R v Jerome

[2021] NSWDC 741

District Court

New South Wales

Medium Neutral Citation:

R v Jerome [2021] NSWDC 741

Hearing dates:

5 October 2021

Date of orders:

5 October 2021

Decision date:

05 October 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 3 years 4 months with a non-parole period of 2 years.

Catchwords:

CRIME - Reckless wounding (DV) - Contravene prohibition/restriction in AVO (Domestic)

SENTENCING - Relevant factors on sentence – stabbing of partner - breach of apprehended domestic violence order- possible life threatening consequences- mentally ill offender- available defence of mental illness not taken up – no sworn evidence- contest about influence of drugs on a mental illness diagnosis- deprived background- special circumstances - role of State Parole Authority

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence order) Act 2007

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1987

EvidenceAct1995

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

Cherry v R [2017] NSWCCA 150

Devaney v R [2012] NSWCCA 285

DPP(Cth) vDeLa Rosa (2010) 79 NSWLR 1

JDX v R [2017] NSWCCA

Lai v R [2021] NSWCCA 217

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Qutami [2001] NSWCCA 353

R v Storey [1998] 1 VR 359

Ryan v R [2017] NSWCCA 209

Suksa-Ngacharoen v R [2018] NSWCCA 142

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category:

Sentence

Parties:

Jahnessa Evelyn Sheree Jerome (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Mr M Kwan, Legal Aid NSW (for the offender)
Ms A Bird (for Director of Public Prosecutions)

File Number(s):

2020/00288396

sentence – ex tempore revised

Introduction

1. Jahnessa Jerome is a 28 year old Aboriginal woman. She was born and raised in Queensland. She had been in a relationship with her partner, the victim in this matter, for ten years, until she went into custody a year ago. The couple moved to New South Wales and obtained accommodation at a Department of Housing complex in Mangerton; sadly that Housing complex is well known to the Court.

2. On 9 January 2020 her partner had obtained an Apprehended Domestic Violence Order (ADVO) from the Local Court. Its conditions included that she not assault or threaten him. On 14 May 2020 the order was varied to include a condition that she must not approach or be in the company of the victim for at least 12 hours after drinking alcohol or taking illicit drugs.

3. On 6 October 2020, Ms Jerome breached that ADVO by twice stabbing her former partner. She entered guilty pleas in the Local Court. There are three matters for sentence today. There are two counts of reckless wounding; s 35(4) Crimes Act 1900; maximum penalty 7 years, standard non-parole period 3 years, and one count of Contravene Apprehended Violence Order: s 14 Crimes (Domestic and Personal Violence Orders) Act 2007; maximum penalty 7 years. As that matter came to this court on a s.166 Criminal Procedure Act 1987 certificate the maximum penalty available to me is 2 years.

Agreed Facts

4. On 6 October 2020 the couple were at home when, without notice, Ms Jerome took a golf club and smashed their television set. She then stabbed her partner in the thigh with a steak knife. She then walked out of the unit to a landing. Her partner also went outside and called to a neighbour. The neighbour said he would get a bandage. The partner then went back inside his unit but Ms Jerome came up behind him and stabbed him again.

5. The second blow appears to have caused two separate stab wounds; one to the triceps area of his upper arm and the other to the right side of his rib cage beneath the armpit. The partner immediately made his way out of the unit and down the stairs where the friend, who he had called to earlier, found him. He told him, “She stabbed me again”. First aid was provided by neighbours and an ambulance was called.

6. Police went to the unit. They found the offender inside. They forced entry. And, after some negotiation the offender left the premises and submitted to custody. She was noted to be intoxicated and incoherent; she was rambling nonsensical ideas. Police thought she was affected by methylamphetamine. She was arrested and has been in custody ever since.

7. The partner was taken to Wollongong Hospital. He was found to have wounds to the right side of the chest; to his right upper arm and his right upper thigh. A chest angiogram was performed. He had gas in his right chest wall. A small pneumothorax was detected overlaying his right lung but not collapsing it. His wounds were treated by sutures.

8. The following day the victim discharged himself from hospital against medical advice. This was despite him being advised of the possibility that a side effect of the pneumothorax could include death.

Objective seriousness

9. The assaults were, on all the information before me, unprovoked. The offence involved the use of a weapon; a knife. The second offence, in particular involved a degree of force to a very vulnerable part of the body, causing significant injury.

10. The offences occurred in contravention of an Apprehended Violence Order. Where such orders are made courts sometimes refer to a breach of them as a “breach of conditional liberty”: Cherry v R [2017] NSWCCA 150. But here, as there was no conviction accompanying the ADVO, it could not be properly described as conditional liberty. It is quite clear however that such orders exist, and are made by courts, for the protection of individuals from risk of harm. Anyone who acts contrary to such orders undermines their practical affect and the authority of the Courts. If the authority of the Courts in making these orders is ignored the law in the Courts are diminished and so too, most importantly, is the Court’s capacity to protect vulnerable individuals.

11. Deliberate disobedience of a court order is treated as serious and should be separately punished: Suksa-Ngacharoen v R [2018] NSWCCA 142. But, care has to be taken when a breach of the order is also an aggravating feature in relation to the principal matters for sentence: Pearce v The Queen (1998) 194 CLR 610. I will, when I formulate the sentences, take into account those principals and the principle of totality. I will take care, in the individual sentences indicated and in the total sentence imposed I impose, not to double count matters in aggravation.

Criminal record

12. Ms Jerome has no criminal record in New South Wales but she has considerable criminal antecedents in Queensland. Although there are some violence against police offences, a breach of an ADVO and an escape there are no matters like the present matters on that record. While her record does not aggravate the sentence that must be imposed she is not entitled to the leniency often given first offenders.

COVID

13. Ms Jerome has been in custody for a year subject to all of the restrictions introduced to protect prisoners from the impact of the COVID pandemic. While no specific evidence was called about the impact of COVID on her I am aware from evidence in many other proceedings that prisoners are more often locked down than prior to the pandemic. There is a general feeling of anxiety (as there is in the community) about what will happen should COVID enter and spread within the gaols. I am also aware of the comprehensive action taken by Corrective Services to protect prisoners and staff. But access to programs, access to work, access to vital medical and psychiatric treatment has been restricted and will unfortunately be restricted for some time. Also it would appear from the material before me that Ms Jerome has few family or pro‑social contacts in the local community and any access to friends and family will be restricted because of the restrictions and the border closures and, if possible, at most AVL links are provided to prisoners. All matters I can take and do take into account.

Maximum penalty

14. When I come to assess the objective seriousness of the offence and formulate ultimately the sentences to be imposed I have to take into account the guidance offered by the maximum penalties and where applicable, the standard non‑parole period. Content has to be given to the standard non‑parole period but a court, as the High Court made clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, is not obliged to engage in a staged approach to sentencing. I have to identify all the factors that are relevant, discuss their significance and make a value judgment. I have regard to these guideposts. I have to identify fully the facts matters and circumstances which bear upon the judgment that I am about to reach.

Subjective Case

15. The subjective material before the Court is set out in a report from Dr Richard Furst a forensic psychiatrist. The offender’s history and matters relating to her background are relatively uncontroversial and not in contest. However, Ms Bird, who appears for the Director of Public Prosecutions, indicates that there is a dispute about Dr Furst’s conclusions; as he does not appear to address the impact of her intoxication with illicit drugs and her mental condition, which he diagnoses as schizophrenia.

16. In his report Dr Furst gives a brief history of the offender. She lived in Brisbane. She finished school and did a business course. That history showed no obvious problems or mental health problems but her family and home life was “disruptive at times.” Quite matter‑of‑factly Dr Furst notes, “Including her mother’s boyfriend stabbing her mother”. It would appear from all the history there was, as Dr Furst says, “family adversity.” Her father was an alcoholic and absent throughout her childhood. Her mother’s subsequent partners were abusive and violent.

17. From a young age Ms Jerome had no stable family home. At the age of 19 she was homeless and she developed an addiction to drugs from her late teens, well before she was in a position to make rational choices. It would appear from the limited material Dr Furst has that her schizophrenic symptoms arose between one and two years ago; coinciding with her move to New South Wales.

18. It is also clear that her partner sought the protection of the Courts. It is equally clear that she was using and abusing illicit drugs. Her GP did not diagnose a psychiatric illness but he also prescribed medication for a psychosis.

Impact of mental illness

19. The Court of Criminal Appeal on many occasions, and most recently in Lai v R [2021] NSWCCA 217, has said that considerable caution should be exercised by sentencing judges in relying on exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the Court. It is important to note that the Court of Criminal Appeal were not saying unsworn statements were inadmissible, the comments were directed to matters that were in dispute. That statement was not and could not have been prescriptive as each case must be determined on its own facts and reasonable minds will disagree when assessing the weight that must be given to matters raised in proceedings, particularly those to which the Evidence Act 1995 does not apply.

20. Most sentencing proceedings do not involve some general joinder of issue between prosecution and offender. Calling and testing evidence can be required if an asserted fact is controverted or if the judge is not prepared to act on the assertion. Most often this comes up in two areas:

1. When a matter not on oath and repeated second‑hand is put forward of evidence going to the assessment of the objective circumstances of the offence: R v Qutami [2001] NSWCCA 353.

2. Where there is what as Basten JA described as so called expert reports which uncritically parrot claims by an offender who does not give evidence: JDX v R [2017] NSWCCA 9.

21. Where a real dispute will have a significant impact on sentence the party seeking to have the matter taken into account must bring that matter to the attention of the judge and call evidence about it, The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54. A judge may not take into account the facts in a way that is adverse to the interests of an accused unless those facts establish beyond reasonable doubt. If the judge proposes to take matters into account in favour of the accused is enough that those circumstances are proved on balance of probabilities: R v Storey [1998] 1 VR 359; The Queen v Olbrich.

22. No direction was sought pursuant to s 42 of the Evidence Act. In a busy list such as Wollongong sentencing is rarely capable of subtlety and refinement, nor is it necessary in most cases. Where the Evidence Act does not apply a judge does not ignore the rules and the policy underlying those rules, a judge is entitled to be sceptical of conclusions unsupported by factual detail but a judge must be careful. A judge also has to rely on professional opinions. As Allsop P said in Devaney v R [2012] NSWCCA 285 at [88]:

“It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross‑examination, when that opinion is based on history. ln most cases, a psychiatrist will form a diagnosis from what was said to him or her; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history ‑ how it accords with hypothesised and formed views of the professional”.

23. There is nothing here to indicate that the offender was manipulating the psychiatrist. As Hamill J noted in Ryan v R [2017] NSWCCA 209 “it is not appropriate … to gainsay the diagnosis made by a psychologist and admitted without objection before the sentencing judge:” At [9].

24. Here the real issue seems to be the extent of the underlying mental illness and the affect, whatever it was, of Ms Jerome’s intoxication or more accurately, as the facts set out, the police opinion that she was affected by methylamphetamine.

25. Dr Furst in his comprehensive report indicates that history given included hearing voices that by the time of the commission of this offence appeared to be constant and continue to this day.

26. Ms Jerome saw a psychiatrist for the first time when she was entered into custody. Her medication was changed because the drug she had been prescribed, Seroquel, is no longer available in the custodial environment.

27. Dr Furst was asked to address whether Ms Jerome was fit to be tried and what her mental state at the time of the offence and while in custody was. He formed the view that Ms Jerome was fit to plead. He formed the view that she had a potential mental illness defence available. That defence is now set out in s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020; that is she; could not reason about the wrongfulness of her alleged conduct. Dr Furst however, did not parse that determination; as to the impact of illicit drugs as opposed to her psychiatric condition. In his opinion she suffers from the mental illness of schizophrenia and she has a substance use disorder; an illness and disorder he describes in his report.

28. The existence of history of voices, the prescription of antipsychotic drugs and Dr Furst’s professional opinion leads me to believe that she does suffer from both disorders. They clearly had an impact on her. It is not for me to determine the extent both were operating on her at the time of the commission of the offence, but it would appear both operating. It is clear that she was not able to think clearly or rationally, as there is no clear or rational reason advanced for the commission of this offence. That conclusion does mitigate but it also indicates she poses a risk, requiring my consideration   of future dangerousness.

29. Her mental illness, which I on balance find she suffers from, means I have to consider the intractable problems of treatment in custody and supervision and treatment in the community and potential dangerousness given the nature of the offending. Those problems are exacerbated when serious crimes are committed. They require a sensitive sentencing discretion that considers all of the purposes of sentencing. On one hand her mental illness and her background, which I find reduces her moral culpability, means she should not get the same sentence as someone else. But where there are issues of community protection, specific deterrence is also a relevant factor, as it should be. The sentence and punishment have to bring home to Ms Jerome that what she did was unacceptable and do what it can to encourage her to seek treatment to prevent repetition of this offending.

Submissions

30. Ms Bird notes, by reference to Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, that ultimately a sentencing decision in a matter such as this should attempt to vindicate the dignity of the victim of violence, to protect the victim and others from future offending and repetition of it.

31. Mr Kwan, who appears for the offender, properly refers me to the summary that was provided by Justice McClelland in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 and matters raised in Muldrock v The Queen, to which I have already referred.

Synthesis

32. Where a person has committed dangerous acts a court does not simply detail them, each indicated sentences must properly reflecting the objective seriousness of what was done. But sentences are also about community protection. Here the offender’s general background helps explain her use and abuse of illicit drugs. It helps explain the impulsivity of the offence, which was clearly unplanned. It is relevant to her subjective case as the origin and extent of her drug problem points to steps that must be taken to help her overcome it and which in turn go to her prospects for recidivism or rehabilitation. Her intoxication helps me understand why she was unable to exercise sound judgment: see R v Henry [1999] NSWCCA 111; 46 NSWLR 346.

33. In synthesising all these matters I am left with; a young woman who is in need of psychiatric treatment and drug and alcohol rehabilitation, who committed two serious offences with a knife on her partner, in breach of a domestic violence order.

34. Ms Jerome’s background, her exposure to violence, alcohol and drug use helps explain why she herself used and abused illicit drugs. This reduces her moral culpability for the offending, as does her mental illness.

35. Dr Furst, from his experience, as someone I know has worked in the gaols, says that given her underlying conditions the inherent stressful situation in gaol will be even worse for her than a notional prisoner who did not have her two conditions. This is particularly so as she is prone to paranoid thinking and auditory hallucinations. She will be she particularly vulnerable making the custodial portion of her sentence more onerous than for a notional prisoner.

36. When Ms Jerome is released she will need to be placed under the care of a community mental health service. She will need frequent attendances with a case manager. She will need to see a treating psychiatrist and take medication on a daily basis. She will need referral to drug and alcohol treatment services. There must be a focus on relapse prevention. She will need vocational and other therapeutic interventions.

37. While in custody she should remain under care of a psychiatrist with Justice Health and receive regular psychiatric reviews. She will need antipsychotic medication. In Dr Furtst’s opinion this is required; rather than the antidepressant medication she is presently receiving. He said the logical choice would be Invega Sustenna.

38. She will need specialist drug and alcohol input, she will need to do programs such as those and the EQUIPS addiction program. She will need psychological intervention and vocational training, all of which will be, availability will be restricted because of the pandemic restrictions.

32. Balancing all those matters it is accepted that there must be a custodial sentence. I have to consider questions of totality and accumulation. Each indicated sentence must reflect the discount required for the early plea of guilty: s25D Crimes (Sentencing Procedure) Act 1999. The total sentence should reflect both the objective seriousness of what she did but all the other purposes of sentencing.

33. There will be a significant finding of special circumstances but the sentence will be longer than three years. This means before she is released to parole the State Parole Authority will have to make the decision as to whether community safety can be met if she is released. This it places a considerable obligation on the parole authorities and the custodial authorities to provide programs and treatment to her during the balance of her non‑parole period and to put a plan in place for her release. If those matters cannot be put in place then she may not receive parole but that is a matter for the State Parole Authority.

34. The effect of my sentence will be another 12 months in custody. Her two year non‑parole period is intended to be; a punishment, an opportunity for her to remain drug free and to give her time focus on her mental health, as Dr Furst, recommends. I have taken into account the significance of her schizophrenic illness but I have no choice but take the custodial option, given that the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act were not invoked. I am sure there are very sensible and rational reasons for that course.

Orders

42. In relation to each of the three matters you are convicted.

43. In relation to the first reckless wound (leg), as it carries a standard non parole period I indicate a sentence of 1 year 6 months with a non-parole period of 10 months.

44. In relation to the second reckless wound (chest), as it carries a standard non parole period I indicate a sentence of 3 years with a non-parole period of 1 year 9 months.

45. In relation to the s166 Contravene Apprehended Domestic Violence Order I indicate a sentence of nine months.

46. All indicated sentences take into account the early plea of guilty.

47. The total aggregate sentence is one of three years and four months, the non‑parole period is two years. The aggregate sentence therefore consists of a non‑parole period of three years and four months to date from 6 October 2020 with a non‑parole period of two years. Ms Jerome will be eligible for consideration for release to parole on 5 October 2022.

48. The Report of Dr Furst (exhibit 1) to be forwarded with warrant to Corrective Services   

49. HIS HONOUR: Ms Jerome another year in gaol. You really should try and engage as much as you can with a psychiatrist and enrol in every EQUIPS program you can.

AUDIO VISUAL LINK CONCLUDED AT 3.18PM

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Decision last updated: 28 February 2022