R v Taufahema

[2019] NSWDC 622

District Court

New South Wales

Medium Neutral Citation:	R v Taufahema [2019] NSWDC 622
Hearing dates:	23 October 2019
Date of orders:	23 October 2019
Decision date:	23 October 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months
Catchwords:	CRIME — Violent offences — Assault occasioning actual bodily harm CRIME — Violent offences — Aggravated robbery SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Penalties — Imprisonment SENTENCING — Probation and parole — Non-parole period
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy [2013] HCA 37 Callaghan v R 2006 NSWCCA 58 Markarian v The Queen [2005] HCA 25 Muldrock v R [2011] HCA 39 Qutami [2001] NSWCCA 353 Tepania v R [2018] NSWCCA 247 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina (Crown) Honora Carmen Taufahema (Offender)
Representation:	Emily Anderson-James (Crown) Duncan Berents (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown) Blaxland Criminal Law (Offender)
File Number(s):	2018/00056274

EX TEMPORE REVISED JudgEment

INTRODUCTION

1. Honora Carmen Taufahema pleaded guilty upon arraignment on 29 July 2019, a week before her trial was listed to commence on 5 August 2019, to one offence charged in the following terms: that she on 16 August 2017 at Telopea in the State of New South Wales assaulted LC with intent to rob her and at the time of the assault inflicted grievous bodily harm on the said LC whilst being armed with an offensive weapon, namely a piece of brick.

2. The offence is contrary to s 98 Crimes Act 1900 for which the maximum penalty specified is imprisonment for 25 years. There is a standard non-parole period for the offence for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999, a period of seven years.

PRE-SENTENCE CUSTODY

3. The offender has an extensive criminal history and that includes an offence for which she was subject to parole at the time of the commission of this offence. In due course that parole was revoked and she was required to serve the balance of parole from 30 November 2017 to 12 February 2018. She also committed a further offence, concealing a serious indictable offence committed by another, for which she was ordered to serve a fixed term of imprisonment from 12 February 2018 to 11 August 2018. She was arrested in custody for the present matter on 20 February 2018 and as noted in the Crown sentence summary she has been in custody for this matter only from 12 August 2018 until the present time. There is therefore a question as to when the date the sentence I am about to impose today should commence. Justice Simpson discussed the discretion available to the Court in such circumstances in Callaghan v R 2006 NSWCCA 58. Her Honour noted at paragraph 22 the existence of the discretion in the sentencing court with regard to the commencement date and continued

“There is no clear rule which will govern all cases. The circumstances that bring an offender before a Court for sentence after parole has been revoked are far too varied to permit a single absolute rule.

23. It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.

24. However, I am also of the view that, particularly where, as here, the reoffending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referrable to the earlier offences and not to the subsequent offences.

25. Thus, I am of the view that the sentencing judge did have discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving...”

4. The reference to Hunt CJ at CL arose from her Honour’s earlier reference to authority in the analysis leading to those passages.

5. I have had regard to the offender’s extensive record of antecedent offences and the sequence in which the respective episodes of misconduct occurred. I have decided to commence the sentence I am about to impose on 12 April 2018. I note that Judge M Williams of this court, according to what was said on behalf of the offender, imposed the sentence of imprisonment for six months fixed term for the conceal serious indictable offence matter that was before him. It is not clear to me why he would have commenced the fixed term of six months at the expiration of the balance of parole. It might be that his Honour had reduced the overall term of the sentence to accommodate his ultimate orders, however on the material I have in my view the appropriate commencement date is as I have announced, 12 April 2018.

THE PLEA OF GUILTY

6. The offender did not plead early in the sequence of the proceedings however I note that before she did so there were negotiations between representatives of the Director of Public Prosecutions and the offender’s solicitor. Included in the defence bundle exhibit 1 is an email to Ms Anderson‑James who appears on behalf of the Crown in this matter. The offender’s solicitor advanced arguments in support of the proposition that the Crown ought to accept a plea to an offence contrary to s 96 Crimes Act 1900, a lesser offence than that with which she was ultimately charged and to which she pleaded guilty. This was supported by representations upon the role she played in the crime in comparison to the roles played by her co‑offenders with specific reference to conduct upon which they engaged. The Crown ultimately, and properly in my assessment of the matter, did not accept what was advanced and proceeded with the charge to which the plea of guilty was entered upon the basis that she and the two other offenders were engaged upon the joint criminal enterprise patent in the facts that I will come to describe shortly.

THE CO-OFFENDERS

7. I sentenced the co-offenders; these were presented to me on the one occasion. They were Jay Mathew Fordham and John Piukala, each of them suffered sentences of imprisonment of six years and nine months. Fordham suffered a non-parole period of five years and Piukala suffered a non‑parole period of three years. The disparity between those periods was as a result of pre-sentence custody to which Piukala was subject and my application of the principle of totality reflecting the need to ensure that the period of parole specified was appropriate in his case, bearing in mind that there was an accumulation of sentences in the ultimate outcome. There was in each case a finding of special circumstances with resultant disparity between the ratios in the sentences imposed and that specified in s 44 Crimes (Sentencing Procedure) Act 1999.

THE STANDARD NON-PAROLE PERIOD

8. The standard non-parole period is a matter of significance in the exercise of the sentencing discretion. The provisions introducing standard non-parole periods are found in that part of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999. The provisions in their present form followed the decision of the High Court of Australia in Muldrock v R [2011] HCA 39. The law is that the standard non-parole period for an offence is that which is included in the table to the provisions and represents the non-parole period for an offence that falls within the middle range of objective seriousness, taking into account only the objective factors affecting the relative seriousness of the offence.

9. The standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The Court must 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 misconduct is assessed upon consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of their offending bringing to account the relevant factors found in s 21A Crimes (Sentencing Procedure) Act 1999 except for those that are essential elements or integral characteristics of the offence.

10. Those statements should be read in conjunction with what was said by Johnson J in Tepania v R [2018] NSWCCA 247 wherein at par 110 his Honour summarised principles to be drawn from the legislation and continued at paragraph 112,

“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 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 offences, 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.”

11. Thus drawing together those statements of principle and the legislation I note that when fixing the non-parole period that is but part of the task whereby the Court determines what is an 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.

12. This process is intuitive. It is not arithmetical or staged or tiered but requires the Court to bring together all relevant matter bearing upon the question of the appropriate sentence. The term “intuitive synthesis” has been used in various authorities and discussed in some depth, for example by McHugh J in Markarian v The Queen [2005] HCA 25.

13. The maximum penalty and the standard non-parole period are legislative guideposts for this Court, along with other established sentencing practices and by reference to matters that are relevant from ss 3A, 21A and 22 Crimes (Sentencing Procedure) Act 1999.

14. I am satisfied in this case that the objective gravity for this misconduct is above middle range of objective seriousness. Having had the benefit of the consideration of this matter when sentencing the other two offenders and having now been reminded of the nature of the conduct upon which the three offenders engaged I have no difficulty coming to that decision.

15. The placing of a matter on the scale of seriousness is always a question of judgement and there will be differences of opinion when such a question is considered by others, but doing the best I can on the material I have, I am satisfied that is where these offence should rest.

16. It does not follow, however, that the standard non-parole period will be applied. As the authorities and the legislation require, the determination of objective gravity is but part of the task in the overall process of synthesis upon which the Court is engaged. I am satisfied that a custodial component of less than seven years is appropriate in this case, for the reasons argued on behalf of the offender and to which I shall come.

17. The offender was subject to conditional liberty at the time of this crime. As I indicated earlier, she was on parole for an offence of stealing from the person. That led to a sentence of imprisonment for 18 months, with a non‑parole period of nine months. The parole was in due course revoked because of the continuing offending upon which she engaged.

18. The fact that she was on conditional liberty at the time of the offence is an aggravating factor to be brought to account, as is her extensive array of criminal antecedents, but this does not aggravate or increase the assessment of objective gravity of the offence nor the sentence to which the offender is otherwise exposed as proportionate to her misconduct. It does, however, address the extent to which she would otherwise have had leniency were she to have come before the Court without an antecedent record. It also speaks to the aspect of specific deterrence and the questions that relate to her prospects of rehabilitation.

THE FACTS

19. The victim in this matter is LC. She was aged 21 at the time of the offence. The offender used the name Nola, by which she was known, in the sequence of events surrounding this attack. She was aged 35 at the time of the offence and is now aged 37. Fordham was 38 and Piukala 22. The crime was one of joint criminal enterprise, its goal to rob LC whilst armed.

20. The victim did not know Piukala at the time of the offence. She had met Taufahema about four times before the offence. The victim had bought from her Suboxone strips in exchange for money or other drugs. The victim and Fordham were known to each other. Fordham lived with the victim and her fiancé from about August 2016 until January 2017.

21. From December 2016 the victim bought 30 strips of Suboxone from Fordham every month. The victim arranged to buy 100 strips from Fordham’s friend on 16 August 2017. On that day she finished work about 8.15pm and drove home to get changed. She placed $1,000 cash in one side of her bra and $1,500 in the other. She took her wallet and put it in the driver’s side door pocket and then drove her car to pick up Fordham from his grandmother’s house. He sat in the front passenger’s seat. He provided the address, which she entered into her GPS in the car.

22. She parked at the end of the cul-de-sac, facing the address in Eyles Street, Telopea and turned off the ignition. Fordham went quiet and was on his mobile phone texting. He instructed the victim to move her car so that the front was facing up the street. He alighted from the vehicle and smoked a cigarette with the door open. He said he was waiting for his mate to text the unit number. The victim began playing with her phone.

23. The victim heard a grunt. Piukala was seen wearing a beige-coloured stocking over his head, facing Fordham and the victim. He punched Fordham in the stomach and chest area. It appeared to the victim that he barely made contact with Fordham. Fordham remained silent and appeared uninjured. This purported assault was all part of the ruse upon which the offenders engaged.

24. Piukala entered the front passenger seat. The victim panicked and tried to drive and jump out of the car but he grabbed her with his left arm across her chest and held her close. She saw that he was holding an object that looked like part of a brick that had been broken into a triangle/cone shape and with a stocking over it. He hit her over the back of the head multiple times using the brick. He asked her twice, “Where’s the coke?” She was rendered unconscious.

25. She regained consciousness and saw him running away up the street on the right hand side of the road and she lost consciousness again. She felt paralysed. She saw in the rear vision mirror that she was covered in blood. She moved her right hand onto the steering wheel and beeped her horn for a few minutes and then tried to call triple-0 but was unable to do so because her head was spinning. She returned to sounding her car horn for 20 to 30 minutes. She was frightened no-one would come to help. She felt she was going to lose consciousness again and she was fearful that she might die. She alighted from the car to make herself visible. She rolled out of the driver’s door side and lay in the recovery position on her right hand side, calling for help. About 15 minutes later a passer-by arrived and gave her assistance and called triple-0.

26. Her injuries were extensive. She was taken away by ambulance to Westmead Hospital Emergency. Her initial GCS (Glasgow Coma Score) was 11 to 13-15. She was intubated due to her fluctuating GCS. A CT brain scan was performed on 17 August 2017 showing an acute comminuted fracture through the right occipital bone, with subadjacent subarachnoid haemorrhage, intraparenchymal haemorrhage, mild obstructive hydrocephalus, right posterior cervical paravertebral haematoma, with extensive soft tissue and subcutaneous emphysema extending at the base of the neck. A tracheostomy was inserted on 29 August 2017. She was found to have right cranial nerve palsies. An MRI of her brain demonstrated a track of haemorrhagic blood product extending through the right cerebellar hemisphere and into the right posterior cervicomedullary junction from the site of the right occipital bone fracture.

27. She was admitted to Westmead Brain Injury Unit on 6 September 2017. A percutaneous endoscopic gastronomy was inserted on 29 September 2017 because she was unable to swallow. She was later transferred to Liverpool Brain Injury Unit.

28. The injuries clearly are consistent with grievous bodily harm. The cranial nerve palsies may, at least to some extent, be permanent.

29. The facts then continue with post-offence conduct.

30. Fordham ran from the car once Piukala had arrived. He walked up to the Telopea shops and waited there for some time. He then made his way to Telopea train station and then to his brother’s house. He was contacted by Granville detectives and attended the Bankstown Police Station at their request. He was a suspect but not under arrest. He participated in an electronically recorded interview in which he denied participation in the crime and made representations set forth on p 3 of the facts consistent with the ruse upon which he was engaged. He feigned that he had been injured in the attack that he said he suffered at the hands of the co-offender.

31. Piukala and an unknown female are seen on CCTV footage to enter the unit foyer at the premises on Eyles Street at 21:36 hours and they were apparently out of breath. They entered the lift. Taufahema, this offender, is seen in the footage to have returned to the unit foyer of her sister’s unit block on Eyles Street at 21:38 hours.

32. The CCTV footage recovered from Parramatta City Council, Dundas Community Centre, the IGA at Telopea, the Telopea train station, Sophie Street in Telopea and Budget Petrol, Telopea showed Fordham at the Telopea shops shortly after the incident and then at the train station awaiting a taxi.

33. On 16 August 2017 Piukala, Taufahema and an unknown female are depicted on CCTV footage from the unit foyer at a premises on Eyles Street, Telopea leaving the unit block at 21:01:38 hours. The same unknown female returned at 21:28:48 hours, entered the lift and a short time later ran back out of the unit block front entry at 21:30:40 hours.

34. Police conducted a search at Eyles Street on 17 August 2017 and found a red and blue patterned pillowcase in the front courtyard of the unit block at Sturt Street, Telopea. The balcony of a Unit overlooks this courtyard. Within the pillowcase the police located the victim’s wallet. They also found within that bag a Tasmanian Prison Service letter. Forensic analysis of that letter revealed the fingerprint of Piukala.

35. Telephone and mobile phone records of the offenders were obtained by the police and communications were uncovered between Taufahema, this offender that is, and Fordham. The text messages that were harvested are set forth in pp 4, 5 and 6 of the facts. They are extensive. In the first sequence between 22:26 hours on 8 August 2017 and 22:58:25 the conversation between them is with regard to “strips for sale”. The conversation includes Fordham telling this offender, “I’m not telling her. It’s you I’m telling who is a mate. I know where she lives alone.” The offender said, “Yeh I kno but I dnt trust her.” Then Fordham, “Look I give you my word, we can set her up big time but I need to get her trust back yeah. I got mine oz for her. I did the whole deal. She gave me a half a fucking gram. Fuck her I got no loyalty to her.” He continued, “If I got done I’d be doing 10 years for what HG fuck her.” The offender said, “J come wif her then il get my brother to come down do the swap sweet.” He wrote, “Yeah sweet but don’t fuck me please, there is much bigger paper to be made yeah.” The offender wrote, “I am not U got my word yeh … so that you gna tel her it’s 15 each.”

19. The next sequence is on 15 August 2017 from 17:08:25 through to 18:20:46. There is reference to the victim and in this first exchange Fordham wrote, “Hey any strips or down there this thing with LC will be going down in a week or two yeah but I want one 3d of what yous get yeah is that fair?” and within this same sequence he said to her, “But you good to do LC yeah”, to which the offender responded, “OMG J …. fkn oaf brutha! IB got dis staunch dude better to do it wif us. Al gud? Wen???” All of that text is in upper case.

20. He wrote “I’ll be with her when whether u do it but so”, he then continued “We might be able to do it more than one time”. The offender wrote “Make it happen, Jay” and then it appears - I can’t quite read that marking. He responded “In the next week or two 100%” to which she responded “Sweet”.

21. The next sequence on 16 August 2017 continues from 10:47:01 through to 08:22:58 the following morning. There is a sequence of exchanges between the offender and Fordham, this includes his reference to the money that she will have on her, the need for them to recover money for their own purposes, how the money will be distributed between them, various steps to be anticipated in the execution of the plan. He wrote to her “Where do I go after I walk into units to wait”, she said “Go to number X n go up to level 5, number X is my sister’s door no.”. He asked her “Do u want me to park her in the street or in da unit parking”, she said “The street parking”. Then he wrote “Done, make sure u got something cause she will lock the door yeah”, she instructed him “Go to the end of the street, it’s no through road”. He wrote “She will have it all in car 100%, just don’t go too hard on her, u know what I mean”. She wrote “yhoi, make sure u leave ur door unlocked m let us kno wen u r on u r way”. Then he made reference to the possibility of her having central locking and the need to smash the window. This offender instructed him to leave the window down and then shortly after wrote “Fuck bro jst do wat u gotta do”.

22. I have not quoted all of the text there but it is quite apparent from it all that in the commission of this crime the offender had an integral role and, from what is before me, she was proximate to the scene of the crime when it occurred.

23. On 30 November 2017 Piukala took part in an electronically recorded interview denying any participation in the crime. On 21 December 2017 Fordham was arrested and taken to Bankstown Police Station. He told police further information ultimately agreeing that he had made arrangements with this offender to rob the victim. On 19 February 2018 Piukala was arrested and he participated in an interview, he was told that he had been identified by the victim; he could not understand how that could occur, he said.

24. The offender was arrested on 20 April 2018. She denied knowledge of Eyles Street; she said her sister lived in Sturt Street at the address she nominated. She gave the address where she was living. She knew the victim because the victim would score off her. There was texting because there was going to be a swap of “bupe” in exchange for ice or money but Jay never turned up. The arrangement was for Jay to come to her sister’s house and knock on the door and she denied sending text messages between her phone and Jay and maintained, it would appear, denial until ultimately she gave instructions to those representing her to negotiate some settlement with the Crown and then eventually pleaded guilty to the charge.

25. The submissions made on behalf of the offender concede the planning associated with the offence and that it was committed in company, there was extended violence with extensive injury suffered and upon that analysis urged the view that the matter fell towards the top of the mid-range of seriousness upon a directive assessment. As I indicated I am of the view it falls above that level; as I said minds will differ and it is always a matter of judgment but that is where I place this offence.

THE OFFENDER

43. The offender is 38 years of age and has an extensive array of criminal antecedents that extend over 27 pages in the antecedent report. Her first court appearance was in October 1996 in the Children’s Court for stealing, and larceny of a motor vehicle. Thereafter in Children’s Courts she has been charged with carrying a cutting weapon, aggravated robbery, stealing, shoplifting, common assault, custody of a knife in a public place, larceny, assault, stealing, further episodes of comparable misconduct, again stealing a motor vehicle, obtaining money by deception, detaining for advantage, aggravated robbery, failing to appear, another aggravated robbery, more offences of shoplifting.

44. She began in the adult courts in July 2000 for offences of larceny and street offences, robbery in company, driving whilst disqualified, goods in custody, possessing prohibited drugs, the conceal serious indictable offence to which I earlier referred, damage to property, entering enclosed lands, driving without ever having held a licence, further driving whilst disqualified offences, further larceny offences, attempting to bring something prohibited into a place of detention, dishonestly obtaining financial advantage by deception. There are multiples of these offences across her record ending with an offence of stealing from the person and damage to property. There is also an array of Commonwealth offences that are set forth in a record provided by the Australian Federal Police, they extend over two pages.

45. The Courts throughout her history have employed various sentencing options; there can be no doubt that in the Children’s Court and the Local Court and the District Court these have included the Court’s attempts to provide outcomes that would facilitate her rehabilitation amongst other purposes of sentencing, but she persists.

46. In custody she has a sequence of custodial offences, this year she has failed to attend muster, been smoking tobacco, possessed a drug, refused or failed to provide a drug sample and there is the most recent matter which I just cannot quite decipher but it must have been of some magnitude because she was given 28 days of buy ups, 28 days off contact visits, 28 days off phone calls and 28 days off participation in leisure time activity.

47. There are further offences back in 2018, 2017, 2016 and extending all the way back to 2008.

48. The Breach of Parole Report is before me; this describes the revocation of parole; the Revocation Order is included in the Crown bundle. The revocation was the product of her further offending.

THE VICTIM IMPACT STATEMENT

49. There is also the Victim Impact Statement which was before me in the proceedings in which I presided over the other two offenders. I described the content of the victim impact statement at page 16 of my judgement in some detail. The document was not read in these proceedings but is part of the tender in the Crown bundle by consent. It would suffice I believe if I quote what it I previously wrote beginning at page 17:

“She speaks of the breach of trust involved in the commission of this crime against her. She refers to the person John, her partner, and how they were deceived as a consequence of the trust generated under which Fordham was allowed to share their accommodation. She speaks of having being lured by someone she considered a friend into the ambush where she was taken by surprise without any idea of what was about to happen, she had no time to escape or to provide defence for herself. She refers to being struck six times that she recalls. She was she thought left for dead. She watched both offenders run away. She felt paralysed. She thought she was going to die. She had fought for her life that night and in the months that followed. She wondered whether they could hear desperately sounding her horn in the hope that someone would come to help her. Clearly they left her in her terrible state and it was a stranger who came along some time later before help could be provided.

She describes her perception of her circumstance, her injuries and what might have resulted from what occurred. She heard someone say whilst she was in this state ‘See that jelly stuff, that’s brain matter’. Whether that is something that occurred is not entirely clear but it was her perception of what happened. She recalled the event as it unfolded. She spoke of the failed attempt of ‘Josh’, who I take to be a reference to Fordham, to disguise himself. It is a little confusing because Josh does not appear elsewhere. She spoke of being placed in a coma. She spoke of her brain injury, the fracture to her skull, 30 staples to the back of the head and neck, severe nerve damage, being left virtually blind, unable to eat or drink and the development of pneumonia. She referred to being placed on an incubator” - I take that to have been an intended reference to intubate - “She was unable to speak. There was a cut into her neck to enable her to breathe--”.” - and then the statement continues”.

50. She described how after the event she could hear her voice again some eight months since the event or after the event. She was able to speak once the tube was removed. She was able to drive after 18 months. Her balance is noticeably off, her vision is limited, her swallow is not restored and she consumed a liquid diet life and suffers anxiety. I continued:

“Reading the document, one can understand the horror that she experienced. A feature of this case is that she was herself involved in a measure of criminality in the acquisition of substances which she should not have been attempting to buy. Regardless of that, no person in the circumstances before her should have been required to experience what she has suffered.

I would make clear that I have taken the Victim Impact Statement as evidence of the impact of this crime upon the victim, together with the contribution it makes toward the assessment that the grievous bodily harm that she suffered, but I do not otherwise take it into account as an aggravating factor in the sense it was misconduct upon which these offenders engaged or the punishment that that have so justly deserved as a result of the crime. Indeed the emotional sequelae that she suffered are what one might expect from such an event”.”

51. I adhere to those remarks.

ASSESSMENTS

52. As I said I have my judgement delivered in those matters, I have also the antecedent reports for the offenders to remind me of the comparisons and contrasts to be drawn between them. I indicated that in my view although the offender was not immediately present at the time that the injuries were inflicted that the punishment to which these offenders are each exposed should be comparable in the circumstances when I synthesise all of the material that is before me.

53. The starting point for the sentence I have settled upon for this offender is a little below that which I applied in the case of the other two. The reason I have taken that step is that, as was put to me, there is no evidence upon which I could conclude that she was aware of the full range of injuries inflicted upon the victim at the time of the attack or that the attack would be as ferocious as it was. That said one must conclude from the text messages in the facts that she was aware that the victim was to be attacked if the need arose in the course of what was to happen and that this was part of the plan so that these three could have the fruits of their proposed crime.

54. The starting point is marginally below that which I applied in the other two cases. The discount that I applied to her sentence is not quite as low as ten per cent. The Crown submits that that is where it should be at the high water mark. I have applied ten per cent but I have abandoned odd days from the resultant sentence so that ultimately it will be marginally above ten per cent to reflect the utility of the plea of guilty given at such a late stage. In her case there are three psychologist’s reports written by the same psychologist on 23 November 2018, 21 October 2019 and 22 October 2019. I accept that the psychologist has done her best to faithfully represent the representations made by the offender in the course of the consultations leading to the reports. I am conscious of the circumspection required when assessing such representations where they are not before the Court under oath or affirmation and have not been tested by cross-examination. They are admissible in the proceedings but care must be taken when determining the weight to be attributed. This has been made clear in the often quoted case of Qutami [2001] NSWCCA 353 in the judgement of Smart AJ.

55. Caution is also required because these were not face to face assessments. The submission made on behalf of the offender was that the Court has the benefit of a longitudinal assessment of the offender and therefore the Court could come comfortably to the view that the opinions offered by the psychologist are valid and that the premises upon which they were reached should be accepted. However, the first consultation although over an hour and 45 minutes was by audio visual link from the officers where the psychologist worked and the Silverwater Women’s Correctional Centre. Although it does not appear in this report it is often written by psychologists or psychiatrists who resort to that facility that this is not an ideal medium in which to make an assessment and form an opinion and there are limitations. Generally though, it is said that in the particular circumstances those limitations did not lead the author of the report to doubt the veracity of what was said to them or the opinions upon which they settled.

56. The second report followed a further consultation but that consultation was for one hour and by telephone to the centre where she was being held. The limitations that one would observe in that arrangement are clear.

57. Thus the proposition that the Court is armed with a longitudinal assessment is a qualified submission I believe. However, as was pointed out by Mr Berents the offender has not sought in her remarks or those which were attributed to her by the psychologist to minimise the significance of her wrongdoing or to justify her behaviour.

58. The explanation offered is not really one that the offender provides if I read the reports correctly but really is one drawn by the psychologist upon the life history that is included in the report. The offender’s counsel asked me to apply the principles found in the decision in the High Court of Australia in Bugmy [2013] HCA 37 which in general terms had to deal with people who are brought up in disadvantaged circumstances, which will always have some relevance to the assessment of sentence no matter how often the offender might come back before Court for repeat crimes. This is not a Bugmy case however, in my view.

59. The report tells me that the offender came to this country with her parents for a better life in this country in 1987, she was six years of age at the time and she’s one of 11 children, I think she’s the third in line from the most senior of those siblings. She had responsibility for the care of the younger siblings to assist her parents who had a significant burden one would accept with a family of that size.

60. However, her older siblings, her brothers, are criminals and through their influence she became exposed to drugs and criminal activity evidenced in her antecedents which commence at about the time when she was 15 years of age. The psychologist says that in those circumstances such behaviour was normalised for her and that explains why she might become embroiled in criminal milieu and misuse of drugs. But at the same time the report attributes to her representations that her mother and father are decent and law abiding people who have done their best to raise their family including setting appropriate boundaries to the extent that they could to ensure that she did not fall by the wayside.

61. Regrettably though she was rebellious, resistant, was difficult at school and ultimately expelled from school at Year 9. At some point she returned to education but ceased that at some point through Year 12 when she was incarcerated in the Juvenile Justice system.

62. I am not satisfied that it is a Bugmy case but I do accept that she was exposed to criminality, the example having been set by her brothers. It is a matter that I bring to account to explain why she is sitting in Court here today facing a significant sentence for serious criminal misconduct. The fact that she does have support from caring and loving parents and it appears there are other siblings who are not criminals unlike the older brothers, allows that there might be some hope for her rehabilitation.

63. There is no significant psychosocial history. She is in a relationship that has resulted in the birth of seven children. These are aged, at the time of the report between 3 and 16 years. She has another child born in 2018 in June that is the product of a casual encounter and in which she participated to cause hurt to her long term partner. The nature of that event and the delivery of this child has left her with mixed feelings towards her daughter with which she is apparently is struggling, but she anticipates that she will address them at some point and develop a relationship with the little girl, who could not in any way be held accountable or to blame because her mother had put herself in the circumstances that led to the birth. She has the support of her family. Her mother and father are caring for her children while she is in gaol.

64. Her history of drug use is described. She began using alcohol at an early age. She started using cannabis at age 13 and extended into cocaine and benzodiazepine. At 15 she tried methamphetamine and at 17 she tried heroin and she has become addicted. She has never participated in drug and alcohol treatment or rehabilitation, but says now that she is motivated to do so in the future.

65. She has been raised in a family where loyalty is everything and that explains why she did not expose her brother in the criminal misconduct upon which he was engaged and which led to the prosecution of her concealing a serious indictable offence.

66. The first report from the psychologist was written in respect of the proceedings brought for that misconduct.

67. The second report was written with regard to the present matter. The same opinions were offered by the psychologist and effectively the same facts and circumstances were relied upon. She is attributed by the psychologist with failure to recognise the problematic nature of his situation and her behavioural attitudes. There is reference to lack of supervision and her pursuit of independence lending her to be vulnerable to the influences of antisocial brothers.

68. Of note throughout this though, as I have said, is the proposition that the psychologist has offered these views; these are not matters that appear to have been represented by the offender. It is possible that she has expressed these views, but that is not the effect of the report. As noted, it is a matter that requires caution in the absence of having heard from the offender in the witness box.

69. There are recommendations with regard to future management of her drug use, employment opportunities and supervision in the community to discourage her from further offending.

ADDITIONAL DOCUMENTS

70. The offender has in recent time undertaken courses, the particulars of which are in documents tendered in her case. I have examined those. Finally there is a letter from her expressing her regret for her actions and her disgust with herself.

71. The Crown has pointed out a passage: “I am really sorry she got hurt like that, this is not me. I’m usually a caring and kind person so it’s out of character that I did this. I hate myself that I did that to someone and I can’t take it back”. That does not sit comfortably with the text of the messages that are described in the police facts.

SUBMISSIONS

72. Written submissions provided on behalf of the offender urge a 15% discount. I believe that would be too generous, as I have said I have settled on 10%.

73. The morale culpability is said to be differentiated from her co-offenders because she was not physically present. She was not physically present in the sense that she was not standing at the motor vehicle while the blows were being struck, but she was proximate to where the crime occurred and was instrumental and integral to its commission. It is conceded that she contemplated the victim would be subject to violence, but not to the level that was perpetuated. The Crown cannot on the material I have, other than by way of inference from circumstance, proves that she knew this victim would be struck repeatedly with a broken brick, but as is conceded she was aware that there was a risk of injury and she had given guidance in the text messages with regard to the commission of the crime that contemplated it.

74. I am urged to reject the Crown’s submission of the application of the decision in Veen v The Queen (No 2) (1988) 164 CLR 465. I am not persuaded that I should take that the position. This offender has been a persistent offender throughout her life since about the age of 15. The exchanges that are contained in the text messages do her no service.

75. There is a need to provide adequate protection to the community from this offender and I hope that the sentence I have selected and the structure of it will go some distance in that regard. Of course, the best protection the Court can provide is a structure that will rehabilitate the offender from further misconduct and I have brought that into account in the assessment of the sentence.

76. Veen (No 2) was concerned with a very serious crime where the accused replicated an earlier crime which was of such magnitude that the High Court of Australia expressed the view that the protection of the community demanded that the proportionate sentence to the objective gravity of the offending required a significant period of imprisonment. The prospect of rehabilitation in Veen (No 2) was limited, if it existed at all.

77. I am not satisfied that that is so in this case. Although there is a need to provide adequate protection from the offender I accept the submission made on her behalf that at least in recent times she is progressing and as was advanced there are three stages in her life reflected in the material. There is the period leading up to 2018 and then from November 2018 where she is attributed with recognition of the need for steps to be taken toward rehabilitation, and then more recently her currently attitude reflected in the courses she has undertaken and the steps she has pursued.

78. The aggravating factors are conceded, her record of convictions, that the offence was in company, the extent of the grievous bodily harm being substantial I have not overlooked. The offence includes the element of the infliction of grievous bodily harm, but it is also appropriate for the Court to take into account the extent of the grievous bodily harm which can extend from permanent scarring, which by definition falls within the parameters of that level of injury. This was in every sense of the word “grievous” bodily harm.

79. The ultimate submission made was that according to principles of parity the offender should be dealt with comparably to the manner in which the other offenders were punished with an appropriate finding of special circumstances.

80. The Crown’s submissions urge a discount of 5%, but certainly no more than 10%, and I agree with that. I agree with the assessment of objective gravity falling above midrange. I agree with the observations made with regard to s 21A factors and I agree with the observations made with regard to Veen v R (No 2) about which I have already made comment.

81. There was a degree of planning and organisation that is reflected is the facts. I have taken that into account.

82. I agree with the Crown’s submissions with regard to the culpability of the offender and the comparison to be made with the co-offenders and I agree with the caution that is required with regard to the subjective matters that have been advanced for her. I have already dealt with the commencement date of the sentence.

83. The Crown provided me with the statements of principle concerning the finding of special circumstances, but does not oppose the view that there are special circumstances which can be brought to account. I am satisfied that there are special circumstances but there must be adequate punishment for her misconduct. Clearly, the line in s 5 Crimes (Sentencing Procedure) Act 1999 was crossed and all of the purposes for sentencing are engaged in this case, there is need for recognition of harm, denunciation, there must be punishment. General deterrence has its role to play. Specific deterrence has its role to play.

84. I intend that the custodial component below the ratio specified in s 44 Crimes (Sentencing Procedure) Act 1999 with the hope that she will take the opportunity that this sentence will provide to build upon progress that is said to have been laid so far.

85. The offender has a need in my view for an extended period on parole to help with the progress. I accept that there is contrition and remorse although it might have been qualified at least at the point when the negotiations were underway between the Crown and her representatives. It cannot be said that she has not demonstrated contrition and remorse in this plea of guilty by accepting her liability for a serious criminal offence carrying a very long period of gaol as a maximum penalty.

86. Moreover, when I look at the representations attributed to her in the psychologist’s report there is, in my assessment of the matter, no evidence upon which I can conclude that she has sought to minimise her role or attribute more to her co-offenders. She has accepted what she has done and although it is late coming she has taken steps toward opportunities that are available in custody that would assist with her rehabilitation. It is for those reasons I will find special circumstances.

THE SENTENCE

87. She is convicted of the offence. I specify a non-parole period of imprisonment of 4 years and 6 months commencing on 12 April 2018 and that will expire on 11 October 2022; that is 4 years and 6 months 12 April 2018 to 11 October 2022.

88. I specify a further period of imprisonment of 3 years to commence at the expiration of the non-parole period; that will expire on 11 October 2025.

89. The exhibits can remain for such period as the parties require and the Parole Authorities will identify what she needs at the point of release for her supervision and her rehabilitation.

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Decision last updated: 05 November 2019