R v Cheshire-Elwin

District Court of NSW|2023-12-14

REMARKS ON SENTENCE

The offender was committed for sentence from Nowra Local Court on 6 October 2023 following a plea of guilty to the following offences: - 1. Stalk intimidate intend fear physical harm (personal) contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 with a maximum penalty of five years imprisonment with no standard non-parole period (Sequence 4). 2. Aggravated enter dwelling with intent - armed contrary to s 111(2) of the Crimes Act 1900 with a maximum penalty of 14 years imprisonment with no standard non-parole period (Sequence 5). 3. Reckless grievous bodily harm - in company contrary to s 35(1) of the Crimes Act 1900 with a maximum penalty of 14 years imprisonment with a standard non-parole period of 5 years (H91716734).
The maximum penalty for each of these offences are an indication of their seriousness and acts as a sentencing guidepost or reference point. The standard non parole period is a further sentencing guideline and also reflects the seriousness of each the offences.
There are a further two offences on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 of destroy or damage property value greater than $2,000 and less than $5,000 and larceny.
Admitted on behalf of the Crown was the following: -

Notice of committal: C1
Charge certificates and Court attendance notices: C2
Section 166 certificate: C3
Statement of agreed facts: C4
Criminal history: C5
Custodial history: C6

Sequence 3 Larceny

The offender and victim (Clayton King) were known to each other for approximately 15 years. The offender is the sister of Clayton Elwin who had passed away two to three years prior, and the victim was also friends with Elwin. Since his passing the offender and the victim had become close friends with the victim referring to the offender as his "little sister". There had been a falling out between the victim and his ex-partner who also happened to be a friend of the offenders.
On 9 September 2022 the victim called the offender to resolve the problem and had identified himself as the offender's brother, Clayton. The offender had become upset due to the comment about her deceased brother and advised that she did not wish to speak to the victim any further.
On the evening of 11 September 2022, the offender walked into the Milton Ulladulla Bowling Club, telling an employee at the reception desk that she had the offender phoning her pretending to be her dead brother.
Later that night the victim opened his front door following a knock. The offender entered the victim's home, yelling "Don't pretend to be my brother you fucking cunt". When the victim asked the offender to calm down, she responded "What are you going to fucking do about it?". The offender then pulled the victim's mobile phone from its socket and threw it at the television. When the victim tried to pick up the phone the offender stomped on it with her heeled boots saying, "You are going to get some cunt, how dare you call yourself Clayton, my brother was a great bloke", to which the victim responded by saying "I am Clayton, you know me, what are you going on about". The offender grabbed a small bladed Wiltshire brand plastic knife from her boot and started lunging towards the victim whilst yelling in an aggressive manner. The victim picked up a nylon backpack which he placed over his chest to protect himself before running down the hallway and out through the back door. The offender was then heard yelling from inside the house and continued to make noise within it.
The victim walked to the bowling club where an employee called the police. As he was speaking to an employee on the footpath the offender, then in the company of Young, walked towards the bowling club and said, "You got what you deserved cunt, I've left you a little present".
The victim walked home to observe a damaged screen on his television. His wallet, house keys and mobile phone were missing. He also noticed that two six packs of Tooheys Extra Dry and two 600 ml pre-mixed bottles of bourbon were missing. Further, his reading glasses had been twisted and destroyed. Near the glasses was the knife the offender had held towards him.
At approximately 10:00 pm that evening the police attended an address in Ulladulla where the offender was placed under arrest and conveyed to Nowra police station. The offender subsequently agreed to participate in a recorded interview in which she made partial admissions. The offender subsequently provided a buccal swab. DNA was collected from the handle of the knife and amongst a mixed profile, the offender's DNA could not be excluded as a contributor.

H9176734 Reckless grievous bodily harm in company

The offender and co-offender (Young) were in a relationship at the time of the offending. On the evening of 11 September 2022, having met up in the vicinity of the Milton Bowling Xlub they became involved in an argument. At the time the offender was in the possession of a sixpack of beer and other alcohol bottles.
On the same evening the victim, James Brian, was walking along Vincent Street, Ulladulla, to purchase cigarettes, when he heard the voices of a man and woman arguing. On his return the victim walked along the front lawn of Ulladulla Civic Centre and again heard the co-offenders arguing. The victim saw the co-offender grab the offender and yelled towards them "Oi stop, police are coming". The victim approached the offenders out of concern for the offender. Having enquired as to her welfare, the offender began walking towards the victim, whilst the co-offender said words to the effect "What do you think you're fucking police officer or something?" The offender thereafter swung what felt like a sharp object towards the victim who felt immediate pain on the top of his head. The offender continued to strike the victim to the left and right side of his head. At about this time the co-offender Young stepped in and punched the victim directly to the face causing him to fall to the ground. The victim thereafter felt further strikes to his body and believed his head was stomped on and kicked. He recalled coming in and out of consciousness and had no sense of how long the assaults continued for. However, he was feeling immediate pain to his face, head and torso and was struggling to see out of his eyes as he was bleeding heavily from his face.
The victim managed to return home following which he was found by two friends. They helped him whilst waiting for the ambulance to arrive. The victim appeared to be losing consciousness. Whilst being conveyed to Shoalhaven Hospital the victim was observed to suffer five tonic-clonic seizures which required medication. He was placed in an induced coma and intubated for transport before being airlifted to St George Hospital in Sydney.
Police attended the car park near Ulladulla Civic Centre and identified broken bottles of Tooheys Extra Dry beer as well as blood on the pavers. They subsequently attended the home of the co-offender who answered the door and spoke with police. The offender also came to the door. The offender was placed under arrest. The co-offender was later arrested on 28 October 2022.
In an interview the co-offender made partial admissions of assaulting the victim. CCTV footage from local businesses captured the movements of the offender and co-offender around the time of the incident. A blood swab taken from stains on the upper section of the offender's right shoe contained a mixed DNA profile of which the victim was the major contributor. A blood swab taken from a right Nike running shoe belonging to the co-offender also contained a mixed profile of which the victim was the major contributor. The co-offender's DNA was also identified on glass bottles located at the scene.

The victim's injuries (James Brien)

Evidence was adduced as to the injuries suffered by the victim.
The report of Dr Kara Methven confirmed that the victim presented post discharge from St George Hospital, noting that the discharge summary detailed an alleged assault resulting in multiple facial and orbital fractures, seizure activity and dental damage. It was noted that the victim had been reviewed by the Illawarra Brain Injury Service and ophthalmology services.
Dr Methven confirmed that the victim had suffered physical injuries and mental health implications because of the assault. His balance and stability were affected by a combination of his reduced vision, complex post concussive state and chronic pain due to the assault. It was also noted that the victim had suffered subsequent injuries because of this including a rotator cuff tear of his right shoulder requiring surgical repair. The victim had to move house to accommodate his new physical disabilities. It was unclear from the ophthalmologists notes as to whether the victim would ever expect his vision to return to pre-injury levels. It was not expected that the victim would ever be able to drive a vehicle again and accordingly his independence was limited. The impact on the victim's mental health had also been significant with depression and short-term memory loss.
Reports from Dr Richard Liu, rehabilitation physician confirmed the victim had been reviewed at the Illawarra Brain Injury Service Rehabilitation Clinic. It was noted that because of the assault the victim had suffered from broken teeth, fracture of the left orbit, fractured nose, and lip lacerations. The victim had reported ongoing seizures leading to incontinence and exhaustion. He also reported poor balance and coordination with frequent trips. He experienced reduced vision on the right side and was unable to watch television due to headaches and was also impacted by artificial lighting. The victim had broken glasses and coffee cups, knocking them over or dropping them. He had a constant black spot in his left field of vision and complained of blurred vision and sensitivity around the left eye as well as flashes. He reported depression, nightmares, and enuresis. He reported significant emotional issues including agoraphobia, distrust of people, and difficulty sleeping. He had resorted to using a mobile stick and mobility scooter, the latter particularly in the afternoons when tired.
Psychiatric reports confirm significant mental health issues following the assault including a worsening of a previous sense of anxiety and threats. He experienced significant nightmares about the assault, associated night sweats and poor sleep. The victim was diagnosed with post-traumatic stress disorder (PTSD) on the background of a previous history of complex trauma from his childhood and associated polysubstance abuse and depressive symptoms. Dr Liu, in a separate expert report, confirmed that the victim suffered severe facial injuries following the assault and has new and permanent visual loss. Symptoms of anxiety, including insomnia and nightmares, reflect an exacerbation of PTSD from the assault which should prove difficult to treat following multiple medication trials.

Victim impact statement

The victim stated that because of the orbital and facial fractures his vision remained impaired. He experienced difficulties with focus, flashes of light, blind spots and trouble adjusting with shadows. As a consequence of the blind spots, he tended to bump into objects or people. This had led to multiple falls, most recently resulting in an injury to the right shoulder requiring surgery. He also suffered poor balance due to weakness in his legs and pain in his back.
His disabilities had led to the need to move to new accommodation. The victim has had five to six teeth removed since the assault, and for months afterwards had been confined to a liquid diet. He was consulting the brain injury clinic in Nowra and had suffered short-term memory loss. He had also suffered seizures since the accident leading to further injuries. However, the victim described his mental health as taking the biggest toll. He suffered from significant post-traumatic stress disorder and anxiety. Whilst acknowledging he had previously suffered from these conditions, at the time of the assault he had been in a substantial stage of recovery. Due to his physical and mental impairments he had abandoned several of his active interests. He suffered considerable anxiety and depression.

Criminal history

The offender's criminal history is relatively limited. She was convicted of driving under the influence of alcohol or drugs in April 2004 for which she was released on a s 10 bond. Conviction for drive with low-range PCA (first offence) in May 2019. The only other convictions were from January 2021 for possess prohibited drug, possess equipment for administration prohibited drugs and custody of knife in a public place.

Sentencing assessment report

The offender indicated that while she was presently living with family in Canberra she planned to move to Goulburn following her sentencing. She was in receipt of a disability support pension. The offender's antisocial behaviours were a reflection of illicit substance use and mental health concerns. The offender felt that she "just lost it" as emotions were high due to the anniversary of her brother's death. At the time of the offending, she was using large amounts of alcohol and methamphetamine as a way of managing her grief and loss. It was apparent that the offender's propensity for violence increased when under the influence, and her mental health was unstable. She had been diagnosed with various psychiatric disorders to which reference has been made in the previous psychiatric report. The offender is now receiving mental health treatment and was compliant with her medication. She considered her actions were out of character although she was sympathetic to the impact on the victims. The offender was willing to participate in intervention if required and with the relocation to New South Wales will be dealt with by Community Corrections. The offender was assessed as suitable for community service work of up to 21 hours per month.

Updated Sentencing Assessment report dated 12 September 2024

The updated sentencing assessment report indicated that the offender had relocated to New South Wales and was residing with her ex-husband and son which appeared to be a supportive environment. Her mental health was stable, and she continued to take medication as prescribed. The updated plan included the offender participating in interviews with a cognitive behavioural focus, a referral for counselling to assist with managing grief and loss, and a referral to the EQUIPS Aggression Program. The offender was assessed as suitable to undertake 14 hours of community service work per month.

Report of Andrew Wong - psychologist

Mr Wong assessed the offender on 8 November 2023. He also had the statement of agreed facts, bail report and patient health summary as of 21 September 2022.
The offender displayed a normal range of affect and reported depressed mood. Towards the end of the interview she displayed a blunted affect and appeared to be staring through the camera, which suggested some disassociation. She became teary when discussing the death of her brother. She became more monotonic and provided shorter sentences towards the end of the interview.
The offender stated that she was born in Sydney and raised on the north shore, in a working-class family, where there was a constant struggle with finances. She had no relationship with her biological father and her family consisted of her biological mother, stepfather, maternal grandmother, and a brother ten years younger. She identified her upbringing as rough, in circumstances where she was expected to be a boy and was therefore neglected from the moment her younger brother was born. She remembered feeling rejected and was forced to be a mother from a young age, assuming the care of her brother.
At the age of seven she recalled being sexually abused by an older cousin and was not believed when she disclosed this to her mother. The offender's stepfather was a police officer who was verbally and physically abusive towards the offender and her mother, becoming more dangerous when abusing alcohol. Her stepfather sexually abused her at the age of 14 whilst her mother was in hospital. Not long thereafter her stepfather gave her mother the ultimatum that either the offender left the house, or he would. Her mother chose her stepfather and accordingly she was evicted from the home at an early age.
The offender's mother was ill with many physical and mental ailments. She had been diagnosed with bipolar disorder, cardiovascular diseases, arthritis, and lung disease. She was an alcoholic who had manic episodes and had attempted suicide. Her mother passed away from multiple organ failure and Covid-19 approximately three years prior to the assessment.
The offender reported a close relationship with her brother who passed away following an epileptic seizure nine years prior. She recalled seeing her brother's body in the bathroom with his eyes still open. The psychologist noted that the offender was crying when discussing the death of her brother and identified that she continued to grieve for him. She identified a close relationship with her grandmother who provided her with support and accommodation after she left home.
Although she was receiving good grades up until Year 8, she began truanting due to severe bullying and was asked to leave school in Year 9. She subsequently completed a hairdressing apprenticeship and worked in that industry for the best part of 30 years. She changed jobs regularly in circumstances where she stated that she would "wreck a situation before it was too good". After giving birth to her children, she was a full-time mother whilst working part-time as a hairdresser. For approximately six years prior to her arrest, she had worked as a motel manager in Goulburn and as a hairdresser. She had been receiving the disability support pension for the previous 20 years for mental health disorders, and since her release from prison had been unemployed due to being incapacitated by reason of her depressive mood.
She did not have many friends in her childhood and was the subject of severe bullying at school. As an adult she made friends over the 20 years she had been living in Ulladulla and was an extrovert who had large social circles. However, after her arrest for these offences, she "cut everyone off", explaining that Ulladulla was a tightknit community.
The offenders first romantic partner was between the ages of 13 and 15 and they had a live-in relationship which was highly abusive. The partner was psychotic and regularly bashed her. From 15 to 16 she entered a further relationship with a man who similarly was physically abusive towards her, and she again returned to the refuge of her grandmother's home. Between 17 and 19 she had a non-abusive two-year relationship before returning to her previous partner where she was beaten daily. The two started using heroin together and the relationship ended at the age of 22.
She thereafter met her future husband and father of her four children. In 2002, she experienced a stillbirth whilst observing that she otherwise loved being a mother. Her mental health significantly impacted on the relationship with the father of her children and was she was unwell for the duration of it. The offender reported that her and her partner both abused alcohol and he was often verbally abusive towards her when he was drunk, although he was otherwise a loving father. They ultimately separated when she went to live in Goulburn with her daughter who had fallen pregnant at the age of 17.
In 2019 the offender met her co-offender, 16 years her junior, in Goulburn. The relationship lasted until the time of the offences, and she described him as very caring and understanding.
In terms of alcohol and other drug use, the offender disclosed that at the age of 13 she was drinking 12 bottles of beer in each sitting. She was always a big drinker and by the age of 20 was drinking half a cask of wine a night. Further, at the age of 13, she started smoking cannabis on a daily basis and this continued into her early adult hood and until the time of her arrest. At the age of 19 she was forcibly injected with heroin when in a car with her boyfriend and quickly became addicted. She commenced using heroin twice daily although she did not return to heroin once removed from the situation by her father. Upon falling pregnant with her children, she denied using any illicit drugs or alcohol for a period of 20 years. However, she was regularly prescribed Xanax. At the age of 46 the offender reported that she was introduced to methamphetamine by a friend in Goulburn and she attributed her relapse to her mother's passing. She quickly commenced injecting unknown amounts daily and had one period where she remained awake for 18 days. She commenced hearing voices when using.
The offender indicated that she had been diagnosed with bipolar at the age of 24 and was medicated for a period of 20 years. She was seeing a psychiatrist in Ulladulla where she was diagnosed with post-traumatic stress disorder, schizophrenia, borderline personality disorder and generalised anxiety disorder, receiving long-term psychotherapy from the psychiatrist. The medical records further identify that the offender was diagnosed with depression and panic disorder in 1998 and bipolar affective disorder in 2022. She had since been medicated with antipsychotic and antidepressant medication.
She reported from late adolescence hearing voices including derogatory comments and instructions to kill herself. These hallucinations became worse when abusing drugs. From the age of 13 she held fears that people would harm her to the point that she would hide behind trees whenever she was on the street which persisted even whilst not using drugs. She always thought the police were out to get her.
At the time of the assessment the offender reported experiencing intrusive memories of her childhood, the death of her brother and mother, and the day of her arrest. She reported her memory being poor since adolescence and struggled to remember some parts of her traumatic experiences. She struggled to trust people and still believed that people would harm her. She struggled to manage her emotions and would sabotage healthy relationships and stay in abusive relationships.
With respect to her criminal history, she acknowledged that in 2005 she was using excessive amounts of Xanax which was found in her system whilst driving. In 2019 she was caught over the limit after drinking a large can of premixed bourbon. In 2021, whilst managing a hotel in Goulburn, and whilst using ice, she had been randomly searched by police who found drug equipment for its administration as well as a knife. She kept a knife for self-protection due to the potential dangers of working in a motel in Goulburn.
With respect to the relevant offences, she stated that at the time she had ceased all medication as she did not believe that they were helping. She had also been abusing ice for an unknown period and "feeling great" such that she did not need sleep. People around her had commented that she been acting strangely excited and was showing concern for her. The moment she received a phone call from the victim she "went off" and could not remember anything that happened thereafter. She commented that the offences made her "feel sick" and were out of character. She was unable to recall anything of that night. She accepted that it would affect the victims "in a big way" for the rest of their lives and she was apologetic for that.
She had spent just under five months in custody during which time she significantly feared for her life.
The psychologist assessed the offender at a low risk of general reoffending using the risk need responsivity model, relevantly noting that the offender had a close relationship with her son Kyle Edwards, who appeared to be supportive of her and provided a significant protective factor from further offending. The main risk factor was the offender's unresolved trauma and grief, as well as poorly managed mental health and potential relapse to drug abuse to cope with that mental health.
The psychologist concluded that the offender was a traumatised and emotionally unstable adult who had high genetic predisposition for major mental illness. She was raised in a highly abusive and neglectful household because her emotional development was significantly impaired. This was because her caregivers were unable to model healthy emotion regulation strategies and socialised her to abuse alcohol and express her emotions with anger and aggression. This explained her inability to manage her emotions and mood later in life. Further, the family dynamics normalised and familiarised her with abusive relationships which led to her inability to understand and seek or maintain healthy interpersonal relationships or to effectively understand relational boundaries. From an early age she had a low trust in authority as was her trust in adults and authority figures generally.
Her sense of lack of safety in childhood limited her social development due to limited social interactions which were already impaired. Therefore, she associated with drug abusing individuals and delinquents from a young age which exposed her to drug abuse which she used to cope with her multiple traumas from home. She was denied pro-social influences in her upbringing. The offenders chronic drug use had been a coping strategy for negative emotions especially when she found them overwhelming. Her initial polysubstance abuse was present to cope with physical and sexual abuse and more recently had used it to cope with the complex grief of the death of her brother, mother and stillborn. At the time of the offending the offender met the criteria for diagnosis of complex post-traumatic stress disorder, bipolar disorder, prolonged grief disorder, stimulant use disorder, alcohol use disorder (severe) and cannabis use disorder.
He considered that there was a nexus between the offender's offending and her mental health. She was clinically driven by her unmanaged manic episode, exacerbated using stimulant drugs. Her unresolved trauma and grief had perpetuated her drug and alcohol abuse which had also perpetuated her psychotic symptoms and impaired executive functioning. Consequently, she had lower cognitive capacity to make pro-social and helpful decisions. Her poor emotion regulation abilities, perpetuated by her substance abuse, impacted by the cumulative effects of her unresolved complex traumas and multiple griefs, were contributing factors.
Consistent with the agreed facts, the offender was emotionally activated when she believed somebody was pretending to be her brother, which led to the first set of offences. The second set of offences were likely to have been committed in the context of being intoxicated with alcohol as well as ice during a manic episode, leading to a disproportionately aggressive response to the victim. Various treatment was recommended.

Letter of Chelsea Drover

Ms Drover is the offender's daughter-in-law, as the partner to her son. The offender had been living with her and her partner and one year old son since being released on bail. She always expressed remorse and anger with respect to her actions. The anger had always been directed at herself, stating that she had ruined her life. She had always considered the offender as being caring and respectful and was someone with whom she could confide. The offender had quickly developed a strong bond with their son. The offender was now a full-time grandmother to their son which had enabled her to return to work.

Letter of Paul Edwards

Mr Edwards is the offender's former partner and father of their children. He considered the offences to be very out of character and were likely contributed to by her failure to take medication. He noted that the offender been living with their eldest son and partner since being released on bail, and that she had focused her energy on being a good mother and grandmother.

Letter of Shakiah Gwyneth Mary Edwards

Ms Edwards is the offender's daughter who observed that the offender had come a long way from where she was at the end of 2022. She accepted that the offender was in a "bad place" mentally and that she surrounded herself with people who did not help. She noted that the offender was deeply ashamed of what had occurred. She was shocked, scared and felt like that her whole life was falling apart, although it had become more stable since living with her brother. She considered the offender's conduct was completely out of character and that she been a good grandmother to her daughter as well as her nephew.

The evidence of Kyle Edwards

Mr Edwards is the offender's oldest child.
In late 2019 or early 2020 he moved to Canberra although kept in touch with his mother by phone. He described their relationship as always close. He observed that following the death of the offender's brother, the offender went into a downward spiral of depression and with the passing of her mother, his grandmother, it became progressively worse. She was drinking heavily. He visited the offender from time to time whilst she was living in Ulladulla.
He was informed of his mother's arrest and incarceration and efforts were made to have her released on bail. This occurred after approximately two weeks and she described her experiences whilst in custody. Mr Edwards noted that the offender was arrested for a second time and further incarcerated before being released on bail in March 2023. A condition of her release was that she would live with Mr Edwards and his family.
It was apparent on her release that she was significantly traumatised, although over time had adopted the role of carer for their infant child. It had enabled both Mr Edwards and his partner to maintain full-time work whilst the offender had the responsibility of caring for their young son. Mr Edwards had observed the offender to improve every day. As far as he was aware she had remained abstinent from drugs and alcohol and was compliant with her medication for bipolar disorder. He indicated that he was hoping the offender will remain living with his family and that they would do everything to ensure that this occurred.
Mr Edwards was cross-examined by the Crown in relation to her drinking before the deaths in her family. He did not have any specific recollection of any abnormal drinking behaviour at that time. He had no recollection of his parents using alcohol together during which his father would verbally abuse his mother. Whilst not personally aware of the offender's difficulties with drugs and alcohol at a younger age, he accepted that it was probably hidden from them.
There had been no discussion with the offender with respect to ongoing rehabilitation although he was aware that the offender was seeing Dr Wong on a sporadic basis. However, he accepted that Dr Wong saw the offender for the purposes of the sentence and was unaware as to whether he was treating her. Her medication for bipolar was being prescribed by a general practitioner in Canberra. There had been no specific reference or treatment for her mental disorders apart from the prescription of medication.

Crown submissions

The Crown conceded that the offender was entitled to a discount of 25% of the sentence that would otherwise be imposed given the timing of the plea. The offender had spent total of 152 days in custody in relation to the offences. With respect to parity it was contended that the offenders were equally liable for the offence and accordingly parity applied.
Generally, it was submitted that the offences were serious, as contemplated by their maximum penalties. The Crown identified the relevant features in relation of the offending against each of the victims. Aggravating factors for the purpose of s 21A of the Crimes (Sentencing Procedure) Act 1999 ('CPSA') were that for Sequence 1 the effect offending involve the actual use of a weapon and for Sequences 4 and 5 the offences were committed in the home of the victim. Mitigating factors were that the offence was not part of a plan to organised criminal activity, the offender did not have a significant record of previous convictions and the plea of guilty. Ultimately, it was submitted that specific and general deterrence, making the offender accountable for her actions, denunciation and punishment played a significant role to play in the sentencing exercise.

Supplementary Crown written submissions

The Crown identified the relevant features of the victim impact statement and the expert evidence as to the consequences of the injuries sustained by James Brian. Whilst the Court would take into account the significant impact on the victim, it was conceded that the disabilities did not constitute an aggravating factor the purpose of s 21A(2) given grievous bodily harm was an element of the offence. However, it was submitted that the emotional harm suffered by the victim was above what would normally be expected as a result of this type of offending. The Crown disputed the offender's contention that the authorities relating to provocation were inapplicable. Rather, the offender's response was irrational, unjustified, and her moral culpability was not reduced by reason of this fact. The Court would not make a finding, as contended by the offender, that her role in the offences committed with the co-offender was limited. Following the initial contact, the roles of each of the offenders could not be distinguished and they were equally liable for the continued assault and injury suffered.
As to subjective evidence the Crown conceded a relevant connection between the offender's mental disorders and the offences that would moderate the weight given to general and specific deterrence, however the Court would not find that the mental disorder was such that the objective seriousness would be considered as markedly reduced. As to the relevance of self-induced intoxication as a mitigating factor on sentence, the Crown disputed that the authorities upon which the offender relied were applicable given the offenders abstinence from drugs and alcohol for a period of over 20 years. However, the Crown conceded that the Bugmy principles would apply and be taken account on sentence.
It was conceded that the offender's prospects of rehabilitation were reasonable however there may be some concern by the fact that the offender had not previously undertaken rehabilitation nor were there plans for rehabilitation in the future. The Crown contended the section 5 threshold had been crossed and reminded the Court of the relevant purposes of sentencing providing s 3A of the CSPA.

The offender's statement

The offender indicated that she has been working hard on bettering herself. Her family meant the world to her and she had a number of grandchildren. For the previous several months she had been residing with her ex-husband and her children had visited frequently. She had managed to obtain casual employment as a cleaner. She contributed to the house with whatever needed to be done. The offender had an ongoing close relationship with her ex-husband who was, like her children, supportive of her. Despite being unable to link up with drug or alcohol counselling services she had remained abstinent from drugs. She was working on obtaining her drivers licensed so that she could visit her grandchildren. In this context, the offender stated that her life revolved all around her family. She had worked hard to get where she was and she did not want to jeopardise anything in circumstances where her family was her life.

Updated statement of Paul Edwards

Mr Edwards reiterated his previous statement that the offender's actions were out of character and likely contributed to by her failure to take medication. It was noted that the offender had been living with their eldest child. She more recently moved into his home. Since doing so, Mr Edwards found the offender to be honest, thoughtful, caring and kind to others. She was of great assistance around the house and property and the offender managed to find employment as a cleaner. Further the offender was on top of her medication and had not shown any trouble or signs of harm to herself or anyone else. She had worked hard whilst on bail and was preparing for her sentence.

Offender's submissions

It was contended that with respect to the aggravated enter dwelling house it would not be aggravated by the fact that it was committed in the victim's home given it would constitute an effective double counting. It was contended that factors reducing the seriousness of the offending included the no physical or other substantial harm was suffered by the victim, the offending was short lived, the use of the weapon was limited, the offending was not committed for financial gain and was not the subject of planning. The remaining offences did not greatly add to the objective seriousness of the offending as a whole.
It was contended that authorities relating to motive for commission of the offences were relevant in that they reduced the objective seriousness and were relevant to the usual moral culpability. The offender contended that her offending was motivated as a result of a misunderstanding that the victim had referred to her deceased brother.
It was conceded that the second offending of reckless grievous bodily harm in company would be of "real concern" given the injuries suffered by the victim. It was contended, for the reasons identified in the submissions, that the offender's role in the offence was limited by comparison with that of her co-offender. Further, whilst there were no aggravating factors, a number of mitigating factors were applicable including the offending being impulsive and unplanned, it was relatively short lived, and no threats were made by the offender.
Reference was made to the relevant authorities applicable to an offender diagnosed with mental disorders. First, they moderated the weight to be given to general and specific deterrence and further, "significantly" reduce the offender's moral culpability. Further, the objective seriousness of an offence could be reduced by factors personal to the offender including mental disorders that materially contributed to the offending.
It was submitted that the provisions of s 21A(5)(aa) of the CSPA were inapplicable in circumstances where the intoxication was not as a result of "free choice"
Generally, other mitigating factors included the lack of any significant criminal record, the unlikeliness of the offender reoffending, the good prospects of rehabilitation, and the early guilty plea. The offender contended that Bugmy principles would apply given the subjective background traversed in the report of Dr Wong. Ultimately it was contended that the offender's moral culpability would be reduced to a significant degree and that specific/general deterrence would be appropriately moderated. As far as parity was concerned, the offender reiterated the previous submission as to her relatively lesser role in the offending committed with her co-offender.
The offender's prospects of rehabilitation were "good to excellent" and that her offending was aberrant behaviour given her otherwise limited criminal history and good character. Reference was made to Dr Wong's opinion that the offender's risk of reoffending was relatively low, and an appropriate treatment regime was recommended. Reference was made to the relevant sentencing statistics and the fact that for all offenders 43.3% received a non-custodial sentence (s 111(2)) offences and 30.2% received a non-custodial sentence (s 35(1)). Following reference to relevant principles applicable to intensive correction orders, it was contended that whilst the section 5 threshold had been crossed the cumulative effect of the various features referred to in submissions would lead to an alternative to imprisonment being imposed.

Consideration

The offender is to be sentenced with respect to three offences which all occurred on the one evening, although in separate incidences involving different victims.
With respect to the offences of stalk intimidate fear intend physical harm and aggravated enter dwelling with intent, these offences arose from the same incident and the same victim. They involved the offender entering the victim's home, yelling abuse at the offender, and ultimately producing a plastic knife which was lunged towards the victim whilst yelling in an aggressive manner. The victim was compelled to protect himself and ultimately fled his own home.
Whilst in the victim's home the offender damaged the victim's television, glasses, and mobile phone. The victim self-evidently would have feared for his own safety given the combined effect of the offender's aggressive demeanour, issuing of expletives in conjunction with production of the knife. Whilst the offences were committed because of a misunderstanding on the part of the offender in the context of experiencing a manic episode, and being drug affected, they were clearly unprovoked. However, I accept that the offences were spontaneous, being a product of the offender's manic and drug induced condition.
Whilst both offences would be considered serious examples, they are both far from the most serious offences contemplated by the sections.
With respect to the offence of reckless grievous bodily harm in company, the victim was subjected to an unprovoked and violent attack when acting, in effect, as a good samaritan. This was in the context of being concerned for the offender's welfare, having earlier witnessed an altercation between the offender and her co-offender. The victim was initially subjected to an assault by the offender, which was immediately followed with further assaults from both offenders. Having fallen to the ground, caused by a punch to the victim's face by the co-offender, the victim was then subjected to further assaults to his head at the hands of both offenders. The physical violence inflicted on the victim was such that he fell in and out of consciousness. Whilst I accept the attack was relatively short lived, it involved a very significant degree of violence.
As a consequence of the attack, the victim suffered multiple injuries, including a blowout fracture of the left medial orbit, a fractured nose, lost and damaged teeth and aggravation of an underlying post-traumatic stress disorder.
The consequences for the victim from the attack are set out in the remarks on sentence for the co-offender which I have taken into account in sentencing of the offender. As held in the co-offender's sentence: - "The victim impact statement documents the significant lifelong impact the assault has had upon him, both physically and psychologically. I accept the contents of the statement to the extent it is supported by the medical evidence to which I have already referred."
Whilst the offenders, as part of a joint criminal enterprise, are equally responsible for the acts in the course of the joint criminal enterprise, it is necessary to consider the offender's culpability by reference to her conduct: KR v R [2012] NSWCCA 32 at [19]. The initial strike of the victim was inflicted by the offender, although shortly thereafter the co-offender struck the victim to the face at the same time as the offender was striking to the victim to the head. However, it was the co-offender's punch which led to the victim falling to the ground although thereafter both offenders continued the unprovoked and violent assault. It is difficult to separate the relative culpability of the offenders. Admittedly, it was the offender that first struck the victim although it was the co-offenders continuing assault which led to the victim falling to the ground. Both offenders then continue to assault the victim whilst on the ground. I find that the offenders were equally culpable for the assault.
I find the offence falls just below the mid-range of objective seriousness.
I adopt the findings in the remarks on sentence for the co-offender in similarly finding that whilst not a distinct aggravating factor for the purpose of s 21A(2)(g) of the CSPA, the harm done to the victim must be taken into account in the purposes of sentencing under s 3A(g).
In so doing I have taken into account the victim's injuries referred to earlier in these remarks together with the victim impact statement.
The offender's criminal history is relatively limited, with an historical driving under the influence of alcohol or drugs and a more recent drive with low range PCA. The only remaining offences relate to possession of drug and equipment as well as custody of knife in a public place for which the offender was fined. It is also of significance that the offender has no previous criminal history for offences of violence.
I accept the history provided by the offender to the psychologist Dr Andrew Wong. Significantly, the history confirmed that the offender has been significantly affected by the death of her brother. This provides further context for the offences of stalk intimidate and aggravated enter dwelling with intent given the offender's misguided and mistaken belief that the victim was in some way seeking to impersonate or refer to her late brother.
It is fair to say that the offender had nothing short of a very disturbed upbringing. No child should be exposed to the various traumas to which the offender was subjected in her most formative years. This included being neglected by her biological mother at a young age, being subjected to separate incidences of sexual abuse from a relative and her stepfather as well as being effectively rejected by her mother and stepfather at an early age. If this was not enough, I accept that the offender was subjected to severe bullying in her early high school years ultimately leading to her finishing school prematurely.
As is often the case, given the offender's traumatic upbringing, she was then involved in several highly abusive relationships in her late teenage years including being subjected to physical beatings. Tragically, she was forcibly injected with heroin at the age of 19 and quickly became addicted. Predictably, given her upbringing, the offender abused alcohol and drugs at an early age. It is extraordinary therefore that the offender managed to maintain a long-term and stable relationship with her ex-husband and the raising of her children. However, the offender lapsed into drug use, and it was during this period that the offences were committed.
I accept the opinion of Dr Wong that the hardships suffered as a child limited her social development and that the chronic drug use had been a strategy for negative emotions. I accept the diagnosis of Dr Wong that the offender suffered post-traumatic stress disorder, bipolar disorder, prolonged grief disorder, stimulant use disorder, alcohol use disorder (severe) and cannabis use disorder. I accept that there is a clear nexus between the offender's offending and her mental health in that at the time the offender was experiencing an unmanaged manic episode exacerbated by using stimulant drugs. I am further satisfied that the offender's unresolved trauma and grief (related to her brother's death) perpetuated the drug and alcohol abuse, the psychotic symptoms and impaired executive functioning.
In the circumstances, I accept that the offender's moral culpability is reduced and less weight should be afforded to punishment, deterrence and denunciation: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; Muldrock v R (2011) 244 CLR 120; DC v R [2023] NSWCCA 82 at [74] - [76] (Yehia JA with whom Rothman and Wilson JJ agreed).
I accept that the offender's upbringing, including the offender and her mother being subjected to physical and verbal abuse by her stepfather, particularly in the context of abusing alcohol, results in the offender's moral culpability being further reduced: Bugmy v The Queen [2013] 249 CLR 571; Hoskins v R [2021] NSWCCA 169 at [51] - [57] (Brereton JA with whom Basten JA and Beech-Jones J agreed). In Bugmy, the High Court observed at [42] to [43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). "… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending".
Of course, as previously observed, in this case the offender does not have a long history of re-offending.
I accept the offender is remorseful, noting her statements to Dr Wong that the offences made her "feel sick" and acknowledged the considerable and permanent impact on the victim as well at the expressions of remorse to her family.
I accept that the offender's guilty plea is further demonstrative of the offender's remorse. However, I further accept that the plea is a willingness of the offender to facilitate the course of justice including the useful saving of time and expense of a trial and the avoidance of the victim having to give evidence. This is a relevant factor to be taken into account in addition to the utilitarian value of the plea of guilty: Baden v R [2020] NSWCCA 23; Giles-Adams v R; Preca v R [2023] NSWCCA 122.
I find that the offender has good prospects of rehabilitation. The offender has unqualified support of her ex-husband and son, demonstrated by the fact that both were prepared to accommodate the offender in their homes despite the offending. It is with this support that the offender is likely to continue the road to recovery from her drug use and have the emotional support to deal with her underlying psychological vulnerabilities.
Given one of the offences for which the offender is to be sentenced is the same offence for which a co-offender was sentenced it is necessary for the Court to consider principles of parity as discussed by the High Court in Green v R; Quinn v R (2011) 244 CLR 462.
I have found that the offenders are equally culpable for the offence. The offender's criminal history is relatively insignificant and does not involve any previous offences of violence. This is to be contrasted with the co-offender who has a more extensive criminal history including previous offences of violence. The co-offender was on conditional liberty at the time of commission of the offences, unlike the offender. The mental health and Bugmy considerations are finely balanced as between the two offenders. However, in the context of the Bugmy considerations, the Court cannot ignore the co-offender's previous history of violence and consideration of protection of the community. The offender has expressed unqualified remorse for her offending, unlike the co-offender whose remorse was qualified, and there was an absence of recognition of the significant harm done to the victim. I found that the offender's prospects of rehabilitation are good, unlike the co-offender's prospects which were considered as guarded.
Despite my findings, it remains necessary to consider the purposes of sentencing in s 3A of the CSPA including that the offender is adequately punished for the offence, to make her accountable for her actions, denunciation and recognition of the harm done to the victim and the community. In this respect, I take into account that the offender has spent 152 days in custody (approximately 5 months) referable to the offences for which the offender is to be sentenced. I also take into account that whilst on bail (since March 2023) the offender has been subjected to strict bail conditions including a residential condition and a strict curfew between 9:00pm and 6:00am. I am satisfied that the offender's strict bail conditions during this period amounts to quasi-custody and will be taken into account in determining the appropriate sentence: R v Quinlin [2021] NSWCCA 284.
I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the Court to invoke section 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.
With respect to sequence 4, stalk intimidate intend to fear physical harm, the appropriate sentence is 1 year imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of 9 months imprisonment.
With respect to sequence 5, aggravated enter dwelling with intent, the appropriate sentence is 2 years imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of 1 year 6 months.
With respect to H91716734, reckless grievous bodily harm in company, the appropriate sentence is 2 years 6 months from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of 1 year 10 months with a standard non-parole period of 1 year 1 month.
In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).
It is also necessary, when determining the aggregate sentence, particularly where the offences for which the offender is to be sentenced occurred over a relatively short period of time, and involved similar criminal conduct, that there is not double punishment. As Bell P (as his Honour then was) observed in Hesketh v R [2021] NSWCCA 262 at [54], where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose punishment that is disproportionate to the overall criminality involved in the offences.
Whilst there will need to be some accumulation reflected in the total aggregate sentence, it has a lesser role to play in determining the aggregate sentence given the offences occurred over a relatively short period of time and there is some underlying factual commonality.
I find that an appropriate aggregate sentence is 3 years imprisonment.
In the circumstance, given the aggregate sentence is three years, it is necessary to consider s 66 of the CSPA in determining whether the sentence is to be served by way of an intensive correction order. Section 66 of the CSPA provides community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. Section 66(2) further provides when considering community safety as required by s 66(1), the sentencing Court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. Further, when deciding whether to make an intensive correction order, the Court is required to consider the purposes of sentencing provided in s 3A as well as any relevant common law sentencing principles.
In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, Gordon, Edelman, Steward and Gleeson JJ observed: - "[74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community."
The High Court further observed at [76], "community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive".
The evidence overwhelmingly establishes that community safety considerations are best fulfilled with the offender serving the term of imprisonment by way of an intensive correction order in the community. It is readily apparent that the offender has taken considerable positive steps towards her own rehabilitation and in addressing the issues leading to her offending. The stark reality is that the offender's positive steps towards her own rehabilitation, with the considerable support of her family, will be considerably setback if the offender was to serve a term of imprisonment by way of full-time custody.
The conditions which I intend to impose as part of the ICO will still involve a form of punishment. With respect to the other s 3A considerations such an order is likely to promote the rehabilitation of the offender and minimise the risk of reoffending, thereby protecting the community. The imposition of various conditions will also make the offender accountable for her actions and denounce her conduct.

ORDERS

Accordingly, I make the following orders: - 1. In respect to the two offences on the s 166 certificate of destroy or damage property (sequence 2) and larceny (sequence 3), the offender is convicted without imposing any other penalty pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. The indicative sentences are outlined above. I impose an aggregate sentence of 3 years. 3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence is to be served by way of intensive correction order. 4. The standard conditions prescribed by section 73 of the Crimes (Sentencing Procedure) Act 1999 apply, that is: - 1. The offender must not commit any offence; and 2. The offender must submit to the supervision by a Community Corrections Officer. 3. The following additional conditions apply: - 1. The offender must complete 400 hours of community service; 2. The offender must undertake treatment with Dr Thangavelu and comply with all reasonable directions of that doctor regarding treatment; 3. The offender must undertake treatment at Goulburn Community Health Centre and comply with all reasonable directions of the centre regarding treatment; and 4. The offender must report to Goulburn Community Corrections within 7 days. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2024

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (20 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (13)