R v A; R v Hurst

Sentence 1The offenders Shane Hurst and A each adhered to their plea of guilty in relation to two offences: (1)On 10 April 2010 at Cougal, wound Jarrod McShane with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900. The maximum available penalty for a contravention of s 33(1)(a) is twenty-five years imprisonment. There is a standard non-parole period of seven years. This offence is a serious children's indictable offence, which means that A (who, at the time of the offence, was a juvenile) is to be tried as an adult. (2)On the same date and at the same place, in company recklessly cause grievous bodily harm to Mr McShane. The maximum available penalty for a contravention of s 35 of the Crimes Act 1900 is fourteen years imprisonment. There is a standard non-parole period of five years. 2The wounding that is the subject of the s 33(1)(a) offence was caused by stabbing. The grievous bodily harm in relation to the offence against s 35 was a broken left jaw. The Crown relies upon joint criminal enterprise between the offenders and Lyndsey Pankhurst. In addition, the Crown relies upon individual stabbings by each of the three offenders in relation to the offence against s 33(1)(a). 3The offenders were committed for trial in March 2011 and they pleaded guilty later in 2011. The Crown suggested that a discount of approximately twenty per cent for the pleas of guilty would be appropriate in the case of Mr Hurst. That is a generous suggestion, which I adopt. In the case of A, she provided significant assistance to the police by way of informing them as to the location of the knife that had been hidden after the incident and the location of clothing that had been disposed of (presumably by Mr Hurst) after the incident. Mr Harrison for A has submitted that a combined discount in the vicinity of thirty per cent would be appropriate. The Crown accepts that such a discount is not inappropriate. I agree with the proposed discount for A. 4The facts in relation to the offences are contained in Exhibit B. In brief, Mr Hurst was in a relationship with A, who was seventeen years of age. Mr Hurst was twenty years old. They were acquainted with Ms Pankhurst. Mr Hurst planned to purchase ecstasy tablets in Brisbane and he borrowed funds for that purpose. The three offenders and the victim travelled to Brisbane in the victim's BMW vehicle. They waited in the Queen Street Mall for some hours for Mr Hurst's associates to arrive with the drugs. That did not occur. They left to return home to Casino. En route home, they took a detour to an area known as the Border Loop. This is an isolated location near the Queensland- New South Wales border, where trains pass through a tunnel or a loop. When they arrived at the Border Loop, they waited a while. They saw a train. Another vehicle pulled up containing two older couples, to whom the victim spoke. The victim was keen to leave. Mr Hurst suggested that he and the victim have a private talk. They walked a short distance from the vehicle for that purpose. 5As they were returning to the vehicle, Mr Hurst was behind the victim. He stabbed the victim twice in the back and then kicked him to the ground. He started to kick the victim in the head. A and Ms Pankhurst came over to where the victim was on the ground. A willingly participated in kicking the victim in the head. She was then given the knife, which according to the victim, Mr Hurst generally carried. Ms Pankhurst was then handed the knife. She delivered a further stab to the victim's left side. At one stage, the victim was dragged to a slightly different location. He sustained a number of abrasions to various parts of the body. Throughout the incident, which took a considerable period of time, the assailants were taunting the victim. A delivered some very cruel taunts. She incited Ms Pankhurst to stab the victim, telling her that "it's just like stabbing a chicken, just do it". At one stage, A said to the others "finish it". She says that, she meant "finish the assault". The co-offenders apparently took it to mean something to the effect of "finish him off" or "finish it off". Mr Hurst and Ms Pankhurst proceeded to move the victim to an area where he could be rolled down a steep embankment. 6During the attack, the victim was terrified. He felt himself going cold and he thought that he would die. After he was pushed down the embankment, he was terrified that the offenders were still at the Border Loop car park and he remained quietly part way down the embankment until he was certain that they had departed. He thinks that he was down the embankment for about half an hour. He was seriously injured and he feared that he might pass out and die. After he was sure that the car doors had slammed and the vehicle had left, he carefully and slowly made his way up the embankment. Because of the remote location, he was nowhere near assistance. He had to walk for a number of kilometres in an injured condition until he located someone who was able to drive him into town. 7The victim was treated for his injuries. Ultimately, it was ascertained that he had suffered five stab wounds to the back, the most serious of which was three to five centimetres in depth. The remainder were point five to two centimetres deep. He also suffered a stab wound to the left side, which was point five to two centimetres in depth. All the wounds were one to two centimetres long. A total of twenty-one sutures were applied to seal the wounds. The victim suffered significant bruising and abrasions to various parts of his body, including his face and head. Soon after the incident, he discovered that he had suffered a fractured left jaw. He underwent surgery. Plates and screws were inserted. From a physical perspective, the victim has made a good recovery. 8The victim provided a victim impact statement. The difficulties disclosed in that statement are the sort of difficulties that are almost inevitably associated with an incident of this nature. The victim has a great deal of difficulty working with sharp knives as they cause him to experience flashbacks to the incident. He has suffered a number of psychological symptoms, difficulty sleeping and problems socialising in any very public environment. This causes problems, both socially and in relation to work. He is trying to move on with his life but it is very difficult because of intrusive psychological thoughts. It is to be hoped that, when these proceedings have concluded, his psychological state will improve. 9Immediately after the incident, the offenders agreed to a version of events that they would tell to other people. It was a rather absurd story. It involved the BMW breaking down and the victim leaving to find help and then failing to return. For a period of time, the offenders adhered to the story. They arrived back in Casino at about 2.10am. A little later that morning, the BMW was located in Casino with its registration plates removed. On the same day, 10 April, Mr Hurst and A were interviewed. They gave the agreed version of events to the police. 10Later that evening, A returned and said that she wanted to help the police. She told them where they could find the knife. The knife contained a blood sample belonging to the victim. She indicated that she was prepared to be re-interviewed, but the police were reluctant to proceed in that way because she was a juvenile. On 15 April, she provided further information concerning the whereabouts of clothing that Mr Hurst had disposed of and two latex gloves that he had attempted to burn (inferentially, because they could contain forensic evidence). On 27 April, A provided a statement implicating the others. At that stage, she was seeking to minimise her own involvement. Based on the assistance provided by A, which was early and quite substantial, the combined discount of 30% for the plea of guilty and assistance to the authorities is appropriate. 11In relation to the objective seriousness of the offences, a number of things should be noted. A number of circumstances indicate the forethought and/or planning given to the offences. There was pre-existing antagonism between the victim and Mr Hurst, which was fuelled by the failed drug deal in Brisbane. Mr Hurst became very angry indeed. When the victim was on the ground, Mr Hurst and A repeatedly reminded the victim of the "three Rs", i.e. respect, revenge and reputation. Mr Hurst considered that the victim had ruined his reputation with drug vendors in Brisbane, and he was determined to exact revenge on the victim. When the group was at the lookout, the victim was ready to leave and was becoming a little uneasy. Mr Hurst said that they should stay and then suggested that the victim move away from the vehicle to have a discussion with him. Immediately after that discussion, he attacked the victim from behind. Generally, Mr Hurst carried the knife in question; it cannot be inferred that he armed himself for the purpose of stabbing the victim. When the attack by Mr Hurst commenced, A did not demonstrate any surprise or resistance, but almost immediately joined in the attack. A encouraged the disposal of the victim down the embankment. Ms Pankhurst and Mr Hurst pushed the victim down the bank. They all left in the victim's car and agreed to a version of events to which they adhered for a short period of time. 12The Court concludes that there must have been some forethought that something untoward would or, at least, may well occur during the detour to the Border Loop. I am satisfied beyond reasonable doubt that the offenders contemplated that something untoward may well occur during the detour to the Border Loop. However, I cannot be satisfied beyond reasonable doubt that there was any planning of serious violence or forethought given to the level of violence that was ultimately delivered at the Border Loop. There was a growing dissatisfaction on the part of Mr Hurst, which exploded in the angry outburst and sustained aggressive behaviour towards the victim following the initial stabbing. 13There are two primary elements in relation to the objective seriousness of such offences. First, the conduct. That encompasses any pre-planning or forethought. I am not satisfied beyond reasonable doubt that there was pre-planning. It also encompasses the roles that each of the offenders played. The matter has been prosecuted on the basis of joint criminal enterprise. Each of the offenders is responsible for the acts of the others, but it is apparent that Mr Hurst's direct role was the greatest. He had the greatest hostility towards the victim. Ms Pankhurst harboured a different type of illfeeling towards him. As far as A is concerned, there is no evidence that she was involved in planning prior to the incident. Mr Hurst was the one who was carrying the knife and who brought it out. He was the one who was concerned about his reputation with undesirable elements in Brisbane. He was the instigator of the stabbing, and he delivered the first two stabs. He also kicked the victim to the ground, where the victim became an easy target for the others to continue the sustained assault. On the other hand, A joined in willingly. Not only did she participate in kicking and stabbing the victim at least twice, but she also delivered cruel insults and taunts to the victim. Combined with the physical assaults, this caused the victim to become absolutely terrified. The events occurred at an isolated location, one where the victim was very unlikely to find assistance. It is a tribute to the victim that he had the discipline to get himself to the top of the embankment and then walk a long distance for help. 14Second, the level of grievous bodily harm and wounding. In relation to the injuries, the fracture to the left jaw is not one of the most serious types of grievous bodily harm. Plates and pins have been inserted and the victim has made a good recovery. In relation to the wounding, there were five stab wounds but only one was of significant depth, i.e. the wound that penetrated three to five centimetres. As far as the Court is aware, the victim made a very good physical recovery from the wounding. Inevitably, he has been left with significant psychological sequelae. 15The Court does not look at the spectrum of offences to ascertain where the subjective offences lie in terms of mid range of objective seriousness. This was a serious offence for the reasons that I have articulated. The maximum available penalties and the standard non-parole period set by the legislature are guideposts. A very significant sentence of imprisonment must be imposed. In relation to A, Mr Harrison has submitted that, if a sentence at the very bottom end of the range of two years was imposed, then the Court could look at suspending the sentence. The Court's first task is to determine the appropriate sentence and then to look at the way in which it should be served. 16I will turn to the subjective circumstances of the offenders. Mr Hurst is now twenty-two years of age. He was twenty years of age at the date of the offence. Mr Hurst has a prior juvenile history but it is not of any great significance. It pales in comparison to the conduct for which the Court is to sentence him. Offences of affray and being armed with intent to commit a serious indictable offence were committed in 2007. A nine month control order was made and suspended for nine months. There was an incident of offending behaviour in 2007, which resulted in twelve months probation. There is no significant prior criminal history on the part of Mr Hurst, although he is not a person without prior involvement with the criminal justice system. He has not reoffended while on bail. He was released to bail on 26 June 2010, having been held in detention in relation to these offences alone for a period of six-seven days, from his arrest to June 2010. For a period of more than eighteen months he has been crime free. He has been on stringent bail conditions, which have been like a form of detention since he has been unable to leave his residence unless he is in the company of his father or both of his grandparents. That has severely restricted his activities. The restriction of liberty needs to be taken into account in the sentences that I impose. 17Mr Hurst had a very difficult upbringing. His parents separated when he was approximately seven years of age. He resided with his mother and her then partner, where he was exposed to domestic violence and abuse that was very disturbing. He then moved to Casino to reside with his father. At some point during his early teens, he began to act in a delinquent fashion. From twelve years of age, he used tobacco, alcohol and cannabis, which helped him to relax and cope with the psychological stresses that he was under. Within a couple of years, he was using amphetamines, cocaine, LSD and ice. He left school in Year 11. At eighteen years of age, he moved to Brisbane. By that stage, he was using drugs daily, partying and using drugs such as ecstasy. His father and others observed that, during the latter part of his teens, the offender increasingly behaved in an aggressive and unpredictable fashion, often snapping and behaving violently, punching walls and the like. The offender was first admitted to Lismore Hospital for attempted suicide at sixteen years of age. There have been several overdoses and attempts at self-injury. 18Since the incident, the offender's conduct has changed dramatically. He has sought and received extensive medical intervention. He was treated by Dr Petroff, a psychiatrist, on about eighteen occasions up to January 2011. Dr Lynette Arnoldus-Lewis has seen him since January 2011, initially once a week and then once a fortnight. She notes the offender's depression and remorse over the incident, and his commitment to changing and making something of his life. She refers to his extremely traumatic childhood and the need for intervention over a long period to address the issues arising from a dysfunctional childhood, including the drug and alcohol and anger issues. He needs intervention in relation to education and general coping skills. That is a general assessment with which Dr Allnutt, a psychiatrist, agrees. He says that the offender probably suffers from a mood disorder characterised by symptoms of depression and anxiety, complicated by a long history of substance abuse, against a background of a dysfunctional upbringing that predisposed the offender to depression. Dr Allnutt considers that the offender needs psychiatric and psychological treatment as well as drug and alcohol treatment and vocational assistance. I heard evidence from the offender's father, a truck driver, as to the dramatic changes that he has observed in the offender since the offence. The offender is much calmer. He has been able to behave himself, staying at home with the family and rarely going out at night except when the family goes to a family function. He has been getting on very well with the family, including his grandparents. 19The offender's psychological situation and drug addiction was affecting him mentally at the time of the incident. He was also suffering "paranoid thoughts" about being threatened, particularly by Aboriginal people. He had a past association with skinheads and there had been racist behaviour by him in the past. Perhaps there were good reasons for him to feel "paranoid". His state of mind was not assisted by using ice and similar drugs. He said that he had imbibed some form of amphetamine (perhaps it was ice) within a matter of hours before the incident. After bail was refused, he experienced auditory hallucinations for some months, presumably as a consequence of drug withdrawal. The offender's judgment was very much clouded at the time of the incident. That is not an excuse, but it is something of an explanation for the bizarre behaviour and some of the remarks that were made to the victim during the course of the incident. 20A has no prior criminal history. She has spent no time in detention in relation to this matter. A is now nineteen. She was seventeen years of age at the date of the offence. She was born in Lismore. She has one younger brother. She had a very difficult childhood. Her parents separated when she was a baby. Her mother formed a new relationship when A was very young. There were disputes over her custody. Her mother had several relationships, some of which involved physical and verbal abuse. A went to live with her father when she was about nine years of age. At fourteen years of age, she became involved in a violent and controlling relationship with a drug addict who was then eighteen years of age. Thereafter, he was periodically imprisoned. When not in prison, he managed to get her pregnant on two occasions. She has been the sole parent of her two children. They are now aged two and three and a half years. She completed Year 9 at school. In Year 10, she attempted distance education. That attempt was thwarted because she became pregnant. She saw a psychologist a number of times in 2010. When she was in the relationship, she engaged in significant drug abuse. She says that she has largely addressed that problem. 21A has good personal resources. She has impressed persons who have reported on her as someone of reasonably high intelligence who has an interest in education. She wants to complete her schooling and attend university, possibly studying psychology at university. She genuinely wishes to make substantial changes in her life. According to the reporters, she has the capacity to do so. She does not have an anti-social personality. Rather, her offending behaviour was the product of situational factors. A's situation is neatly summarised in a report of Mr Nisbet dated 22 September 2011 (on the second last page): "[A's] background contains numerous experiences of developmental adversity including parental separation, childhood abuse, domestic violence and early motherhood. These experiences are likely to have resulted in [A] seeing the world as a hostile and uncaring place and understanding relationships as being typically coercive and exploitative. The immediate precipitants to the offences were anger at the victim as a result of remarks he made to her and the opportunity to exploit his weakness resulting from the injuries he had already sustained. The reckless and callous nature of [A's] involvement in the offences is considered to be more the result of situational factors rather than the result of any severe antisocial personality traits." He concludes: "She therefore has the ability to modify her behaviour, change her associates and remain within boundaries imposed on her by the court. She has both academic potential and a history of employment. Her potential for self development will be impeded by the legacy of her early adverse developmental experiences." She enjoys the support of the organisations in Lismore with whom she may continue to have contact. That will assist her rehabilitation. 22In sentencing both offenders, I take into account the relevant aggravating and mitigating features under s 21A. I also consider the sentencing objectives under s 3A. In relation to A, I consider the provisions of s 6 of the Children (Criminal Proceedings) Act 1987. Most of those statements in s 6 are, in effect, motherhood statements. Of particular relevance to this case is s 6(c), which states that it is desirable wherever possible to allow the education or employment of a child to proceed without interruption. Section 6(d) talks about allowing a child to reside in his or her own home. Part (f) talks about the desirability of assisting children to reintegrate into the community so as to sustain family and community ties. As the Crown submitted, the conduct of A was like that of an adult, although as a seventeen year old, she would not have had the maturity and judgment of an adult. One cannot overlook the capacity of a seventeen year old to accept responsibility for their actions and their effect on the victim. Those matters are referred to in s 6(g) and (h). 23Section 3(a) refers to the need to ensure that there is adequate punishment. Part (b) refers to general and specific deterrence. Part (c) refers to the protection of the community. In this case, this seems of lesser importance, given the demonstrated rehabilitation of the offenders. It is important to promote the rehabilitation of the offenders, particularly as each is a young adult. In the case of younger persons, considerations of rehabilitation and may be more important than considerations of general deterrence. However, in the case of serious offences of the type in question, general deterrence cannot be ignored. Accountability, denunciation and recognition of harm are very important considerations. 24In relation to the s 21A aggravating features, the question of being in company is something that is an element of the s 35 offence. In relation to the s 33 offence, it is not an element but joint criminal enterprise is relied upon by the Crown. I take into account the fact that there were three persons involved and that made it more frightening for the victim. It is not entirely clear as to who inflicted what wounds. A weapon was used. That is an aggravating factor, although, in the case of wounding, it is very often the case that a weapon is used and very often that weapon is a knife. I do not know how I should take into account the factor in s 21A(2)(ea), which talks about the offence being committed in the presence of a child under eighteen years. A was a child, but she was also a participant. I do not think that that part is intended to address the present. 25In relation to the relevant mitigating factors, I have referred to the lack of any substantial record on the part of Mr Hurst. A had no record and was, a person of good character. I am satisfied that, provided that they continue rehabilitation, it is unlikely that the offenders will reoffend, particularly in the case of A. Given her age at the time and the fact that she has very good prospects in relation to her future education and employment, I am satisfied that she is unlikely to reoffend in any significant way. As for Mr Hurst, I am optimistic that that is the case, although one cannot be certain. Given the various factors referred to in the reports, there are good prospects of rehabilitation for both of the offenders. One of the relevant considerations is their age and the increasing maturity that each is showing. Both offenders have expressed remorse on many occasions. Both entered a plea of guilty (which I have already discussed). I have referred to the assistance provided by A to law enforcement authorities. 26In relation to A, as I propose imposing a custodial sentence, it is necessary to consider the submission of Mr Harrison that any sentence of imprisonment should be the subject of an order directing that the term and the non parole period be served as a juvenile offender. That requires the Court to consider whether there are special circumstances justifying the detention of A as a juvenile offender, as she has already attained eighteen years of age. Mr Harrison relies upon s 19(4)(c), which reads: "If the person were committed to a correctional centre there would be an unacceptable risk of the person suffering physical or psychological harm whether due to the nature of the person's offence, any assistance given by the person in the prosecution of other persons or otherwise." In this case, it is submitted that A, would suffer an unacceptable risk of psychological harm by virtue of the diminished capacity that she would have for contact with her two children should she be incarcerated in an adult institution. For some time now, she has resided with her father. She has negotiated an arrangement with him whereby he is prepared to look after her children. That will provide the children with some continuity, but it will be very different from the current situation where their care is primarily her responsibility. There is no suggestion of her taking the children with her to prison and I would not advocate such a course. The Court has been advised by Ms Saville from Juvenile Justice of the different arrangements that could be made for the offender if she was incarcerated as a juvenile. The arrangements would reduce the risk of her suffering psychological harm by virtue of the separation from her children if she was placed in an adult prison. Whether she is placed in an adult or a juvenile institution, she will be housed somewhere in Sydney. That is a very long way from northern New South Wales. She has been through some very difficult times with the children, and she is going to suffer psychologically whatever happens. However, if she is kept in a juvenile institution, Juvenile Justice will assist her and the children to have access to each other by way of video link. If her father is able to make his way to Sydney with the children, there will be much greater flexibility in relation to extended access. I infer that the access arrangements will be much more congenial than would be the case in an adult institution. Disregarding for a moment the position from the children's perspective (because it is not referred to in the provision, rather remarkably), I am satisfied on the basis of the information provided by Ms Saville (and the Crown concedes) that there is an unacceptable risk of psychological harm if A is housed in an adult institution. That risk will be vastly diminished if she is housed in a juvenile institution. That argument is sustained. 27I was referred to the sentencing statistics, which provide a yardstick but do not dictate an appropriate sentence. Recently, in Hili v R [2010] HCA 45, the High Court said that it is far more constructive to look at particular cases. I have looked at the cases of McEvoy [2010] NSWCCA 110 and SB [2011] NSW CCA 95. I have been referred to the Public Defender's Sentencing Table, but that contains little background information 28I will deal with Mr Hurst first. You are convicted of both matters. In relation to the offence of recklessly causing grievous bodily harm, the starting point for the sentence is three years imprisonment. I have deducted twenty per cent resulting in a sentence of two years and five months. You are sentenced to a fixed term of imprisonment of two years and five months from 29 November 2011 to 28 April 2014. For the more serious offence under s 33, the starting point is six years imprisonment. I deduct twenty per cent to arrive at a sentence of four years and ten months. I have partly accumulated that sentence. That sentence will commence on 29 June 2012. The minimum period that you should spend in custody overall is a period of two years and eleven months. I fix a non-parole period of two years and four months for the s 33 offence. Your non-parole period will expire on 28 October 2014 and you will be eligible for release to parole on that date. The balance of the sentence will expire on 28 April 2017. You have been sentenced to an effective sentence of five years and five months with an effective non -parole period of two years and eleven months. In setting that non-parole period, I have taken into account special circumstances, being your youth, the lack of a prior significant criminal record, and first time imprisoned. I have also taken into account the period and nature of your bail and your demonstrated efforts towards rehabilitation and the fact that you will need a long period of support in the community once you are released. 29A, you are convicted and sentenced to imprisonment for each of these matters. In relation to the s 35 offence, the starting point for the sentence is two years imprisonment. I have deducted thirty percent to arrive at a sentence of seventeen months imprisonment, which will start on 14 February 2012. Since there are some quite special circumstances pertaining to you, the minimum period that you should spend in custody is a period of twelve months. I am setting a non-parole period to expire on 13 February 2013. The balance of the term for the kicking offence will expire on 13 July 2013. For the s 33 offence, the more serious offence, the starting point is three years imprisonment, I have deducted thirty per cent to arrive at a sentence of twentyfive months imprisonment. I have accumulated that by a factor of four months, so the sentence will start on 14 June 2012. For that offence, I fix a non-parole period of eight months, which will expire on 13 February 2013. The balance of that sentence will expire on 13 July 2014. You have been sentenced to an effective term of imprisonment of two years and five months with a non-parole period of twelve months. In setting that non-parole period, I have taken into account the special circumstances of your youth and the fact that you were a juvenile at the time of commission of the offences. I have also taken into account the needs of your children, the fact that you have not previously been imprisoned and the fact that you need a long period of support in the community following your release. Pursuant to s 19 of the Children (Criminal Proceedings) Act, I make an order directing that the non-parole period is to be served as a juvenile offender. HER HONOUR: Is there anything further Mr Crown? MCLENNAN: Yes unfortunately there is, there is a s 166 certificate in respect of each of the offenders and of course Ms Pankhurst, it deals with the offence of in the case of these two offenders being carried in a conveyance pursuant to s 154A of the Crimes Act for which the maximum penalty is five years imprisonment on indictment. Subject to anything that your Honour may wish to say, a concurrent sentence for a fixed term would seem to be appropriate. 30Subject to anything that anyone wants to say, I am happy to proceed by way of imposing a concurrent sentence. In the case of Mr Hurst, I would be minded to sentence him to a fixed term of imprisonment of six months to run concurrent with the s 35 sentence. In the case of A, I sentence her to a fixed term of imprisonment of three months to run concurrent with the s 35 sentence. Unless anyone wants to be heard, I impose those sentences.