Mr C Waterstreet (Counsel for the offender)
File Number(s): 2016/5891
[2]
Judgment
At about 2 am on 7 January 2017 Evie Amati, then 24 years old, walked into a 7/11 store on Stanmore Road, Enmore. She was carrying an axe. She then launched violent and unprovoked attacks on three people. CCTV footage records the graphic and shocking nature of the offending. She did not deny that she had carried out the attacks, but ultimately claimed that she was mentally ill at the time. A jury rejected that claim and she is to be sentenced for three offences each of which carry a maximum penalty of 25 years imprisonment. First, wounding with intent to murder Ben Rimmer under s 27 of the Crimes Act 1900 which has a standard non-parole period of 10 years. Secondly, inflicting grievous bodily harm with intent to murder Sharon Hacker under s 27 of the Crimes Act 1900 which also carries a standard non-parole period of 10 years. Thirdly, attempting to wound with intent to murder Shane Redwood, under s 27 of the Crimes Act 1900, with no standard non-parole period.
The maximum penalties and, where applicable, the standard non-parole periods, are yardsticks to be used in the sentencing process. The standard non-parole period represents an offence in the middle of the range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence as set out in s 54B(2) of the Crimes (Sentencing Procedure) Act 1999. The sentence must take account of the purposes of sentencing as set out in section 3A of the Act including punishment, denunciation, deterrence, protecting the community from the offender, recognising the harm done to the victims of the crime and the community, rehabilitation and making the offender accountable for her actions. Under s 5 of the Crimes (Sentencing Procedure) Act 1999, a term of imprisonment must not be imposed unless there is no alternative punishment available.
The Crown's written submissions set out the essential facts said to have been established beyond reasonable doubt by the verdicts, and there is no challenge to those facts in the submissions on behalf of the offender. The Crown submissions accurately state the facts which, in my view, follow the jury's verdicts. However, the offender's life history was explored in minute, graphic and sometimes excruciating detail over the course of several weeks in the trial. There is no dispute about that history, and it should be borne in mind in the sentencing process as it provides the basis for the principal argument for the offender, namely that moral culpability should be reduced due to her subjective circumstances.
Counsel for the offender has not undertaken the task of distilling the facts. It has been necessary for the court to undertake the task of reviewing the transcript and exhibits so that the factual basis of the expert opinions and the sentence to be imposed by the court may be understood.
[3]
Early life
Evie Amati was born male and named Karl Amati in Perth on 1 May 1992 to parents to Melanie Booth and Michael Amati. She grew up in Leederville in the inner city of Perth. She had a close relationship with her mother growing up, but a turbulent relationship with her father. She had an awareness of gender dysphoria at a very young age, recounting '"vivid dreams" of being female when she was 5 or 6. At 15 she recalls "coming out" about gender identity to her then girlfriend, who thought she was gay. She hid her gender identity for the remaining years of high school.
She attended Shenton College from years 7 to 10. She excelled academically, achieving an ATAR score of 99.40 in 2010, placing her in the top 1% of the State. She was selected in the WA School Debating Squad, and won the WA English literature prize. She was bullied by her peers. During her final year of high school, with her mother's financial assistance, she moved in with her girlfriend. She attended school sporadically at this time, struggling with feelings of depression and experiencing bullying at school.
[4]
Move to Sydney (University/Transition)
She moved to Sydney in 2010, at age 17, following the completion of her final exams. She commenced employment with the Community and Public Service Union (CPSU).
In 2011, she commenced studies at Sydney University in a combined Arts/Law degree. Again she excelled, winning a number of awards including the Sir Walter Reid Memorial Prize for Excellence in Arts and Law in 2011 and the John Kenneth Galbraith Prize for Economics II in 2012. She started her physical transition from male to female in 2012 when she began taking feminizing hormones.
She dropped out of university mid-way through her third year, citing ongoing depression and reported self-consciousness about the attention she received from peers when she commenced expressing her gender identity. She travelled to Thailand for gender reassignment surgery in 2016. The surgery went well, however the post-surgical process of ongoing dilations was arduous and extremely painful.
She was first treated for depression by her GP in 2012. Her diagnoses became more severe and from 2012 to 2016 her Sertraline anti-depressant medication increased from 25mg to the maximum 200mg daily. In July 2016 she was taken to hospital after being found at St Peters station, intending to jump onto the railway tracks. She presented to Cumberland Hospital with suicidal thoughts in August 2016.
[5]
Events leading up to the offending behaviour
In the six months preceding the offence she had separated from her partner of two years, Tara, and her band had disintegrated. She was living alone and her social sphere had collapsed. She found work to be an escape from her depression.
Early on 6 January Evie matched with Mickila Jansen on the dating app Tinder. They communicated through the messaging services provided by Tinder initially and then by Facebook from about 3pm on Friday 6 January. On that afternoon they had a lengthy exchange about their respective sexual fantasies, and then arranged to meet for the purposes of going to the Burdekin Hotel. Mickila knew people who worked there and said it was great for drugs. Evie said she loved drugs.
Mickila's housemates Katarina and Tenika were also at the house when Evie arrived at about 9:50pm. After a drink, the group walked to the bottle shop in Marrickville to purchase more alcohol. The bottle shop was closed so they went to the bar across the street to purchase alcohol. Walking home from the pub the four girls were picked up by a friend of Mickila and her roommates known as Eve- Lise. It had been arranged sometime that afternoon or evening that Eve-Lise would arrange for the purchase of MDMA for the group to consume that night. Eve-Lise drove the girls back to the house in Marrickville, where the group continued drinking and took what they believed to be MDMA capsules. Toxicology reports showed that it was in fact MDA.
At about 12:45am, Evie Lise returned, with her boyfriend who was now driving, to take the group to the Burdekin Hotel.
During the car ride Evie recalls a comment made by Tenika in which she had said words to the effect of the "you're so beautiful" or "you're so brave", which Evie construed to mean that others had either identified her as transgender or they had spoken about it whilst she was out of the room. She began to feel "incredibly anxious" and "started going into one of my depressive episodes" in which she shuts down. She put her leg against Mickila's leg "to test the waters", but Mickila "recoiled not, you know, not as like a natural kind readjustment as if she was burned, as if she'd touched a leper or someone that was infected."
After this exchange, Evie went quiet and asked to get out of the car. Mickila said she seemed kind of mad. She was dropped off and made her way home.
Evie recalls smoking two joints on her balcony and turning on her favourite song "Flat Line" by the heavy metal band Periphery to deal with what she describes as "violent visions of running at the police with an axe and being shot dead."
Mickila messaged Evie via Facebook at 12:49 AM to check if she was okay. A protracted conversation ensued in which Evie expressed her anger and disappointment at being rejected, as she saw it, because she was transgender. It included the following statements by Evie:
"Yeah I just didn't get any positive chemistry from you and assumed you thought I was ugly…some people see it… some people don't … I'm not a dude but yeah fuck you
The exchanged escalated with Evie telling Mickila:
"This is why I don't do people… Exactly this reason... Because they deserve to die…. I saw nothing but hate in your eyes.. you see me as a guy
One day I'm going to kill a lot of people… For hating something so innocent ..All I want to do is please.. But I'm too ugly.. And you will pay … How can you say you adore me and want to see me again.. And then spew this shit about your personal demons like I have anything to do with them… You are nothing but hate.. That's why you would make a great cop… I know I'm so much more beautiful than you will ever be.. You shouldn't be in Marrickville…go to black town or some other ignorant fuckhole.."
The Facebook messenger conversation ended abruptly at 1:31am.
About 2am she armed herself with an axe (weighing 4.5 pounds) and a 18cm knife and made her way to the 7/11 convenience store on Stanmore Road, Enmore. The axe had been purchased to break down some old furniture after the offender moved to a new house.
The primary motivation for the offending was perceived intolerance/interpersonal rejection, in particular that attributed by the accused to Mickila Jahnsen.
The offender was affected and disinhibited by the combination of illicit drugs (MDA and Cannabis), alcohol and prescription medication.
[6]
Count 1 - Mr Ben Rimmer
The offender entered the store and approached Mr Ben Rimmer, striking him in the vicinity of his left eye with the axe when he turned his attention to the counter area. The axe was swung with two hands and the blow was forceful. It knocked Mr Rimmer to the ground. The injury sustained was described by Dr Chopra as:
'… a massive laceration across the left side of his face extending from the bridge of his nose to his upper left eye (over 10 [cm] in length). The laceration was through soft issue and through bone. He had significant facial swelling and bruising consistent with massive trauma … the patient fractured his nasal bone, eye socket and cheek bones. The fractures were all complex with multiple fragments and with heavy distortion, especially to the cheek bone':
Had the positioning of the injury been slightly different catastrophic injury would have resulted (massive bleed to the brain, loss of vision):
"Myself and my consultant and other colleagues at the time around the operation commented that an injury of that magnitude, a millimetre or two above where Mr Rimmer had his injury would have had significant consequences or potentially life threatening injuries to him and consequences."
The injury sustained required 5 hours of reconstructive surgery including the use of titanium plates and screws.
The offender swung the axe at Mr Rimmer wounding him and intending to kill him.
[7]
Count 3 - Ms Sharon Hacker
The offender then attacked Ms Sharon Hacker with the axe bringing it down forcefully with two hands on the base of her skull. She fell forward to the ground. That first blow was cushioned by Ms Hacker's thick bundle of dreadlocks. The offender attempted to strike Ms Hacker a second time with the axe whilst she was prone but missed. As a result of the first blow Ms Hacker sustained a left occipital condyle comminuted fracture (meaning that bone at the base of the skull was broken into multiple parts).
In addition to the need for the initial imaging, treatment and the MH collar for approximately 2 months, Ms Hacker also now suffers from what she described as shooting pain down her arm and hand, chest pain and sleeping issues.
The offender swung the axe at Ms Hacker causing her grievous bodily harm and intending to kill her.
[8]
Count 5 - Mr Shane Redwood
The offender approached Mr Shane Redwood and attempted to strike him twice with the axe with force. He thought these blows were directed at his upper chest area. He managed to deflect both with his backpack, with the force of the second blow knocking the backpack from his grasp after which he ran.
The offender when swinging the axe at Mr Redwood was attempting to wound him with the intention of killing him.
[9]
Post-offending
The offender was seen by a witness heading along Stanmore Road towards Enmore Road. Police and Ambulance Services responded to the incident. Whilst patrolling the area, Police located the offender lying, seemingly unconscious, in the garden of 1 Stanmore Road. She was handcuffed, lifted from the garden and transported to St Vincent's Hospital.
Treating paramedics tested her responses on the scene and in transit. The only response was her eyelids fluttering, observed by ambulance officers and an accompanying police officer. An ambulance officer also noted flexion in her left hand. A witness who was observing the scene from the corner gave evidence of the offender lifting her head and looking directly at him while she was on the pavement outside the property on Stanmore Road.
She opened her eyes shortly after arriving at the hospital, and tried to get up. She pulled the tube from her nose and continued to struggle. She was heard to say "After the nose doesn't the arse come next", "Fuck me, fuck me" and "Pain is a part of life". On being asked her name by an ambulance officer she responded "I'm not telling you. I don't have a name". She continued to struggle and was sedated.
She gave evidence that she has no recollection between smoking a joint on the balcony and listening to her favourite song, until a vague recollection of waking up in the hospital and staff asking for her name and next of kin.
She was discharged into Police custody on the afternoon of 7 January 2017.
[10]
Objective seriousness
Offences involving an intent to murder are of the utmost seriousness as reflected by the substantial maximum penalty: R v Thew (unreported, 25 August 1998 NSWCCA). Factors relevant to an assessment of objective seriousness include the skill and determination applied to the attempt, whether it was premeditated, the likelihood of death, and the degree of injury inflicted. In an appropriate case the objective seriousness may not fall far short of the completed crime of murder: R v Macadam-Kelli [2001] NSWCCA 170 at [42]. An offender's mental state at the time of the offending can inform an assessment of both objective seriousness and moral culpability: Elturk v R [2014] NSWCCA 61 at [33] - [34]; Shine v R [2016] NSWCCA 149 at [74].
The Crown addresses the objective seriousness of each matter in a notional range. It is strictly unnecessary to do so; Yeung v R [2018] NSWCCA 52 at [24]; R v Rampe [2018] NSWCCA 163 at [32] - [39]. However it is instructive to do so in this matter. I accept the Crown's characterisation of each offence as set out below. I reject Mr Waterstreet's submission that the dominant cause of the conduct and behaviour was the underlying medical condition. It is unnecessary for me to make a finding as to whether the offender consumed MDA on a voluntary or involuntary basis, thinking that she was instead taking MDMA. The expert pharmacologist, Mr John Farrer, said that MDMA was commonly referred to as ecstasy, and MDA was referred to as "the love drug".
In each case there are a number of common factors bearing on objective seriousness. First, while the use of illicit drugs was a significant factor, it is likely that the offender's underlying mental conditions also contributed to her behaviour. Secondly, in each case the offender used a 4.5 pound axe to strike at the victim with force using an implement which by its very nature is dangerous and well capable of killing or inflicting serious injury. Thirdly, the offending involved a degree of premeditation and planning, namely the offender arming herself with a knife and axe and walking 450 m to the convenience store. Fourthly, the likelihood of death in each case was very high.
Both Mr Rimmer and Ms Hacker were struck when they were not looking rendering them more vulnerable to serious harm. Further, in both cases the injuries sustained were substantial and have long-lasting consequences. As to Mr Redwood, the attempt did not involve the infliction of actual physical injury due only to his self-defence with a backpack, but he was vulnerable given his physical disabilities.
In those circumstances, Counts 1 and 3 fall above mid-range of objective seriousness and Count 5 is in the mid-range.
[11]
Subjective circumstances
The Crown accepts that there is evidence of a history of mental illness including depression, major depressive episode, substance induced depression, self-harm, suicidal and homicidal ideation and gender dysphoria, and thus the principles in the DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177] are applicable;
They can be summarised in the following manner:
•Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]).
•It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50-51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]).
•It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: R v Tsiarias (at 400); R v Jiminez (at [25]); R v Israil (at [26]); R v Henry (2007) (at [28]).
It may reduce or eliminate the significance of specific deterrence: Courtney (at [14]); R v Tsiarias (at 400); R v Israil (at [25]); R v JW (at [192]).
•Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil (at [24]); R v Henry (2007) (at [28]). Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ (at [23]-[24]).
Although the jury by its verdict rejected the defence of mental illness, this does not preclude consideration of the offender's mental conditions in the sentencing process: R v Cheatham [2002] NSWCCA 360 at [134]; R v Bell (1985) 2 NSWLR 466 at 485; R v Fraser [2005] NSWCCA 77 at [25]; Skelton v R [2015] NSWCCA 320 at [135]-[141].The proposition that the mental health of the offender is still relevant to sentencing has been applied in the courts of this state in a number of cases. In R v Verney (NSWCCA, 2013 March 1993, unreported), Hunt CJ stated:
"It is also clear that a jury's rejection of a defence of diminished responsibility does not mean that the judge is not entitled to find for himself from the evidence some impairment of the prisoner's responsibility or culpability for his actions short of that which the defence pursuant to s 23A of the Crimes Act 1900 requires."
As counsel for the offender submits, the psychiatric evidence is relevant to a number of factors including risk of reoffending, extent and severity of her condition, the extent of the condition at the time of the offence and its contribution to the offence, the prospects of treatment and rehabilitation, the need to engage in programs and the availability and relevance of social support.
However it remains necessary to assess and weigh appropriately the importance of the protection of the public: R v Lawrence [2005] NSWCCA 91 at [23]-[24]; R v Israil [2002] NSWCCA 255. Self-induced intoxication by illicit drugs and alcohol is not a factor in mitigation as set out in section 21A (5AA) of the Crimes (Sentencing Procedure) Act.
[12]
Sentencing assessment report
The history contained in the report is consistent with evidence given by the offender at trial as well the material emanating from the various psychiatric reports.
She has maintained positive relationships with the parents and sister who live in Western Australia. She intends to live on the South Coast upon release. She has been in regular employment while in custody and has received positive feedback. The Corrective Services records confirm her good behaviour in custody.
She continues to report having no memory of committing the offences, but remembers experiencing homicidal auditory hallucinations, visions and feeling scared. She demonstrated insight into her behaviour by describing the offences as "monstrous" and feeling disgusted by her actions. She also demonstrated insight into the impact of her offending on the victims, describing her actions as "catastrophic" and that she had apologised and expressed remorse. She recognised the link between her mental health, medications and the dangerous combination of these issues coupled with alcohol and illicit substances.
She had commenced experimenting with alcohol and other drugs after moving to New South Wales. Before the offending she was binge drinking on weekends, smoking cannabis daily and using MDMA or LSD on a recreational basis. On the night of the offences she had smoked cannabis, consumed alcohol and taken MDMA.
While in custody she has participated in the Remand Addictions Program which is a 20 session program covering a number of topics. She has also completed the Salvation Army Positive Lifestyle program and sessions of "Real Understanding of Self-Help" (RUSH). Corrective services records demonstrate a strong work ethic while in custody.
[13]
Psychiatric evidence
A number of psychiatrists retained for the offender accepted that but for the combination of the offender's mental state and the ingestion of drugs and alcohol on the night of the offending the attacks were unlikely to have occurred. Dr Greenberg and Dr O'Dea identified the relevant mental dysfunction as a drug induced psychosis. Dr Greenberg was at pains to point out that it was a complex interplay of a number of factors without any one factor assuming a dominant role. For the Crown, Dr Skinner was of the view that no psychosis was operative but rather disinhibition in the context of prior aggressive or homicidal fantasies, noting her history of depression, self-harm and mood disorder. Dr Skinner's view placed a greater emphasis on the role played by substance abuse which is, as the Crown submits, arguably more consonant with the verdicts of the jury.
As counsel for the offender relies heavily upon the views of Dr Greenberg, they will be referred to in some detail. The history upon which Dr Greenberg proceeds has been adopted by the offender in evidence. It is relevantly summarised in counsel's submissions as involving a depressive disorder present for many years and gender dysphoria since her teenage years. She was never assessed for hormonal medication difficulties before or after gender reassignment surgery which occurred in early 2016.
Dr Greenberg notes earlier references to depression and suicidal attempts recorded in the medical material in, for example November 2013, March 2016 July 2016 and August 2016.
Dr Skinner, reporting to the Crown for the trial, accepted that the offender had suffered from a long history of episodes of mood disorder.
Dr Nielssen was of the view that she had a severe depressive illness, as was Dr Hampshire, who examined the offender within days of the arrest.
Dr Greenberg adheres to the view that the offender's mental illness, namely an unstable depressive disorder, was the most significant factor in her offending, which was completely uncharacteristic. The reasons for her being overwhelmed were multiple and complex. She had undergone sexual reassignment surgery and her feminising hormones had not been reviewed by an endocrinologist. Her depressive moods were aggravated by the use of the feminising hormones. He remains of the view that she was likely intoxicated with a cocktail of prescribed and illicit substances at the time of the offending and she had a brief drug induced psychosis on top of her depressive illness. Together with her use of substances, her perceived feelings of rejection by another female likely exacerbated a more significant relapse of her suicidality and thoughts of homicide as part of her underlying mental illness so that all these factors had a continuing role. Dr Greenberg acknowledges that the extent of the contribution of the mental illness to the offending can only be inferred from her self-report and the available evidence, but his view is that the contribution of the mental illness was the most significant factor in the offending. Notwithstanding the submission of counsel for the offender, it is unnecessary for me make a finding as to whether her depressive disorder was the most significant factor in the commission of the offences. It is sufficient to proceed on the basis that it was one of the factors which were at play.
Dr Greenberg considers a number of matters relevant to an assessment of the risk of reoffending including history of previous violence, absence of history of antisocial behaviour, historical relationship instability, stable employment, substance use problems, major mental illness, absence of significant features of psychopathy, a history of problems with traumatic experiences including being teased and bullied at school because of her gender identity, absence of history of violent attitudes, absence of problems with treatment or supervision response, good insight in regard to the role of her substance abuse at the time of the offending, lack of recent homicidal ideation, variable mood in custody with some suicidal ideation, responsiveness to treatment, and her high level of intelligence as a protective factor. Acknowledging that it is somewhat speculative, Dr Greenberg thinks that she has relatively good prospects for rehabilitation and her prognosis is relatively good provided that she can access available treatment in custody to address her depression and associated psychological challenges, to continue with abstinence from all un-prescribed substances and benefit from those interventions. Without addressing those factors her risk would likely be higher.
As counsel for the offender submits (and the Crown concedes, to an unspecified extent), the long history of mental illness reduces to some extent her moral culpability and consequently reduces the need for general and specific deterrence as well as the extent to which she is made accountable for her actions.
[14]
Prospects of Rehabilitation
The evidence establishes that the offender's mental state has improved while in custody in the absence of illicit drug use. She has no prior convictions, which of course is a matter to be taken into account in mitigation, and she has significant family support. She is well educated, articulate and intelligent. Community Corrections assessed her as having a medium to low risk of reoffending. I accept her prospects of rehabilitation are good, particularly if mental issues arising from hormone therapy are adequately controlled.
[15]
Aggravating and mitigating factors
No aggravating factors have been identified in submissions, and none are apparent beyond matters which are elements of the offence. However, in mitigation I note her prior good character, lack of previous convictions, expressions of remorse and reasonably good prospects of rehabilitation.
[16]
References
I take account of the evidence of the offender's mother at the trial. I also note the reference from Alicia Miller, a work colleague as a union delegate. The parents of the offender have written in heartfelt terms as to the uncharacteristic nature of the offending and the changes that they have observed in the offender while she has been in custody. Mark Cox, a Perth based lawyer and long-term family friend, says that she has always been well balanced, compassionate and considerate apart from this horrible incident. Family friends Anna Kanaris and Arthur Clarke speak in similar terms. Sabrina Klinger, accountant and next-door neighbour, has known the offender since 2002, and speaks of her in favourable terms.
This material and the other evidence establishes, as Mr Waterstreet submits, that she was a sympathetic, empathetic and consistent worker for several years, regarded as a person of good character with high intelligence and ability. It also shows that she suffered a form of depression for some time during her childhood and adolescence in Perth, and after coming to Sydney she experienced a deteriorating mental health profile without offending.
[17]
Other evidence
A number of scientific articles were tendered by the offender addressing topics including long-term treatment of transsexuals with cross sex hormones, the role of hormones and the transgender brain, and endocrine treatment of transsexual persons. It is unnecessary for me to consider the content or conclusions of those articles.
[18]
Victims impact statements
I take account of the statements made by Mr Rimmer and Ms Hacker, who also both gave evidence at the trial. I acknowledge that they are not tested and subject to cross examination, but they are to be considered in the light of the legislation and in the way suggested by Basten JA in R v Thomas [2001] NSWCCA 269 at [37];
"… it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim".
The TV footage shows Mr Rimmer having an apparently innocent conversation with the offender in the vicinity of the cash register of the store. As he turned away slightly to pay for his purchases she swung the axe violently, striking him across the face. He underwent facial reconstruction surgery and one of his biggest challenges is accepting his altered physical appearance which causes him distress every time he looks in the mirror. He remembers lying on the ground and thinking he was going to die and never see his pregnant wife again or meet his son. He was subject to intense media scrutiny and had to watch the horrific TV footage many times. He describes symptoms which are well recognised as being consistent with a type of post-traumatic stress disorder, although it is unnecessary for me to make any particular finding on that issue.
Ms Hacker suffered orthopaedic injuries to her neck and lost the use of her hand for some time. She has continuing pain, disturbed sleep and requires medication and ongoing treatment. She also describes a number of psychological symptoms which are clearly consistent with sequelae from a major traumatic event.
[19]
Pre-sentence custody
The offender has been in custody since her arrest on 7 January 2017 and any term of imprisonment will commence on that date. I accept that her time in custody has been and, any future custody will be, more onerous than usual due to her gender status and the antagonism expressed by female inmates.
[20]
Accumulation and totality
A degree of accumulation is necessary to reflect individual criminality in each of the three offences, all of which are very serious and of which involve different victims, even though they were part of one relatively brief episode of criminality.
[21]
Special circumstances
The Crown does not cavil with a finding of special circumstances, given the offender's relatively young age, prior good record, and the need for rehabilitation with regard to both mental health and drug issues.
[22]
Cases
Counsel have not identified any suitable comparative cases, not surprisingly given the unusual features of the case. Reference was made to Shine v R [2016] NSWCCA 149 but Mr Waterstreet acknowledges that it is not of much assistance as the mental health issues in that case were remarkably different from the present.
[23]
Conclusions
In summary, the Crown position was that the offending was a very serious and confronting episode and an appropriate sentence should reflect not only the substantial maximum penalties but also the very real impact it has had on the three victims, in particular Mr Rimmer and Ms Hacker. In short, the offender had used a 4.5 pound axe to strike the head of both Mr Rimmer and Ms Hacker with considerable force, attempting to strike Ms Hacker a second time while she was prone and swung the axe twice at Mr Redwood. The risk of death was high in each of the cases, and the fact that death did not occur was entirely a matter of good fortune in circumstances where the jury's verdicts establish that that was her intention.
As the Crown submitted, the offender here ingested what she believed to be a prohibited drug and instead received a similar prohibited drug albeit one that was potentially more potent in some respects. The policy underlying the principles developed in relation to drug addiction in R v Henry (1999) 46 NSWLR 346 emphasise the personal choice that most drug users make. Here the offender was not an addict but a recreational user who willingly ingested what she thought to be a prohibited drug.
The Crown submits that, notwithstanding the conceded reduction in moral culpability, a sentence of full-time imprisonment is mandated by the overall synthesis of the circumstances of the case in light of the purposes of sentencing.
Counsel for the offender submits that, particularly having served over two years imprisonment, there is a strong case that she and the community would be best served if she were placed back into the community at the earliest opportunity. That is partly based on asserted lack of opportunities to consult with endocrinologists, psychiatrists or general practitioners. Counsel appears to submit that an intensive corrections order for three years may be appropriate and refers to the ACT case of R v Gabriela Woutersz [2018] ACTSC 36.
Mr Waterstreet ultimately submitted that the disastrous downfall that led to these offences has been addressed in all its complexity by the offender, that her mental illness lessens the significance of the standard non-parole period, that the scale of seriousness can be, to a large degree, addressed in the offender's favour, and that while the objective facts are clearly shown in the CCTV footage, the chaos and disorder within her mind would significantly ameliorate moral culpability for the very serious injuries that her behaviour caused.
There is merit in that position, but not sufficient merit to detract from the conclusion that this is a case in which a significant period of full-time imprisonment is required. To elevate the mental illness to a paramount position, as is effectively put on behalf of the offender, would largely ignore the purposes of sentencing and would not be an appropriate result of the process of instinctive synthesis of the objective and subjective circumstances bearing in mind the purposes of sentencing to which I have referred.
[24]
Orders
The orders that I make are:
1. The offender is convicted of each offence.
2. I impose an aggregate sentence of imprisonment of nine years to commence from 7 January 2017.
3. I impose a non-parole period of four years and six months. The offender is eligible for release to parole on 6 July 2021.
4. The indicative sentences are:
1. Count one - seven years; with four years non-parole period
2. Count three - six years and six months; with three years and six months non-parole period;
3. Count five - five years
1. I find special circumstances.
[25]
Amendments
24 April 2019 - Case name amended on cover sheet.
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Decision last updated: 24 April 2019