R v Pankhurst

[2012] NSWDC 165

District Court

New South Wales

Medium Neutral Citation:	R v Pankhurst [2012] NSWDC 165
Hearing dates:	16 February 2012
Decision date:	16 February 2012
Before:	Murrell SC DCJ
Decision:	Sentenced to imprisonment for an effective period of two years and eleven months with an effective non-parole period of seventeen months.
Catchwords:	CRIMINAL LAW - Sentence
Legislation Cited:	Crimes Act 1900 (NSW), s 33(1)(a), s 35
Category:	Sentence
Parties:	The Crown Lyndsey Jane Pankhurst
Representation:	Mr McLennan (Crown) Mr Kumarasinhe (Offender) Office of the Director of Public Prosecutions NSW Hannigans (Offender)
File Number(s):	2010/88238
Publication restriction:	There is to be no publication of the name of the juvenile offender or of any material, which may tend to identify the offender.

Judgment

1. The offender pleaded guilty to two offences:

(1) An offence against s 33(1)(a) of the Crimes Act 1900 that on 10 April 2010 at Cougal she wounded Jarrod McShane with intent to cause him grievous bodily harm (by stabbing);

(2) An offence against s 35 of the Crimes Act 1900 that on 10 April 2010 at Cougal while in company she recklessly caused grievous bodily harm to Mr McShane (a broken left jaw occasioned by kicking Mr McShane).

1. The first offence carries a maximum available term of imprisonment of twenty-five years and a standard non-parole period of seven years. The second offence carries a maximum available penalty of fourteen years and a standard non-parole period of five years. The maximum available penalties and the standard non-parole periods provide very important sentencing guideposts or parameters.

1. The facts were described in the sentencing remarks made in relation to the co-offenders, Shane Hurst and A, a child at the date of the offences. Briefly, the facts relevant to this offender are that, on the afternoon of 9 April 2010, the victim and the three offenders travelled to Brisbane in the victim's BMW motor vehicle, intending to meet with Mr Hurst's associates in the Queen Street Mall in Brisbane so that Mr Hurst could buy drugs. The drug vendors did not attend. Their failure to do so was attributed to some wrongdoing on the part of the victim.

1. Leaving central Brisbane, the group drove to a suburb where the offender met with some people. The offender allegedly told one of those people that the group was intending to "set up" the victim. There is a dispute about the contents of the conversation. I do not find the alleged words were said by the offender. The relevant witness was not called. However, as with the other offenders, I find that, when the group left Brisbane, the offender and co-offenders believed that something untoward would or may well occur on the return journey by way of dealing with the victim for his alleged failure to "deliver" in relation to the drug transaction. As to whether there was a firm plan to occasion serious harm to the victim, I am not satisfied beyond reasonable doubt that such an intent was formed significantly prior to the time when the harm was actually occasioned.

1. The group drove to an isolated area that overlooks a section of rail known as the Border Loop. The group remained there for a total period of about an hour. They saw a train pass through and talked to two couples, who were the only other people who visited the location during the period that the offenders were present at the Border Loop.

1. After the offenders had been there for quite some time and the couples had well and truly left the scene, the victim began to feel uneasy. He became keen to leave the area. Mr Hurst said that he wanted to have a discussion with the victim. Mr Hurst and the victim walked away from the vehicle in which A and the offender were then located. Mr Hurst had a conversation with the victim. As the victim and Mr Hurst were walking back towards the car, Mr Hurst stabbed the victim in the back twice, and then kicked him to the ground and began kicking him around the head and body.

1. A and the offender then came over to where the victim was located on the ground. A willingly participated in further kicking the victim, and she stabbed him at least twice. According to the victim (whose account of events is generally consistent with what the various offenders have said at various stages), the offender spoke to the victim and expressed her dissatisfaction with the fact that he had rejected her in a sexual way. She proceeded to kick the victim in the head and testicles. A then passed the knife to the offender and encouraged her to stab the victim, stating, "It's just like stabbing a chicken." The offender delivered a stab to the victim's left side.

1. In all, the victim sustained six stab wounds. Inferentially, the wound to the left chest area was delivered by the offender. The other five stab wounds were to the back. With one exception, the wounds were relatively shallow, point five to two centimetres in depth. A deep wound of about three to five centimetres in depth was delivered to the back. It was not delivered by the offender. However, the case is one of joint criminal enterprise, and the offender has pleaded guilty on that basis. The victim also suffered significant bruises and abrasions when he was dragged around on the bitumen surface of the car park at Border Loop. When he was kicked and punched in the left jaw, he suffered a fracture. It is unclear who delivered that kick or punch. The Crown case in that regard is one of joint criminal enterprise.

1. Through most of the episode, the victim feared for his life. The attack lasted for a considerable period. The victim was pleading to be saved. He was taunted primarily by A. Mr Hurst also made very cruel statements. From what A and Mr Hurst said, they were motivated to attack the victim because the victim had breached the code of "three Rs", being respect, revenge and reputation. Mr Hurst and A considered that the victim had sullied the reputation of Mr Hurst in Brisbane drug dealing circles.

1. After the lengthy assault on the victim, A made the statement, "finish him" or words to that effect. The offender and Mr Hurst proceeded to push or pull the victim to a steep embankment next to the car park, and they pushed him down the embankment. As he was lying at the bottom of the embankment, the victim thought that he might die because of the extent of his injuries, but he was obliged to remain there for a long time, until he felt certain that the car containing the offenders had departed. He then managed to make his way up the embankment and he walked for some kilometres until he found a dwelling. The occupant took him to the police and he was then conveyed to hospital.

1. In relation to the offender's role, she was the last one to engage in any physical assault on the victim. She had her own motive for assaulting him, which was rejection. She stabbed him only once and only when encouraged by A to do so. She also delivered kicks to the head and the testicles, and assisted to drag the victim to the edge of the embankment.

1. When the offender spoke to police on 10 April, she provided a relatively accurate account of what had occurred, but she minimised her own role. She said that she did not stab the victim and she suggested that, to the extent that she did participate, she was under duress from Mr Hurst and A. Later, she informed a psychologist that she had "blanked out" in relation to the stabbing. I take this to mean that her recollection of what she did had become blocked because she was horrified by her conduct. She could not have "blanked out" at the time because the delivery of a stab wound is something that is specific and one would need to be thinking about it in order it to do it.

1. Fortunately, the victim made an excellent physical recovery. He provided a victim impact statement which refers to a number of very serious psychological consequences. One would expect that any person subjected to such a horrific assault over an extended period of time in an isolated location, and who was then obliged to walk for some distance not knowing whether he would find help and believing that he may die, would suffer from very serious psychological sequelae. That has been the case with this victim.

1. The offender advances very strong subjective circumstances. She is twenty-one years of age. She was nineteen at the date of the offence. A was seventeen and Mr Hurst was twenty at the date of the offence. The offender was raised in the Port Macquarie area on a dairy farm. When she was thirteen or fourteen years of age, the family moved to the Casino area and the offender's parents commenced a cattle freight business. The offender attended Casino High School and had some difficulty fitting in. She became rebellious, fell in with a poor peer group, and began to use alcohol and drugs extensively. She has had an alcohol problem since that time. By the time that she left school in Year 11, she was a very heavy cannabis user.

1. Despite these problems, since fourteen years of age the offender has always worked long hours, supporting herself. She has a very strong work ethic. She has worked in takeaway and retail establishments. She is a qualified barista and has a retail certificate.

1. After leaving school, the offender left home for a brief period and moved to Brisbane, where she lived with an aunty. She was trying to make a break with her peer group and settle down. However, about twelve months later, she returned to Casino to be with her close and supportive family. The unfortunate consequence of returning to Casino was that she fell in with her former associates, including the co-offenders.

1. Immediately after the incident, the offender became extremely remorseful and upset about her conduct. The offender said that she "blanked out" in relation to the stabbing. That is probably because she was emotionally upset by what had occurred. The offender was contemplating suicide. She wrote a suicide note to her mother. On the morning after the incident, she resigned from work, possibly because she was going to commit suicide, or possibly just because she could not face work. Her immediate post-incident conduct is consistent with her feeling extremely upset; deeply remorseful and horrified at her own behaviour.

1. Since the incident, the offender has been on strict bail, at first reporting six days a week and later reporting four days a week. Initially, her bail conditions prevented her from leaving her parents' premises unless she was in their company. She spent one day in custody.

1. Recently, the offender's family moved from Casino to Queensland. The offender has been working in Queensland. Initially, she had difficulty sleeping. She was "paranoid" and very stressed. Since the move to Queensland (which has provided some geographic removal from the area of the incident and from people who know about the incident), she has felt somewhat better. However, she remains anxious and stressed about what occurred.

1. The psychological evidence describes the offender as someone who is very sensitive to interpersonal rejection, who is vulnerable, and who seeks acceptance and approval from others. Those characteristics would have contributed to her involvement in the offence. Mr Hurst and A were a couple. The offender would have felt emotional pressure to join in. It was a way to gain acceptance by Mr Hurst and A. Her emotional immaturity lead her to become involved with the co-offenders and to feel pressured to engage in the activities in question. Having said that, she had her own motive for some of the activities in which she engaged. She was not just a passive bystander. Rather, she was actively involved in stabbing, kicking and pushing the victim down the embankment.

1. The offender has an ongoing problem of binge drinking. She needs assistance with that. She has provided references, which show that she is very strongly attached to and emotionally dependent on her family, who provide her with great support. Generally, she is a person of very good character. Since the offence, she has become involved in charity functions organised through the North Coast Truck Drivers Association, an organisation with which her parents are involved. She comes from a very good family.

1. The Crown submits that a discount of fifteen to twenty per cent would be appropriate. Mr Kumarasinhe argues for a greater discount on the basis of the information and co-operation evident in the initial interview with the police, where the offender provided a good deal of accurate information about what had occurred on the night in question. However, in the initial interview, the offender also sought to exonerate herself from any serious wrongdoing. The plea was only entered after the matters had been listed for trial. A discount of fifteen per cent or perhaps a little more is a relatively generous discount. That is the discount that I intend to give.

1. You are convicted of these matters. In relation to the less serious matter under s 35, the starting point for the sentence is a sentence of two years, which I have discounted by fifteen per cent to a sentence of twenty-one months. The minimum period that you should spend in custody is a period of seventeen months. You are sentenced to a non-parole period from 15 February 2012 to 14 July 2013, with a balance of term of four months. The sentence will expire on 14 November 2013. I have partly accumulated the other sentence. The starting point for the sentence on the more serious matter is three years imprisonment, which I have discounted by a little over fifteen per cent to arrive at a sentence of thirty months imprisonment. I am accumulating it by five months. The sentence will commence on 15 July 2012. The non-parole period will expire on 14 July 2013, a non-parole period of twelve months. The balance of the term will expire on 14 January 2016. That represents an effective sentence of two years and eleven months with an effective non-parole period of seventeen months. In relation to the matter on the s 166 certificate, you are convicted and sentenced to a fixed term of imprisonment of four months from 15 February 2012 to 14 June 2012.

1. I make a recommendation (which should be noted on the warrant) that the offender be transported to a women's detention centre in Sydney as soon as possible, and Corrective Services should avoid housing her at Grafton Prison if at all possible.

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Decision last updated: 03 October 2012