The offender, Ms Shania Geebung, stood trial before a jury on an indictment containing two counts, the first count being that on 26 December 2017 she wounded Helen Nicholls with intent to cause grievous bodily harm and the second count being that she assaulted Elizabeth Nicholls, occasioning actual bodily harm. On 29 November 2019, a jury found the offender not guilty of each of those offences, but guilty of a statutory alternative to count 1, being an offence of reckless wounding. That offence carries a maximum penalty of seven years' imprisonment and a standard non parole period of three years applies. Each of those are matters to which I must have regard as they are important guides in the sentencing exercise.
Although the facts are ultimately for me to determine and must be consistent with the jury's verdict, I note that the parties reached agreement as to many of the facts and these were set out in a document which was tendered on sentence. I have in these reasons applied those facts to the extent that there is an agreement and to the extent that I consider them relevant in explaining my reasons for sentence. As to matters about which there is no agreement, I have made my own determinations. Any aggravating matters must, of course, be proved beyond reasonable doubt, while matters in mitigation need to be proved on the balance of probabilities.
The relevant facts I find are these. On Christmas night, 25 December 2017, there was a party at the home of Mary Bolt in Halinda Street, Whalan. At about 9pm that night, 22-year-old Elizabeth Nicholls, her 19 year old sister, Maryjane Nicholls, and their mother, 39-year-old Helen Nicholls, arrived at the party. They had consumed some alcoholic drinks before then. Elizabeth did not drink after arriving at the party and was not feeling drunk. At about midnight, Elizabeth left the party and went home to bed. By that time, Maryjane had had a number of drinks and was feeling a bit drunk. Helen had also had a few drinks and was also feeling drunk.
Some time into the night, the offender, who is a distant relative of Elizabeth, Maryjane, and Helen, arrived at the party. The offender was drinking and appeared to be drunk. When later treated at hospital, she told a doctor that she had consumed more than 30 standard drinks. In the early hours of the morning, Elizabeth and her boyfriend, Kieran Murray, drove back to the Whalan address to pick up Elizabeth's mother, Helen, and her sister, Maryjane, from the party. Upon arriving, Elizabeth waited out near her car. Helen and Maryjane came outside and then both went back to say Merry Christmas and goodbyes.
At about this point, there was a minor incident between Maryjane and the offender inside the apartment. Maryjane then left the apartment and went out towards the car. The offender walked onto the street sometime after Maryjane. She was with another woman named Kira Nicholls. The offender and Elizabeth subsequently ended up in a fight. There are disagreements between the parties as to what happened next. Elizabeth gave evidence that she moved away from the offender and that she saw Kira Nicholls hand a bottle to the offender, which the offender smashed on the ground and commenced chasing Elizabeth around the car.
Elizabeth said that, at this point, her mother, Helen, stood in front of the offender and that punches were thrown and Helen and the offender fell to the ground, where the offender stabbed Helen repeatedly with the bottle. Maryjane, who was sitting in the car at the time of her observations, also gave evidence that she saw Kira Nicholls smash a bottle and hand it to the offender and that the offender then chased Elizabeth around the car while holding the broken bottle. She said she heard Elizabeth saying, "Put the weapon down," and that her mother, Helen, was also telling the offender to stop, and that the offender then punched Helen, knocking her to the ground.
She said she then saw the offender striking her mother on the ground and that, when the offender walked away, she noticed various injuries to her mother's face and neck. Helen gave evidence and said that she heard Elizabeth saying to the offender, "I'm not fighting you when you've got that bottle in your hand," and that the next thing that happened was that the offender hit her, that is, hit Helen, in the face and she fell to the ground. She said she then felt a warm wet sensation in her neck.
The offender gave evidence at trial in which she denied holding the bottle or striking Helen, and claimed that she had herself been attacked by Helen and Elizabeth and had ended up on the ground. Kira Nicholls also gave evidence in the defence case at trial and said she saw Elizabeth and Helen and another female attacking the offender. She denied that she had ever handed a bottle to the offender and also claimed that she had never seen the offender hit Helen with a bottle.
It is apparent from the jury's verdict that it did not accept the offender's evidence or Kira's evidence about these events and was satisfied beyond reasonable doubt the offender had struck Helen Nicholls and had caused a wound or wounds to Helen.
It was argued on the offender's behalf that I could not be satisfied beyond reasonable doubt that the offender struck the victim with the broken bottle. In support of this argument, counsel for the offender pointed to evidence from Dr De Jong, who conceded during the trial that it was possible for Helen's injuries to have been occasioned by falling onto the road where there was a broken bottle and possibly other broken glass.
It was argued on behalf of the offender that it would be logically untenable to conclude that the offender intentionally struck the victim with a broken bottle because such an act could only have involved an intention to cause grievous bodily harm, a matter about which the jury were not satisfied, given the not guilty verdict on count 1. I have considered this argument, however, I do not accept it for a number of reasons. Firstly, the suggestion that Helen fell onto broken glass is inconsistent with the evidence given by Elizabeth, Maryjane, and Helen Nicholls, who all refer to the offender having a broken bottle in her hand.
Secondly, Helen suffered four separate lacerations, a laceration to her left temporal region of 4 to 5 centimetres, a laceration to her left cheek of 3 to 4 centimetres, a laceration to the right side of her nose below the eye, and the most serious injury, an 8 to 10 centimetre laceration to the neck, which was 1.5 centimetres deep. In my view, it is improbable in the extreme that these injuries to various parts of Helen's neck and face were caused by her falling onto broken glass or a broken bottle. Rather, the verdict of the jury is consistent with its having applied the directions given to it in connection with count 1 of the indictment and the statutory alternative to that count on which the jury found the offender guilty.
There is nothing inconsistent between the jury's finding of guilt on this statutory alternative and my satisfaction beyond reasonable doubt that the offender did strike the victim while holding a broken bottle in her hand. There were some inconsistencies in the evidence as to whether it was the offender who broke the bottle or whether it was given to her already broken, but, in my view, this distinction makes no difference to the objective seriousness of the offence.
Helen was bleeding from the neck on the road and was driven to hospital, where she was treated for her injuries. She underwent surgery for a washout and repair of the left neck laceration, including the underlying muscle, the infraorbital laceration, and left temporal laceration. She remained in a high dependency ward post-operatively and was discharged two days later.
At about 6.50am, police attended the Whalan unit and found a large amount of blood on the roadway. In the gutter, glass fragments of the mouthpiece of a vodka Cruiser bottle were located and other glass was found on the roadway.
This is a very serious offence and it involved an unprovoked attack. The offence resulted in significant wound injuries to the victim, who still bears the scars of her wound, one of which was quite deep and close to the carotid artery. I must be careful, however, in sentencing the offender, given that the offence of which she has been found guilty is reckless wounding and not recklessly causing grievous bodily harm, which carries a higher maximum penalty. I put aside any suggestion that the injuries might have amounted to grievous bodily harm and I focus on the wounding itself: see R v De Simoni (1981) 147 CLR 383 and McCullough v The Queen [2009] NSWCCA 94.
The maximum penalty and the standard non-parole period, which are legislative guideposts, also confirm the objective seriousness of the offence. Understandably, the victim still experiences emotional consequences arising from the offence. It was not contended by the Crown, however, that I should take account of the Victim Impact Statement as an aggravating feature and I have not done so, although I have had regard to it in a general way.
This was not an offence that involved any premeditation or planning, but was committed spontaneously. I am conscious, however, of the fact that the contribution of alcohol to the offending does not mitigate the offence.
In assessing the objective seriousness of the offence, I have had regard to the moral culpability of the offender, which, while substantial, is reduced to some degree by reason of her childhood exposure to violence and abuse, the details of which I will refer to later in these reasons. In my view, the objective seriousness of the offence sits at about the mid-range when compared with other offences under s 35(4).
The offender's background and subjective case is before the Court by means of a number of character references, which describe the offender in very positive terms. Significantly, they all say that the offence is out of character, that they have never known to the offender to be violent, and that she is normally quiet and pleasant and not someone who usually drinks alcohol.
Evidence was also given on sentence by her church pastor, who spoke highly of her and from her former rugby league coach, who said she is a talented player who plays by the rules, is not violent, and that he has never seen her use alcohol. The offender's mother also gave evidence and confirmed the history she had provided to psychologist, Vanessa Edwige, and confirmed that the offence is very much out of character. I accept this evidence and proceed on the basis that the offence was an aberration and one that came about largely by reason of the circumstances and the offender's intoxication. While the offender's intoxication does not mitigate her offending, it does provide context.
The psychological report by Ms Edwige notes that the offender is a Kamilaroi woman through her mother, who is from Walgett, and also an Ugarapul woman through her father, who is from Ipswich in Queensland. Regrettably, there is a significant history of domestic violence between the offender's parents, which required the offender's mother to be hospitalised at times and led to her father being incarcerated more than once. The psychological report states that the offender was a witness to this violence through her childhood and adolescence. Nonetheless, she still developed a close relationship with her father and she has been significantly impacted by the fact that her father suffered a stroke when she was in year seven.
Her father now lives in a nursing home in Queensland and, as a result, the offender's contact with him has been restricted, especially in recent times. In this regard, I note that the offender's father is non-verbal due to the effect of his stroke and so it is necessary for the offender to travel to Queensland in order to have any meaningful contact with him. In addition to violence between her parents, the offender was also exposed during childhood to the disorderly conduct of her older brother, who has been imprisoned a number of times and is currently imprisoned.
I accept that these exposures to violence and other stressful behaviour during her formative years are matters likely to have impacted on the offender's ability to regular her emotions effectively. As the High Court said in its 2013 decision in Bugmy v The Queen [2013] 249 CLR 571:
"The experience of growing up in an environment of abuse and violence may leave its mark on a person throughout life. It may compromise a person's capacity to mature and learn from experience. It is a feature of the person's make-up and a matter to be given full weight in the sentencing exercise."
While there is no evidence in this case that the home environment involved alcohol or drug abuse, the background of domestic violence is a matter that in this case I regard as being of some significance. I note that the Crown did not oppose a finding that the circumstances justify the application of Bugmy principles.
The psychologist says that the offender meets the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood, which appears to have arisen from stress associated with these proceedings. While I have had regard to this opinion, its weight is reduced to some degree, given that it is not offered by a psychiatrist and given that the offender did not give evidence on oath to confirm the history provided by her to the psychologist.
According to the Sentencing Assessment Report, the offender still disputes the essential facts of the offence and showed minimal insight into her offending. I am unable, therefore, to find any remorse or contrition. The offender is now aged 21 and was 19 at the time of the offence. She has no prior criminal history and is otherwise a person of good character. She completed year 12, was a good and cooperative student, and subsequently commenced tertiary studies in health administration, but discontinued these due to these proceedings. Nonetheless, there is a basis to conclude that she will in the future complete tertiary studies and engage in a successful career.
In determining the appropriate sentence, I take into account the offender's relative youth. Sentencing a young person requires greater focus on rehabilitation and a lesser focus on deterrence. While the offender is not a juvenile, she was only 19 at the time of the offence. This is a factor which I have applied in ameliorating to some degree the sentence to be imposed. Having regard to the offender's prior good character, her devotion to and talent in sport, her lack of drug and alcohol problems, and the support she has from a devoted family and her church community, I think she has reasonably good prospects of rehabilitation and is probably unlikely to reoffend in a similar manner.
She has been on fairly strict bail conditions for nearly two and a half years, which required her to report to police and observe a curfew. This had a real effect on the offender because she could no longer visit her father or visit the traditional lands of her people during that time. This restriction of liberty involves a degree of punishment, which she has already suffered. I take this into account in determining the appropriate sentence, as well as the fact that the offender spent four days in custody when first arrested.
It was also argued that in sentencing the offender I should take into account evidence relating to her mental state. The psychologist expressed the opinion that the offender has an adjustment disorder with mixed anxiety and depressed mood, but, as I have already observed, this appears to be of more recent origin and I do not consider that it was a contributing factor to the offence. Nonetheless, in accordance with principle such as that referred to in DPP v De La Rosa [2010] NSWCCA 194, I accept that this condition is likely to make any period in custody more onerous.
Clearly, deterrence of this offender and others remains of greater importance in an offence of this kind. That is especially the case given the ready availability of a glass bottle as a weapon: see Tweeddale v The Queen [2012] NSWCCA 99, per Beazley JA as her Excellency the Governor was then.
It was conceded on behalf of the offender that a custodial penalty should be imposed, but it was submitted that it should not exceed two years and that it should be served by Intensive Correction Order. Regrettably, I have formed the view that such a sentence would not reflect the seriousness of the offending and the various purposes of sentencing that must be applied. In my view, a penalty of full-time imprisonment is the only appropriate penalty. In determining that penalty and, in particular, any non-parole period, I have had regard to the principles of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I have also given weight to the fact that any imprisonment imposed during the current pandemic is likely to involve more onerous conditions, at least for a number of months because of current restrictions on personal visits by family and friends.
I find special circumstances for varying the ordinary ratio between head sentence and non-parole period based on the offender not having previous custodial experience, her youth, and the desirability of her being supervised or monitored for a considerable period in the community. I impose a head sentence of two years three months and a non-parole period of 14 months. Those will date from today. The head sentence will expire on 18 September 2022 and the non-parole period on 18 August 2021.
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Decision last updated: 21 September 2020