The offender stands to be sentenced having pleaded guilty to the following offence, that between 1.25 and 1.30pm on 4 May 2020 at Potts Point she wounded Lucas Conca with intent to inflict grievous bodily harm. That is an offence is under s 33(1)a of the Crimes Act and has a maximum penalty of 25 years imprisonment with an applicable standard non-parole period of seven years.
[2]
The Facts
The facts are agreed and the Crown has also tendered CCTV footage of the incident, which I have watched. The following is taken from the agreed facts:
The victim in this matter, Mr Conca, was 19 years of age at the time of the offending. The offender and the victim were unknown to each other.
At approximately 11.20am on 4 May 2020 police intercepted the offender attempting to enter a restricted area at Marrickville railway station. They had a short conversation with her and she told them that she was catching the train to Kings Cross to get her methadone dosage. The facts record that the offender spoke in a muffled voice and appeared distant and vague in her answers. During the interaction she was said to have made erratic hand gestures when speaking.
At approximately 1.25pm on 4 May last year, the victim left a white work ute that had stopped briefly near Woolworths on Darlinghurst Road, Kings Cross. The offender was a short distance down the road at that point. The victim crossed the road and walked towards Kings Cross railway station. He intended to catch the train home after work.
Once the victim had crossed the road the offender is observed on the CCTV footage to also cross the road and look directly in the direction of the victim. As the victim walked past Woolworths he noticed that the offender was walking directly behind him. The victim apologised to her by saying "sorry" as he believed that he had briefly crossed her path and that can be seen in the CCTV footage.
The offender did not respond and was looking at the victim and continued to follow closely behind him. The victim continued walking towards the Kings Cross railway station entry on Darlinghurst Road. He had just crossed the entry to the station when he heard someone running towards him from behind. The victim was about to turn around when he felt a sharp pain to the left of his throat and he realised he had been stabbed. He immediately felt intense pain and shock.
The CCTV footage at the entrance to Kings Cross railway station captured the offending. The footage shows the offender approaching the victim from behind. She swings her arm around the front of the victim's right side. The offender's right arm then comes towards the victim's throat in a slicing motion. The victim immediately reacts by turning around and grabbing his throat. The offender turns to run out of the railway station on Darlinghurst Road.
When the victim turned around he saw the same female he had seen on his walk to the station. The victim noticed the offender's left hand was concealed behind her waist. The offender ran off down Darlinghurst Road and the victim grabbed his throat and briefly began to chase her. He stopped when he realised he was bleeding severely. He began calling out for help and said "that bitch just stabbed me". The victim saw the offender turn back and looked towards and screamed "fuck you, you fucking cunt" before she continued running down Darlinghurst Road.
The victim retrieved his mobile phone from his pocket and began to call triple-000. There were several civilians near the entry to the railway station. The victim handed his phone to a male and asked him to call an ambulance. The victim sat down and a bystander assisted the victim in applying pressure to his throat to try and control the bleeding. The distress the victim was in at that point in time can clearly be seen on the CCTV.
A witness asked the victim to show him the injury and he moved his hand for a second and he observed a six centimetre gaping wound in the shape of a semicircle which was bleeding profusely. Another witness applied some wipes and blue Chux cloth to the victim's neck. A nurse who was working at an injecting centre nearby assisted the victim whilst waiting for the ambulance. She observed the victim sitting on the ground, holding his neck. The victim told the nurse "I was just walking and a woman came up and stabbed me in the neck, it was totally random".
Paramedics arrived on a motorcycle and an ambulance and he was transported to St Vincent's Hospital. The police arrived at the scene shortly after the offence. They were provided with a description of the offender. They gained access to the CCTV footage. Having perused that, they observed that within minutes of the offence the offender had attempted to enter a taxi that was parked at the Bayswater Road taxi rank in Potts Point. The driver of the taxi stepped out of his vehicle and told the offender to go to the front of the line. The offender then turned around and ran down the hill onto Bayswater Road out view of the CCTV cameras.
At about 1.58pm a resident and personal trainer at 8A Hughes Street, Potts Point, buzzed a client into his building. The offender followed the client into the building. The resident observed the offender enter and leave the communal rooftop and go into the laundry area. She turned on the shower and had her left arm under the running water. She told the resident that she was hiding and that she needed help. According to the facts, the offender appeared quite "out of it" and was constantly stumbling over and mumbling. The resident attempted to have a conversation with the offender but she continued to mumble and scrunch her hands close to her chest and appeared to be trying to hide her hands. She was holding a toilet roll which appeared to have blood on it.
Police were called and the resident informed the offender that they were coming. The offender then left the rooftop and she was gone by the time the police arrived. At 2.20pm police attended Wayside Chapel in Hughes Street, Potts Point. They observed the offender standing outside the chapel with a group of three or four people. She had a black bag over her shoulder. She was not wearing any shoes.
As the police got out of their vehicle the offender saw them and began to run towards Orwell Lane, heading south, and then onto Orwell Street, heading east. Police chased after her, calling for her to stop. They caught her at the intersection of Orwell and Macleay Street, pulled her to the ground. The offender was handcuffed and arrested.
The offender was searched and the police located a bag on her person which was removed. Within the bag police located a small, silver-coloured implement which was approximately 15 centimetres in length and had a sharp triangular point on the end of it. It appeared to have red stains on it.
Approximately 4.08pm the offender participated in a record of interview with police having told them she wanted to participate. About 6pm, whilst in police custody, an ambulance was called on suspicion that the offender was suffering from a mental health episode.
She was heard saying:
"People are trying to kill me, I can see the red laser dot on me when I sit still. I need to go to hospital, if I don't go to hospital then they will kill me. I can't take this, I want to kill myself to get away".
She was conveyed to St Vincent's Hospital by ambulance. The emergency department registrar noted a diagnosis of paranoid schizophrenia but stated that the accused was too intoxicated to undergo a reliable mental health assessment. The offender was deemed mentally stable and fit for discharge to the police. I will come back to her mental health in due course.
When being informed that was she was to be discharged from hospital the offender became very visibly agitated and displayed a worried look on her face. She appeared to be speaking to herself incoherently. The custody management records indicate that whilst at the hospital the offender appeared to have "erratic behaviour, constant fidgeting, appears paranoid, constantly looking around for something or someone".
[3]
Injury to the victim
The victim was examined at St Vincent's emergency department and was suffering from a 10 centimetre laceration of the left anterior neck. Exploration of the wound demonstrated a transection through anterior skin, subcutaneous tissue, platysma, superficial cervical facia, bilateral anterior jugular veins and partial transection of the left sternocleidomastoid muscle. There was a partial thickness laceration to his tracheal cartilage. There was no breach of the carotid sheath or damage to its vasculature.
The wound was treated with surgical exploration washout and repair. A small arterial bleed was tied; it is noted in the facts it was likely a superior thyroid artery, and generalised haemostasis achieved. A drain was placed post-operatively. There was found to be a normal trachea without breach of its tissue. The victim spent two nights in hospital, was discharged on 6 May 2020. Following discharge from hospital the area of the wound remained painful and tender. I am not provided with any update on his medical condition after 6 May 2020.
[4]
Victim Impact Statement
There is a Victim Impact Statement which articulates the significant impact the offence had upon the relatively young victim. As the victim says in his Victim Impact Statement, the emotional trauma as a consequence of the offending is something he will carry for the rest of his life, and I have little doubt about that.
[5]
Objective seriousness
Turning then to my assessment of the objective seriousness of the offence, leaving to one side the issue of the offender's mental health, which I consider principally goes to her moral culpability for the offence and which I will discuss later in these remarks, in terms of the objective seriousness of the offence, I note a weapon, being a small silver-coloured implement approximately 15 centimetres in length, with a sharp triangular point on the end of it, was used to inflict the wound.
The attack on the victim was completely unprovoked and appears to have had no planning. One blow was delivered with the weapon to a very vulnerable part of the victim's body, being his neck. The CCTV footage suggests that the blow was delivered from behind the victim and with considerable force.
The injury suffered as a consequence of the wounding was significant but not as catastrophic as it might have been, although that is clearly due to luck rather than anything else. Giving the location of the wound it is indeed fortunate that the victim's jugular vein or carotid artery were not cut or severed. The victim spent two nights in hospital and upon discharge the areas around the wound remained painful and tender.
I assess the objective seriousness of the offence as being within the bottom of the midrange level of objective seriousness for such an offence.
The Crown submitted that there were two aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act present here. The first is the factor that the offence involved the use of a weapon, engaging s 21A(2)(c). That factor is clearly established and I have regard to it in assessing the objective seriousness of the offence in order to avoid double-counting.
The Crown also submitted that the offence involved a grave risk of death, and engaged s 21A(2)(i)(b) of the Crimes (Sentencing Procedure) Act. I am not satisfied beyond reasonable doubt that this aggravating factor is made out here given the limited content of the agreed facts as to the nature of the wound the victim received, however I did have regard to the risk involved where there is a cut to the victim's throat, the type of implement used by the offender and the degree of force shown in the CCTV footage, in my assessment of the objective seriousness of the offence.
[6]
The offender's subjective case
Turning then to the offender's subjective case.
The offender is a 43 year old female of Aboriginal background who prior to being incarcerated, was living in social housing in Marrickville. The offender has an extensive criminal history dating back to 1999. The majority of the offences on that history were dealt with in the Local Court and included low range shoplifting and larceny, possess prohibited drug, assault occasioning actual bodily harm and destroy or damage property offences. The offender has no similar offence to the current one on her record and there is limited violence on her record. The offender's lengthy criminal record, however, disentitles her here to leniency in this sentencing but is not an aggravating factor.
[7]
Documentary material
In terms of documentary material, I have before me a psychiatrist report from Dr Richard Furst, forensic psychiatrist, dated 20 June 2021. The offender did not give evidence on sentence and have had regard to that fact in assessing the content of Dr Furst's report.
[8]
Family background
In terms of the offender's family background, according to the psychiatric report, she was born in Sydney and grew up in Western New South Wales. The offender has two adult sons from a defacto relationship from her early 20s. Her parents are still alive. According to the psychiatric report the offender suffered foetal distress, suggestive of hypoxia, being a lack of oxygen, prior to her birth. The offender also reported being accidently shot in the thigh by her mother whilst her mother was intoxicated, that being the origin of her issues with chronic pain. The offender also disclosed to Dr Furst being the victim of childhood sexual abuse.
[9]
Education and employment history
Turning to her education and employment history, the offender reported attending Coonabarabran Public School and Bourke High School. The offender reported having learning difficulties, including delays in reading and writing. She was placed in special classes at school and was described by Dr Furst as having "limited capacity for complex/abstract thinking". The offender left school in Year 9.
The offender commenced working in abattoirs, farms and orchards in Western New South Wales. She also reported working as a cleaner. The offender ceased working in 2000 when she was, as I mentioned earlier, accidently shot by her mother, causing her pain and disability. She has been in receipt of the disability support pension from 2002 onwards.
[10]
Substance use
Turning to her use of illicit substances, the psychiatric report notes that the offender smoked cannabis between the ages of 15 and 19 years of age. After moving to Sydney at 21 years of age she began using morphine and later heroin, which she became addicted to. The offender supported her heroin addiction through prostitution. The report also notes that the offender used cocaine from her mid to late-20s, coinciding with a period of homelessness, and began to use methylamphetamines over the last two to three years.
The psychiatrist's report notes that the offender's dependence on opiates and other drugs has been treated through the Kirkton Road Medical Centre since around 2006, including being prescribed and dosed methadone intermittently since around 2012. She states she was previously admitted to a drug and rehabilitation centre in Orange for approximately two weeks in either 2002 or 2003. It is not clear on the evidence before me whether she received any treatment for her use of methylamphetamines. The offender told Dr Furst that she no longer wants to use drugs and was open to further rehabilitation and counselling.
[11]
Psychological/psychiatric history
Turning then to the offender's psychiatric history, the psychiatric report notes that the offender has a history of psychosis and mental instability dating back to around 2002 when the offender was admitted to Westmead Hospital. Dr Furst offered the formal diagnoses of schizophrenia, substance use disorder, borderline personality traits and chronic pain disorder.
Dr Furst expressed the opinion that the offender's mental illness, in particular her schizophrenia, was causally connected to the offending. He noted that the offender had herself presented to St Vincent's Hospital on 17 April 2020 and 20 April 2020 in the context of paranoid thinking, recent drug use and having missed several days of her methadone and other medication. She was managed in the St Vincent's emergency department on 20 April 2020 and admitted to Concord Hospital the following day, 21 April 2020.
She remained at Concord Hospital as a mentally ill person from 21 to 29 April 2020, exhibiting evidence of paranoid delusions in the context of non‑compliance with medication and using cannabis and heroin. She presented with symptoms which included that she was being followed and persecuted.
Dr Furst recorded that upon her discharge from Concord Hospital on 29 April 2020 the offender's symptoms of paranoia had improved but had not completely resolved at that time. That was some four days prior to the commission of the offence and with the benefit of hindsight, it may well be thought that that discharge was premature.
On 4 May 2020 the offender was presented by the police after her arrest for the subject offence to St Vincent's Hospital. A mental health assessment was conducted several hours after the offence, noting that she was agitated. The psychiatric registrar had recorded her admissions to St Vincent's and Concord Hospital in April 2020 and the paranoid delusions she had been recorded as experiencing. The urine sample was shown to contain positive results for a number of non-prescription drugs.
Dr Furst expressed the opinion that the offender's actions in committing the offence were driven by her paranoid delusions, the offender being completely irrational at the time of the offence, believing that the victim was part of a group of people following and persecuting her. Dr Furst considered that the offender's psychotic symptoms had increased over the four days following her release from Concord Hospital on 29 April 2020, due in part to her use of methylamphetamine. Dr Furst further noted the time in custody for her would be more onerous, given her mental illness. His report contains recommendations as to her treatment both while in custody and when released into the community. Clearly, both her mental health and drug use will need to be carefully monitored while she remains in custody and when released into the community.
[12]
Application of De La Rosa
Turning then to the relevance of the offender's mental health to sentencing. The principles in relation to the relevance of a person's mental health to sentencing are well known. They were effectively summarised in DPP (Cth) v De La Rosa [2010] NSWCCA 194:
1. "Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person. The length of the prison term or the conditions under which it is served may be reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an anti-social personality disorder there may be a particular need to give consideration to the protection of the public".
The evidence of the nature of the offence, and the offender's behaviour immediately after it, and the history of the offender's mental health in the days leading up to the offence, together with Dr Furst's opinions expressed in his report establish, on the balance of probabilities, that the offender's mental health contributed to the commission of the offence in a material way. She acted as she did under the delusions that she was then suffering as a consequence of her mental health. The principles in De La Rosa are therefore expressly engaged.
The evidence establishes that the offender was also at the time consuming illicit drugs and this clearly was another fact, in combination with her mental health conditions, which contributed to the commission of the offence. Generally speaking the fact that a person commits an offence under the influence of a prohibited drug is not a mitigating factor.
The interplay between mental health conditions and the taking of prohibited drugs was considered in the recent decision of Moiler v The Queen [2021] NSWCCA 73. That case involved an offender who had significant mental health conditions along with an addiction to alcohol and prohibited drugs. Justice Button, giving the judgment of the Court, noted:
1. "In my opinion care should be taken not to take too prescriptive an approach in a process of instinctive synthesis whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence.
2. It is noteworthy that the first dot point of that oft-quoted paragraph" - (a reference to De La Rosa) - "speaks of material contribution to offending not singular or direct causation of it".
His Honour also said:
"Whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substance is not a mitigating feature on sentence except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other".
I have had regard to Justice Button's comments in that case in considering my approach to the relevance of the offender's mental health to her sentencing here. In my opinion, due to her mental health at the time of the offence, the offender's moral culpability for the offence is substantially reduced. I consider for that reason the sentencing principles of general deterrence and specific deterrence have less of a role to play in this sentence than they otherwise would. Her mental health will make her time in custody more onerous than it would be for someone without those conditions.
I have considered whether her mental health makes her more dangerous to the community and that therefore under the De La Rosa principles a more significant sentence should be imposed in order to properly protect the community. In my view that aspect of those principles is not engaged here.
[13]
Attitude to the offence
Turning then to the offender's attitude to the offence, I note the offender's early plea of guilty. According to Dr Furst's report the offender stated that she often thought about the victim and was still having flashbacks or dreaming about what happened. She stated that she wanted to apologise to the victim and that she was remorseful about what she had done. While those statements have not been tested, because the offender did not give evidence, given the early plea of guilty, I am prepared to accept that she has some genuine remorse for the offence.
The subjective material before me suggests that the offender has had a considerable life of social disadvantage from a very young age. I note in that regard Dr Furst in his report expressed the opinion that:
"It is likely that Ms Martin's emotional dysregulation, maladaptive emotional responses and her long term drug addiction have been driven by those abnormal brain pathways and deficits caused by the effects of long term exposure to trauma, abuse and neglect in her childhood, her teenage years and as an adult".
I have had regard to the principles concerning the relevance of social disadvantage to sentencing discussed by the High Court in Bugmy v The Queen [2013] HCA 37 in arriving at the appropriate sentence. I consider that the offender's moral culpability for the offence is also reduced because of her life of considerable social disadvantage.
[14]
The future and risk of re-offending
The prospects for the offender's rehabilitation are no better than guarded, given her criminal record and her mental health and drug use issues. Dr Furst's report suggests that there is hope that if there are appropriate treatment regimes in place there is some chance of her remaining offence free.
[15]
Imposition of sentence
The offender's plea of guilty was entered in the Local Court and I will allow her a 25% discount of her sentence for the utilitarian value of her plea.
I will make a finding of special circumstances when fixing the non-parole period. It is based on a combination of factors being her mental health, the risk of institutionalisation due to the time she has throughout her life spent in custody, the fact that I am sentencing her during the COVID-19 pandemic and at a time when there have been further outbreaks in the community, no doubt resulting in heightened anxiety amongst the prison population. The public health orders imposed last week, due to their terms, mean that there would, as at this point in time, be no in-person visits to persons in custody resulting in a more arduous custodial environment. It is impossible at this point to know for how much longer those conditions will apply.
The offender has been in custody since 4 May 2020 and I will backdate the sentence to commence from that date.
I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm to the victim and the community and rehabilitation of the offender.
I have explained why in this sentence the principles of general and specific deterrence have less of a role to play than they otherwise would.
Clearly people should be able to go about their daily lives in the community, like the young victim here was doing, without the risk of being the victim of an unprovoked attack with a knife-like instrument to a vulnerable part of the body, however, as I have explained, the sentence I impose here must importantly reflect the principles associated with sentencing an offender with the mental health conditions and background that this offender has.
The maximum penalty and standard non-parole period have been taken into account as legislative guideposts. I have departed from the standard non‑parole period because of the particular features of the offender's subjective case that I have already discussed in some detail.
I have considered the two cases of Elturk v The Queen [2014] NSWCCA 61 and The Queen v Stonestreet [2020] NSWCCA 212 to which I was referred during the hearing. Two cases do not make a range of sentence for an offence, although those two cases provide considerable guidance from the Court of Criminal Appeal as to the approach I should take to this sentence. Sentencing remains individualistic and an instinctive synthesis of a number of factors often pulling in different directions.
The offender is convicted of the offence to which she has pleaded guilty. She is sentenced to a term of imprisonment consisting of a non-parole period of two years and 10 months and a balance of term of two years and 10 months. That is a total sentence of five years and eight months. It commences on 4 May 2020. The non-parole period expires on 3 March 2023 and the total term of the sentence expires on 3 January 2026.
The earliest date that Ms Martin is eligible to be released to parole is the date of the expiry of the non-parole period, which is 3 March 2023. Whether she is in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of her behaviour in prison in determining whether she is released then or on another date.
The sentence is a non-parole of 2 years and 10 months with a balance of term of 2 years and 10 months. A total sentence of 5 years and 8 months commencing on 4 May 2020. The non-parole period expires on 3 March 2023. The total term expires on 3 January 2026.
[16]
1. The offender is convicted of the offence to which she pleaded guilty
2. Impose a sentence of 5 years and 8 months imprisonment with a non-parole period of 2 years and 10 months. The sentence commences 4 May 2020 and expires 3 January 2026. The non-parole period expires 3 March 2023.
[17]
Amendments
06 August 2021 - Added word 'imprisonment' to order (2)
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Decision last updated: 06 August 2021