[2011] HCA 39
R v Harris [2005] NSWCCA 204
R v Huynh [2005] NSWCCA 220
Tepania v R [2018] NSWCCA 247
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCCA 194
Muldrock v R (2011) 244 CLR 120[2011] HCA 39
R v Harris [2005] NSWCCA 204
R v Huynh [2005] NSWCCA 220
Tepania v R [2018] NSWCCA 247
Judgment (2 paragraphs)
[1]
Judgment
Melissa Jane Jones appears today for sentence in relation to an offence contrary to s 112(2), Crimes Act 1900, shortly described as an aggravated breaking and entering, and commit serious indictable offence in company. The serious indictable offence is the offence of 'intimidation' which carries a maximum penalty of five years' imprisonment. Within the range of serious indictable offences contemplated by s 112, it can be seen really almost at the lowest level of any serious indictable offence that could be contemplated to be committed under the section.
The prisoner committed the offence on 8 April 2018, was arrested that day and spent no time in custody. I should point out that the offence to which the prisoner pleaded guilty has a maximum penalty of 20 years' imprisonment, with a standard non‑parole period of five years.
The prisoner was born in December 1973, and thus as I have calculated, she is now 45 years of age, and was 44 years of age at the time of the offending. She is a mature woman.
Before I introduce the facts, there is a matter that needs to be addressed from the outset. It is of considerable significance and it is, in many respects, a matter that places this offence to my mind, as the Crown correctly identified, on the cusp of disposal by way of a Community Corrections Order rather than an Intensive Correction Order.
The prisoner was involved in a serious motor vehicle accident in 2017. That is before the offence that she appears for sentence for at court today. I should point out, the prisoner pleaded guilty on the day that her trial was supposed to start and I propose to give her discount of 10% upon the otherwise appropriate sentence for the utilitarian benefit of the plea of guilty. The detail of her medical history, principally relevant to this offence, is that on 26 February 2017, she was in a motor vehicle that rolled down an embankment. She was apparently trapped in the motor vehicle for approximately 12 hours and had a reduced level of consciousness when she was finally treated. Her level of consciousness may well have been considerably lower at an earlier time. She suffered multiple fractures to her legs, face, pelvis, knee, thoracic spine and ankle. Although there was nothing detected at the time, on 4 May 2017 after release from hospital, her neurological condition declined with serious symptoms and a CT scan found her to have a moderately sized acute subdural haemorrhage. That is a bleeding on the brain, leading to significant "mass effect" and damaging compression of the brain tissue.
I should point out that the prisoner has been assessed by a psychiatrist in late 2018, Dr Teoh, whose report I have read and she was further assessed for the purposes of these proceedings by a psychologist in a very detailed report, dated August this year. The psychiatrist's view was that the presentation of the prisoner at the time of assessment was consistent with a diagnosis of chronic adjustment disorder with depressed mood. Her prognosis was poor and her condition was chronic. Her condition is caused by the subdural haemorrhage to which I have referred, which has caused psychological trauma and an emotional reaction to her condition. She has various issues about the way in which she has received medical treatment. It would appear that medication contributed to the haemorrhage that occurred after or perhaps at the time of the accident. She had not received any detailed counselling in relation to her post‑hospitalisation period.
The psychologist was of the view in relation to the matter that the character of her injury has the potential for persistent sequelae and disabling symptoms. There will be, as a consequence of this injury, on balance, difficulties with attention, executive function, information processing speed, learning and memory, disturbances in emotional functioning including apathy, irritability and suspiciousness. It was the opinion of the psychologist, and I am prepared to accept that in the context of the combination of opinions that I have available to me, that this condition and these symptoms were in place at the time of the commission of the offence.
The depressive aspect of the condition she suffers from, does lead to a deterioration in intellectual and cognitive functioning, leading to a vulnerability of poor decision‑making, difficulty anticipating consequences and considering more functional alternatives of behaviour, resulting in behaviours which are out of character. Executive functions are important for impulse control, response inhibition, careful judgment and reasoning, consideration of alternatives, consequential thinking and emotional regulation.
There was no suggestion of her feigning her symptoms in the assessment made by the psychologist and the psychologist was of the view that those patients with the combination of depression and neurocognitive disorder, that is (NCD), suffer from a greater level of underlying cognitive dysfunction and intellectual deficiencies, and increases vulnerability to impulsive behaviour and poor decision‑making. She has some underlying intellectual deficits and is a person who, in the circumstances, is thought vulnerable to becoming involved in the "criminal justice system".
It is in this context, one returns to the facts and to summarise them without downplaying the matter, the prisoner attended upon the house of the victim, in Glenfield Park. The prisoner was in company with a woman who is yet to be charged in relation to the current matter as she has left the jurisdiction. The prisoner was herself upset with the victim because she had an understanding or a belief that the victim had been in some way involved with the discharge of fireworks in the vicinity of the grandchildren of the prisoner. There is arising out of that, some element of vigilantism in what unfolded. However, it could be fairly said that the conduct of the 'co‑accused' might reasonably be seen as going beyond what was anticipated to be the character of the confrontation that occurred.
That matter is reinforced in my view, by the facts. The victim heard a female voice, indicating that the speaker knew she was inside and she was told to open up the door or the door would be kicked‑in. Eventually, the door was pushed or kicked, and the victim was confronted by a person by the name of Brie Macmillan. The victim was approximately 50 centimetres away from the prisoner and Macmillan. She feared for her safety. She said, "I'm ringing the cops". Macmillan spat towards the victim, grabbed her phone and then the prisoner punched the victim in the right side of her cheek with the left closed fist. The punch was not hard but it shocked the victim. The victim ended up on the ground, where Macmillan sat down on the victim's waist and punched her in the face four times. To be fair to the unfolding situation, so far as the prisoner's participation was concerned, the prisoner did say, "Brie get off her", at which Macmillan desisted. It seems as though the victim did not know the prisoner. The victim asked the prisoner, "who are you", and the prisoner did give her name.
The prisoner then said what had happened was in "response" to the fireworks issue and someone getting hurt. The victim said that she knew nothing about the alleged discharge of fireworks and she started to cry. Then it was at that point the victim realised that she knew the prisoner from Tumut which is the town from which the prisoner comes.
The partner of the prisoner who was in a vehicle came to the door of the unit and told the two women to leave and then the police attended. Ultimately the police spoke to the prisoner, she denied hitting the victim, but the prisoner told the police about being told of the fireworks incident, as I might describe it, and that her grandchildren had been distressed by what had occurred, and she wanted to "speak to" the victim to see what she had done.
She said that she took Macmillan with her because Macmillan knew the victim's address but she also said that the co-accused, Ms Macmillan, "went spastic" and she tried to stop her from assaulting the victim, which is somewhat consistent with the facts.
It is correct, as has been pointed out in the helpful written submissions of counsel for the prisoner, that an offence under s 112(2) Crimes Act 1900 contemplates a range of conduct. I am mindful of what was said by the Court of Criminal Appeal in the decision of R v Huynh [2005] NSWCCA 220 by Simpson J.
There is also a related case of Harris v R [2005] NSWCCA 204 that cogitates upon the same issue. That is, in contemplating the character of the offending and determining where the matter falls in relation to the "middle range of objective seriousness", regard must be had not only to the particular conduct of the prisoner but also the character of the serious indictable offence and also relevant aggravating and mitigating factors that arise.
In relation to aggravating factors this was an offence committed in the home of the victim. That having been said, an element of the offence is breaking and entering premises. It seems to me that being in the home of the victim remains in the circumstances an "aggravating" factor.
There are no other aggravating factors. The prisoner was not subject to conditional liberty at the time, although she does have some criminal history with which I will deal in a moment.
In my view, although the prisoner brought Macmillan with her, Macmillan being able to find where the victim lived, and whilst there is no "provocation" as the Crown correctly identifies, the prisoner's moral culpability is less than that of Macmillan and as I said, the person Macmillan was told by the prisoner to stop in circumstances where, but for that intervention by the prisoner, the victim may have been further assaulted.
There is no evidence of any injury to the victim. She was shocked, she was obviously hurt and she was upset. I understand all those matters. She is entitled to feel safe in her own home. The facts of the matter are, without getting into arbitration upon who did what at an earlier time, she may well have been completely innocent of the belief that the prisoner held about her previous conduct.
As I said, people are not allowed to take the law into their own hands and in my view, in the future if she has an issue with somebody, if she believes there has been some misconduct towards her or her family, she should take it up with the police. There are remedies, even if the conduct with which the prisoner is concerned is not criminal conduct.
Of course in reflecting upon the facts one needs to bear in mind what I have referred to in the medical evidence. It is clear that there was a lack of thinking through the consequences of this attendance upon the victim's home. Whilst the offence could not be described as "impulsive", as such, it is an offence committed with very little premeditation.
Those symptoms or consequences of the conditions from which the prisoner suffers, seem to be reflected in the way in which this affair unfolded. It is thus to be seen, in my view, there is a causal connection between a significant mental disability that the prisoner suffers from and the offending. This requires consideration of principles set out in decisions such as DPP(Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, particularly in the judgment of McClellan CJ at CL at [177]-[178].
Putting aside what his Honour said at [178] about the particular condition not necessarily being significant, in this case, it seems to me it is. His Honour pointed out and I find in this particular matter, that there should be some reduction upon the weight to be given to general deterrence when a person commits offences causally connected to a mental disability over which the offender has no control.
I hasten to say, this is not a case where I could conclude that the character of her mental disability requires greater weight to be given to specific deterrence. There is some diminution upon her moral culpability as well. These are all relevant matters to be taken into account and I also bear in mind about this aspect of the matter, what was said to the High Court in Muldrock v R [2011] HCA 39 at [54], where the offender in question had a significant cognitive disability that had been with that offender for many years.
As to the diminution in moral culpability, as I described it in two respects in this case, I also bear in mind what flows from the learned lips of his Honour Johnson J in Tepania v R [2018] NSWCCA 247, particularly at [119].
In regard to this matter I am required to have attention to s 54A and 54B of the Crimes (Sentencing Procedure) Act 1999. Section 54A states that for the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence identified in the Table to this Division, taking into account only the objective factors affecting the relative seriousness of that offence that is in the middle of the range of seriousness.
This offence, to my view, is well below the middle range of objective seriousness, even assuming that the middle range of objective seriousness is not a line drawn through the middle of the range of offending contemplated, and is in fact "not a narrow band".
I am not suggesting it is at the lowest level. But I bear in mind the character of the intimidation and the short duration of it. One of the features of intimidation of course, and we see this so often in domestic violence offences, is that the intimidation for which people are to be sentenced usually occurs over an extended period of time and it usually occurs in the context of a history of mistreatment, abuse and physical violence and thus what might seem at first instance to be an isolated incident has to be considered in a wider context, making the intimidation more serious.
Having some direct personal experience as a child, I am very well aware of the way in which, in a domestic violence context, these types of intimidations of which I speak, which are quite different from this matter, can have lifelong effect upon the victims. This intimation is a one-off incident. It is a serious matter to approach someone in their own home. But I do not think for a moment that the victim should consider any further fear of this particular prisoner. There is no history of any previous altercation between the two of them, and as shocked as the victim may be, it seems to me that this conduct towards this particular victim is a one-off.
Thus I categorise the offending well below the middle range of objective seriousness. But not at the lowest level having regard to the character of the serious indictable offence, the character of the offending, and of course the very important mitigating factor in this matter that arises under s 21A(3) of the Act, that is the offence, although not provoked, was in fact "unplanned".
The prisoner has some criminal history. She is not a stranger to the criminal justice system. It is not a lengthy history, but does not do her any particular credit. The prisoner has strikes me, in the context of my knowledge of her, to be a person who has had a difficult life in a range of respects. She has had three children. It would appear she was a single parent for an extended period of time which no doubt would have been a considerable burden for her and I am fully appreciative in the context of her financial situation, what difficulties that would create.
She does have findings of guilt in relation to matters of violence. She was convicted of assaulting a police officer in the execution of his duty and sentenced to a term of imprisonment that was suspended when she appeared at the Tumut Local Court in 2006. She also received a s.9 bond for two years for the offence of common assault. She had been previously convicted of common assault in 2003 and placed on a two year good behaviour bond with supervision conditions.
She has, since the commission of the offence with which I am concerned, been charged with driving with an illicit drug present in her bloodstream but I propose to ignore that beyond the suggestion that the prisoner still has some, I will call them, "social" difficulties in her life that she needs to address.
Putting aside that matter, subsequent to this offending her last appearance in court was in fact for a minor street offence, almost ten years before the sentencing of the offender for this matter.
I have a Sentencing Assessment Report. The author of the report deals with the prisoner's explanation for her conduct which I need not dwell upon. It notes in the report that the prisoner had gone to the premises with "no intention of physically harming the victim" although she was adamant she played no part in the assault which is not what the Agreed Facts say.
The prisoner does have some limited insight into the offending. One of the problems with vigilantism is that the offenders take a long time to appreciate the fact that if they feel they have a grudge against a particular person the conduct that they have to appear at court for, which constitutes the vigilantism, may in some way be justified. There can be no justification for the prisoner's conduct. That having been said, the reporter states the prisoner has a medium to low risk of re-offending, she is suitable for supervision, she is suitable to perform some community service work. What is suggested is that if she is required to perform community service work, she could perform up to 12 hours of work per month. I do not propose to impose upon her a Community Service Order that will require an average of 12 hours a month over a 12 month period but I feel as if she should be required to perform some community service work to reinforce some of the issues that she at the present time has not quite grasped.
In sentencing her I have had regard to her general medical condition, putting aside a neurological condition, the extent to which she has fully physically recovered from her injuries from the motor vehicle accident. That is not clear to me, but I am sure that that particular event was a traumatic incident in her life.
I have been provided with some statistics by learned counsel for the prisoner. They do not tell me very much that I do not already know. There is a range of sentencing that might be undertaken in respect of offences of this type. We see the full range of them. You see an offence like this, and then you see another offence where there is a serious sexual assault committed for example and you can see the full gamut of conduct that the section contemplates from the vantage point of having to deal with a large number of cases and a large number of different circumstances.
With regard to mitigating factors under s 21A(3) I take the plea of guilty as a mitigating factor. I am not satisfied on balance the prisoner is truly "remorseful" although she does regret the circumstance she is in and thus regrets her conduct to that extent.
As I earlier said, this was not planned criminal activity. To my mind in the context of the offending with which I am now concerned, notwithstanding two prior findings of guilt for assault, the offending is not one which suggests that her previous record is "significant". I go back to the example of intimidation, for example, in the context of a domestic violence environment. Prior findings of guilt for assaulting the same victim, for example, might be highly significant in sentencing somebody for what might otherwise appear to be not a serious offence at a later time.
As to her likelihood of re-offending and her prospects of rehabilitation I must say one would need to be guarded about that matter. The finding of guilt in relation to the driving offence suggests an issue that is not directly concerned with the offending with which I am concerned. But I also have to bear in mind the prisoner is a mature person and she is quite capable of taking responsibility for herself. If she is able to take responsibility for herself she is unlikely to re-offend and could have good prospects of rehabilitation.
I am persuaded that the s 5 threshold has been crossed. I do that in the context of consideration of the guidance provided by the maximum penalty, although I accept there are particular cases where an order under s 8 of the Act may be appropriate.
Thus, in the circumstances of the matter I have concluded that I should impose a term of imprisonment; it would be no more than 12 months imprisonment. The term of imprisonment shall be served by way of Intensive Correction Order.
You don't have to stand up, Ms Jones, but I will read these orders to you:
In respect of the offence to which you have pleaded guilty you are convicted.
There being no other appropriate penalty you are sentenced to a term of imprisonment for a period of 12 months.
Pursuant to s 7(1) Crimes (Sentencing Procedure) Act the sentence imposed on you is to be served by way of Intensive Correction Order.
The sentence will commence today 9 August 2019.
You must report to the Community Corrections office at Tumut on 14 August 2019 at 10am.
The standard conditions will apply:
First of all, you must not commit any offence when subject to the order and you must submit to supervision by a Community Corrections officer.
The following additional condition applies:
You are required to perform 50 hours community service. On my calculation that would be less than five hours a month over the period of 12 months but you might be able to do it all in two or three months, I do not know.
If you fail to comply with the conditions of this order, sanctions may be imposed by the Commission of Corrective Services or State Parole Authority. Those sanctions may include a formal warning imposing more stringent conditions or it may include revocation of this order.
If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.
Finally, you are directed to attend the Court Registry at Wagga, where a copy of this order will be explained and given to you.
Thank you. Is there anything else, Madam Crown?
MORGAN: No, thank you, your Honour.
AUDIO VISUAL LINK TO WAGGA WAGGA CONCLUDED
HIS HONOUR: Mr King, thank you very much for your assistance.
KING: Thank you, your Honour.
[2]
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: 01 July 2020