R v McBride [2017] ACTSC 102

Crimes Act 1900 (ACT) s 20

Crimes (Sentencing) Act 2005 (ACT) ss 6 and 7

Bugmy v R [2013] HCA 37; 249 CLR 571

R v Ayres (unreported, Supreme Court of the ACT, Penfold J, 13 December 2012)

R v Carmody [2016] ACTSC 382

R v Peadon [2015] ACTSC 132

R v Torbert [2015] ACTSC 331

1. On 12 August 2016, the offender pleaded guilty to a charge of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT). The maximum penalty for the offence is imprisonment for thirteen years.

2. On the same day, the matter was committed to this Court from the ACT Magistrates Court for sentence. The commission of the offence put the offender in breach of three suspended sentence orders that had been imposed in the Magistrates Court on 18 February 2016.

3. The following is a summary of the three offences and the sentences imposed:

(a) Common assault: sentence of three months' imprisonment, fully suspended.

(b) Fail to appear: sentence of two months' imprisonment, suspended after serving one week and one day.

(c) Fail to appear: sentence of four months' imprisonment, suspended after serving one week and one day.

4. On 12 April 2016, the offender was in the company of her sister in a kitchen in a residence in Gungahlin in the Australian Capital Territory.

5. Her sister was arguing with one of the offender's nieces. The offender intervened in the argument because she was concerned that her sister was "getting violent" with her daughter.

6. Following the intervention, which included a heated argument, the offender approached the victim with a steak knife. She threatened the victim, saying: "I'm going to kill you". She stabbed the victim in the left side of her abdomen. The victim required admission to hospital, including 24 hours in the Intensive Care Unit to treat a collapsed lung.

7. The victim, fearing for her life, ran away from the offender, taking her daughter with her to a room at the rear of the house. Another daughter ran to a nearby house, where she alerted the resident, who then telephoned the police.

8. When the police arrived, the offender told them: "I stabbed my sister as she was beating her kids up". A short time later, the offender was arrested.

9. Despite her plea of guilty, the offender has persisted in her justification of her actions as being for the protection of family members. She maintains that they were being physically abused. The offender has, however, accepted responsibility for her actions.

10. Any deliberate stabbing of another person with a sharp knife is an offence which must be considered as being serious. Taking into account the background to this offence, and the misplaced motive of protecting a family member, I think that the objective seriousness of what occurred should be regarded as medium.

11. In this regard, the aggravating factors I have taken into account are the offence occurring within a family environment, in the victim's home, and in the presence of children. Whatever the offender's intentions were in respect of the children, they were exposed to a horrific scene.

12. The offender was born in 1993. She is of Aboriginal heritage. She has had a difficult upbringing. She is one of five children. Her upbringing included exposure to domestic violence and alcohol abuse in the home. Her father passed away when she was about four years of age. She was raised mostly by her maternal grandfather. I have taken into account the decision of the High Court in R v Bugmy [2013] HCA 37; 249 CLR 547.

13. The offender started using drugs - cannabis - when she was ten years of age. She soon became a regular user of this drug. When she was sixteen she graduated to the use of methamphetamines and heroin. Her drug use continued, largely unabated, with several admissions to hospital casualty departments.

14. The offender is said to be on good terms with her siblings, notwithstanding this offence. She has a partner but he is currently serving a term of imprisonment.

15. The offender has a diagnosis of borderline personality disorder. She has been involved with ACT Health since 2008. She is currently engaged with treatment regarding her mental and physical health.

16. On 23 December 2015, the ACT Civil and Administrative Tribunal (ACAT) made a determination that the offender does not suffer from a mental impairment. The finding was largely based on two reports of a forensic psychiatrist, Doctor Barker. The ACAT determination notes that the offender's "psychosis is a condition that results from the reaction of her otherwise healthy mind to the stimulus of the drugs she uses".

17. On 28 June 2016, the offender was assessed for entry to the Karralika Therapeutic Community. This organisation runs programs designed to deal with significant drug use. The offender was found suitable for admission into a program, subject to a bed being available.

18. A bed did become available. On 28 September 2016, I granted the offender bail to attend a program at Karralika. It was a condition of the bail that she remained at Karralika and attended all programs as directed. It was the hope of the Court that this would be an opportunity for the offender to make real steps in her rehabilitation.

19. Unfortunately, the offender thought otherwise and left Karralika after about a week. A warrant was issued for her arrest and she returned to custody.

20. I was informed today that the offender is pregnant and is due to give birth in October of this year. This will necessarily occur in prison. I understand arrangements for the care of the child are already in place within the offender's family.

21. In any sentencing exercise, it is necessary to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6, and the purposes of sentencing, as stated in s 7.

22. It is also important to closely examine whether there is a viable alternative to imprisonment, having regard both to the nature of the offence, the requirements for deterrence (both personal and general), the prospects of re-offending and the demands of the community to see that offenders are appropriately punished for serious crimes.

23. The Crown has provided me a list of comparable cases, but acknowledges that none of them are other than roughly comparable. I have considered each of these cases: R v Carmody [2016] ACTSC 382; R v Peadon [2015] ACTSC 132; R v Torbert [2015] ACTSC 331; R v Ayres (unreported, Supreme Court of the ACT, Penfold J, 13 December 2012).

24. This offender has a significant criminal history. In addition to the three matters for which she is in breach of a good behaviour bond, the offender has been 'in trouble with the law' for a long time. Notably, she has received multiple bail and good behaviour orders and has an unsatisfactory record of compliance.

25. In her current circumstances, there is obviously a very high risk of re-offending. Unless this offender overcomes her drug use and learns to deal with her mental health issues, she is unlikely to ever be a contributing member of the community. As related above, she was given an opportunity to begin to deal with her drug issues but she did not take it. In considering the effect of her leaving the program it is important that there is no element of extra punishment. Rehabilitation for a person in the offender's position is not easy and I recognise that there would be a struggle to take advantage of the opportunity.

26. I can see no alternative to a sentence of immediate imprisonment. The offender has spent some time in custody in respect of the primary offence so that any sentence of imprisonment is to commence on 9 October 2016.

27. The offender is entitled to have her plea of guilty taken into account by way of a reduction of her sentence.

28. In respect of the three breach offences, it was submitted that a global sentence of three months' imprisonment, with a degree of accumulation, would be appropriate. I agree.

29. I have applied an approximately 20 per cent discount for the plea of guilty.

(a) For the offence of recklessly inflicting grievous bodily harm, the offender is sentenced to a term of imprisonment of three years, commencing on 9 October 2016 and ending on 8 October 2019.

(b) For each of the breach offences, the offender is sentenced to a term of imprisonment of three months. Each of the three sentences is to be served concurrently with each other but are to commence on 8 August 2019 and end on 7 November 2019.

(c) The aggregate head sentence is three years and one month, to end on 7 November 2019.

(d) A Non Parole Period is set to commence on 9 October 2016 and expire on 8 June 2018.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.