R v Forester

Decision: A sentence of 1 year 6 months imprisonment to be served subject to an Intensive Correction Order

Catchwords: CRIME — Violent offences — Assault occasioning actual bodily harm — In company
SENTENCING — Aggravating factors — Breach of conditional liberty — In company — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Relevant factors on sentence — Co-offenders — Parity — De Simoni/double counting— Deterrence — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Mental illness — Trauma history — Impact of custody on mothers

Legislation Cited: Crimes Act 1900 (NSW)

Cases Cited: Engert v The Queen (1995) 84 A Crim R 67
Kelley v R [2021] NSWCCA 173
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Pagett; R v Williamson [2024] NSWDC 623
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Category: Sentence

Parties: Danesha Jazmine Forester (for the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation: Counsel:
B Hart (for the offender)
Solicitors:
Accredited Specialist Criminal Law (for the offender)
J Loosley solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/293375

JUDGMENT – ex tempore revised

Introduction

1. In August of 2023, a group of young people who had a perceived grievance with another young person decided to take the law into their own hands: see R v Pagett; R v Williamson [2024] NSWDC 623. They effectively dragged their victim from the North Wollongong Station to a unit in central Wollongong. In that unit the victim was subject to a considerable amount of gratuitous and degrading assaults. Nothing that was done to her could be justified and no one has sought to justify what was done. What was done had, as might be expected, an immediate and lasting impact on the victim.

Victim Impact Statement

2. The victim of the crimes in her Victim Impact Statement said that she no longer wants to live or visit this area even though her mother lives here. She says she is scared; she is always looking over her shoulder; she has trouble sleeping. The offenders cut off her hair (which meant a lot to her); hair that made her feel “feminine and beautiful”. She is getting the support she needs but she says she lives with the effect of these crimes every day.

Agreed Facts

3. Ms Forester who was not involved in the detention but lived upstairs in the unit block, to which the victim was taken. She chose to go downstairs and see what was going on. She saw a number of people, including the victim, in the unit. Forester was told certain things about the person, but nothing gave her any justification for doing what she did. That she chose to involve herself makes no sense to me.

4. She was told by another offender to “get [some] zip ties”. She went and got the ties from her unit. Those ties were used on victim. She was present while another offender demanded, and then effectively forced, the victim to eat cat faeces. She was present in the unit, it would appear, when others cut the long hair of the victim very short. The victim at the time was sitting on the ground in the unit, where she was hit by another with a vacuum cleaner pole.

5. Ms Forster chose to kick her in the face.

6. The physical assaults took place over half an hour. The law is very clear. If a group of people engage in an assault or assaults acting together as part of an agreement, even though it is formed at the time to commit those assaults, each is equally liable and, in most cases, equally responsible for what occurred.

7. At times a person who is less involved might escape some of their liability or responsibility, but here, Forester chose to kick the victim to the head, and she was equally liable for everything that they did, as they may be equally liable for what she did.

8. Most of the group leave the unit. The facts are unclear, but it would appear that also Forester then left the unit, and thus voluntarily desisted from any further activity. Which may be to her credit.

9. I make it clear that she is not charged with any detention offence and that principles explained by the High Court in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 apply.

10. When the victim was taken to Wollongong Hospital, she was noted to have pain to her orbit, that is around the eye, mild swelling with bruising and some redness but no lacerations from where the zip ties had been placed on her. She was given an analgesia for pain.

11. But with respect, the seriousness of this case is not just about any physical harm, it is the high level of psychological humiliation that occurred that has to be taken into account.

Guilty plea and maximum penalty

12. For her role in what occurred Forster was charged pursuant to s 59(2) Crimes Act 1900 (NSW). She entered her guilty plea in the Local Court requiring a 25% reduction in sentence. That offence carries a maximum penalty of 7 years imprisonment.

Objective seriousness

13. It is accepted both by Mr Hart, who appears for the offender, and submitted by the Crown, that this assault was serious example of its type. It is accepted that in all the circumstances, even taking into account matters in mitigation, a custodial sentence is required.

Other factors

14. The sentence I impose is to be aggravated by the fact that the offender was on Community Corrections Orders at the relevant time. A breach of those promises to be of good behaviour has to be taken into account. Her criminal record has some relevance; it contains matters involving violence. She is not entitled to the leniency often given to first offenders.

Case for the offender

15. Forester did not give evidence. There, however, is material before the Court; a Sentence Assessment Report, a letter from Barnardos, 6 May 2025, and a report from a respected psychologist, Ms Cornell. That material indicates that Forester is maturing and has shown some insight into her offending. She has as best that she can, been able to express some remorse for the harm that she caused her victim.

16. Importantly, it would appear that her arrest for this matter has been a catalyst to; engage in treatment, to move away from the influence of negative peers, to engage with family members and to attempt to improve her life and, by doing so, improve the life of her daughter and newborn son. The contrast between the woman who appears for sentence today and the damaged, distressed woman living in a chaotic environment at the time of the offence is stark.

17. The material before me indicates a personal history that has involved multiple traumas including exposure to violence on multiple occasions. The Sentence Assessment Report summarises it this way, “Ms Forester has a life history characterised by trauma and violence saturation, from a young age”: p 2. The word “saturation” was chosen. Her history does not just involve ‘exposure’ to trauma and violence. Trauma and violence has saturated her young life. The history before me, which is uncontroversial, supports that conclusion.

18. Ms Cornell has tested her. Her test results were consistent with the reported history. She notes long lasting and unresolved trauma. She believes Forester suffers from Post-Traumatic Stress Disorder and has a Borderline Personality Disorder, often associated with such traumas. Also associated with such a history is a record of impulsive behaviour and “distorted cognitions” (at pars 71-72), including hypervigilance, suicidal ideation and self-harm. I will not go into the details of her background; there is no need.

19. Forester’s first child was taken away and placed with the mother of the father. Forester has, and continues to engage with, the carer who is here today in support. She also has the assistance of Barnardos and others. With that support she is building a relationship with her daughter and may eventually be allowed to take care of her. When she was on bail she gave birth to a son. Although care and protection issues were raised, she is able to, and has been, caring for her son as a loving mother.

20. The Barnardos report notes it was never envisaged, prior to May 2024, that such progress would be made. The report warns of the real prospects of harm, both to the offender and her children, if the connection between mother and children is severed by a custodial penalty.

21. The courts do, and should, take into consideration the impact that the imprisonment of parents, particularly mothers, can have on children. Women are overwhelmingly the sole, or primary, carers. The removal of a mother can result in the fracturing of a family unit and lead to the loss of Government housing and children being placed in care.

22. There is an increased risk that children will end up in the child protection system, and sadly, while not all children who end up in that system, end up in the criminal justice system, this is what occurred with Forester herself. Courts should be astute, if at all possible, to avoid continuing what is called ‘intergenerational trauma’ brought about by removal of children from their parents.

23. There was a strong nexus here between the offender’s trauma history and the role she played in the commission of the offence. She, it would appear, went into a defensive mode of mind that she often went into when confronted with trauma being inflicted on others.

24. Her background requires that her moral culpability be assessed as less than those who did not have such a background. And, when I came to assess objective seriousness, her moral culpability could not be divorced from my assessment of objective seriousness, thus reducing it: Kelley v R [2021] NSWCCA 173 at [39] (Bell P (as the Chief Justice then was), Rothman and Bellew JJ agreeing). It is also relevant to her subjective case. And, I have to take into account the clear interlock between trauma history and mental health conditions diagnosed. When I synthesise all relevant factors, I must remain alert to not double counting these factors.

Synthesis

25. The Court has to balance a number of important features. Clearly as Mr Loosley, who appears for the Director, submits, the penalty should have some deterrent impact on the individual offender. She has to understand what will happen if she breaches the orders of courts.

26. I am sure that potential deterrent impact has been one reason why Forester has taken up all the help that she has been offered. I suspect another is her growing maturity and responsibility; for sometimes young people take a while to develop.

27. The Court also has to impose a sentence that signals to others that they cannot assault another, demean another, degrade another in the way that occurred here, and if they do, they risk going to gaol. While general deterrence is always a matter that has to be considered, Forester’s history and background makes her an unpersuasive vehicle for the full application of that principle.

28. A judge has to consider the impact of the sentence and the sentencing procedure on others. While everyone in the community would be disgusted at what was done to the victim here, I believe everyone in the community would also accept that the history of the woman for sentence here means that you would not expect her to get the same sentence as someone who did not have that history: Engert v The Queen (1995) 84 A Crim R 67 (Allen J).

29. I have to have regard to the maximum penalty, 7 years, as one guide to the exercise of my sentencing discretion. I have to have regard to sentences I have imposed on Paget and Williamson, but the De Simoni principle applies here, and they were sentenced for much more serious offences. I take into account the utilitarian value of the plea of guilty which reduces the otherwise appropriate sentence by 25%.

30. It was submitted that despite the seriousness of this matter, and taking into account the plea of guilty, a sentence of under 2 years could be imposed. I agree and accept that submission.

31. As I indicated at the beginning of these remarks, a sentence of under 2 years, the progress towards rehabilitation, and the general interests in the offender learning and commencing a responsible life in the community, mean that community protection would best be served not by gaoling Forester. Gaol would risk her housing and keeping the custody of her child and possibly future custody of her daughter. Adopting the forward-looking approach of the High Court explained in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 this sentence should best be served by subject to intensive correction in the community.

Orders

32. Forester is convicted. There will be a sentence of 1 year and 6 months to be served by intensive correction in the community, it will commence today.

33. The standard conditions apply.

34. The first standard condition is that you must not commit any offence. The second is that you submit to supervision by Community Corrections and you are to report to the Gosford Office within 7 days. You must comply with any reasonable directions of that service, and they can be extensive.

35. There are three additional conditions:

36. That you engage as directed in any therapeutic program;

37. That you engage as directed in any psychiatric or psychological treatment programs; and

38. That you engage as directed in any alcohol and other drugs program.

39. I have considered community service as an additional condition but given that Barnardos would like Forester to participate in their mentoring program I will leave it at that and encourage her to engage in that program.

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Amendments

18 December 2025

Citation added.