R v Sartorel

[2019] NSWDC 373

District Court

New South Wales

Medium Neutral Citation:	R v Sartorel [2019] NSWDC 373
Hearing dates:	17 April 2019
Date of orders:	26 April 2019
Decision date:	26 April 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Sentenced to a term of full-time imprisonment of two years and three months commencing 2 April 2018 and expiring on 1 July 2010, with a non-parole period of 18 months expiring on 1 October 2019.
Catchwords:	SENTENCING — Reckless wounding SENTENCING — Offence committed in custody SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	Bugmy v R (2013) 249 CLR 571 R v McNaughton (2006) 66 NSWLR 566 Veen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Joshua (Justine) Sartorel (Offender)
Representation:	Solicitors: Constantino (Crown) Jameson (Offender)
File Number(s):	2018/00103798

SENTENCE

1. The offender pleaded guilty in the Local Court and adhered to that plea before me to an offence that, on 2 December 2017 at Parklea Correctional Centre, whilst in the company of Bruno Schiavini, she recklessly wounded Ehsan Goordazi. That is an offence under s 35(3) of the Crimes Act and has a maximum penalty of ten years’ imprisonment with a standard non‑parole period of four years. The facts are agreed and are as follows.

Facts of the offending

2. As at the date of the offence, the offender and the victim were inmates at Parklea Correctional Centre in a particular yard referred to in the facts. CCTV footage in the yard captured part of the offence. At around 2.56pm, the offenders, which includes a reference to the co-offender, and the victim were engaged in a physical altercation. The CCTV, which I have watched, does not capture the beginning of the altercation. However, on entering the view of the camera, the offender is seen to be facing away from the victim with her hands above her head in a defensive position.

3. The CCTV footage captures that her shirt has been ripped and the victim is seen to punch the offender twice to the back and side of the head. Fellow inmates observed this altercation from the undercover steps. A short time later, Skivini entered the paved area of the yard. He approached this offender, who was captured on CCTV grabbing at Skivini’s shirt and pulling out a sharp object from the front of his pants. It was at this point that the offender obtained a shiv from Skivini. The offender having armed herself with a shiv, placed it in her right hand and held a shiv behind her back. She moved towards the victim, who is seen on the CCTV footage to back away.

4. At the time, Skivini remained standing next to the offender. The offender continued to move towards the victim, still holding the shiv behind her back. The victim and both offenders then moved out of sight of the camera. The incident lasted for about two minutes. Corrective officers were alerted to the altercation occurring in the yard. A direction was given to the offender and the victim to stop fighting, which was ignored. Another Correctives officer observed the victim and the offender make their way up the stairs. The Corrective officer observed the offender raise the shiv above her shoulders and swipe down towards the victim and observed blood coming from the neck of the victim.

5. The offender moved away from the victim towards what is described as the “2A chute”, where she was met by a particular Corrective Services officer. She was placed in the chute to separate her from the victim and the victim was taken to the health clinic, where he received treatment for the injury on his neck. In terms of the injuries, the facts are that the victim was treated for puncture wounds to his neck, a 1 centimetre wound under the right ear and a 1 centimetre wound under the chin and bruising to his forehead. The injuries were deemed to be moderate in severity and did not require the victim to be hospitalised and he was treated at the Parklea Correctional Centre.

6. The offender also was treated for a minor injury to her lip and pain in both hands. The weapon itself was not recovered. The offender was charged on 2 April 2018 and did not partake in a record of interview. There appears to be lasting animosity between the offender and the victim. In addition to the facts, a disk containing the CCTV footage of the incident giving rise to the charge was tendered before me. A number of stills taken from that CCTV footage are incorporated in the agreed facts document that is before me.

Objective Seriousness of offending

7. In terms of the objective seriousness of the offence, there was essentially no real planning involved.

8. There had been an altercation between the victim and the offender shortly before the offence, during which the victim had used physical violence directed at the offender. The offender gave evidence before me that she had been in the relevant yard of the gaol and had been attacked, that she responded in an unplanned way, and went too far. Overall, I found the offender to be an acceptable witness and find that the offence involved a relatively impulsive response to the fact that she had been attacked. However, in my opinion, the CCTV establishes that it cannot be said that the offender’s actions were somehow in self-defence.

9. Any immediate threat from the victim appears to have dissipated and, in my opinion, the offence had an element of retribution or payback involved in it. I am satisfied, when I have regard to the nature of the injuries the victim received, that there were at least two blows struck by the offender with the shiv to the victim. I note a weapon, being a shiv, was used in the commission of the offence. The injuries caused by the offence were towards the bottom of the range and the victim did not require hospitalisation. I assess the objective seriousness as being well below the notional mid-range offence, given the context in which it occurred, which involved some provocation, the lack of planning, and the limited injuries suffered by the victim.

The offender’s subjective case

10. Turning then to the offender’s subjective case, the offender is currently 33 years of age. The offender has a significant criminal history, dating back to when she was a juvenile. As a juvenile, the offender received control orders for a number of offences, including for an offence of assault occasioning actual bodily harm and breaching an apprehended domestic violence order, which was confirmed on appeal in 2001. In 2002, she received a control order for larceny, which was confirmed on appeal.

11. In 2004, the offender received a suspended sentence for being armed with intent to commit an indictable offence. As an adult, the offender has received a number of sentences involving full-time custody. Those which involved the commission of violence or use of a weapon are as follows: use offensive weapon to prevent lawful detention in 2006, an aggravated break and enter offence in which she was armed in 2007. On 24 February 2011, the offender was sentenced in this court for offences of robbery in company causing wounding, being two counts, and armed robbery.

12. The offender received from Judge Charteris an overall sentence of 12 years and six months, with an overall effective non-parole period of seven years and six months. A copy of his Honour’s remarks on sentence is before me. The current offence was committed while serving the sentences imposed by his Honour, the offender having not been released to parole at the conclusion of the non-parole period set by the sentencing judge. I note the offences his Honour sentenced the offender for were committed while on parole and were very serious offences of violence, involving the use of a weapon.

13. When I have regard to the principles discussed in Veen (No 2) (1988) 164 CLR 465 and R v McNaughton (2006) 66 NSWLR 566, the offender’s criminal history, being one for significant violence and use of weapons, amounts, in my view, to an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act. In terms of the offender’s custodial record, I note the offender has been in continuous custody since 24 June 2009 for a period of almost ten years. She appears to have had less than a year in total out of custody since 10 July 2004. The offender was 18 years of age in July 2004, so has spent the vast majority of her adult life in custody.

14. In terms of custodial infringements, the custodial record contains entries for fighting and intimidation, amongst other things, however, the last infringement was in May last year, which involved possession of an offensive weapon. There is a Sentence Assessment Report dated 12 April 2019 and a psychiatric report of Dr Richard Furst dated 14 October 2010, and a psychological report by Dr John McMahon dated 11 December 2011. Those last two reports were before Judge Charteris when he sentenced the offender in 2011. In addition to those reports, there is before me a letter from the offender’s mother, some certificates concerning courses the offender has completed in custody, and correspondence from a Buddhist monastery that the offender has had some involvement with.

15. An affidavit from the offender was read on sentence and she gave oral evidence. In terms of the offender’s family background, Dr Furst’s report in 2010 records that the offender had a history of behavioural disturbance and attentional problems dating back to her early childhood, when she was diagnosed with Attention Deficit Hyperactivity Disorder. The offender told Dr Furst she had been placed in the care of DoCS and at an early age and that she was physically assaulted while in foster care. She also claimed to have been raped while in gaol in 2005, but had not been believed by prison authorities. I note that Judge Charteris recorded that he had before him some material from Corrective Services about the sexual assault upon her in gaol.

16. The offender told the psychologist, Dr McMahon, back in 2011 that she had witnessed as a child her stepfather engaging in domestic violence towards her mother and half-brother. The offender provided a similar account to the psychologist as to her background to that which he gave to Dr Furst. The offender’s affidavit records a life of being exposed to violence at an early age, and her account was not challenged in cross-examination and I propose to accept it. The Sentence Assessment Report records that the offender has a supportive relationship with her mother, and the offender gave evidence of that. I note, in that regard, the content of her mother’s letter that is before me and that her mother was present last week when I heard the sentence proceedings.

17. The offender’s early life was one which involved considerable social disadvantage, and I have had regard to the principles discussed in Bugmy v R (2013) 249 CLR 571 concerning the relevance of social disadvantage in sentencing when fixing sentence. In terms of her education and employment history, the offender’s affidavit and the reports of Dr Furst and Dr McMahon record that the offender had a limited and interrupted education as a child. The Sentence Assessment Report records that the offender is not currently, while in custody, able to engage in rehabilitation programs which may be due to her current classification.

18. The offender has, however, completed a number of TAFE courses while in custody, as well as courses concerned with controlling her emotions. In terms of her illicit substance use, Dr Furst’s report records that the offender has an extensive history of substance dependence, having commenced using heroin when 11 to 12 years of age and used the drug, methylamphetamine, from about 18. The offender told Dr Furst that, in 2009, her drug use was “out of control”. The offender confirmed a similar history of drug use to the psychologist. She is currently on the methadone program while in gaol and has expressed the hope that she will be able to be off methadone eventually.

Psychological and Psychiatric history

19. In terms of her psychological and psychiatric history, Dr Furst considered in 2010 that the offender was articulate and intelligent and gave no indication of a cognitive disorder. At that time, the doctor diagnosed the offender as suffering from polysubstance dependence, evidence of conduct disorder and antisocial personality disorder, poor coping skills, and poor frustration tolerance. Dr Furst considered, in relation to the offences that Judge Charteris sentenced the offender for, the offender’s drug use and underlying personality dysfunction were contributing factors to her offending.

20. Dr Furst considered that the offender’s prognosis was guarded and that her best chance of successful adjustment into the community involved her abstaining from prohibited drugs and engaging in appropriate counselling. The psychologist, Dr McMahon, administered psychometric testing. The results of that testing recorded significant elevations in relation to anxiety, anger, irritability, disassociation, dysfunctional sexual behaviour, and other matters referred to at page 7 of that report. The psychologist’s diagnosis of the offender was similar to that of Dr Furst.

21. In terms of her response to supervision, a Sentence Assessment Report records that, in the past, the offender’s response to supervision has been unsatisfactory due to non‑compliance and re-offence.

Attitude to the offending

22. In terms of her attitude to the offence, the Sentence Assessment Report records that the offender took responsibility for her offence, although she expressed to the author of that report that her response in the circumstances was appropriate. The Sentence Assessment Report does record that the offender acknowledged that the victim may have experienced ongoing trauma as a result of the offence and would have been terrified at the time of it.

23. The offender’s mother, in her letter, records that the offender has expressed to her her disappointment in her actions concerning the offence. The offender, in her affidavit, expresses remorse for the offence and some insight into the impact of the offence on the victim. In terms of the future and risk of reoffending, the author of Sentence Assessment Report, noting how long the offender has been in custody, considered that it was possible the offender was institutionalised. The Sentence Assessment Report notes that the offender has been unable to access offence-targeted programs due to her classification, however, reported that she is now aware of the triggers for violence.

24. The offender now identifies as a transgender female and has yet to commence hormonal treatment to assist with her transition. The Sentence Assessment Report records that the offender expressed a willingness to undertake relevant interventions to address her psychological and substance use needs.

25. The offender was assessed in the Sentence Assessment Report as having a high risk of reoffending.

Determination

26. I noted earlier that the plea of guilty was entered in the Local Court. I will allow the offender a 25% discount of her sentence for the utilitarian value of the plea of guilty.

27. I consider overall that the offender is remorseful for the offence, although wrongly believed, to some extent, she was justified in her actions.

28. The offender’s criminal history and the assessment of the offender’s risk of reoffending means that her prospects of rehabilitation are no higher than guarded.

29. The evidence before me satisfies me that the offender is institutionalised, given the amount of time she has spent in custody in her adult life. I also consider that, given the offender now identifies as a female and seeks to transition in that regard, her time in custody is likely to be harder than it is for other inmates. For those reasons, I will make a finding of special circumstances when fixing the non-parole period.

30. I do not consider that this offence, although involving an offence of violence towards another inmate, attracts the provisions contained in s 56 of the Crimes (Sentencing Procedure) Act. The Crown did not suggest that it does. I propose in the circumstances to commence the date of the sentence from the date the offender was arrested and charged with the offence, being 2 April 2018.

31. I have had regard to the sentence imposed upon the co‑offender in the Local Court, which is one of nine months with a non-parole period of six months.

32. Clearly, this offender’s role was much greater as she was the person who inflicted the wounds upon the victim, and the co-offender’s role was very limited, essentially, being to supply the offender with the shiv which she used to wound the victim. I also note that the co-offender was dealt with in the Local Court.

33. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Significant sentences must be imposed on inmates in correctional centres who engage in violent acts against other inmates in order to assist in maintaining control in such facilities. The sentence must act as a deterrent to both the offender concerned and to other inmates.

34. The maximum penalty and standard non-parole period have been taken into account as legislative guideposts. It will be seen that I have departed from the standard non-parole period due to my assessment of the level of objective seriousness and the early plea of guilty.

35. I will not require the offender to stand as she is appearing by AVL.

36. The offender is convicted of the offence of reckless wounding in company. She is sentenced to a term of imprisonment consisting of a non-parole period of 18 months and a balance of term of nine months. That is a total sentence of two years and three months. It commences on 2 April 2018 and expires on 1 July 2020. The earliest date the offender may be released to parole is the date of the expiry of the non‑parole period, which is 1 October 2019.

37. Whether the offender is, in fact, released to parole on that day is a matter for the State Parole Authority, which will no doubt take account of her behaviour in prison in determining whether she is released then or on another date. So it is a non-parole period of 18 months with a balance of term of nine months, two years, and three months, commencing on 2 April and expires on 1 July 2020. The non-parole period expires on 1 October this year.

Orders

38. Convicted.

39. Sentenced to a term of full-time imprisonment of two years and three months commencing 2 April 2018 and expiring on 1 July 2010, with a non-parole period of 18 months expiring on 1 October 2019.

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Decision last updated: 02 August 2019