culpability and reduces the significance of general deterrence. General deterrence is not rendered completely irrelevant, as Ms Stanley points out, but she also fairly draws my attention to the authorities relating to sentencing young offenders, which remind me that general deterrence should be regarded as of less importance than rehabilitation and the greater interest of the public is that the young person should become a good citizen. But I must not ignore considerations of general deterrence.
Because of his youth and the psychiatric factors I would regard an appropriate sentence as one of 9 years imprisonment. However, Darin Jasper has pleaded guilty. He pleaded guilty at the earliest available opportunity. I will therefore discount that sentence 25% so that the sentence would be reduced to 6 years and 9 months.
I therefore regard an appropriate sentence in this case for Darin Jasper being one of 6 years and 9 months.
I must fix a non-parole period for that sentence. I have referred to the competing submissions of Mr Winch and Ms Stanley. Mr Winch emphasises the need for his client to be supervised and supported in the community. Ms Stanley emphasises the need for the protection of the public.
This is a case where I am going to fix an extraordinarily short non parole period which will expire a day before Darin Jasper's 18th birthday. It will be about a third of the full sentence. In doing that I have in mind the need for him to spend a significant time in custody for the offence that he committed, but I also bear in mind Mr Winch's submission about the need for his being supported in the community. I also give weight to Ms Stanley's point about the protection of the community.
This is a case where a young man's proved psychiatric disability has been obviously significantly aggravated by him taking illegal drugs. Whilst he is in a protected and confined environment his condition is controlled and being successfully treated. I think the more important course for the protection of the community is to allow his treatment to continue for sometime, but then to allow him an extended period within the community for him to be supported and treated within the community and, most importantly, monitored so that any breach involving illegal drugs can be dealt with straightaway and he would be returned into custody and out of the community. In other words he should be monitored closely so that as soon as any risk is identified of him re offending then he should be immediately re incarcerated, because of the risks to which Ms Stanley refers. Hopefully this will not happen. Hopefully he will be stabilised by his treatment in custody and on release treated and monitored and grow into a healthy young adult.
HIS HONOUR: Do I convict him or not?
WINCH: Section 14, as I read it, your Honour, leaves your Honour with a discretion. If he was under 16 at this point your Honour would not be entitled to or not have the power to convict him. The section I think says, in mandatory terms, your Honour would not do that, but my understanding of the rest of it that it's a matter for your Honour's discretion whether he is now convicted. He can be, but as I read it he doesn't have to be.
HIS HONOUR: So I could, but - all right, what's your submission?
WINCH: My submission is that in light of the preamble to that section your Honour would not, which is not the preamble, the first words which speak about the interests in--
STANLEY: Non stigmatising.
WINCH: --non stigmatising and so on, but it is a very serious offence.
STANLEY: I'd say it's an extremely serious offence, your Honour, and it's one that unfortunately should remain with the young person for the rest of his life, it's extremely serious and it's something that should remain on his record, in my submission.
I think given the fact that he was 16 although just, but that he was clearly suffering from a significant psychiatric condition at the time lead me to conclude that I will not record or find a conviction against him for this offence.
HIS HONOUR: I am going to sentence you Darin Jasper. Darin Jasper, if you would stand up.
I fix a non-parole period to commence on 5 February 2013 when you were arrested. Remember that? It will conclude on 13 July 2015 the day before your 18th birthday. The balance of your sentence will commence on your 18th birthday 14 July 2015 and will expire on 4 November 2019. So you have been sentenced to 6 years and 9 months for this crime that you committed - 6 years and 9 months. The non-parole period that you must stay in custody - either at the hospital where you are now or in a Juvenile Detention Centre - is about 2 years and 5 months from 5 February 2013 to just before you are 18 on 13 July 2015.
HIS HONOUR: Do you understand that?
OFFENDER: Yes.
HIS HONOUR: You do. All right have a seat. Is there anything else, Ms Stanley or Mr Winch, that I need to do?
STANLEY: No, your Honour.
WINCH: No, your Honour.
HIS HONOUR: Darin Jasper, you have heard what I have said. You have got a pretty serious sentence 6 years and 9 months. You have got a pretty serious non-parole period, you have got to remain in custody until the day before you turn an adult. You have got that sentence because of what you did to that boy, a very serious crime, but you have been treated and well looked after in the hospital and they are acting in your best interests. When you are released the day before your 18th birthday you will be on parole. In fact you will not be released unless the Parole Authority says so. Do you understand that? I do not direct your release it's the Parole Authority who decides that, so they will look at how you are going and then make up their mind. Then you will be on parole for some years until 2019 and they will keep an eye on you and make sure that you are complying with your medication and behaving yourself and staying away from drugs, because the problem was caused by your illegal drugs, plus your own personal factors, that got you into the big trouble.
You have heard the prosecutor say how she is very concerned about you being in the community. She is right, because you did a very dangerous thing, nearly killed this boy, you could have been in this Court on a murder charge, but you are not. She is right about that. So that when you get out they will keep an eye on you and make sure that you are doing what you should be doing with the doctors and obeying all the suggestions of Probation and Parole to stay out of trouble so that you do not put the community at risk.
You are doing very well I should add, and if you keep going the way that you are going then you will be released. You will be released by the sounds of it you are planning to live with your dad again, is that right? And you will go on to hopefully finish your education. You are interested in that?
OFFENDER: Yes.
HIS HONOUR: Then you will want to finish your schooling and get yourself a job and hopefully have just a normal stable life, and I imagine that will happen so good luck.
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Decision last updated: 25 July 2014