R v Wallis
[2013] VSC 721
•19 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT BENDIGO
CRIMINAL DIVISION
S CR 2013 0152
| THE QUEEN |
| v |
| JAYDE RHIANNON WALLIS |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2013 | |
DATE OF SENTENCE: | 19 December 2013 | |
CASE MAY BE CITED AS: | R v Wallis | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 721 | |
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CRIMINAL LAW – Sentencing – Intentionally causing serious injury – Aggravated burglary – Pleas of guilty – Victim mother– Stabbed with knife four times to the chest, abdomen and forearm – Judgment impaired due to intoxication, mixed personality disorder and post-traumatic stress disorder – R v Verdins (2007) 16 VR 269 principles enlivened – Genuine remorse and insight into offending shown – Horrific, dysfunctional childhood and early life.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC | Office of Public Prosecutions |
| For the Accused | Mr J Williams | Victoria Legal Aid |
HER HONOUR:
Jayde Rhiannon Wallis, you have pleaded guilty to one count of aggravated burglary and one count of intentionally causing serious injury, and have admitted prior convictions.
These offences occurred on the morning of 16 January 2013, when you gained entry to your mother’s unit by kicking in a flyscreen and climbing through the window. You were armed with a knife and you knew that your mother, Catherine Valerie Wallis, was inside. Indeed, you had previously knocked on the door of the unit and asked to be let in, but she had asked you to leave. This conduct, breaking into the house armed with the knife, is the subject of charge one on the indictment; that of aggravated burglary.
Ms Wallis had been asleep on the couch in her loungeroom. Once inside, you sat next to her on the couch, produced a knife and, after a brief discussion, launched yourself on top of your mother and began stabbing her. Ms Wallis told you that you had stabbed her in the heart. You then moved away, but turned around and returned to her and stabbed her once more near her heart, under her left breast, saying, “If I didn’t kill you this time, I will next time”. You then left the unit, went up the road and called triple-0, asking for an ambulance. The police arrived and spoke to you while you were still on the phone. You were very distressed and asked the police to help your mother. You admitted to them that you had stabbed your mother and you were fearful that you may have killed her.
You were subsequently arrested and later, at the police station, assessed as fit to be interviewed by the police in the presence of an independent third person. During the interview, you denied that you had been attempting to kill your mother, and commented that your mother had given you up at the age of six months and had been trying to ruin your life ever since. At the conclusion of that interview, you were charged with attempted murder and remanded in custody.
Your mother was taken to Bendigo Hospital, where she was treated for multiple stab wounds. She had suffered four stab wounds: one to the chest, which penetrated seven millimetres, piercing her lung which required four stitches and was said by the doctors to have missed her heart by one millimetre; a second stab wound was to the chest under the left breast, requiring three stitches; a third stab wound to the lower part of Ms Wallis’ abdomen requiring two stitches; and the fourth, a stab wound to the left forearm requiring two stitches. Ms Wallis was discharged after two days’ hospitalisation.
It is your conduct in inflicting these wounds on your mother which forms the second charge on the indictment, that of intentionally causing serious injury. By your plea, you have acknowledged that you intended to seriously injure your mother when you stabbed her four times, and it is only fortuitous that those injuries were not more serious than they were.
The circumstances which led to your offending are somewhat unusual. Your mother gave birth to you when she was 15 years old. Consequently, you were brought up, principally, by your great grandmother, whom you referred to as “Nan”. Your mother did not have much to do with you over those years and, indeed, your relationship with your mother was, and is, somewhat fractured.
Some time before these offences, your aunt, Rebecca Wallis, for reasons which are quite irrational, texted you saying that your Nan had died. This was entirely false, but because you were very close to your great grandmother this, understandably, upset you very much. It must be said that your mother, Ms Wallis, had nothing to do with this folly, but subsequently very much bore the consequences of it. At this time, you were working as an escort and had several mobile phones. The phone that received these text messages was not used by you on a regular basis, and it was not until 15 January that you received and read the text about your Nan having died.
Your mother later received a number of abusive messages from you and when she tried to ring you and tell you that your Nan was in fact not dead, you abused her, telling your mother that she was “fucking dead” because she could not tell you that your own grandmother was dead. Your mother rang your aunt and asked her to intervene. She told her not to react to you, as it had the effect of stirring you up. What then occurred is, from approximately 7.00pm until about ten to 11 that night, you sent your mother a number of abusive texts, complaining that she had not told you that your Nan was dead or when the funeral was. You also threatened her in those texts, saying, for example, “You have hurt me more than I could ever have imagined possible, more than any human being even has the capabilities to do so now you must pay” and “If you had not run your mouth off you would have known when I was coming. Now you don’t. Could be tomorrow, could be next week. Either way I’m going to get you. If I don’t, my boyfriends will and you’re going to know what pain is”. After receiving this text, not surprisingly, your mother said she “felt really uneasy”.
Your mother then posted on her Facebook page that she no longer had a daughter, and repeated the threats that you had sent her on her Facebook page. Ms Wallis rang the Bendigo Police Station at about 11.27pm and told a police officer what was happening, and was advised to get an intervention order from the court the following morning.
Some time around 3.35am on 16 January, you ordered a taxi to pick you up from where you were living at the Central City Caravan Park in Bendigo. The taxi dropped you a short distance from your mother’s unit. You had with you a cooler bag which contained a knife, skeleton mask and your wallet.
At 4.30am or thereabouts, Ms Wallis was on the couch in her loungeroom. She heard footsteps, a knock at the door and then you say “Mother, we need to talk. You may as well open the door”. Ms Wallis told you that she had spoken to the police, that they had told her to call them if you showed up, and that you needed to leave. Ms Wallis heard you swear and go to the front window and start kicking the flyscreen in, as the window was open.
Your mother told you that she had pepper spray and that she would use it on you. Undeterred, you came in through the window and, as you did, Ms Wallis saw you fiddling with something, and then she saw a knife fall on the floor. You picked it up and sat next to her on the couch. She said to you, “What the fuck is going on?”, and you replied, “Not even telling me Nan was fucking dead”. Your mother reiterated that your Nan was not dead and that you had been told that earlier in the night, but with that, you turned on her and began stabbing her. Ms Wallis sprayed you with the pepper spray, but to no avail. You continued your assault. Ms Wallis, at one point felt the knife, she thought, go into her heart, and told you that you had stabbed her in the heart, to which you replied, “Yeah, somebody has to do it”.
It was at this point that you got off the couch and took a step towards the door, then turned around, returned to your mother and stabbed her once again under the heart, under the left breast, saying, after you did it, “If I didn’t kill you this time, I will the next time”. It appears that you then calmly walked out the front door. It was in these circumstances that Ms Wallis then rang triple-0 at 4.38am.
The maximum penalty for aggravated burglary is 25 years’ imprisonment, and for intentionally causing serious injury, 20 years’ imprisonment. These are both very serious offences. You went around to your mother’s house armed with a knife and angry. You had been drinking. You had threatened your mother before you went there and broke your way into her unit when she told you to go away, and then proceeded to stab her four times. To break into your mother’s unit with the intention of assaulting her, armed with a knife and then indeed to stab her with that knife, culminating in four stab wounds, one of which, according to the treating doctor, missed Ms Wallis’ heart by one millimetre, is conduct of a high order indeed. I accept, however, that in the circumstances of this case, charge 2 on the indictment, that of intentionally causing serious injury, is the more serious of the two offences committed by you on this night and that is so because, although you entered your mother’s unit without her permission and, indeed, despite her plea for you to leave, she knew that you were the intruder and she was aware that it was you who was breaking in. Of course, she was not to know that you had a knife with you at the time. None of this diminishes what must have been a terrifying ordeal for your mother. In her Victim Impact Statement, tendered in evidence as Exhibit C, she speaks of the emotional and physical distress that she has suffered as a result of your attack upon her.
Your counsel, Mr Williams, has submitted and, as I understand it, the Crown does not dispute, that your offending sits in the mid-range of offences of this kind, and I accept that that is so.
I turn now to matters personal to you. As stated previously, your mother was 15 years old when you were born, and she relinquished you to foster care when you were six months old. You remained in foster care until you were 2½ or 3 years of age. As I understand it, you have never known your father.
When you were removed from foster care, you went to live with your grandmother and your uncle and aunt. You were brought up believing that your grandmother was your mother, and your aunt and uncle your siblings. Your grandmother suffered a mental illness, and both she and your uncle were violent towards you, and these were said to be very unhappy years. At that time, your great grandmother lived in a flat at the back of your grandmother’s house. At the age of five or six, she took you to live with her, moving to Elmore, where she lived in Housing Commission accommodation for the elderly. You were enrolled at the local Catholic Primary School, and it was at this time that you began to have an understanding of the true nature of the family relationships, and that the person you believed was your mother was in fact your grandmother.
From the age of six, while living at Elmore, you were raped and sexually abused by the father of one of your uncles, who was regarded as a family friend. This abuse continued for several years and, at the age of 14, you disclosed it to your biological mother. At that time, a complaint was made to the police and, apparently, the matter progressed to a committal, but the prosecution, it appears, did not proceed beyond that point.[1]
[1] The following conversation then took place during her Honour’s sentencing remarks:
When you were eight, you and your great grandmother moved to Echuca, where you were again housed in Housing Commission accommodation and enrolled at the local primary school. At this time, you became friends with two young girls who lived nearby, and you would spend time at their house. Unfortunately, during this time, you were sexually abused by those girls’ stepfather, and this continued until you were 11 years old when you and your great grandmother moved to Spears Point in Newcastle. The move was brought about because your great grandmother’s brother’s wife had died, and she therefore went there to live there to help look after him. Your great uncle paid for your education at a local Seventh Day Adventist College, and this, for a time, proved to be a period of some stability for you.
Up until the age of 11, your mother had been an intermittent presence in your life, sometimes contacting you every month, and other times going without any contact whatsoever for up to a year. During this time, it appears that there was some instability in your mother’s lifestyle, including various partners and drug use, if not addiction.
At the age of 12 or 13, you began to rebel, truanting from school and drinking. Ultimately, you came to be suspended for truancy, and consequently your great grandmother sent you back to Victoria. You initially lived with your grandmother and enrolled at the Golden Square Secondary College, but things did not work out and, after two weeks, you ran away from home. You knew your mother was living at Rochester, although you did not know where. You caught a bus to Rochester and eventually found your way to where she was living with her sister, Rebecca Wallis, her sister’s boyfriend and two children. Ultimately, Rebecca Wallis, her boyfriend and their children moved out, and for a time you lived at Rochester with your mother.
At this time, your mother was in a relationship with a man serving a prison sentence. However, she began a relationship with another man, a Mr Dodge, and all three of you moved to Bendigo to live in a house that he had purchased. You were enrolled at the Flora Hill High School, but after a short time, your mother’s relationship with Mr Dodge ended, and she moved out, leaving you to continue living with him. This situation prevailed for some 12 months, during which time you suffered from a bout of glandular fever, requiring hospitalisation, and after which you did not return to school. Thus, you dropped out in Year 9. From this time you spent your days drinking alcohol to the point of intoxication, with Mr Dodge. You would have been about 14 or 15 at this time, and he was at least ten years older than you.
At the age of 16, you met a woman aged 26. Initially, she offered you accommodation, but eventually you began a sexual relationship with her, which continued sporadically over the years. Later, you came to regard this relationship as somewhat exploitive. She supplied you with alcohol and drugs and controlled your money.
When you were 17, you resumed contact with your mother. It was agreed that you would go to live with her in Moe, where she was then living with her new boyfriend. This boyfriend attempted to rape you while your mother was at work. You ran straight from the house to the police station, but because of your previous experience, you did not make a formal complaint, but rather asked the police for assistance in returning you to Bendigo. You were accommodated at a refuge in Morwell for a couple of days and then went back to live with a family friend. You had told your mother of this attempted rape, but, rather than support you, she decided to remain with her boyfriend. It was said that you were utterly devastated by this and had no further contact with your mother for some five or six years. During this time, your drug and alcohol use escalated.
In your twenties, you moved to Castlemaine and commenced a relationship with another woman. You worked as a cleaning contractor and at Castle Bacon, and it was said that you enjoyed this work, but your alcohol abuse became more pronounced and you had trouble leading a stable life. Over the years, your mental health had deteriorated and there were four admissions to the Bendigo Psychiatric Care Centre following episodes of self-harm, which included stabbing and slashing your wrists.
By your mid twenties, your relationship with this woman had broken down. You were effectively homeless. You were living a somewhat transient lifestyle. Your mother was, by now, living in Bendigo and you were keen to re-establish a relationship with her. It appeared to you that she seemed to be getting her life together. In the 12 months leading up to these offences, you obtained work with an agency as an escort. Although you did not like the work, this gave you money and your own independent accommodation at the local caravan park. But it must be said that you continued to drink heavily.
Your great grandmother’s health began to deteriorate and she required assistance. She is now aged 94. She went to live with your aunt, Rebecca Wallis, and you would go there and assist with her bathing and care. There was a discussion between family members about obtaining help with her care or obtaining some sort of accommodation and associated financial constraints. It was in this context that your aunt let you know that your Nan would be going into care and that, as you had promised to assist with the cost, that you should get the cash ready in the coming weeks. It was in this way that she texted all three of your phones and told you that your Nan had died of a heart attack and to give her a call. It appears that on 5 January 2013, presumably the day she sent those messages, Rebecca Wallis sent a text to your mother, saying: “I just text Jayde that Nan’s dead. See if she calls her lol”, meaning “laugh out loud”.
A report by consultant psychiatrist Dr Danny Sullivan dated 8 October 2013 was tendered in evidence as Exhibit 4. In it, he details your personal history, which I accept. Dr Sullivan opined that you appeared to be of normal intellect. You reported a history of heavy alcohol consumption and limited drug use in the past. Indeed, you told him that on the night of these offences you were significantly intoxicated, having drunk 12 cans of pre-mix bourbon and a bottle of full strength beer. Dr Sullivan opined that you have a severe substance use disorder involving alcohol and, in the past, cannabis and amphetamines. He has diagnosed you as having a mixed personality disorder with borderline and antisocial features, and as suffering from post-traumatic stress disorder. You have reported to him incidents of self-harm and past psychotic symptoms. In his opinion, you present as embittered by your abusive and dislocated upbringing. At the age of 22, you were assessed as having autistic/schizoid qualities and a borderline personality disorder. You have been admitted to Bendigo Health four times between June 2008 and January 2012, and diagnoses have included antisocial personality disorder, adjustment disorder with mixed anxiety and depressive mood. You have also been told that you suffer from Graves Disease, which can present with symptoms of anxiety and other neuropsychiatric disturbances. If this diagnosis is correct, Dr Sullivan is of the opinion that your current treatment is inadequate. You are currently medicated with Seroquel, an antipsychotic, and Inderel, said to reduce the overactivity of the nervous system as occurs in Graves Disease.
In Dr Sullivan’s opinion, at the time of the alleged offences you were disinhibited through intoxication with alcohol. Your prevailing emotional state was that of anger. In Dr Sullivan’s opinion, your anger is associated with a personality disorder and post-traumatic stress disorder, and these diagnoses and intoxication had reduced your capacity to think clearly or to make calm and rational choices. In Dr Sullivan’s view, your judgment was impaired due to both intoxication and your personality disorder. There was, however, no indication that your mental disorder would cause your incarceration to weigh more heavily upon you. Although, in his opinion, you should be assessed for anger management or violence intervention.
Mr Williams submitted that your offending was occasioned by the following factors:
(1) your resentment towards your mother for her failure to care for you as a child and for her failure to protect you from sexual abuse and to stand by you when you had complained of such conduct;
(2) the issues relating to your mother’s drug use in circumstances where you had lent her money and household goods which she had squandered on drugs; and
(3) the issues relating to the care of your great grandmother and your belief that you had not been told of her death, which caused you to be overwhelmed with emotion. Of course, it must be acknowledged that the principal emotion which overwhelmed you was that of anger.
Mr Williams submitted, consistently with Dr Sullivan’s opinion, that your dysfunctional background has led to a diagnosis of personality disorder and post-traumatic stress disorder and, in that sense, your judgment was impaired due to both intoxication and your mental state and, as such, is causally related to your offending, and in this way the principles of R v Verdins[2] are enlivened. I accept that this is so, and in this regard rely also on the dicta of the majority in Bugmy v The Queen[3] where it was said “An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced”. Such dicta is apposite to the circumstances before the Court. Therefore, I proceed on the basis that your moral culpability for these offences is reduced and considerations of specific and general deterrence must also be sensibly moderated.
[2] (2007) 16 VR 269.
[3] [2013] HCA 37.
Mr Williams submitted that the Verdins principles are here applicable in assessing the appropriate period on parole as, indeed, it is also relevant to the fixing of the head sentence. As I understand his submission, it is not put that by reason of your post-traumatic stress disorder and/or personality dysfunction, that imprisonment will be more onerous for you. Rather, it was submitted that when considering protection to the community and given that this will be your first time in custody that you would benefit from an extended period on parole, to allow you to engage in programs that are not offered in custody, which would go towards facilitating your rehabilitation. Indeed, although understandably custody is not to your liking, as expressed in your letter, you appear to be doing relatively well. You have worked in the kitchen and in stores, and have participated in various courses in respect of which completion certificates were tendered in evidence.
You are now 29 years old. You have seven prior convictions from three court appearances. They include convictions for contravening a family violence intervention order (taken out by an ex-girlfriend), criminal damage, threat to inflict serious injury, arson (involving throwing a Molotov cocktail at your neighbour’s premises) and theft. The offences of threat to inflict serious injury and contravening the intervention order occurred in the context of a dispute with a former girlfriend when you went to her place angry and intoxicated, as you were in this instance. Clearly, specific deterrence, although moderated to a degree by reason of the application of the principles of Verdins, still carries significant weight and must be balanced with the safety of the community. Unless you receive therapeutic intervention to address your anger and, indeed, your resentment, your rehabilitation, although not without hope, will nonetheless be problematic.
You have expressed your remorse in the immediate aftermath of the offending, as recorded in the triple-0 call which was played to the Court, and in a letter written to the Court and tendered as Exhibit 2. Your letter was articulate and thoughtful. You have expressed insight into your offending and you have expressed your desire to be reunited with your mother. I accept that you are genuinely remorseful and genuine in wishing to re-establish your relationship with your mother. I accept that your plea of guilty is also indicative of your remorse. I take into account that, by your plea, you have saved the community the cost of a trial and, in particular, your mother and aunt the ordeal of one. I take into account also that your plea of guilty has facilitated the course of justice.
I take into account also that your plea was entered at the earliest opportunity at the committal, and I give you a discount for it. I take into account also your previous cooperation with the authorities, which was the subject of evidence in Court. I accept that you have, in that instance, facilitated the course of justice and, to that end, you are entitled to a further discount on the sentence. I have taken into account your age, that at the age of 29 you will be serving a sentence of imprisonment for the first time and a relatively significant one at that.
I take into account your dysfunctional and abusive childhood, including emotional and sexual abuse. You present, as Mr Rose SC, who appeared on behalf of the Crown submitted, with an horrific history and one which is properly to be taken into account in mitigation of the sentence to be imposed upon you. I take into account also the particular dynamics, as submitted by Mr Williams, which caused you to act in the way that you did on this night. In short, I take into account all matters which go in your favour.
Against these matters are the nature and gravity of the offences here committed, the need to pass a sentence which will act in denunciation of your conduct and serve to punish you, while at the same time giving effect to considerations of specific and general deterrence, although those considerations are, as stated previously, to be somewhat moderated.
Accordingly, you are convicted and sentenced as follows. Charge 1, aggravated burglary, 18 months’ imprisonment. Charge 2, intentionally causing serious injury, 5 years’ imprisonment. Although the offences occurred on the one occasion, they were nonetheless two discrete offences. Accordingly, it is appropriate to order partial cumulation. Therefore, I order that 6 months’ of the sentence imposed on charge 1 be served cumulatively with the sentence imposed on charge 2, that is, 5½ years’ and I declare that you serve a period of 3 years’ imprisonment before becoming eligible for parole.
I declare that you have already served by way of pre-sentence detention a period of 337 days, and I declare pursuant to s 6AAA of the Sentencing Act that, were it not for your plea of guilty, I would have sentenced you to a total effective sentence of 7½ years’ imprisonment with a non-parole period of 5 years’ imprisonment.
HER HONOUR: I interpose to say, Mr Rose, that the documentation you provided this morning suggested that there was an acquittal entered.
MR ROSE: Yes.
HER HONOUR: Yes, thank you.
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