Solicitors:
Mr B Diggins (ODPP)
Mr A J Fleming (Elizabeth Fleming & Associates)
File Number(s): 2015/9191
[2]
Introduction
On 11 January 2015 Thomas Callaghan hitched a lift from Narooma to the Wallaga Lake Aboriginal Community. He was heading further south to his home near Cobargo. At Wallaga he was told if he waited at his Aunt Maxine Kelly's there'd be room for him in Ken Campbell's bus or Paul Campbell's ute later that morning.
His cousin Ashley Parsons lived next door to Mrs Kelly, in Umbarra Road, the main street in the Wallaga community. While he waited Mr Callaghan went to Ms Parson's home and asked her for a stick of marijuana. Mr Callaghan was worse for wear from a drinking session the night before. Ms Parsons did not appreciate the request. The two argued. Mr Callaghan left and waited on the road. Ms Parsons told him to move away. He did move a short distance but the verbal argument continued; loud and colourful language was used.
Ms Parsons is short and slight. She was 28 years old. Mr Callaghan is about 10 years older, and stronger and bigger.
As Ken Campbell pulled up in his bus Ms Parsons walked from her home toward the bus and Mr Callaghan. He had turned toward the bus. Someone called "Ashley". Mr Callaghan looked back and saw her just behind him, within arm's reach. He grabbed her. There was a short wrestle. He pushed her to the ground. He then noticed blood on his neck and a red carving knife on the ground.
He had been stabbed. The knife had entered his neck on the left side near the midline. It had travelled in about 8cm and damaged the carotid artery. It was a life threatening wound. He was bleeding profusely. He collapsed. Wallaga residents Paul Campbell and others gave first aid but could only slow, not stem, the bleeding. Ken Campbell called 000 eventually getting through to the ambulance service. Ms Parsons retreated to her front door. She too called 000. She continued to shout abuse at Mr Callaghan but later calmed down.
Senior Constable Barry from Narooma was first on the scene. After an ambulance had taken Mr Callaghan to Bega Hospital for emergency surgery he arrested Ms Parsons. He also photographed her. She had blood on her and complained of injuries to her head and elbow. Mr Callaghan's life was saved by emergency surgery at Bega hospital but he suffered a stroke due to loss of blood and has a number of continuing problems, including loss of peripheral vision.
Ms Parsons spent nearly 6 months in gaol on remand before being released to bail on strict reporting and residence conditions. In February 2016 she came for trial at Bega District Court charged with wounding with intent to cause grievous bodily harm: s33(1) (a) Crimes Act 1900. After a 4 day jury trial over which I presided she was found guilty of the statutory alternative count of reckless wounding: s35 (4) Crimes Act .
Ms Parsons made no formal statement to police. She did not give evidence at trial. By its verdict the jury rejected two possible versions of events. The first, that the stabbing was accidental; a result of Mr Callaghan wrestling her to the ground. The second, although faintly pressed, that it was done in self-defence.
Reckless wounding carries a maximum penalty of 7 years imprisonment. Parliament has seen fit to fix a standard non-parole period of 3 years for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. Both the maximum penalty and the standard non-parole period are important guides to the exercise of my sentencing discretion. Both indicate that Parliament, on behalf of the community, intend that sentencing judges have proper regard to those purposes of sentencing that attempt to deter this offender and others from committing offences of a similar nature.
When assessing the objective seriousness of the offence I must consider the manner in which the wound was inflicted, the reason for its infliction and the circumstances surrounding the wounding. Ms Parsons must also have the full benefit of her acquittal on the count put before the jury.
Acts of violence involving knives, as here, increase the danger to others. They cause considerable disquiet in the community and generally require severe and retributive punishment.
I have had regard to Madam Crown's written submissions (MFI 1) and the oral and written submissions of Mr Warr (MFI 3), who appeared for Ms Parsons at trial and sentence. Those submissions were helpful and have informed these remarks. I could not however accept beyond reasonable doubt, as Madam Crown submits, that Ms Parsons intended to inflict more than actual bodily harm, nor can I accept, even on balance, as Mr Warr submits, that the injury occurred after she was put under threat following an approach from Mr Callaghan.
While I am prepared to accept that Ms Parsons may have initially picked up a knife to defend herself from the possibility Mr Callaghan would return to her home, the only finding I could make, consistent with the evidence and the jury verdicts, is that angered by the continuing argument she left her home and walked onto Umbarra Road intending to confront him with the knife. She then struck out at him with it not caring what injury she inflicted but well aware, given the size and nature of the knife she was holding, that at least actual bodily harm would result.
The offence followed an argument that had already disturbed the community. It occurred in a public street. A large knife was used. Ms Parsons was under no direct threat. While not premeditated her act was not spontaneous. Ms Parsons left her home. She approached Mr Callaghan carrying the knife.
There was only one blow. There is no evidence to suggest that Ms Parsons was aiming for any particular part of Mr Callaghan. Generally, the more serious the wound, the more serious the offence. The injury was severe. Mr Callaghan, as a result of the wound, came close to death.
There could be no justification for what occurred. Mr Callaghan's earlier conduct while offensive posed no threat and, although the point was raised at trial, I find there is insufficient evidence to find his offensive words and behaviour provide any answer to what the offender did. She was not under threat when she chose to leave her home and go onto Umbarra Road.
The objective factors place the offence in the middle of the range of seriousness. A strong subjective case, evidence that operates to reduce her moral culpability and a finding of special circumstances, require significant variation from the standard non-parole period.
[4]
Victim Impact.
As Mr Callaghan's evidence at trial and in his Victim Impact Statement (Exhibit 1), which I received and considered, indicates he suffered both short and long term harm. He says, "All I want is some justice". The wounding and subsequent stroke will have lasting consequences to his health and wellbeing.
I must take care however. The alternative charge preferred was 'reckless wounding' not 'recklessly cause grievous bodily harm', an offence which carries a higher maximum penalty. Many of the matters raised in the Victim Impact Statement and evidence at trial go not to the wounding but to the grievous bodily harm that resulted from the subsequent stroke. I must put them to one side and focus on the wounding itself: see McCullough v R [2009] NSWCCA 94 and The Queen v De Simoni (1981) 147 CLR 383. I accept, as the Crown written submissions state, that serious though the wounding was, the evidence does not place it into the 'substantial' category to which s 21A(2) (g) Crimes (Sentencing Procedure) Act 1999 applies.
[5]
The case for Ms Parsons.
Ms Parsons did not give evidence at trial or sentence. I do however have the benefit of her sister Kerry Parson's evidence at trial; a comprehensive report from Ms Headington, clinical psychologist (Exhibit 1); a letter on behalf of her former employer, Uniting Care Aging (Exhibit 2) and the offender's letter to me (Exhibit 3). I do not ignore my own experience as a sentencing judge on the South Coast of New South Wales and as a barrister who has visited Wallaga Lake on and off for 25 years and acted for many community members.
At times the Wallaga Lake Community has been riven by violence, other crimes, and drug and alcohol abuse: see for example; Harrison v R, unreported NSWCCA, 24 April 1998; R v Walker [2006] NSWCCA 228. Despite its dysfunction it can also provide a supportive and cooperative environment: for examples of both aspects see The Dispossessed, Bronwyn Adcock, Griffith Review, Edition 32. It is, unfortunately, a community which regularly led to the principles set out first in Fernando v R (1992) 76 A Crim R 58 and more recently in Bugmy v The Queen (2013) 249 CLR 571 being applied by sentencing courts.
One example of the problems faced by those who live at Wallaga arose in this trial. Evidence was given from a deceased witness, Mrs Kelly. She was referred to as a frail and elderly lady, which is how she appeared on the recording played to court. Mrs Kelly passed away months after the recording was made, she was 59 years old!
Ms Parsons gave Ms Headington a version of the offence consistent with that run at trial. That version was not accepted by the jury. The material set out in the psychological report relating to the objective circumstances of the offence is not on oath and is repeated second hand. I could not rely on it: see R v Qutami [2001] NSWCCA 353.
Similarly, her expressions of remorse cannot be accepted; as she still, as is her right, maintains her innocence and still says she did nothing wrong. She is not to be punished for that view but she does not gain the benefits that generally follow acceptance of responsibility. Although it is important that she did, despite still being upset and angry at Mr Callaghan, call for an ambulance.
Other aspects of Ms Headington's report and Ms Parson's letter to me, particularly as to Ms Parsons' background, her history and matters relating to the Wallaga Lake Community are supported and relatively uncontroversial and can, on balance, be accepted. Into this category I put her assertions of regret and concern for the impact of the offence on Mr Callaghan, his family and her own extended family.
The material is relevant. It informs me about her background, her prospects and future risk. It is the sort of material regularly presented in sentencing proceedings. The material also allows for some understanding of how she came to commit this crime.
Ms Parsons is now 28. She relied on her prior good character at trial. That good character was not challenged. She has no convictions and apart from occasional marijuana use is law abiding. Her mother has a mental illness and could not care for her or her siblings. Her father, an alcoholic and regularly in gaol, never took any responsibility for her. She and her siblings were grown up mainly by the Campbell's as part of their large family from when she was 3 months old.
She spent most of her life at Wallaga Lake. At the time of the offence she was working in an aged care facility in Narooma four days per week caring for elderly people mainly from the Aboriginal community; including her mother. Her work was highly regarded. She had recently moved into her own home. As a consequence of her arrest and imprisonment she has lost that home.
Her sister Kerry Parsons told the jury a little of the family background and how Ms Parsons had a good school career and has done courses at TAFE. Kerry Parsons told the jury her sister had never been known to be violent or aggressive. She spoke of an incident when Ashley was sexually assaulted when she was17 years old.
Ms Headington provided a more detailed history. In particular she noted the consequences to Ms Parsons of growing up in a community where violence and alcohol abuse was common. While she had the great benefit of care and support from the Campbell's, time spent with her mother was disruptive. The sexual assault interrupted her schooling and although she moved to a Sydney school for a short time she could not cope being away from her community. On her return she was involved in what became an abusive and violent relationship. This continued for many years. Violence at home and in the community was normalised.
Ms Headington, with appropriate caution, sets out the lasting impact upon her of this violence; she is fearful and distrusting of men and male violence. She has been left with a very high preoccupation with her safety. This is understandable.
Ms Headington notes a large number of protective factors which significantly reduce Ms Parsons' risk of reoffending. She did well at school and subsequent studies. In January 2015 she was in regular employment and had recently moved into a home of her own. She was able while on bail to obtain her driver's licence. She notes her present problems including the need for treatment for a thyroid condition.
Her general background and her background of deprivation remain significant factors. An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence: Bugmy at [36] and [37].
Although this is Ms Parsons' first offence, matters discussed by the High Court in Bugmy v The Queen relating to the profound impact of disadvantaged communities on offenders are clearly raised and applicable. Ms Parsons had the benefit of strong support from the family who grew her up. She was however often exposed to a violent, chaotic and dysfunctional environment. She was not insulated from it. She herself has regularly been a victim of violence.
Unlike the Mr Bugmy and the Mr Fernando referred to in that case, Ms Parsons did not resort to alcohol and was sober when this offence was committed. However as the High Court noted, at [40],
"that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
These factors, particularly the impact of living under the constant and often realised fear that she would herself be a victim of alcohol related violence, do work to reduce Ms Parson's moral culpability and help explain how this offence occurred. It means some of the factors which would ordinarily call for a more condign sentence, such as the principle of general deterrence, can be moderated but it does not mean they can be ignored.
Ms Parsons found her time in custody hard. No one should underestimate the harshness of our gaols and the lived experience of prison. She has told Ms Headington of her fear that a return to gaol would "break" her. She will require psychological counselling and in custody would benefit from programmes such as the Real Understanding of Self Help (RUSH) to deal with the impact of her being the victim of violence.
There are a number of significant and positive aspects to her case. She has studied and worked. She is community minded. While on remand she demonstrated her capacity to find work and find accommodation with her extended family in Nowra and Goulburn. She is unlikely to offend again. She has learned a very harsh lesson. Despite all the positives she will need help to adjust to normal community life on release particularly as she may not be able to return to Wallaga Lake. This, and her excellent prospects on release provide a sound basis for a finding of special circumstances. If she is allowed a longer period on parole, rehabilitation is more likely to be successful. That said, the non-parole period, the minimum time I assess must be spent in custody, must reflect the serious of what was done.
The sentence will commence on 29 October 2015 to take into account the 165 days spent on remand. I also take into account her very strict bail conditions and that she has kept to them.
[6]
Submissions.
Madam Crown spoke of the high objective criminality of an offence involving a knife which resulted in very serious injury. Considerable and understandable emphasis was placed on the need for the sentence to reflect general deterrence and the objective seriousness of what was done.
For Ms Parson's, Mr Warr sought to re-ventilate matters put at trial, matters which, with respect, could not now be accepted. He did however put forward a powerful case for a woman who had overcome many significant disadvantages and played a positive role in her community; a woman who has been herself the victim of violence and whose responses on this occasion were in part a product of, and response to, her past trauma; a woman whose unblemished prior character and good prospects require a significant degree of leniency and amelioration of sentence. I accept these propositions. However, the seriousness of the offence requires rejection of Mr Warr's submission that execution of the sentence be suspended. Only a sentence involving further imprisonment could meet all the purposes of sentencing applicable here.
[7]
Synthesis.
Sentencing requires a discretionary judgment. A judge must have regard to guidance offered by the maximum penalty and standard non-parole period. Other cases can also provide guidance, particularly appellate decisions setting out principles that should be applied consistently. The weight to be given to the specific facts of the offence and matters raised for the offender and the various and often conflicting purposes of sentencing mean, however, that every sentence must be individual.
Ms Parson's offending on this one occasion cannot be divorced from her background in a violent and, at times, dysfunctional community and the fact she was herself regularly a victim of violence. I am sure the time already spent in custody has had an effect on Ms Parsons. Her prior good citizenship is another good indicator that on release she will not reoffend. However, sentences are not just about the offender. Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence: Munda v Western Australia [2013] HCA 38 at [53].
Sentences must by their severity attempt to deter this offender and others in the community from using a knife to endanger others. Mr Callaghan came very close to losing his life. He will carry the physical and emotional scars of the wounding forever. Crimes of violence on public streets cause considerable harm, not just to their immediate victims and the victims' friends and family. They cause disquiet and frustration among the general public. They break down the bonds that bind the community, bonds of mutual respect and care for others. As the High Court said in Munda, the proper role of the criminal law is not limited to the utilitarian value of general deterrence, the courts have an obligation to vindicate the dignity of each victim of violence and to express the community's disapproval of that offending. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community: Munda at [52] to [58].
[8]
Sentence.
Backdate 165 days to commence 29 October 2015.
Taking into account a finding of special circumstances, you are convicted and sentenced to a term of imprisonment of 3 years, consisting of a non-parole period of 1 year 6 months, to commence on 29 October 2015 and expire on 28 April 2017.
You will be eligible for consideration for release to parole on 28 April 2017 to serve the balance of term of 1 year 6 months, to commence on 29 April 2017 and expire on 28 October 2018.
[9]
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Decision last updated: 12 April 2016