R v Lisa Joy Beattie

[2007] NSWDC 111

CITATION:	R v Lisa Joy Beattie [2007] NSWDC 111
JUDGMENT DATE:	19 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted.; Indication Court would have imposed term of imprisonment [para 21]; Limiting term sentence of 5 years. Commence 21/1/06 expire 20/1/11 [para 54 - 55]; Referred to Mental Health Review Tribunal [para 56]; Person be kept at Long Bay hospital until bed at the Bunya Unit in Cumberland Hospital becomes available. [para 57]
CATCHWORDS:	Criminal law - nominating limiting term - finding on limited evidence person committed offence of malicious wounding with intent to committ GBH - gratituous knife attack in shopping mall - 20 year old accused - mild intellectual disability - borderline personality disorder - schizophrenia - poly substance drug abuse - standard non parole period (snnp) does not apply after trial - best estimate of sentence to take account of effect of existence of snnp when determining limiting term - limiting term determined - credit given for time served - limiting term backdated.
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Way (2004) 60 NSWLR 168
PARTIES:	Regina Lisa Joy Beattie
FILE NUMBER(S):	06/21/0160
SOLICITORS:	Mr White - Office of Solicitor for Public Prosecutions for Crown Mr P. Leary - Legal Aid Commission for accused

Sentence

1 On 28 March, Lisa Bettie was found, on the limited evidence available to the Court, to have committed an offence of maliciously wounding Aminah Hamdoun with intent to do her grievous bodily harm. That verdict was given after a Special Hearing conducted before a judge sitting without a jury.

2 Section 23(1)(a) Mental Health (Criminal Procedure) Act 1990 requires the Court to indicate, had the Special Hearing been a normal trial of criminal proceedings against a person who was fit to be tried for the offence, whether it would have imposed a sentence of imprisonment.

3 Neither the crown nor the defence counsel suggested anything other than a prison sentence would have been imposed in the circumstances of this case. That situation can be evaluated once the facts are reviewed.

4 The facts as I found them to be are to be found in paragraphs 32 to 53 of my reasons for verdict of 28 March last. Significantly, and taking from those facts, I found the following: that Aminah Hamdoun was at the Bankstown Centro with her family about midday on 21 January 2006. The male members of the family had separated and the complainant and her mother had made their way to Hollywood Shoes. That shop occupied a corner position in the mall. Across a large exit corridor was a Supre clothing shop. Situated in the middle of the corridor was Boost Juice.

5 Mother and daughter were separated, the daughter to buy something from Boost Juice, the mother to shop at the Hollywood Shoes. The victim was paying for her purchase when she noticed the trainee shop assistant looking past her. She turned around to see what the trainee shop assistant was looking at. Behind her, with a knife slightly raised above her head, ready to plunge it into the complainant, was the accused.

6 I am satisfied the accused did not anticipate the complainant would see her or turn to face her. I am satisfied in doing so the complainant prevented the accused from stabbing her at that moment. The accused's act though is significant because it indicates an intent that was entertained by her at that time.

7 Other evidence that I accepted established that, moments before the complainant turned, the accused had entered Bankstown Centro from the Appin Way through the JB Hi-Fi entrance. It was that entrance that flowed to the corridor leading to Boost Juice. I am satisfied the complainant was the first person the accused spotted wearing Muslim apparel who was standing still and was unaware of her intentions. I am satisfied at that time that it was the accused’s intention to target a Muslin with a view to stabbing that person. Her motive for so doing was that she felt she had had enough of Muslims. She told police she was related to a Muslim and she hated them. I am satisfied that at about that time she was “having problems”, at least in her mind, with Muslims, and had formed an antisocial attitude towards them.

8 I am satisfied that the knife that she was holding at the Bankstown Centro was a knife that she had brought into the Bankstown Centro with a view to stabbing, somebody. The knife had a ten centimetre blade. I am satisfied that she was both angry and determined; not angry specifically at the victim, but angry at Muslims in general.

9 When the accused was first seen by her, the victim ran or walked towards where her mother was in the Hollywood Shoe shop. That was a distance of five to six metres. The accused followed her, still armed with the knife. The victim said, “What’s wrong? Are you okay?” After a moment’s hesitation, the accused thrust the knife that she was carrying towards the complainant’s upper body.

10 The victim had her arm up, facing outwards, fingers extended like a policeman on point duty halting motor traffic. Hers was a reflex defensive response. The accused was thrusting the knife towards her. In doing that, she injured the complainant’s middle finger from the fingernail cuticle to the first joint with a laceration, the base of the middle finger with a smaller laceration, and the base of the index finger with a small cut. That cut may well have been caused by the complainant’s hand gripping and perhaps pushing the blade away. None of those injuries in that strike were serious.

11 A further downward stabbing motion followed. The complainant raised her left hand. In that hand she was holding a shopping bag and her own handbag. Again, the action was a reflex defensive action. The knife came down, penetrating the upper surface of the left forearm, some five or six inches above the wrist, and emerged on the inside surface of the forearm again, also some five or six inches from the wrist. It would appear that the knife went through the wrist by, if I can put it crudely, the shortest direction.

12 That area of penetrating wound has now healed. There is scarring at the opening and surgical scarring from that opening to the underside of the arm at the exit point. The knife, as it travelled through the arm, severed muscle and tendons. The area severed was the abductor policis longus, which controls actions of the thumb and is one of the tendons related to extending and abducting the wrist.

13 I am satisfied that particular injury was not intended. It is a serious injury. I said that the injury inflicted was not intended, but I am satisfied that a more serious injury was intended. I am satisfied that it was the intent of the accused, when she plunged the knife the second time, to strike and penetrate the upper body of the victim.

14 For the purposes of assessing the accused’s intent, it is also important to remember firstly that she had a knife; secondly that it was raised when the victim was at the Boost Juice; that she pursued the victim to a point nearer to Hollywood Shoes; that the knife was again raised towards the front of the complainant; when that blow was stopped, the knife was raised a third time. That is the injury that penetrated just above the victim’s wrist.

15 The area of the complainant exposed whilst she was at Boost Juice were her shoulders, the nape of her neck, her upper back, an area that houses the heart, lungs and several vital arteries.

16 After her arrest, the accused was interviewed by police. From my point of view, what is significant is what happened when the police left the interview room looking for the officer in charge of the station to attend upon the accused with a view to asking her the usual post-interview questions.

17 In that time span, the complainant conducted an emotional conversation with her support person. She said, “I can’t believe James would tell me to do something like this, to stab a beautiful woman.”

18 Subsequently speaking to, I think it was Dr Wilcox, the accused referred to Jane and gave to her the role of making the request for the stabbing.

19 The significance of the admission, that is, that she was asked to and responded to a request to stab, is that it displays a clear intent so to do.

20 That recitation of the facts explains why neither counsel really contested the proposition that in a normal trial, a finding of guilt on those facts would require an offender to be sentenced to imprisonment. I formally indicate that this Court would have imposed a term of imprisonment in such circumstances.

21 It now falls to the Court to nominate what is called a “limiting term”, being the best estimate of the sentence the Court would have imposed if the special hearing had been a normal trial of criminal proceedings and the evidence before the Court sustaining the conviction was the evidence of before the Court sustaining the commission of the offence (limited though it was).

Do the Standard Non Parole provisions in part upon Sentence.

22 It is significant to understand that the limiting term that is being imposed is the best estimate of the sentence the Court would have imposed if the Special Hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence and found guilty of the offence - see section 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990.

23 While the proceedings are to be conducted as near as possible to a normal criminal trial, when setting the limiting term the Court does not apply section 44 of the Crimes (Sentencing Procedure) Act 1999, but instead confines itself to the requirements of section 23, particularly 23 subsections (5) and (6) of the Mental Health (Criminal Procedure) Act 1990.

24 All of this becomes important when it comes time for the Court to have regard to what impact, if any, section 54A - standard non-parole period - will have upon the limiting term, a topic to which I must return later.

Objective seriousness.

25 This is a vicious attack from the victim’s point of view, gratuitously made, intended to occur at a time that the victim was unaware of the presence of her would-be attacker. The intended areas of attack were the upper torso, initially from behind and then on two subsequent occasions towards the victim’s shoulder and bodice area. The attack was done with a knife having a ten centimetre blade, that is, a knife capable of inflicting a lethal injury. The knife was wielded with intent to do grievous bodily harm.

26 There was a sufficient level of planning for the accused to have come to the shopping centre armed with a knife. In other words, this offence was not opportunistic or impulsive. Having said that, however, the level of planning was hardly sophisticated. It would appear to have been no more than the grabbing of a knife and going to the shopping centre with a view to finding a Muslim.

The impact of the Standard Non Parole Provisions.

27 After a criminal trial, an offence against section 33 of the Crimes Act is one attracting a standard non-parole period, provided the offence is judged to be one falling within a mid range of seriousness.

28 Mr Leary has sought to rely upon section 54 of the Crimes (Sentencing Procedure) Act. It makes clear that Division 1A of Part 4 of that Act (standard non-parole period) does not apply to the sentencing of an offender to detention under the Mental Health (Criminal Procedure) Act 1990. What Division 1A does is, it creates a standard non-parole period that applies to mid range offences after trial. Way’scase [R v Way (2004) 60 NSWLR 168] and others make clear that, although the standard non-parole period does not apply to offenders who plead guilty, its existence impacts upon the sentences to be imposed as a consequence of the Legislature’s creating a standard non-parole period.

29 It seems to me that the way in which section 54D ought to be interpreted is that the standard non-parole periods prescribed for the various offences contained within the table in section 54D are not to be imposed upon those who are to receive a limiting term. I do not however read the section as saying that the existence of the standard non-parole period should not affect the approach to the limiting term.

30 It seems to me the same logic must apply where a Court is setting its best estimate of the sentence it would have considered appropriate had a normal trial of criminal proceedings occurred for a person who is fit to be tried. That is to say, the effect of the existence of the standard non-parole period, even for the cases where it does not apply (guilty pleas and section 23 Mental Health (Criminal Proceedings) Act limiting terms) is still to drive upwards the sentence that would have otherwise been given had it not existed.

Aggravating Factors.

31 All other section 21A Crimes (Sentencing Procedure) Act matters have been dealt with in my assessment of the objective criminality of this offence.

Subjective Circumstances.

32 I turn now to the subjective circumstances. I am both required and entitled to do that. The subjective circumstances of an offender may give some insight into the offending conduct and some reason why a more or less serious sentence should be imposed.

Family dynamics and social background.

33 Lisa Beattie has had a limited guardianship order made in her favour. As a consequence of that order, she has had appointed the Public Guardian to maintain guardianship of her. The Guardian appointed has powers in relation to where Ms Beattie may reside, to determine what health care and major and minor medical and dental treatment she may receive, to make substitute decisions on her behalf about any medical or dental treatment proposed for her by others, to make decisions on her behalf concerning major services to which she should have access, to advocate generally on her behalf, and to make decisions with respect to her representation in the criminal justice system.

34 Ms Beattie is a twenty year old woman who has been diagnosed with mild intellectual disability, borderline personality disorder and schizophrenia. The diagnosis is one that impacts upon her daily functioning, and touches particularly upon areas of her capacity to communicate, her lack of understanding and a general absence of social skills.

35 She has a limited social network, very few peer relationships. Such friends as she did establish, assuming she did, at high school have not been maintained. She had not established any appropriate relationships in the wider community whilst residing at a special care facility. But she is engaged to a gentleman who I understand can be named as Gary, who she has known for approximately three years, and she requires, it is said, support to maintain the relationship. I note that he has been present at least on the last two occasions. Whether he was present earlier, I do not know, because my attention had not been drawn to him.

36 She has a history of foster placements, the longest lasting ten years. That was reported to be positive, but it broke down in about 2001. Since 2001 she has had as many as ten placements, which would suggest a very unsettled life since 2001. Her placements have been both funded and unfunded. They include refugee centres and group homes.

37 The Centre, which was where she was living in 2002, is supported accommodation with twenty-four hour support staff. She was absent from that setting for a two week period, which found her placed on remand at Mulawa Women’s Correctional Facility. It is envisaged that the situation post this offence will be more closely supported and monitored than the last, as I understand it.

Education, employment and skills.

38 Ms Beattie attended the Bankstown Public School in her primary years. In her secondary school years, she required intensive academic support, but sought to function in the mainstream system. Her high school teachers at Holy Spirit College, Lakemba and at Cabramatta High School identify her as having many difficulties in functioning in a school setting. Those difficulties would no doubt be related to her intellectual disability and her capacity to daily function.

39 She attended a post-school options programme which was designed to assist her participate in activities that would help her develop skills, give her some social contact with other people, and gain a sense of being in a community. As events turned out, she sought to discontinue that programme, but has interest in attending a vocational training, and at some time in the future gaining employment. So far as I can tell on the material before me, there is no evidence of her having any particular skills in the employment area yet, or in having any employment history.

Medical history.

40 Again so far as I can tell, it would appear that she is physically in reasonably good health. Her major problems appear to be related to her intellectual disability and to her mental health problems. She has, as I say, been diagnosed with borderline personality disorder, schizophrenia of a disorganised type, poly-substance abuse and a psychotic disorder not otherwise specified.

Dr Giuffrida, on an overview of reports, noted this:

“On reading Dr Brown’s report, she is firmly of the opinion that Ms Beattie suffers from schizophrenia and borderline personality disorder.

Dr Wilcox, in her report of 14 January 2006, states that Ms Beattie has a definite vulnerability to develop psychosis, with experience of auditory hallucinations and persecutory ideation. In her report of 20 June 2004, she thought that the most likely diagnosis was of schizophrenia. Dr Wilcox’s differential diagnosis, although not stated as such, was that her psychosis was one precipitated by substance use.”

41 I have before me also the report of Dr Rosalie Wilcox of 20 June 2004. It was a report that appears to have been generated on the question of whether she was fit to be tried on certain charges, although not, I think, the charge currently before me.

42 In giving the past psychiatric history, Dr Wilcox noted:

“Ms Beattie has had an extensive contact with various psychiatric services. When she was aged fifteen, she spent four weeks at Redbank Adolescent Unit because she was paranoid. She had several admissions to Bankstown Psychiatric Hospital, and the admissions related to her ongoing paranoia. She said that following her admissions she did not always take her medication and continued to use drugs. Since stopping her use of illicit drugs and taking regular medication, she says she has been feeling more stable. She was uncertain of her current medication. She said she had an injection every two weeks and was also required to take oral medication.”

43 As to the mental state examination in 2004, the situation was for Dr Wilcox:

“Ms Beattie presented as an adolescent female with a slight build, with blonde hair pulled back into a ponytail. She was dressed in prison attire. She gave the impression of being younger than her stated age. She had mild acne scars on her face and several cigarette burns on the back of her hand.

She had a restricted range of emotional response. Compared to when I assessed her late last year, she was a lot more settled; however, within less than an hour she became restless and requested to terminate the assessment.

Her thoughts were disordered and at times she did not make any sense. She was observed to lose concentration on several occasions, either due to dissociation or distraction by auditory hallucinations. She acknowledged the presence of auditory hallucinations that were primarily the voice of a woman whom she knew when she was younger, and the voice said unpleasant things to her and told her to harm herself.

She had difficulty maintaining attention and it was necessary to repeat a number of questions. She was oriented to time and place. Her manner of relating was indicative of mild developmental delay.”

44 I am satisfied the accused’s mental illness contributed to her commission of the offence. She remarked when she was at the police station that she had been told by James to do it. Later “James” became “Jane”. Whether that is a spelling mistake by someone transposing an “n” for an “m”, or a change of account by the accused, is unclear. Whether James or Jane actually exist is also unestablished. But given her mental condition, whatever is the case, the reception of such a request would have been more readily acted upon by her than if she had been in complete control of her mental faculties

Alcohol and drug abuse.

45 There is not much evidence before me as to the state of her consumption of alcohol and drugs at the time of this offence. What I am satisfied of is that she was, though, abusing to some extent drugs in the period around the time of this offence. The drugs that would appear to be her drugs of preference at that time are marijuana and what is commonly known as ICE.

Attitude to offence.

46 It is likely the accused had very little insight into the significance of her attack upon Ms Hamdoun, or any understanding why such conduct is seriously criminal. Her absence of insight arises as a consequence of her intellectual capacity and her mental health situation. In the circumstances, there can be no aggravation of her criminality on account of her lack of insight, but it is nonetheless a factor to be considered when assessing her capacity to rehabilitate.

Rehabilitation.

47 It is unlikely in the short to intermediate term this offender’s rehabilitation prospects could be assessed positively. She has serious mental health issues that appear to me to be not yet stabilised, whether by medication or by age or a settling in the condition. She has issues of intellectual capacity. She has drug abuse issues that are unresolved. Her family and social support networks can only be assessed as weak and of dubious quality. I am, though, conscious that the boyfriend, Gary, would appear to be a beacon of support in an otherwise impoverished situation.

48 She is likely to be kept in a secure, hopefully structured and therapeutic environment for the foreseeable future.

Deterrence.

49 Ms Beattie is not an appropriate vehicle for general deterrence, nor, in my view, is she an appropriate vehicle for personal deterrence. It is unlikely, being unfit to be tried, she has any real idea of what is happening to her or why that is so. Her thinking is likely to be concrete, that is, limited to concepts such as that she is in custody or in a secure environment; that her so being there requires adherence to a regime which is dictated to her by others, and that somewhere in the future the regime may change. However, it is unlikely that she understands the factors that will cause it to change or the mechanism by which it does change. In those circumstances, it seems pointless to think that personal deterrence would have any impact upon her.

Setting the sentence.

50 The injuries actually sustained were serious. True, they were not the intended injuries. The intended injuries would have been much more serious. The injuries sustained required medical attention. Once the bleeding had stopped, they were not life threatening.

51 The subjective features on behalf of the accused’s rehabilitation and factors that would feed into that are bleak. Her insight into the offending conduct is really non-existent. I cannot confidently assert that she would be unlikely to reoffend if she were not in a secure environment.

52 She has on her history other instances of offending, but not many of them, including a malicious injury to her intended partner. There are offences indicating significant lack of judgment, such as offensive language, behaving in an offensive manner, failing to pay a taxi fare perhaps, and there are some offences of dishonesty.

53 It is not a record that would have disentitled her to leniency, but it is a record that reinforces the absence of rehabilitation prospects.

54 The maximum penalty for this offence is one of twenty-five years imprisonment. The difficulty here then becomes that the sentence that I would have set would have been mitigated by the finding of special circumstances and the like. None of that material can I take into account in setting this sentence. The term of imprisonment I would have imposed to a person who had been fit to be tried and was in fact tried would have been one of five years imprisonment. That being so, that is the term that I must set as the limiting term.

55 What now is required is to give credit for the time already served. The limited term will date from 21 January 2006, and will expire on 20 January 2011.

56 Pursuant to section 24(1), I refer Lisa Beattie to the Mental Health Review Tribunal.

57 I further order that Ms Beattie be kept at the Long Bay Prison Hospital until such time as a bed is available at the Bunya Unit at Cumberland Hospital, and thereafter be retained there until further order of the Court.

58 The next order I make is that a copy of these remarks on setting the limiting term and the original decision by me, will both be sent to the Mental Health Review Tribunal and both of you will get a copy of each.

59 I direct the Registrar to send copies of my reasons for finding, on the limited evidence, the commission of the offence, and these remarks on setting a limiting term, to the Mental Health Review Tribunal.

60 I will give leave to the parties to apply to me in the event of non-action by the Mental Health Review Tribunal. So I am putting it back in your Court.

LEARY: Thank you, your Honour.

HIS HONOUR: So, leave given to the parties to approach the Court for further order.

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