R v McKay

[2019] NSWDC 294

District Court

New South Wales

Medium Neutral Citation:	R v McKay [2019] NSWDC 294
Hearing dates:	15 May 2019
Date of orders:	16 May 2019
Decision date:	16 May 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate term of imprisonment of 8 years 6 months with a non-parole period of 4 years 6 months
Catchwords:	CRIME — Violent offences — Wound with intent to cause grievous bodily harm CRIME — Public justice offences — Do an act with intent to pervert course of justice
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	Bugmy [2013] HCA 37 Callaghan [2006] NSWCCA 58 De La Rosa principles [2010] NSWCCA 194 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 Qutami [2001] NSWCCA 353 Tepania v The Queen [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Shakarma McKay (Offender)
Representation:	Mr Hudson (Crown) Ms Lewer (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown) Ruth Chalmers Lawyers (Offender)
File Number(s):	2017/00019551

EX TEMPORE JUDGEMENT (REVISED)

1. Shakarma McKay first appeared in this Court before me on 4 February 2019 after she had before then pleaded guilty to two offences upon which she had been arraigned.

2. The matter proceeded with the tender of the Crown bundle and information provided with regard to her custodial history and the sentence she suffered for a charge of reckless wounding inflicted upon the same victim. Material was tendered on her behalf, namely two reports from psychiatrist Dr Ellis written on 7 January 2019 and 29 May 2017 respectively. There was an email from Dr Ellis and also a letter from the offender and letters from her family and certificates showing her progress in custody.

3. After I read the material I was concerned at what I thought were inconsistencies in what had been provided, and it was the case and remains so, for which in my view the decision in Qutami [2001] NSWCCA 353 has some application. In that decision Smart AJ added a comment toward the end of his reasons expressed in the following terms:

“There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While their statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.”

4. The decision came down in 2001 and is frequently cited in reasons given for the imposition of sentence in cases where an offender wishes to rely upon out of court representations in mitigation of the penalty that they might be otherwise facing.

5. There are two aspects of this. First, the representations attributed to the offender are in the form of hearsay material. There is no opportunity to assess the reliability of the representations not given under oath and not the subject of cross-examination. Moreover, the representations when presented are generally not in first person speech, but are expressed as conclusions reached by the author of whatever report is tendered, offering their perception or their understanding of what was said to them. Rarely, if ever, does one have the verbatim representations given by the offender upon which to assess the reliability of the content of the report.

6. In probably most instances one can proceed upon that material to the conclusion of the matter and particularly so when the particular practitioner is not required for cross-examination to test what is provided in the report. But no court merely rubberstamps material that is presented to it; the Court must come to a decision upon the material tendered and to make appropriate findings of fact upon which to determine what is the appropriate sentence.

7. In this instance the offences charged are very serious. The maximum penalty in one is of imprisonment for 25 years with a standard non-parole period of 7 years; and the second carries a maximum penalty of 14 years imprisonment. Moreover, this was the second sequence of misconduct after the offender had recklessly wounded the victim, and was charged and admitted to bail. It was whilst subject to bail that she committed this further offence.

8. The issue that I have been called upon to resolve, and which has involved something of a challenge, was whether her explanation for these crimes is attributable to a state of mental health, exacerbated by her self-ingestion of prohibited drugs. Whether the drugs were the cause of the state of mental health that has been suggested by Dr Ellis, or alternatively an exacerbating factor the extent to which they did cause her to behave the way she did, these are important questions when assessing her moral culpability which in turn will inform the extent of the punishment she must suffer.

9. The matter resumed before me yesterday, 15 May 2019. A further report was provided by Dr Ellis who answered specific questions that were put to him, and I do not understand that to have been upon any further consultation with the offender.

10. Evidence was called from her mother, which proved to be unsatisfactory and in large measure is not relied upon.

11. Thus I now must come to a decision with regard to these offences and the conduct of the offender in which they were committed.

The Offences

12. The first offence is one of wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) Crimes Act 1900 for which the maximum penalty is imprisonment for 25 years with a standard non-parole period of 7 years. The offence is in the following terms:

“On 18 January 2017, at Doonside in the State of New South Wales, wounded DG with intent to cause grievous bodily harm to DG.”

13. The second offence is contrary to s 319 Crimes Act, shortly described as pervert the course of justice; the maximum penalty is imprisonment for 14 years. The offence is charged as follows:

“Between 25 January 2017 and 8 March 2017, at Doonside in the State of New south Wales, did pursue a course of conduct in order to procure a Crown witness, DG, to falsely claim that Shakarma McKay was not responsible for stabbing DG, with intent thereby to pervert the course of justice.”

The Utility of the Pleas of Guilty

14. The offender was committed for trial from the Local Court at Penrith on 15 September 2018 and pleaded guilty upon arraignment on 26 October 2018. It is submitted that a discount of 25% is applicable to reflect the utility of these pleas of guilty but I have come to the view that a discount of 15% is more appropriate in the circumstances. This will be applied to each sentence that I have arrived at upon the synthesis of objective and subjective facts which I have found established. Where, upon the application of this discount the result is a sentence in years, months and days, I have discounted or discarded those additional days. I shall impose an aggregate sentence.

15. My decision with regard to the discount to be applied is informed by the submissions made on behalf of the offender by her counsel at para 51 informing me that she was initially charged with a more serious wounding offence. I am not quite sure what that was. She offered to plead guilty on the basis of the lesser offence preferred and this was accepted by the Crown and upon presentation of a fresh indictment she pleaded guilty.

16. This was the first occasion the present indictment was presented. She pleaded guilty and the trial was vacated.

17. It is said that she is entitled to a significant discount in terms of utilitarian discount for these two pleas, but I am satisfied that a discount of 15% is the appropriate level.

18. I am not entirely sure what the more serious offence was. My perception or recollection of the provision is that it could only have been an offence of wounding with intent to murder; I see the Crown is acknowledging that that was so.

The Penalties and the Significance of the Standard Non-Parole Period

19. As I noted the maximum penalty for the wounding offence is 25 years imprisonment, with a standard non-parole period of 7 years, and the maximum penalty for the pervert course of justice is imprisonment for 14 years.

20. Standard non-parole periods were introduced into the Crimes (Sentencing Procedure) Act 1999 in Part 4 Div 1A amended after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39.

21. Section 54A Crimes (Sentencing Procedure) Act provides that the standard non-parole period for an offence is that which is included in the table to the provisions. It also provides that the standard non-parole period represents the non-parole period for an offence in the table that falls within the middle of the range of objective seriousness, taking into account only the objective factors affecting the relative seriousness of an offence.

22. Section 54B Crimes (Sentencing Procedure) Act provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence, without omitting the matters that are otherwise required or permitted to be taken into account. It also requires that the Court record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account. The objective gravity of the offence will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or the class of offenders, but wholly by reference to the nature of the offending bringing to account relevant factors to which I have been invited, articulated in s 21A Crimes (Sentencing Procedure) Act, except for those that are essential elements or integral characteristics of the offence.

23. Fixing of the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle, or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical or staged or tiered process of reasoning when assessing sentence, but must identify all relevant matters bearing upon the question of the appropriate sentence and the process of intuitive synthesis discussed for example by McHugh J in Markarian v The Queen [2005] HCA 25.

24. In determination of sentence for an offence for which there is specified a standard non-parole period, it and the maximum penalty, are legislative guideposts for the Court, along with other established sentencing practices, and by reference to matters identified where relevant in ss 3A, 21A and 22 Crimes (Sentencing Procedure) Act.

25. These statements of principle which I have extracted upon my reading of Muldrock with regard to the legislation are consistent I believe with the views expressed by Johnson J in Tepania v The Queen [2018] NSWCCA 247. His Honour wrote the judgement with which Payne JA and Simpson AJA agreed. After careful analysis of authority dealing with these questions, at para 110 his Honour set forth six sub-paragraphs describing the propositions that arise with respect to the legislation as amended in 2013 after the decision in Muldrock v The Queen Ibid, and he noted at para 111, with reference to the second reading speech, and the explanatory memorandum:

“The amendments were not intended to expand factors under s 54A (2) so as to include in the abstract or notional concept of a standard non-parole period features which were personal to the offender, whether connected to the commission of the offence or more generally. If that was the statutory purpose, clear words would have been required to achieve it, particularly in light of the construction given to the section in Muldrock v The Queen. Further, such an approach would have created a concept of indeterminate meaning which would obscure, rather than assist the sentencing process.”

26. At para 112 his Honour wrote:

“In sentencing for an offence (whether or not a standard non-parole period offence), a Court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offence, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence...”

27. His Honour thereafter cited authority and continued:

“Motive for the commission of an offence is an important factor on sentence...”

28. Thus I should add that it does not follow upon a finding objectively that the offence falls at or about midrange that the standard non-parole period or some period fractionally greater must be imposed. The non-parole period that is ultimately imposed is identified upon the synthesis of all relevant matter informing the punishment that is appropriate to the misconduct upon which the offender engaged bringing to account the extent to which moral culpability might be compromised or ameliorated by impaired mental health.

Assessment of the Objective Gravity of the Offence

29. My assessment of the misconduct is that the offence of wounding falls above midrange objective seriousness perhaps at a point about midway between midrange and halfway toward the upper end where a worst case example would rest. It is always a matter of judgement where to place an offence along the scale of objective gravity, but doing the best I can, and bringing into account the following matters that is where I have decided to place this misconduct.

30. First of all, the wounding occurred in two separate attacks in which the offender used different knives. Knives were used in each of the attacks leading to the wounds inflicted. The offender first struck stabbing the victim in the neck causing what was described as profuse bleeding. There was at least the risk of more serious harm, perhaps even loss of life, striking someone in the neck in that region. This was the opinion offered in the medical material to which the Crown had access, which included the proposition that but for the timely intervention of emergency services the victim might not have survived.

31. In what must have been a state of distress the victim withdrew the knife and sought safety away from the offender as she retrieved the second larger knife and then inflicted the second wound penetrating through the victim’s cheek. The injuries to which I shall come I have brought to account.

32. The offence was unprovoked and, one might also accept, unexpected, at least in the first blow that was struck. The offender was under the influence of prohibited drugs at the time, but as the Crown correctly submits that is not a matter upon which the offender can rely on mitigation but force of s 21A (5AA) Crimes (Sentencing Procedure) Act.

Commencement of the Sentence

33. The offence of wounding occurred on 18 January 2017. The offender was arrested on 19 January 2017 and was denied bail. However her time in custody since then includes sentences imposed for other offences, including for an offence of reckless wounding against the same victim, DG.

34. The accumulation of those sentences resulted in a non-parole period of 11 months which commenced on 3 December 2016 and expired on 2 November 2017. This was followed by a further period of 12 months during which she would have been eligible for release to parole, but this was lost to her by reason of the refusal of bail in respect of these present matters.

35. That sentence expired on 2 November 2018. I shall commence the aggregate sentence I impose today on 3 November 2017 in the exercise of my discretion discussed by Simpson J in Callaghan [2006] NSWCCA 58.

The Facts

36. As the Crown submitted, the conduct upon which I shall sentence the offender must be considered within the overall context in which the attack upon DG occurred.

37. The first occasion is before me by way of statement of facts that were produced to the Court yesterday and I have included that document in the working copy of Exhibit A that was provided before then.

38. According to this, the offender and the victim were in an on/off relationship since November 2015; about 12pm on 13 April 2016 the victim picked up the offender from her address in Merrylands and they went to a number of places including a hotel, a bank, a library, an unknown address in Toongabbie, and a football field in Toongabbie. After leaving the football field the offender asked the victim to come to her home. The offender drove with the victim to Main Street Blacktown and parked the car. The offender went to a bank, the victim went to a kebab shop and thereafter they left the store and returned to the car. The victim drove to her address in Merrylands. She said, “Let’s go out to the back shed”. This was a reference to a granny flat in the backyard where a witness, KW, lived.

39. The victim and the offender and the witness sat at a dining room table in the granny flat, where they all smoked methylamphetamine. An argument evolved. The offender referred to the victim as a snitch and as stupid. He announced that he was going to leave. She said, “No you’re not, you’re not going anywhere”. She became agitated and produced a kitchen knife. The offender asked the victim to hand her his car keys, which he declined. She raised the knife with one hand and pointed it at him and then punched him to his left shoulder and the left hand side of his face using her free hand. He attempted to stand up and as he did so she stabbed him in his left thigh and left forearm causing pain and bleeding. She then lunged at him and stabbed him in his right shoulder. She put the knife in her handbag and then punched him in the face. The witness opened the door and the victim and the offender left the granny flat. The offender went inside the house to look for bandages, unsuccessfully. They drove to a supermarket and a chemist to purchase bandages and then drove to a relative’s home in Prospect.

40. The offender left the vehicle and he drove home and contacted police.

41. The injury he suffered was described as a two centimetre laceration breaching on the right shoulder anteriorly, a left lateral proximal forearm 2 centimetre laceration and a left anterior lateral thigh 2 centimetre laceration and bruising over the left scapula. All stab wounds appeared to have pierced the dermis and epidermis. The victim was noted to have a full range of motion in his upper and lower limbs with no sensory/motor or vascular compromise. The wounds were stapled and he made a complete recovery.

42. On 14 April 2016 the victim made his statement and the same day the offender participated in an interview after she was arrested in Merrylands. She made rambling admissions in the course of which she said:

“I did this shit. I did it for self-defence bro. It was protection on behalf of me and my family. I sensed he was dangerous... He’s after my family...”

43. She then continued by telling the police that she stabbed the victim because he wanted her to do so.

44. The facts underpinning the present prosecution outline the relationship that they had including the appearance at Campbelltown Local Court on 18 January 2017 for sentence. The matter was adjourned from that date, with bail conditions attaching, including abstinence from drugs and alcohol and not to make any contact with the victim and to comply with an apprehended violence order which was put in place for the protection of the victim. She is in breach of the apprehended violence order as a consequence of what fell thereafter.

43. After leaving Campbelltown Local Court they attended the hotel at Doonside. That was in breach of the apprehended violence order.

44. At 6.30pm that evening both the offender and the victim were picked up in a vehicle by mutual friends, someone named John and another named Andrea. They went to John’s home in Doonside. There they consumed cannabis over about an hour and a half. About 9.30pm John, Andrea and the offender were seated on a lounge from left to right. The victim was seated to the offender’s right hand side in a corner lounge. She hugged him and said “I love you” and then without provocation stabbed him in the neck with a knife and then ran into the kitchen. The victim pulled the knife out of his neck and began bleeding profusely from the wound. He attempted to stem the flow of blood from his neck using his hand.

45. John and Andrea fled the lounge room out the front door. John, who is an incomplete quadriplegic, did not have time to collect his wheelchair or a walking aid and fell in the driveway.

46. The offender ran back into the kitchen, obtained another larger kitchen knife. She returned to the lounge room where the victim was and stabbed him again in the cheek. The victim tried to deter her with a bar stool that was positioned in the lounge room to create some distance from the offender and prevent further harm. He ran from the house to the front lawn. By this time John and Andrea had gone to other premises and contacted triple-0. The offender came out to the front lawn, still armed with a kitchen knife. There was a short conversation and then she walked south down Knox Road.

47. Police arrived and the victim reported the matter. He was conveyed to Westmead Hospital. He had an elevated heart rate of 140 beats per minute. There was surgery on 19 January 2017, commenced at 0014 hours, and completed at 0228 hours. An angiogram was performed revealing a significant arterial bleed. There was no other information from the medical notes with regard to that. The injury to the right neck, described as submandibular (below the jawbone) was explored and was closed with sutures. The injury to the left cheek near the angle of the jaw and extending forwards was 4 centimetres long, was full thickness extending from the skin to the inner surface of the cheek and opening into the oral cavity, with tearing to the masseter and buccinators muscles which are involved in jaw movements. There was diffuse bleeding noted from the muscle edges. The skin on the inner aspect of the cheek was sutured separately. The affected muscles were also sutured. There was a 0.5 centimetre laceration over the left face near the angle of the jaw, at the tail end of a superficial scratch that required one suture and steri-strips.

48. There are a number of important nerves and vessels that run near to the sites of these wounds; continuing bleeding from one of his injuries even after transportation to hospital suggests that the outcome to the victim may have been different had emergency care not been available. He remained intubated until 20 January 2017 and was discharged on 23 January 2017. He was later seen on 6 February 2017 with diffuse swelling to the left angle of the jaw due to an underlying salivary gland injury.

49. The witnesses gave recorded versions of the events. The witness John identified the knife as his, with a 20 centimetre blade. When the victim ran from the house holding his throat he was heard to say by the witness Andrea “She just stabbed me” to which the offender replied “He done it to himself”.

50. There is reference to the forensic evidence, which needs no further comment.

51. In the interview in which she participated she denied all of the allegations, and said that she last saw the victim around 4pm at the Blacktown Railway Station where they parted company.

52. The second offence of perverting the course of justice was between 26 January and 7 March 2017, a significant period of time. Calls were made from where the offender was in custody. The facts describe the conversations which took place on the various dates. The statements by the offender are recorded. The calls were respectively on 26 January 2017 on two occasions; on 27 January 2017; on 12 February 2017, three times; on 28 February 2017; and on 7 March 2017.

53. In the course of these utterances she told him that he could not say anything to the police, acknowledged the breach of her apprehended violence order, pressed the victim not to say anything to the police, asked that he not go against her and do not snitch, advised him that all he needed to do was drop the AVO and drop the charges.

54. In the call on 28 February 2017, call 13, she said:

“You better drop the - the fucking charge on me and you’ve got to talk to them, man, or fucking kill them or something, because I don’t want, I don’t want to get done for that”.

57. She acknowledged that he would be arrested were he to comply with her request but he would suffer a more limited penalty than that to which she is exposed.

58. It was said that in the circumstances this offence is at the low end of the range of objective seriousness. I do not agree. I agree that it is below mid-range but not at the low end of the range as was suggested.

The Offender

59. The offender is now 30 years of age, she has extensive antecedents. She has already spent significant periods of time in gaol, commencing on 18 December 2015, and while in custody she has been guilty of custodial offences on 14 December 2018, 6 October 2018 and 28 July 2018. On the most recent of those she refused, or failed a drug sample, she failed to comply with the routine of the centre in October 2018, and was possessed of prohibited drugs in July 2018. In November 2017 she received an unauthorised article from a visitor. In August 2017 she was involved with a fight. In March 2017 she was guilty of self-intoxication.

60. There is no evidence before me about what those offences involved. I was told from the bar table they are of little moment but it remains that she has not been compliant in custody, leading to the charges and consequent penalties.

61. Her first time in a court was in July 2003 in the Children’s Court; for whatever reason the entries for that occasion and subsequently in March 2004 have been redacted, so too the entry in May 2004 and in January 2005. The first appearance of which I am aware is one in July 2005 in a Children’s Court of assault occasion actual bodily harm, for which she was given probation. Then in January 2005 robbery in company for which she was given community service. I note that that is one of the matters redacted in one form of the antecedent report that I have.

62. Then we have before the Court the record in adult courts beginning in April 2016 when she was charged with driving with never having held a licence; in June 2017 reckless wounding, which is the offence to which I earlier referred; in July 2016 with contravening an apprehended violence order which resulted in a bond pursuant to s 9 Crimes (Sentencing Procedure) Act for the period of 12 months. She was called up in respect of that and ultimately was required to serve imprisonment for 2 months. A further contravention resulted in the application of s 10A Crimes (Sentencing Procedure) Act. In September 2016 she was dealt with for possessing prohibited drug, using offensive language, damaging property, intimidation, assaulting an officer, resisting an officer, and goods in custody. The Court applied s 10A Crimes (Sentencing Procedure) Act for the first two of those offences but for the damaging property, intimidation and assaulting the police officer and resisting an officer she was sentenced to imprisonment, and for the goods in custody she was given another bond pursuant to s 9 Crimes (Sentencing Procedure) Act for a period of 12 months. The sentences were suspended but were implemented when she was called up for breach in June 2017, and for another contravention of an apprehended violence order she was sentenced to 3 months imprisonment; that was in June 2017.

63. Not in sequence, in April 2008 she was fined for possessing a prohibited drug; in March 2015 she was fined for receiving stolen property; in June 2015 for driving upon an expired licence she was fined; in December 2015 stealing from the person, she was convicted in her absence and in due course required to enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act for 6 months. She was called up for that and sentenced to imprisonment for 2 months.

64. There is a record from Western Australia involving breaches of police orders for which she was fined, for disorderly behaviour and unauthorised driving.

65. I have no evidence from the offender at all and I have already reflected upon the importance of having evidence when assessing moral culpability of the offender.

66. Her mother gave evidence. It was of brief duration and unsatisfactory. She spoke of her husband having been a very traumatic and violent partner, that she had experienced 27 years of domestic violence; it was witnessed by her children. She spoke of the offender always being her protector, of her husband being a very controlling man, and that he was in and out of gaol. She spoke of the removal of the offender and as I understood both of her children to be placed with their grandparents, but in due course they were returned to her.

67. It was said that she has also been the victim of domestic violence and in cross-examination in response to a question put by the Crown advanced the proposition that DG had perpetrated domestic violence against the offender which she had seen. This is inconsistent I might say with what is attributed to the offender in the material tendered to me from Dr Ellis.

68. The Crown put to her that that was a lie but did not follow up in the absence of a response by the witness to that proposition. I intervened at that point. There is nothing in any of the material to indicate that DG is guilty of domestic violence toward the offender. I asked counsel whether this evidence was anticipated and if so the question then to be asked was why the Crown was not been put on notice to have DG here for cross-examination. Counsel advised that she did not anticipate this evidence and would not be relying upon it.

69. The Crown did not seek to further cross-examine, there was no re-examination, and I invited the witness to step down. In the circumstances I should put her evidence entirely to one side. I do not bring that evidence to account to the disadvantage of the offender; she could not be said to have had any control over whatever attempt her mother might be found to have made to assist her daughter; it is simply the case that I put her evidence to one side and do not bring it to account one way or the other.

70. There is material tendered on behalf of the offender offering support for her, indicating that she has accommodation available to her when she is released. One document has been provided by her sister and on the face of the it one must accept that she is sincere in her wishes to provide for her sister once she is released and will enable the support that is otherwise available to her, together with whatever rehabilitation she might need to undertake once she is allowed back into the community.

71. There is a document from her mother, again speaking to the progress made by the offender in custody. There is a document from her uncle speaking to the qualities that she had exhibited through her formative years and touching in general terms upon her challenges and the support that she will have.

72. Finally, there is a document here from her the father of her children, of whom it is said that he offered domestic violence. He has known her since she was 15 years of age. Their life together has been a long hard road; both grew up in a high level of violence and drug use. He was in and out of prison from the age of 13, he has put himself through rehabilitation, has finished a sentence, he has had since then two jobs which he continues to hold. He has reunited with the offender and they now want to rebuild their family. He has seen a tremendous change since her incarceration, prison is not a good place, which is self-evident, and I do not have any difficulty accepting that proposition. He is offering support for her in the future.

73. There is of course the proposition that he has been responsible for some misconduct toward her in the past which has added to her burden, so I am told.

74. There are certificates supporting the progress she has made in custody, which I accept is evidence her road to rehabilitation, and I have a letter written from her which is part of the material tendered in her case and which upon my reading of the document is consistent with an articulate, and intelligent mature young woman. I use the word young woman, although at the age of 30 she is venturing towards middle-age. This was written on 12 October 2018.

75. She speaks of the children being removed from her because of domestic violence and mental health issues. She said she has been through domestic violence as a victim. She spoke of being confused because of her pain. She has endured every type of abuse you could imagine, physical, mental, emotional and sexual abuse. She suffered the loss of her children and time away from her family, suffered the trauma of being stabbed in the lung. This appears to have been an episode where her uncle, according to what was attributed to her by Dr Ellis, stabbed her in the chest causing a pneumothorax. She is pursuing compensation for this.

76. She speaks of the recent sentence imposed in respect of the first attack upon DG. She has made sacrifices in order to break the cycle of domestic violence for her children and her future; I am not quite sure what those sacrifices might have been. She has been using her time productively in gaol. She has attended 20 sessions of an EQUIPS foundation program and she is working in hospitality, attending church and regular psychiatric appointments. She is also taking her medication and she expresses remorse.

77. Dr Ellis as I said provided two reports. There are contrasts between the first report and the second report, although it appears that he has copied the first report and amplified some of it for the purposes of the second document.

78. As I said earlier the first report was written on 29 May 2017. For this report there was a clinical assessment over two hours and he also had access to the police facts, the statement of agreed facts, criminal record. I think these documents would fall under the rubric of legal documents as he described them in the later correspondence he provided. He also had access to the Justice Health medical records, Pacific Medical Centre records and Blacktown Hospital psychiatric unit discharge summary and admission notes for 8th to 11 September 2015.

79. In this report he provided a history of her life, her relationship with the father of her children and the progress she has been making in custody. She said that when she does not take medication she hears voices saying “Kill or be killed” or “Your kids are being killed”. They come from speakers. She also hears chopping sounds, she thinks people talk about her, whispering “she’s crazy” or “she’s mental”. She thought she was being followed by the same cars. She spoke of there being a big secret going on in the world, that there was a conspiracy. She was using crystal methylamphetamine at the time when she was beginning to experience these beliefs about two years ago; that is before the date of this report. She spoke of having been stabbed. She said that her partner was a bad person who had manipulated her mind using the device the doctors had put in there. She thought he might have been an imposter; this is a reference to the victim in this matter.

80. She said when she was on medication in custody the symptoms got better. When she was released she stopped using medication, used cannabis and ice and the symptoms returned.

81. She reports that these beliefs and experiences have resolved since being placed on medication and again in custody this time.

82. At the age of 11 she began to self-harm by cutting her wrists. According to the records to which the doctor had that was part of her history. In 2015 she was admitted to a psychiatric hospital following a domestic dispute where she locked herself in the room and reported suicidal ideation. She had, recent to that event, lost the care of her children to Family and Community Services. There was no specific diagnosis. She was prescribed with an antidepressant and her agitated behaviour resolved. She also reported being on injections of psychiatric medication, but there is no support for this in the documents available to Dr Ellis.

83. The general practitioner upon whom she was attending diagnosed her with schizophrenia, adjustment disorder, and depression, anxiety, paranoia, and substance use and anger problems.

84. In this report he then discussed her substance use and addiction, including resort to alcohol at age 11; admission to hospital at the age of 14 with alcohol poisoning; cannabis from the age of 14; using a quarter of an ounce every weekend. She reported that when she stopped smoking her experience of hearing voices and persecutory beliefs increased. She began using crystal methamphetamine at the age of 25 - this takes it to around about 2014. She reports she was using up to about 1 gram per day, smoking the substance, built up a tolerance and became anxious if it was not available. She would then experience withdrawals and she noted that her experience of hearing voices and persecutory beliefs increased significantly when using crystal methamphetamine.

85. She sniffed petrol once at the age of 16. She denied use of speed, ecstasy, cocaine, heroin, and LSD, psilocybin, synthetic drugs or abuse of prescription medication.

86. She reported that she had a gambling problem in the clutches of which she would spend up to $1,600 every day, including the cost of acquiring drugs. This is a substantial amount of money, but there is no evidence before me how she was funding her activities.

87. There is again a reference to the stabbing apparently by an uncle, who had a diagnosis of bipolar disorder.

88. Dr Ellis did not have available to him her criminal record, as part of her background of development. He discussed the separation of her parents when she was 16, her exposure to domestic violence by her father and that she stabbed her father on one occasion.

89. She denied experiencing childhood sexual abuse.

90. She attended school until the age of 16. She was in need of referral to behaviour schools because of truancy, fighting, fire setting, shoplifting, graffiti and running away from home.

91. She came to Australia at the age of 11, was removed from her family to live with her grandmother, and returned to her mother until she was aged 16 when she moved out of home. She was employed in a butcher shop for two years and in wool testing for one year.

92. Dr Ellis referred to the offences which she has said occurred when she opportunistically grabbed a household knife; it was on the basis of what she said she was experiencing that she attacked the victim.

93. She said that she was in company around people providing a bad influence; they were using drugs, as was she. She was not taking her prescription medication. There are a number of symptoms that she was experiencing including auditory hallucinations; she thought that her mind was being read from a chip in her arm and that her partner was somehow involved in this.

94. There was a mental state examination in which she did not currently present with any symptoms of anxiety or depression.

95. She was said to have met the criteria for substance use disorder; Dr Ellis said at p 7:

“It is possible that these symptoms are purely drug induced, and may not recur in the future if she is abstinent from substances. It may be that they are inherent and currently treated with medication and that she requires antipsychotic treatment indefinitely, in which case a diagnosis of schizophrenia could be considered.”

96. She also met the criteria for personality disorder, although there were no symptoms of anxiety or depression current at the time.

97. There is a discussion with regard to her mental state at the material time which, although not expressly offering the defence of not guilty by reason of mental illness, carries that implication.

98. She has been attributed with insight and remorse expressing regret for having harmed, realising that the system of beliefs she held at the time were the product of psychotic illness. That is her perception but it must also require one to bring to account the fact that she was a chronic user of prohibited drugs, two of which are known to be a problem in this regard, namely cannabis and crystal methamphetamine.

99. There is reference to her disadvantage relative to the average person placed in custody, although upon the material before me it would appear that her time in custody has been beneficial to her because she has been able to explore options to facilitate her rehabilitation, and subject to what is contained in her custodial offences, if the representations are to be accepted, abstinent from ongoing use of cannabis and methylamphetamine.

100. She requires substance use treatment with the goal of abstinence, she benefits from a prescription of antipsychotic medication, prospects for rehabilitation however are guarded because of multiple entrenched pathologies discussed by Dr Ellis in that report.

101. His second report on 7 January 2019 refers to his previous reports on 29 May 2017 and 8 May 2018. I do not believe I have his report of 8 May 2018, though I have an email that was sent by him in 2019.

102. Again he provides the history of her life, together with her relationship and the three children born to her and her former partner, who now wants to re-engage with her.

103. There has been a visit from him and her sister and her brother, perhaps visits, while she was in a centre proximate to them, but since moving to Wellington it appears there have not been the opportunities to readily visit her.

104. There is reference to her EQUIPS foundation program, her access to a psychologist in Dillwynia, the prescription by injection of Paliperidone for psychosis each month and oral prescription of Quetiapine, also an antipsychotic medication.

105. She said that she has received no institutional charges and had no fights in custody. That is inconsistent with the custodial record.

106. She does not experience any medication side effects; she is exercising daily and has reached 96 kilos from the starting point of 65 kilos upon her entry into custody. Her mood is good, she does not feel angry, she is not using drugs, she has no cravings, and she has no plans to return to drugs. She no longer believes or senses that people are liars and she does not hear her name being called. She no longer believes in imposters, conspiracies, or people engaging upon surveillance. She is now of the view that these beliefs were part of her mental illness and with regular medication and not taking drugs she is thinking clearly. I note the combination of those two factors.

107. She is happy that she is fully medicated. There is no new information to contradict the previous psychiatric history, which is once more summarised in similar terms to the earlier report with reference on this occasion to Dr Asad Sabour and a nurse practitioner, Ms Christine Muller. Her substance use and addiction history is once again discussed, together with her gambling and I ask again, how was she ever able to fund $1,600 per day and take drugs at the rate she was taking without some resource to be able to do so?

108. Medical history is discussed, nothing to add to what was previously reported. Background to development is discussed with nothing further to add to what was previously reported. The relationship she described was of 10 years and here it is said that he was using ice and perpetrating domestic violence against her and her three children.

109. Her accounts of the material times is discussed which is consistent with what occurred previously but in greater detail. He said the relationship with her partner was never physically violent but he would cheat on her and worked organising women in sex work and she was jealous of these women. She began to think that he was “fake” and that he was trying to act like her godfather. She spoke of believing there was a body in the boot of the car at one point but when she went to it and found there was nothing there she was worried from the confusion that created and the fear that he might harm her.

110. In the weeks prior to the offence, referred to as “defence” incorrectly in the report, they were both using ice at the rate of 1 gram every three days by smoking. She was smoking a quarter ounce of cannabis every week and drinking a six-pack of beer each day. She was only intermittingly compliant with her medication, living with the victim while she was on bail and subject to the AVO of course, she said she was pressured to use drugs by her partner.

111. I look at those representations with some circumspection. I have no evidence upon which I could find that to be the case and there is no evidence from DG with regard to that; I do not take that into account as a mitigating factor in this case.

112. She said that on the day she was released from Campbelltown Court he wanted to get some methylamphetamine from his friends and hence they went to the hotel. They went to the home where they continued to smoke cannabis and the methylamphetamine. She said she found a knife under the couch. She thought that she was in a trap house, that people would take girls there to get them to take drugs and force them to have sex. She thought something was going to happen to her. She believed he was texting an associate to put her in the boot. She said she was not hearing voices at the time but had been hearing voices the weeks before. She said she called her brother on the phone as she was worried about his safety. There is nothing else about that before me.

113. She said she stabbed him in order to defend herself, believing he might have been an imposter.

114. With regard to the misconduct when she sought to pervert justice, she said she was still fried and mentally unwell. Her head was not great and not in a stable mind. I find that difficult to accept when I look through the representations that are contained in the facts and the phone calls that were captured.

115. She recognises now that the partner was not a bad person; she no longer holds those beliefs that were part of her mental illness.

116. Upon mental state examination there is no evidence of current delusions or hallucinations, she has insight into her past symptoms. She is diagnosed once again with meeting the criteria for substance use disorder, schizophrenia, personality disorder with antisocial and borderline traits. She has the propensity to behave upon impulse and in aggressive ways that breach legal norms.

117. It is said that at the time it is likely that she was experiencing faint symptoms of psychosis, being delusions, and was thereupon disinhibited by the use of the substances. It is noted that her compliance with medication was poor. The diagnosis of schizophrenia is consistent with other observations by those providing care in a custodial setting.

118. Once again she is attributed with her fear that she was going to be killed, harbouring feelings toward her partner that are described as mixed. She was unclear as to her exact intent but would have been aware that stabbing into the neck as she did would have led to harm. Once again there is a discussion here offering propositions that might be consistent with the defence of not guilty by reason of mental illness.

119. At p 12 the following is written:

“It is likely she still had delusions and hallucinations during her earlier period of custody. It is likely that these had begun to attenuate with cessation of drug use and antipsychotic treatment. Thus, although her diagnosis of schizophrenia was present for the time of perverting the course of justice offence, it is less clear that active symptoms were present. Her conduct during the phone call shows intermittent irritability, which could indicate underlying delusions, however there is no speech identified in the calls that indicates delusions. Her intent in making the phone call is likely to avoid consequences, indicating knowledge of wrongfulness.”

120. Thus, the opinion offered that might have been advanced it is said with regard to the first offence is not available on the second.

121. It is not possible to determine her prospects of rehabilitation and whether or not she will reoffend in light of the history that she has demonstrated, including her tendency not to abide by her regime of medication and her propensity to misuse prohibited drugs.

122. She is said to fall within the group of persons with a risk for violent offending that is statistically high in frequency and greater - I will quote the document at p 14:

“Ms McKay would fall into a group of persons where the risk for violent offending, offending (sic) that is statistically high in frequency, and greater that a theoretical average offender.”

123. There is then a summary of treatment and the effect of custody, which I have noted, which is not entirely consistent with what I am told about her and the progress she has made.

124. I have had access to the further report provided by Dr Ellis, in response to further questions posed to him. It has not advanced his opinion, although it provides further qualification perhaps in support of what he has previously written.

Consideration

125. The Crown’s submissions I will get to in a moment, but dealing first of all with the submissions provided on behalf of the offender, Ms Lewer who appeared on behalf of the offender on each of the occasions the matter was presented spoke to written submissions. I confess that I pressed her upon some of the matters that were causing me concern. There was no opportunity taken to enlarge the evidence that was before me, either from the offender or otherwise. It is acknowledged that the line of s 5 Crimes (Sentencing Procedure) Act is crossed and a custodial sentence in each case must be imposed.

126. I am asked to accept that there are special circumstances and I do. There must be I find upon the material before me on balance an underlying mental illness. I find on the material before me that the extent of that mental illness could be managed and would have been managed had the offender complied with her regime of medication. I find on the material before me that the mental illness and its effect was exacerbated significantly by her ingestion of prohibited drugs, predominantly cannabis and the methylamphetamine which she was consuming at frequent intervals in quantities that must have had an adverse effect on her. To the extent that this contributed to her misconduct I have not overlooked s 21A (5AA) Crimes (Sentencing Procedure) Act. Her misuse of drugs provides explanation for her conduct and I bring that to account.

127. It is also said that I should bring to account the principles found in Bugmy [2013] HCA 37, because she has had a disadvantaged background.

128. It is difficult to assess the extent to which she was disadvantaged by those who were responsible for her care, it must be the case that she had some burden as a consequence. There is the objective fact that she was removed from her mother to live with her grandmother, she was troubled at school, she did return to her mother until 16 when she left home.

129. It appears that, on the material on balance, although there is no evidence before me that I could turn to in this case, there is material before me that suggests that her father was a violent person. To that extent I would accept the evidence given by the mother. I reject entirely the evidence given by the mother regarding DG, and the suggestion that he was violent toward the offender. She has disavowed any such proposition in the most recent contact with Dr Ellis, to which he referred in his later report.

130. Her counsel acknowledges the aggravating factors of her past record and the conditional liberty to which she was subject at the time. This of course does not increase the objective gravity of the offending, or the proportionate sentence that would otherwise be applied, but it does inform the extent to which specific deterrence must be given weight, the risk that the offender might pose to others in the community in the future, and her prospects for rehabilitation.

131. It is conceded that the use of the weapon is an aggravating factor. Although weapons are often used in such offences they are not always used, and it is appropriate that I bring to account the fact that she used two weapons, one each for each of the occasions she attacked the victim in this sequence.

132. It is also conceded that this misconduct occurring in a home is a matter in aggravation. I have had regard to the nature and extent of the injuries suffered and I am reminded of that. Grievous bodily harm can extend from a wound that might result in scarring only without any significant sequelae otherwise, but in this case I have brought to account that a stab wound to the throat causing profuse bleeding, as asserted in the facts, carried the implication of greater harm, perhaps loss of life.

133. The offending I accept was relatively short. There were at least two blows struck using separate weapons. The extent to which there is premeditation is also addressed. It could not be found that there was premeditation, at least in respect of the first blow, or the second, with only a short period of time between the two events.

134. It is acknowledged that the offender intended harm. But it is said that she was harbouring her belief under the delusion brought by her state of mind, a state of mind I find that was brought about by her misuse of prohibited drugs.

135. Subjectively she cannot draw upon a great deal, but I do accept that she has the Bugmy principles to apply, and it is recognised now that this extends across her lifetime, not to be ignored on any occasion she might come before a court.

136. There is reference to her traumatic sexual assault in her later adolescence. I do not know that there is any material before me upon which I could find that to have occurred and I do not bring that to account.

137. There are extensive submissions made with regard to her mental condition, with which I am satisfied I have already dealt.

138. I accept that there is remorse. I do so for this reason. There was the possibility that she could have agitated a trial drawing upon the defence of mental illness relying upon the opinion given by Dr Ellis, but she chose not to do so. I accept that the progress she has made in custody reflects remorse and that she is anxious to restore herself to good health and to her children and to her more extended family.

139. Prospects of rehabilitation are nothing less than guarded. I rely upon what Dr Ellis wrote in that regard and also the history that has been demonstrated by the offender so far.

140. I have taken into account her presentence custody; I have applied the totality principle and the cumulative effect of imprisonment and her pleas of guilty. I find that there are special circumstances. She does need an extended period at large in the community under strict supervision until she can demonstrate that she is not going to come back before court for other misconduct of this type or of any other type I might add.

141. The Crown has provided submissions with regard to the objective seriousness; I have accepted the Crown’s submission with regard to self-induced intoxication. With regard to the attempt to pervert the course of justice I have accepted what the Crown has had to say with regard to that. I find that to be below midrange, but marginally below midrange of objective seriousness. It is a very serious crime to engage upon conduct such as she did, attempting to have the victim of her first offence disengage from the proceedings so that she might go free, notwithstanding the nature of the crime that she committed.

142. I am reminded by the Crown of the De La Rosa principles [2010] NSWCCA 194. To summarise: where the state of mental health contributes to the commission of the offence in a material way, moral culpability may be reduced. In this regard I have already found that her mental illness if controlled by the medication would not have been a problem. Upon what I have from Dr Ellis it was the combination of a mental illness, the failure to adhere to her medication and the ingestion of the prohibited drugs which led to the commission of the crime. Moral culpability is compromised I find but marginally.

143. This said, it must be found to have been reduced and thus to that limited extent she is not a vehicle for general deterrence other than to say that it must be demonstrated to people who might have these difficulties that they must comply with their treatment regime and they must abstain from the ingestion of prohibited drugs which will exacerbate if not trigger episodes that might otherwise not arise.

144. It might be the case that custody will fall more heavily upon the offender. I am not persuaded that it would do so in circumstances where she is in a controlled environment, she is getting her medication, and she is progressing, as has been put before me, which informs the extent to which she has been rehabilitated.

145. Specific deterrence must be given appropriate weight in this case in my view, notwithstanding the underlying problem which I find was exacerbated by her failure to attend to her medication and her access to prohibited drugs.

146. I am satisfied that I must bring to account the extent to which she has posed a threat to the community, again a point raised in De La Rosa ibid.

147. That will bring me to the purposes of sentencing is s 3A Crimes (Sentencing Procedure) Act. These require appropriate weight to punishment, the appropriate punishment that should be imposed, and the prevention of crime by generally deterring others and the offender, to provide adequate protection, to promote rehabilitation, to make the offender accountable, to denounce her conduct and to recognise the harm that she did.

148. I am reminded by the Crown of significant factors in her criminal history, which are articulated in para 24, and the extent to which she has demonstrated her propensity for breaching conditional liberty when it was extended to her. I am reminded of Dr Ellis’ comments with regard to the risk she poses to the community.

149. The Crown is not supportive of special circumstances and submits the Court must use caution when coming to the decision about that. But as I said I am satisfied that there are special circumstances and that she is someone in need of supervision in the community. If she fails to meet her obligations on parole the problem for her will be further custody for whatever breach she might engage upon.

150. That brings me to the imposition of sentence.

The Sentence

151. I shall first deal with the failure to comply with the apprehended violence order, the related offence before me pursuant to s 166 of the Criminal Procedure Act 1986.

152. In respect of that offence I convict the offender. I will apply s 10A Crimes (Sentencing Procedure) Act to that offence, in light of the sentence that is going to be imposed in the aggregate upon the other two offences.

153. For the offence of wounding with intent to cause grievous bodily harm, applying the discount of 15%, and rounding the sentence down as I indicated that I would, I have identified a sentence of 8 years with a non-parole period of 4 years and 6 months.

154. For the offence of attempting to pervert the course of justice, I have identified as appropriate a sentence of imprisonment of 4 years and 6 months.

155. I shall impose an aggregate sentence of 8 years and 6 months. I specify a non-parole period of 4 years and 6 months.

156. The commencement date is 3 November 2017, the non-parole period shall expire on 2 May 2022 and the overall sentence of 8 years and 6 months shall expire on 2 May 2026.

151. As I said I have found special circumstances. They will include of course that there is a partial accumulation upon the sentence that she has recently concluded. When she completes the non-parole period she will be eligible for release to parole subject to satisfying the authorities that she should be released to parole, and the parole will be supervised in accordance with the legislation, or the regulations that govern those decisions.

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Decision last updated: 05 July 2019