R v Naquita Heaki

District Court of NSW|2021-06-04

REMARKS ON SENTENCE

The offender is to be sentenced for one count of reckless grievous bodily harm in company pursuant to s 35(1) of the Crimes Act 1900 for an offence that occurred on 26 April 2020. The maximum penalty for the offence is 14 years imprisonment and there is a standard non-parole period of 5 years imprisonment.
A related offence pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 is sequence 2, destroy or damage property less than $2000. The maximum penalty for that offence is two years imprisonment and/or a fine of 20 penalty units.

The sentence hearing

The sentence hearing took place on 4 June 2021. The Crown sentence summary became Ex A, and it included an agreed statement of facts which may be summarised as follows.
The offender and her husband lived in premises at Hurstville with their three children aged between four and nine years of age. On the evening of Saturday 25 April 2020 the offender's sister, Eryka Hakaraia arrived to babysit the three children overnight.
The next morning the offender and co-offender returned home. At approximately 9am, Eryka observed the offender to be in an agitated state. The offender told Eryka that the co-offender was concerned that something had happened to their friend Astrid and that they were trying to contact Astrid but that she was not responding. Thereafter, Eryka observed both the offender and co-offender to engage in manic behaviour and discuss an unknown male person who they thought had hurt their friend Astrid. The offender described their car which was parked outside their home as a crime scene and when Eryka asked "what's going on?" the offender said "we think our friend T is dead in the car".
The offender started to walk towards their white vehicle which was parked in front of their property. The co-offender told her not to touch the car as it was a crime scene. He then opened the doors of the car and the boot and removed items from it. While he was doing that, the offender was hysterical and yelling, "call the cops, call the cops".
Eryka called 000 at 9.24am and told the operator that the offender and co-offender had woken up from a night out and "they were freaking out, thinking their vehicle is a crime scene".
What then occurred was a series of illogical and nonsensical conversations between the offender and co-offender in the front children's bedroom in the home, which were partly recorded by Eryka on her mobile phone at approximately 9.42am. The recording became part of Ex C, one of three videos played to the court during the sentence hearing. The video taken by Eryka was the first played; it was taken inside the front bedroom of the premises looking out onto the front yard and street, and demonstrated manic behaviour and unintelligible conversation taking place between the offender and co-offender. The video was 10 minutes in duration.
At approximately 9.50am on Sunday 26 April 2020 the victim was walking east along the footpath outside the offender's home. The offender said, "Is that him, is that him, is that him?" The co-offender replied, "Yeah, that's him." The offender said "How did he get there? How did he get there?" The co-offender said "He went around there." Eryka said "That's not" The offender said "Ngia don't, Ngia don't, Ngia don't"
The female victim was wearing headphones and did not hear the co-offender screaming at her. He ran out of the residence and chased her down the footpath followed by the offender and Eryka.
The second video comprising Ex C showed a violent attack by the co-offender on the victim on the footpath in which he grabbed the back of the victim's hair causing her immediate pain and part of her hair being pulled out. She fell backwards hitting her head on the concrete footpath. The attack was recorded on the video of two minutes duration. It was taken from a neighbouring property.
During the attack the co-offender said to the victim, "I know you, motherfucker." The victim said "I don't know" and screamed "police" and "help" several times.
The offender screamed "You killed our friend" and the victim said "what is going on, I don't know this guy, help, please".
The offender then said "Do her, your mum's down there, don't lie" and the victim said "help me". The co-offender then spoke in the Tongan language and the offender said to the victim, "You liar".
The co-offender punched the victim with a closed fist several times to the left side of her face and said to her, "Why did you kill my friend?" The victim blacked out momentarily and as she gained consciousness, the co-offender dragged her by her hair a distance of approximately 10 metres. The victim was screaming "Help, help". She could feel her hair being pulled out and the co-offender said, "What the fuck is that you've got my fucken phone, here get the phone." Whilst the victim was screaming for help, the offender then said "Ngia, here". The co-offender then said, "This is Astrid's phone, this is not her phone".
The offender then picked up the victim's property including her phone, sunglasses, shopping bag and grey cardigan. The offender walked back and showed the co-offender the victim's mobile phone and said to him, "That's your phone." The co-offender then, still having hold of the victim's hair, forced her head into a waist-high brick wall a number of times. At this point, Eryka recorded a two second video in which that attack was shown with the co-offender pulling the victim by her hair.
The co-offender then said, "This is him dressed up and this is your mum across the road, don't think I didn't see her." The offender then ran behind the co-offender and said "look at her shoes."
Shortly after the attack, the offender picked up the victim's headphones. She said to Eryka, "Are the cops on the way? Call the cops." Eryka then made a second call to 000 and told the operator that she had already called before and she needed the police as "my brother-in-law was attacking someone."
During the attack, the victim tried to press a button on her Apple Watch to activate Siri and contact police. She said into her watch, "Call police." At that point the co-offender started screaming and ripped the watch off her wrist, throwing it to the ground, shattering the screen and separating the watch clip from the watch strap.
The co-offender then started to smash the victim's face repeatedly into the window of a parked car by holding her hair. Whilst the victim tried to kick back with her legs, she could not stop him.
While still holding the back of her hair, the co-offender then stood the victim up and said, "You're going to pay for killing my friend." The victim stated that she continued to black out. She was on the ground with her back leaning against a brick wall and the co-offender pulled her legs in the air. While standing over her, the co-offender took a ring off his finger and said, "You know what this means, I'm going to shove this ring up your ass." The victim blacked out and when she came-to, she still had her legs in the air.
The offender then went to the kitchen of their home and picked up a large silver-plated kitchen knife and a hammer. She returned to the footpath and handed the co-offender the kitchen knife and hammer. The co-offender held the knife in his right hand as he was holding the victim by the back of the hair with his left hand. He moved the knife up and down the victim's right leg so that she could feel the blade through her leggings. The co-offender said, "I'm going to assassinate you now." The victim using her right hand tried to push the knife away from her body, cutting her middle finger. The co-offender lifted the victim to her knees and placed her head between his legs facing downwards to the concrete footpath. The offender screamed, "Kill her! Do it!"
The victim thought to herself, "Just kill me". She then felt the co-offender get off her and she saw the police.
A witness observed the co-offender kick the victim to her body as she lay on the ground. Another witness saw the victim curl into a ball to protect herself and saw the co-offender hold a silver object directly in front of the victim's face. The co-offender was observed to pull her head back by the hand holding her hair and punch her with the fist of the hand holding the silver object. The co-offender then pointed the silver object back into the face of the victim.
At 10.02am the police arrived and saw the co-offender standing over the victim. The offender said to police, "Oh good, you're here, she killed two people."
Police observed a large kitchen knife and hammer on the ground within a metre of the victim and the co-offender. Police observed the offender to be erratic and rambling about "Astrid being in the car". She was placed under arrest and cautioned.
The agreed facts are that the victim had visible injuries to her face, hands and knees at the scene of the assault. Her face was swollen, specifically her lips and cheeks. Her lip was bleeding and her hands and elbows were grazed and bleeding. The victim was taken to hospital for treatment and was admitted for six days. In addition to the above injuries, she suffered fractures to the fifth and sixth left ribs which did not require medical intervention. She also suffered the following injuries to her upper-front teeth:

A fracture of the enamel and dentine (second layer of the tooth) to the upper-left permanent central incisor with a chipped piece of tooth. The fracture was classed as a medium rather than severe fracture.
Tooth 11 required root-canal therapy.
The victim is required to wear a splint (mouth guard) to prevent further trauma to her front teeth.

An expert opined that the long-term prognosis of both front upper-teeth was found to be guarded due to the possibility of root resorption, extraction and further implant placement.
Whilst the victim was at hospital and about to undergo scans, a silver ring was located within her underwear. That ring belonged to the co-offender.
Following discharge from hospital and as at 13 May 2020, the victim still needed help from her family to do daily tasks for example showering and eating.
Following her arrest, the offender was assessed due to her disturbed mental state. She was scheduled to the mental health unit at St George Hospital and underwent blood and urine testing which returned positive for amphetamine and cannabis.
On psychiatric assessment, the offender reported appearing erratic, not making sense and experiencing visual hallucinations with delusions of a referential and persecutory nature. She reported some perceptual disturbance in which she and her husband had become concerned that two of their friends had been murdered as part of a criminal conspiracy. This belief had intensified over the preceding days and on the morning of the offence the offender believed that they had observed a person who they believed was involved in the murder in the street outside their accommodation.
The clinical impression was of drug-induced psychosis, with a differential diagnosis of acute amphetamine intoxication. The offender "displayed signs and symptoms of mental illness… with associated risk of harm to others, misadventure as a result of her delusional beliefs, lack of insight and an associated level of fearfulness. There are also risks of untreated psychosis."
The offender was released from the mental health unit on 28 April 2020 into police custody. She participated in an electronically recorded interview and made the following admissions to police: 1. The previous evening before the offence she and her husband smoked some marijuana however she did not think it was marijuana because she did not feel herself at all. 2. The co-offender started to think that something had happened to his friends and she formed a belief that what he was saying was true, that his friends had gone missing, that they had been killed and that someone was disguising themselves and trying to frame her husband. 3. When her husband could not contact their friend Astrid, she started believing him. 4. She told her husband there was a Filipino guy staying at Astrid's house and that he knew what was going on. Her husband had a delusion about the Filipino man killing someone and blaming it on someone else, putting the bodies in their car. 5. The offender stated she thought it was the truth but said she thought that she was on something more than marijuana that night. 6. She told police she'd never been like that in her life on marijuana and it was possible that she had consumed some other kind of drug. 7. She told police a girl walked past and her husband thought it was a person in disguise. She grabbed her phone and her husband went outside and said, "That's you". The victim started running and he tackled her and assaulted her. 8. She told police that when her husband grabbed the victim's things, she told him to stop and that he said something and then she thought he was right so she ran back and grabbed the stuff on the ground, which she thought was her friend's stuff. 9. Her husband was asking the victim, "Who are you? Why did you do this to our friends?" And she was saying, "Why did you do this, why did you do this?" 10. She told police that her husband said there was a tracker in the victim's watch and her husband told her to get something to cut the watch off so she grabbed the knife and hammer. She dropped the hammer on the side and her husband then cut the tracker off and smashed it on the ground with his foot and then police arrived. 11. She agreed that the co-offender hit the victim "a few times". 12. When asked what the co-offender was going to do to her she said, "Oh, I, I just know that he wanted her there, so that the police could get her and then not blame him for the murders of the two people that he thought were dead… If I don't do this now then I'll be charged with the murder of them, 'cos I'm the one with the car. So he just wanted this person to be caught by the police, so he wouldn't be caught by the police." 13. She told police her actions were not reasonable and that she remembered her husband saying that someone random was going to walk past and then the victim was the first one to walk past and so she told him to "wait and see" but he took off out the door and ran after the victim. 14. When asked if the victim had tried to run away at any stage, the offender said, "She tried to pull away a couple of times… he just, he just held, held her down and told her to stay there and wait." 15. When asked what she did when the victim screamed "help me", the offender said, "I didn't do anything. 'Cos I… I believed my husband that she might have been the person that did this, I just wanted the cops to come and sort it all out… I wanted her to stay there. So that the cops could sort the problem out if this was the person that done the damage to the, to our friends, and they will be caught." 16. She told police that she didn't know the person and that she was "sorry for it all".

The offender's evidence

The offender tendered a bundle of documents which became Ex 1.1 - 1.12.
Ex 1.1 was a report from Ms N Jelen, social worker, dated 6 May 2021. Ms Jelen set out the offender's family and developmental background. It included a history of sexual assault by a male family friend which started when she was 11 years of age and continued over a number of years. This became known to her family later when she was a young woman and her family were supportive. No police action was taken as the perpetrator was dying of cancer. She attended sexual assault counselling which did not help alleviate her shame or anxiety over the abuse however the use of cannabis she found far more effective in helping to ameliorate her emotional distress.
The offender left school after obtaining the equivalent of the School Certificate and attended vocational training. She left home at the age of 16 years and was living independently. At 18 years, she travelled to Australia with her then partner however the relationship ended within a number of months and she eventually returned to New Zealand when her paternal grandmother became unwell. It was at this time that she met her husband, Tongia Heaki. They married after three years and following the birth of her son Xxavier on 28 September 2010 she began to abuse alcohol. The author reported that the offender believed the trauma she suffered as a victim of childhood sexual assault has never resolved and was a causal reason for her alcohol abuse. This placed considerable pressure on her marriage. The home situation deteriorated, resulting in a domestic violence incident in which she was hospitalised and they separated for a period of three months. Her husband attended anger management counselling and they participated in relationship counselling. She reconciled with her husband and two more children were born: Zerrenitee, born 25 January 2012 and Kaedyn, born 24 September 2015. They were also able to establish their own business however after two years they had to close it. Her husband then attained work in Sydney on the Light Rail and they decided to relocate to Sydney in 2018. The offender's parents were already living and working in Sydney and her maternal grandmother followed in July 2019.
Under the heading "Drug and Mental Health History", the author noted the offender used cannabis from age 15 years and became a regular user until 2017. She had stopped all use by 2018.
Following the incident offence, the offender's three children were taken into care and they were subsequently placed into the care of their maternal grandparents. A guardianship order was made on 28 January 2021 until the three children reach the age of 18 years. The author noted the opinion of Dr A Martin, forensic psychiatrist, that the offender had experienced a brief psychotic disorder precipitated by substance abuse (cannabis and methamphetamine) that led to the offending conduct. The author also recounted the information provided to her by Christina Perez, clinical psychologist, who had treated the offender since November 2020. She also set out in detail information provided by the offender's mother as to her family and developmental history.
In respect of the offending conduct on 26 April 2020, the offender acknowledged her toxicology screen was positive for cannabis and amphetamine. She admitted to the use of cannabis and understood she experienced a drug-induced psychosis during which she started to believe what her husband was saying and thought there was a person outside their home who was a man disguised as a woman. The offender had never had the intention of hurting the victim and had called the police for help. She told the social worker that the situation spiralled out of control before the police arrived.
The offender expressed genuine regret for the harm caused to the victim. She was also mindful of the emotional trauma her actions had caused her three children.
Ms Jelen set out the progress the offender had made with her rehabilitation. On release from jail in September 2020, she quickly secured employment, commenced therapy with Ms Perez and had complied with her bail undertakings. She now has full-time employment, is living independently and is financially responsible for herself. She had remained substance-free which is evidenced by negative urine testing. She had also completed an online parenting program and returned to attending her church. It was the opinion of Ms Jelen that she would do well if placed under supervision and direction of Community Corrections.
Ex 1.2 is the report of Dr Martin dated 1 September 2020. He took a detailed personal and medical history from the offender. It was the opinion of Dr Martin that the offender experienced a brief psychotic disorder precipitated by cannabis and methamphetamine which led to the offending. She was not currently psychotic, nor did she suffer any major mental illness. He noted that she contended that she had not voluntarily consumed methamphetamine. He then provided an opinion as to the prospects of relying on the defence of mental illness which is irrelevant for sentencing purposes.
Ex 1.3 was a report from Christina Perez, clinical psychologist, dated 26 May 2021. It set out the history of the offender who first began seeing Ms Perez in November 2020. At that time, the offender had significant anxiety and depression but no signs of psychosis or other thought disorder. She had progressed in her therapy and Ms Perez opined that she was concerned that if the offender was incarcerated it would have a significant adverse impact on her mental health and that of her children. She stated: "She is now focused exclusively on her children's welfare, making amends for the harm she has inflicted on the victim and learning more about how to process her own trauma and the impacts it has on her wellbeing and her relationships. I do not believe she is at risk to the community or at risk of repeating the offence. She has demonstrated significant insight and great remorse and accepts responsibility for her part in the incident. She has worked hard to understand the impacts of her psychosis during that time and was open and receptive to feedback and challenges regarding her recollection of events that day and prior. Naquita is very well engaged in therapy and I am confident she will continue to improve given the opportunity to remain in the community."
Ex 1.4 were extensive clinical records from the St George Hospital relating to the admission of the offender following the offence on 26 April 2020. The complete clinical notes were tendered for more abundant caution however the offender placed particular reliance on the admission documents relating to the offender being scheduled on 26 April 2020 confirming that she was then a mentally ill person, and the documents relating to her discharge which set out the psychiatric, drug and alcohol, forensic and family history. Following mental state examination on discharge she was found to have no ongoing paranoia of persecution and she was discharged into police custody.
Ex 1.5 were four urinalysis tests conducted on 4, 6, 18 November 2020 and 2 December 2020 each of which had negative results for cannabis and amphetamines.
Ex 1.6 was an affidavit of Denise Hakaraia, the offender's mother. She was not required for cross-examination and her affidavit set out the offender's family history, the guardianship of the offender's three children which she and her husband were granted on 28 January 2021 and the progress the offender has made in her rehabilitation since being granted bail. As set out above, she has been able to secure full-time employment, separate accommodation and has engaged in parenting courses.
Mrs Hakaraia also deposed to the impact of the offending on the offender's three children as well as the role that she now plays in their life. Mrs Hakaraia opines that the offender has been able to prove that she is still a very capable and caring mother.
Ex 1.7 is a letter from the offender to the victim setting out her remorse for the pain and suffering caused to her. It also attaches a number of certificates she has obtained.
Ex 1.9 is a copy of the final care order made in respect to the offender's three children on 28 January 2021.
Ex 1.10 comprises a number of certificates for courses completed by the offender.
Ex 1.11 is the amended care plan relating to the offender's three children dated 22 December 2020.
Ex 1.12 is the employment agreement dated 26 March 2021 relating to the offender's present employment as a customer service officer.

The offender's oral evidence

The offender gave evidence that the histories contained in the reports of Ms Jelen, Dr Martin and Ms Perez were true and correct. She had heard the Victim Impact Statement read in court and was asked how she felt about the victim. She gave evidence that she was really sorry for what she did, not just for the physical injuries but also for the other trauma which will be with the victim for a long time. She gave evidence that she wished she could take it back. When asked how she would feel if it had happened to one of her own family, she said she would be angry but sad and would have so many emotions.
The offender confirmed that she had told the various report writers that she had an ongoing drug problem. She had been consuming cannabis since age 15 and later on abused alcohol. She now had an insight as reported by Ms Perez through her counselling, that her drug abuse was a way of dealing with her past, especially the sexual assaults she had suffered as a young person.
The offender gave evidence that when she and her husband came to Australia in 2018, it was to be a fresh start for her family. She and her family settled her children in local schools. They were staying with family. She found it really hard to stop cannabis use and relapsed after a few months. However, she did not return to daily use but only used cannabis when she was stressed until the COVID-19 pandemic in March 2020. Her husband then became unemployed and she started to use daily. She had never consumed methamphetamine or ice before. She gave evidence that she was in shock when told of the positive return for testing of methamphetamine at the St George Hospital.
The offender gave evidence that when she attended with her husband at the home of their friend Astrid, she didn't know that there would be drugs there. She was offered a joint and assumed it was marijuana. No one told her otherwise. When asked what the impact of smoking the joint was on her, she said she felt she was "glitching" or "missing out points", meaning "being in a movie when it skips". She gave evidence that she did not feel it was reality and as a long time user of cannabis she had never felt like this before. Her use of cannabis usually made her drowsy or tired and she had experienced paranoia on cannabis before but this was completely different. She described a fear that she was not in control of herself and couldn't keep control of it.
When she and her husband got home, she continued to feel the same way. Suddenly it was daylight and she could not recall sleeping that night.
The offender was asked about the circumstances of the offending on the morning of 26 April 2020 when her sister was present at her home. She was asked why she offended and gave evidence that it was because "we thought something had happened to our friends". Her husband thought the vehicle was a crime scene and that Astrid's partner had been killed somewhere. She gave evidence that for four days her husband had been talking about conversations and phone calls with Astrid. She believed this was part of the psychosis which started on the morning of the offence. When she first felt paranoia, her husband started explaining what was going on and she thought what he was saying was true.
The offender gave evidence that when she was taken into custody it was the first time she had been separated from her children. When asked how she coped, she said it was very difficult. She had since withdrawn from cannabis and as she was a heavy smoker she had also found it extremely difficult not being able to smoke. She had however withdrawn from cannabis and had not consumed drugs whilst in custody.
On her release on bail she had undergone four drug screens in November and December 2020 where no drugs were detected. This was done through Family and Community Services as part of a plan to eventually have her children returned to her. She had also had access visits to her children outside the family's home. She was hoping for restoration of the children to her and as a result had remained drug-free for the longest period in her life since she was 15 years of age.
The offender gave evidence that she now felt excellent. She had the support of her psychologist Ms Perez who she could contact urgently by email or text-message if required. Otherwise she had fortnightly appointments.
The offender also gave evidence that she had the support of her extended family, both in Australia and New Zealand and was able to talk to her husband who was in custody.
The offender gave evidence that her trauma counselling was the first time she had been able to deal with anxiety and depression and she had learned to take better steps. She was now in full-time permanent employment as a customer service operator and she outlined her duties. She also had her own place and she gave evidence that she wants to be a family again. Her greatest motivation in life was to get her children back.
In cross-examination the offender gave evidence that she understood cannabis could cause paranoia but was not aware that ice would have that effect. Taking prohibited drugs was not part of her family belief system at the time of the offending.
She confirmed that on 25 April 2020, prior to the offence, her husband had expressed concerns about being set up for murder. The offender was asked whether she had read the medical material tendered on her behalf. She gave evidence that the history of presenting problems recorded in Ex 1.4 all emanated from the psychosis she was suffering that day.
The offender gave evidence that she consumed cannabis in the company of her husband on 25 April 2020. She knew there were others present consuming prohibited drugs however she was not aware of ice on the premises.
The offender was asked about the video evidence of the offending. She heard herself speaking to the co-offender but couldn't see what he was seeing at the time when they were both looking out the front window at the premises.
Finally, it was put to the offender that she was more concerned about the impact of the offending on her children than on the victim. She gave evidence that she was concerned for "both of them", being the victim and her children.

The Crown submissions

The Crown relied on a detailed written outline of submissions noting that the offender was born on 19 February 1989 and is currently 32 years old. She was 31 years of age when the offences were committed. The offender was arrested on 26 April 2020 and was in custody until being released on conditional bail on 16 September 2021, a period of 144 days.
The Crown set out general principles of sentencing emphasising the importance of deterrence in cases involving violence on the streets and in particular unprovoked attacks on people going about their ordinary business. The degree of violence used or ferocity of attack is a material consideration on sentence even if the consequences of the attack on the victim are minimal. The Crown submitted the fact that an offence is unprovoked and unjustified is a matter to be taken into account when assessing the objective seriousness. It was further submitted that there was no principle that requires or mandates the nature of the injuries sustained to be a determining factor in the assessment of objective seriousness for an offence pursuant to s 35. In some cases it will be the most significant factor, although there are other matters which may impact on that assessment (referring to Waterfall v R [2019] NSWCCA 281 at [33]).
The Crown submitted that whilst the offence was not planned and did involve a degree of impulsivity, the violence perpetrated on the victim was not unintended in a prolonged and ferocious attack. The offending occurred around 10am on a Sunday, on a footpath in a public suburban street and was perpetrated on the victim merely because she had the misfortune to be walking past the offender's home at a point in time when the offender and co-offender were looking out their front window. The Crown submitted that the co-offender engaged in a deliberate unsolicited assault upon the victim which continued for around 10 minutes, during which period the victim blacked out on two occasions. A significant degree of force was applied on multiple occasions whilst the victim was screaming out for help and also that she did not know either offender. The co-offender had the greater role in the physical assault upon the victim although he was encouraged by the offender who presented him with both a knife and hammer during the attack, and incited him to kill the victim. The assault only ceased when the police arrived, at which point the victim was between the co-offender's legs.
The Crown submitted that the injuries suffered by the victim were an important factor in assessing the objective seriousness of the offending. Here, it was submitted that the victim suffered the following injuries:

Visible injuries to her face, hands and knees,
A cut to her index finger, consistent with the knife blade pressing against it,
Bleeding lips,
Grazes,
Two left rib fractures,
Trauma to her teeth as outlined above and,
Further mental and physical sequelae as outlined in the Victim Impact Statement referred to below.

The Crown submitted that the offence was properly characterised as a very serious example of reckless GBH and an offence of very considerable objective seriousness, falling above the middle of the range for this type of offence.
The Crown submitted an aggravating feature of the offending pursuant to s 21A(2)(c) was that the offence involved the actual or threatened use of a weapon.
It was submitted that the court was entitled to have regard to the significant harm caused to the victim as outlined in her Victim Impact Statement.
The Crown conceded that the offender was entitled to a 25% discount for her early plea of guilty. Although the plea may be some evidence of contrition, it may also have been the inevitable response to a strong Crown case.
The Crown noted that the offender had no criminal antecedents which could be taken into account as mitigation.
The Crown submitted that self-induced intoxication, whether by drugs or alcohol, was not a matter of mitigation. Rather, the use of drugs involved a personal choice for which an offender should take responsibility, referring to R v Rhodes [2017] NSWSC 694.
The Crown submitted that issues concerning parity are central to the sentencing of the offender because the facts of the offending make out a common criminal enterprise. Parity does not require that co-offenders receive the same sentence because they were involved in the same conduct. The Crown submitted disparity may be explained by differences in finding of fact, and different findings of respective culpabilities relying on R v Chandler; Chandler v R [2012] NSWCCA 135. In this joint criminal enterprise, the Crown submitted that the level of criminality was similar for both offenders who should receive similar sentences. Although they had different roles, their culpability was not that different from each other.
In conclusion, the Crown submitted that the subjective features of the offending should not outweigh the objective circumstances of the case. Along with general deterrence, specific deterrence was important to send a strong message to the community that this type of criminal conduct will not be tolerated. The s 5 threshold had been crossed and there was no alternative other than a full-time custodial sentence.
In her oral submissions, the Crown rehearsed her submissions relating to self-induced intoxication not being a mitigating factor.

The offender's submissions

The offender also relied on a thorough and detailed written outline of submissions setting out general principles relating to fact-finding and sentencing which were not controversial. They included submissions as to the availability of an Intensive Correction Order as an option in the event that a custodial order is made.
Counsel for the offender noted that the offender's sister had on the morning of the offence observed the co-offender's behaviour as manic and the offender to be "freaking out". She submitted that the facts disclose "a level of bizarre and highly paranoid conduct on behalf of the offender". The offender was seen to be pacing inside the house and discussing the whereabouts of Astrid. Upon the co-offender leaving the house, the offender followed and after looking inside a car parked outside the house said, "We think our friend T is dead in the car". After inspecting the car, the offender said to her sister, "Call the cops". It was submitted that from that point the offender acted on a belief that the victim was in fact a male or a female dressed in male clothing. The offender relied on the opinion of Dr Martin that she was experiencing a brief psychotic disorder at the time of the offence. Upon admission to St George Hospital, she presented with a drug-induced psychosis which Dr Martin opined was a secondary psychosis, namely a "folie a deux" originating from her husband. This meant that she shared paranoid beliefs with her husband.
With respect to the assessment of the objective seriousness, counsel submitted that a variety of factors are relevant to that assessment for an offence pursuant to s 35 of the Crimes Act. The offence is principally a result offence, meaning, the objective seriousness will significantly depend upon the seriousness of the wounding or infliction of grievous bodily harm. I.e. the more serious the harm inflicted, the more serious the offence, relying on McCullough v R [2009] NSWCCA 94 at [37]. Counsel submitted that whilst the nature of the injuries sustained is a factor to be weighed in determining the seriousness of the offending it is not always a determinative factor, relying on Waterfall v R [2019] NSWCCA 28.
Counsel submitted that the injuries to the victim's teeth, whilst constituting grievous bodily harm, sit below the mid-range of injuries contemplated by the offence category. The following factors are also relevant in determination of the seriousness of the offence: "A. The assault was not initiated by the offender; B. The offender was, at the time of the offence, in an acute episode of psychosis; C. The co-offender's violence occasioned the injuries to the victim; D. There was no premeditation or planning on behalf of the offender; E. The injuries sustained to the upper-left permanent central incisor was a medium rather than a severe injury; F. The fractures sustained to the two left ribs (fifth and sixth) did not require further intervention."
It was submitted when considering all of those features, the offending fell below the mid-range of objective seriousness for an offence pursuant to s 35. Further, there was significant distinction in relation to the role played by each of the offender and co-offender including the infliction of injury. Thus it was submitted that the moral culpability of the offender is significantly lower than that of her co-offender.
Counsel referred to Brown v R [2020] NSWCCA 132 as to the differentiation in roles played by offenders in a joint criminal enterprise. In that case, Harrison J, reviewed the authorities which included the following statement from KR v R [2012] NSWCCA 32 per Latham J at [19]: "What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct."
Counsel for the offender advocated the following mitigating features pursuant to s 21A(3) of the CSPA: (e) The offender has no significant record of previous convictions; (f) The offender is a person of good character; (g) The offender is unlikely to reoffend; (h) The offender has excellent prospects of rehabilitation; (i) The offender has demonstrated remorse; (k) The offender has pleaded guilty Counsel submitted that the offender was entitled to a 25% discount for the utilitarian value of her plea.
Counsel submitted there were significant subjective factors to be taken into account. The offender had a long history of depression and anxiety for which she was currently receiving treatment for in the community. She was exposed to childhood trauma as a result of sexual assaults which commenced when she was 11 years old and took place over a number of years. This led to her developing maladaptive coping strategies and being reliant on cannabis and alcohol from the age of 15 years. Following the offence, the offender was detained at St George Hospital as a mentally ill person. Counsel rehearsed the delusional episodes which led to the offending. The St George Hospital records supported the findings made by Dr Martin that she was suffering from a drug-induced psychosis primarily with subsequent secondary psychosis i.e. folie a deux originating from her husband. Counsel referred to the well-known principles to be applied in such cases as adumbrated by McClellan CJ at in DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194, including that it diminished the importance of general deterrence, which was also recognised in Muldrock v The Queen (2011) 224 CLR 120; [2011] HCA 39 at [53].
It was submitted that on the evidence a court would be comfortably satisfied that there was a direct nexus between the offender's acute mental health condition at the time of the offending and the commission of the offence. As such, it was submitted that the offender's level of moral culpability was significantly decreased by virtue of the psychotic episode and a high degree of moderation is required in relation to the weight given by the court to both general and specific deterrence in sentencing.
Counsel outlined the considerable progress made by the offender in her rehabilitation, both in custody and since she was released on bail. Counsel relied on Ms Perez's opinion that the offender's actions were best understood "within the context of being a one-off event due to the offender being mentally unwell and for her intentions being to protect both herself and her husband, not to inflict harm on the victim."
It was submitted that the offender had consistently accepted responsibility and had expressed insight, regret and remorse for the harm caused and has expressed concern for the victim.
It was submitted that the court could take into account, in assessing the objective criminality of the offence, the offender's high level of intoxication in two ways. First, it was indicative of the offence being unplanned and impulsive in nature. Secondly, it is evidence that her judgment was impaired and her ability to think rationally was significantly reduced, relying on Waters v R [2007] NSWCCA 209 per James J at [38].
It was submitted that the offender remains motivated to address her drug use and remains drug free. Further, she has displayed a significant degree of insight into the underlying causes of her offending. Her rehabilitation should be seen as closely connected to the aim in sentencing of protection of the community and thus it should feature large in the sentencing exercise.
Counsel submitted that the hardship caused to the three children of the offender and co-offender cannot be ignored as a relevant factor in sentencing. It is conceded that the offender's case does not meet the case of exceptional hardship established in R v Edwards (1996) 90 A Crim R 510 at 516. However, the hardship caused to the children it was submitted could be taken into account as one subjective circumstance in assessing the appropriate penalty namely that innocent children will be adversely affected by the imprisonment of their parents.
Counsel also referred to R v Tuhakaraina [2016] NSWCCA 81 to submit that family hardship falling short of exceptional circumstances may still be held to be a matter constituting a basis for a finding of special circumstances pursuant to s 44(2) of the CSPA.
Counsel referred to general principles of parity which are well established in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 and Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. Here, it was submitted that a degree of disparity could be justified as the offender's role could be distinguished from that of her co-offender to a significant degree and on the basis that she is a person of previous good character, unlike her co-offender. Finally, it was submitted that the court would make a finding of special circumstances as this would be the offender's first sentence of imprisonment, and she is vulnerable given her ongoing mental health condition.
In her oral submissions, counsel for the offender rehearsed her advocacy for the imposition of an Intensive Correction Order rather than a custodial sentence. She submitted that the offender's rehabilitation was best achieved by her being able to complete a treatment plan with Ms Perez by which she was dealing with all of the underlying issues concerning her drug and alcohol dependency and underlying depression and anxiety. Further, the offender was in full-time employment. It was submitted that the offender has good prospects of rehabilitation and any risk of recidivism is low.
Counsel rehearsed her submissions regarding the objective seriousness of the offending. It was acknowledged that the injuries to the victim's teeth constituted grievous bodily harm and the injuries had had a devastating effect on the victim. However, it was submitted that that does not elevate the objective seriousness of the offending. Relevant factors to be taken into the account was that the offending was unprovoked, the ferocity of the offending and the use of a weapon. It was submitted that here, the objective seriousness was below mid-range. The aggravating factor of being in company namely, there were two people involved, does not mean that the objective seriousness should sit above the mid-range level.
In assessing the moral culpability of the offender, the agreed facts establish that there was no evidence that she perpetrated any direct physical violence towards the victim. This distinguished her role in the joint criminal enterprise from that of the co-offender. She was however present and encouraged and assisted the co-offender by provision of the knife and hammer. There was however no actual significant violence perpetrated by the offender.
Counsel rehearsed her submission that there were significant differences in the role of the offender and co-offender. It was submitted that this disparity gave rise to sentencing options.
It was submitted that if the court was satisfied of Dr Martin's diagnosis then the offender shared delusions with her husband at the time of the offence. This would allow the moral culpability of the offender to be reduced and also diminish the need for general and specific deterrence.
With respect to the consumption of ice, it was submitted that there was no material which satisfied beyond reasonable doubt that the offender had voluntarily consumed ice. If it was not voluntary consumption of ice, then the court could find that there was a folie a deux if the offender only voluntarily consumed cannabis. It would be different if she knowingly consumed ice, a drug which is notorious for persons consuming it to suffer psychosis and perpetrate violence in the community. Thus, if the court accepted the offender as a truthful witness, she should be sentenced in a different fashion from the co-offender. Three factors led to the disparity advocated: 1. The offender had no criminal record and was a person of good character 2. The evidence established that the offender did not knowingly consume ice and there was evidence to support a folie a deux with her husband 3. Her role was significantly less than that of her husband
Counsel rehearsed her submissions as to the evidence of hardship to the offender's family, acknowledging that it was not an exceptional case but that the impact on the offender's children could be taken into account as a subjective feature. The affidavit evidence of the offender's mother was not challenged by the Crown and should be accepted by the Court.
Further, the offender acknowledged the Victim Impact Statement and the consequences for the victim however it was noted that the Victim Impact Statement was not relied on by the Crown as an aggravating feature as amounting to substantial harm. Part of the victim's recall of what occurred was not consistent with the agreed facts, however the medical evidence was consistent with the injuries suffered by the victim to her teeth and the ongoing sequelae.
With respect to the offender's prospects of rehabilitation, it was submitted by the offender that the offender's transformation since being granted parole was nothing short of miraculous. She was now drug free, had commenced full-time employment and was now highly motivated to resume custody of her children. This amounted to a powerful combination of factors which would lead the court to find she had good prospects of rehabilitation and was a low risk of recidivism. Further, the Sentencing Assessment Report had noted that she was suitable for community service.

Determination

Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
In assessing the objective seriousness of the offence pursuant to s 35 of the Crimes Act the nature of the attack and surrounding circumstances are highly relevant, as is the severity of the injuries suffered by the victim. I have outlined the nature of the attack and surrounding circumstances in my remarks in sentencing the co-offender. I accept the submission made on behalf of the offender here that the assault was not initiated by the offender nor were the injuries physically occasioned by her. Notwithstanding that she is being sentenced having been involved in a joint criminal enterprise, the objective seriousness of her offending must take into account the role she played, which was in this case was significantly different from that of the co-offender's role. The evidence establishes that the assault was initiated by the co-offender however the offender participated in the following significant ways. First, she shared his paranoid beliefs whilst in a drug-induced psychotic state. Secondly, during the attack she provided him with two weapons namely a hammer and knife so as to inflict harm on the victim. Thirdly, during the attack she incited further violence saying to the co-offender, "Kill her! Do it!"
Having regard to the nature of the attack, the surrounding circumstances, the role of the offender and the injuries suffered by the victim which constitute a grievous bodily harm but by no means in the severest category, the offending fell below the mid-range of objective seriousness for an offence pursuant to s 35 of the Crimes Act. It still constituted serious criminal conduct falling in the upper part of the low-range for such an offence. I find however that the moral culpability of the offender was significantly lower than that of her co-offender.
The following aggravating factors must be taken into account pursuant to s 21A(2) of the CSPA: (c) The offence involved the actual or threatened use of a weapon, being the knife held by the co-offender and provided by the offender (g) The injury, emotional harm, loss or damage caused by the offence was substantial, although care must be taken given the nature of the offending conduct to ensure I do not double count this as an aggravating factor. Nor is it an aggravating factor that the offence was committed in company as that is an element of the offence pursuant to s 35(1) of the Crimes Act.
Pursuant to s 21A(5AA) the self-induced intoxication of the offender at the time of the offence must not be taken into account as a mitigating factor.
I have regard to the following mitigating factors pursuant to s 21A(3) of the CSPA: (b) The offence was not part of a planned or organised criminal activity (e) The offender has no significant record of previous convictions (f) The offender is a person of good character (g) The offender is unlikely to reoffend (h) The offender has good prospects of rehabilitation (i) The offender has demonstrated remorse (k) The offender has pleaded guilty
I note the offender is entitled to a 25% utilitarian discount on sentence in respect of her early plea of guilty. I also find that she is entirely remorseful for her criminal conduct and is well motivated to lead a crime free life in order to regain custody of her three children.
The offender has a good employment history and has acknowledged responsibility for her offending conduct. Whilst assessed as a medium/low risk of reoffending, I find that she is a low risk of recidivism.
I take into account the offender has had a long history of depression and anxiety for which she is now receiving treatment in the community. She was exposed to childhood trauma as a result of sexual assaults which commenced when she was 11 years of age and took place over a number of years. I accept that this led to her maladaptive coping strategies namely being reliant on cannabis and alcohol from the age of 15 years. She had been abstinent from cannabis since her arrival in Australia in 2018 but relapsed following the stressors brought about by the onset of the COVID-19 pandemic which caused a loss of employment for both herself and her husband.
Whilst it is not a matter for mitigation of penalty, the fact that the offender was suffering a drug-induced psychosis at the time of the offending, provides an explanation for her role. The fact that she did not knowingly consume methamphetamines does not reduce her moral culpability in all of the circumstances.
Whilst general deterrence is important in the sentencing process for offences pursuant to s 35(1) of the Crimes Act, I am satisfied that it has diminished importance here given the offender's history of depression and anxiety. Specific deterrence is also of diminished importance for the same reason, given that the offender has been abstinent from illicit drugs since her arrest and has made considerable progress in her rehabilitation.
I have had regard to the Victim Impact Statement which sets out the significant psychological impact of this attack and the injuries caused to her on the victim. As I have stated in my remarks in respect of the co-offender, the Victim Impact Statement is a poignant reminder that victims of crime, particularly victims of crimes of violence, may carry the impact of that crime throughout their lives and may be left with understandable anxiety and fear when going about their daily activities. It is common ground that the injuries suffered to the victim's teeth constitute really serious injury and whilst there is no medical support for the ongoing psychological and emotional sequelae suffered by her, it is readily understandable that she would suffer in this way. Whilst having regard to the Victim Impact Statement, I have not taken it into account so as to increase any further the offender's moral culpability for the offending.
There are significant subjective features of the offender which must be taken into account on sentence. The most significant is the way she has advanced her rehabilitation to date. She has been abstinent from prohibited drugs, has advanced her counselling, has obtained full-time employment and secured accommodation, and has done everything she could to place herself in the position to regain custody of her children. As set out above, her good character, and lack of any previous criminal history must also be taken into account by the provision of some leniency in sentencing.
I have had regard to the maximum penalty prescribed of 14 years imprisonment and the standard non-parole period of 5 years imprisonment for the offence pursuant to s 35(1) of the Crimes Act. The maximum penalty and standard non-parole period are guideposts in the sentencing process.
I have also had regard to the principle of parity in sentencing which in effect means that like offending must be treated alike, however differences must be taken into account. Here, there are significant differences between the offender and co-offender. First, her role in the offending and her moral culpability for it was significantly less than that of the co-offender. Secondly, she is a person of previous good character with no criminal history unlike the co-offender. Thirdly, her history of depression and anxiety arising from childhood sexual abuse diminishes the impact of general deterrence and specific deterrence in the sentencing process. Finally, she has demonstrated insight into her offending, has accepted responsibility for it, acknowledged the harm done to the victim of the crime and made significant progress with her rehabilitation. I therefore reject the Crown submission that the offender and co-offender should receive similar sentences - see R v Chandler per Basten JA at [6].
I am satisfied pursuant to s 5 of the CSPA, having considered all possible alternatives, that no penalty other than a sentence of imprisonment is appropriate in all of the circumstances. In determining the appropriate sentence I must also sentence the offender for the offence in sequence 2, destroy/damage property pursuant to s 195(1) of the Crimes Act subject to a certificate pursuant to s 166 of the Criminal Procedure Act. I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. In order to provide transparency in the sentencing process, I am required to provide the indicative sentences for the two offences as follows: 1. Sequence 4 offence pursuant to s 35(1) of the Crimes Act 1900 - 2 years and 9 months imprisonment 2. Sequence 2 offence pursuant to s 195(1) of the Crimes Act 1900 - 3 months imprisonment
In assessing the appropriate sentence, I must have regard to the principle of totality in sentencing. In Howie J described the principle in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Having regard to those principles, where the offence pursuant to s 195(1) occurred in the course of the joint criminal enterprise and was not caused by the offender, I find the appropriate sentence is a term of imprisonment of 2 years and 9 months.
I have considered whether the sentence should be served by way of an Intensive Correction Order. In considering that, the question of community safety is of paramount importance pursuant to s 66(1) of the CSPA. However, that has to be weighed against the purposes of sentencing set out in s 3A of the CSPA as above. I am mindful that a balance must be struck and appropriate weight must be given to all relevant factors when arriving at the appropriate sentence, recognising that the imposition of an ICO does represent some degree of leniency. I am satisfied here that the advances made by the offender in her rehabilitation and her low risk of recidivism weigh heavily in favour of her sentence being served in the community, particularly having regard to the fact that she is in full-time employment and secure housing and that she will be able to continue her rehabilitation treatment. I am therefore satisfied that the balance favours a community based sentence and I intend to sentence the offender to serve the sentence by way of an Intensive Correction Order commencing today.
As the offender has served 144 days in custody, that period may be deducted from the term of imprisonment outlined above to arrive at the term of the ICO, consistent with Mandranis v R [2021] NSWCCA 97 per Simpson AJA (with whom Garling and N Adams JJ agreed) at [61] to [64]. I therefore intend to impose an ICO for a period of two years and four months from today.
I am satisfied having regard to the Sentencing Assessment Report and the reports of Ms Jelen, Dr Martin and Ms Perez that for the purposes of s 17D(1A) of the CSPA, there is sufficient information before the court to justify making an ICO without obtaining a further assessment report.

Orders

I hereby order as follows: 1. You are convicted of the offence of reckless grievous bodily harm in company pursuant to s 35(1) of the Crimes Act 1900. 2. You are convicted of the offence of destroy/damage property pursuant to s 195(1) of the Crimes Act 1900. 3. I sentence you pursuant to an aggregate sentence pursuant to s 53A of the Crimes Act 1900. The term of the sentence is to be 2 years and 4 months. 4. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today. 5. The standard conditions of the order apply: 1. You must not commit any offence; 2. You must submit to supervision by a community corrections officer. 1. The following additional condition applies: (c) It is a further condition that you follow any rehabilitation or treatment recommendation requiring you to participate in a rehabilitation program or relapse prevention treatment. 1. You must report to the community corrections office at Fairfield as soon as practicable but no later than 7 days from today. 2. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. 3. If the order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody. 4. I now direct that you attend the court registry where a copy of this order will be explained and given to you.

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: 05 July 2021

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Cases Cited (18)