The offender, Mrs Owen, is before the Court for sentencing following a plea to the offence that on 6 April 2020 at Cambridge she wounded her husband, Keith Owen, with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW).
This offence carries a maximum penalty of 25 years' imprisonment, and a standard non-parole period of 7 years' imprisonment.
[2]
THE CIRCUMSTANCES OF OFFENDING
The circumstances underlying the offending have been the subject of a signed statement of agreed facts. Much of it was background, or context, for the offending applicable to Mrs Owen's subjective circumstances, which is relevant to her culpability. They may be summarised as follows.
The victim of the offence is Keith Owen, Mrs Owen's husband. At the date of her offending she was aged 74. She was born in England and migrated to Australia at the age of 21 years and married Keith soon thereafter, having met him when she was only 15. He was aged 76. Prior to the offending, Mrs Owen and Keith had a happy and loving marriage for 56 years. There had never been any issues of domestic violence. They had two children, a son named Craig, who is now 51 years of age. The other, a daughter, who is deceased. They have two grandsons.
Mrs Owen has a history of issues with her mental health. In about 1995, she tried to commit suicide following the failure of the family's small business (apparently a delicatessen) and was scheduled in Nepean Hospital before receiving treatment for her mental health at the St John of God Hospital at Windsor. She also experienced an episode of depression in about 2005 when her daughter suffered and then died from cancer of the bladder.
Then in March 2020, as the COVID-19 Pandemic really began to make its impact felt on Australian shores, radiological investigations were undertaken following Mrs Owen's suffering of bleeding and pain associated with her bladder which ultimately led to a diagnosis of a high grade urothelial carcinoma, with a likely secondary primary malignancy in the bowel.
Following the cancer diagnosis, Mrs Owen became severely depressed; and believed that she would suffer a painful death from cancer. Her mental health condition became manifested in marked insomnia, decreased appetite, low energy and a general withdrawal from activities that she had previously enjoyed doing, such as playing with her iPad. She reportedly expressed a sense of dread about how her husband would cope when she was gone. She started to experience suicidality issues.
Mrs Owen's husband, Keith, recalled that about a week before the offending, he and Mrs Owen talked about death. Mrs Owen had spoken about her own mother's physical dependence on her father after she had suffered a stroke and Mrs Owen saying that she did not want to be like that. To make her feel better, Keith joked that he was likely to be the one who would die first then made what, in retrospect, was the fateful statement, "I want to die first".
In Keith's victim impact statement, whose content I will later return to, Keith interpreted Mrs Owen's actions in a way consistent with these statements. He said that he had told her that "I can't live without you."
Keith later told the paramedic who treated him that prior to the offending, Mrs Owen had never been aggressive or tried to hurt anyone notwithstanding her mental health issues.
On the day of the offending, which coincided with a period of lockdown because of the COVID-19 Pandemic, at about 9:10am, Mrs Owen and Keith were lying in bed together. Psychiatric evidence that Mrs Owen later relied upon indicated that Mrs Owen had reported to those psychiatrists, after the offending, that she had woken up at 1am that morning, was agitated and distressed. She later told Dr Allen that she had been unable to get back to sleep, as she was worried about how Keith would manage without her if she died.
On the day of the offending, Mrs Owen got out of bed and instead of following her usual routine of going to the bathroom, she walked around to Keith's side of the bed. Mrs Owen asked Keith if he wanted to have sex and he agreed. This was understood, by both of them, as involving Mrs Owen masturbating him.
This is what Mrs Owen did, as he was lying on the bed whilst she was on the ground alongside the bed. On this occasion, however, as Keith was about to climax, Mrs Owen stabbed him once with a knife into his chest and pushed it in with both hands. Keith had not seen the knife that morning. The knife was a wooden handled carving knife, about 20 cm long.
Keith attempted to struggle to take control of the knife, but Mrs Owen did not let go of it immediately. During the struggle, Mrs Owen said "I can't let you live alone. I don't want you to be alone". Eventually, after a period of time, Keith was able to wrest control of the knife. Impressively, he had the presence of mind and physical capacity to get out of the bed, grab an iPad from his bedside table and take refuge in the bathroom, which he locked before calling his son and asking him to come over to the home. He reported to Craig that Mrs Owen had a knife and had stabbed him and that he was locked in the toilet.
Craig drove to his parents' house. Remarkably, Keith let him in. Craig observed, from the hallway, Mrs Owen sitting naked on a chair in the kitchen with a kitchen knife she was pushing against her ribs. She had earlier stabbed herself on the left side of her chest with a second knife. Exhibiting the utmost bravery, Keith was able to extract from Mrs Owen the knife Mrs Owen was using to push against her ribs and handed it to Craig.
The victim, Keith, was found to have a wound to his left anterior chest wall, approximately 2-3cm below his left nipple and a small defensive wound on his left hand. An ultrasound later performed on him identified a moderate sized pericardial effusion and early signs of cardiac tamponade.
Mrs Owen made certain statements to medics at the crime scene, along the lines "I wanted to take him with me" and "I did this to myself, I didn't want to leave my husband behind".
Meanwhile Keith was transported by ambulance to Westmead Hospital. The doctor who performed the surgery confirmed injuries, amongst other things, as including a contusion of the apex of the left ventricle extending 1cm into the interior surface at the apex of the heart, a laceration of the intercostal space at the site of the stab wound, a possible rib fracture at the site of the stab and contusion and laceration of the pectoralis muscle, a tear in the pericardium over the left ventricle, not penetrating the diaphragm. A small superficial laceration to the right chest wall and laceration to the hand was also noted. Keith was discharged from hospital on 15 April 2020.
In the course of receiving medical attention herself, Mrs Owen made other pertinent statements to a paramedic. After informing him that she had a diagnosis of bladder cancer, she was asked if she knew of her prognosis. She said she did not. She repeated her earlier explanation as to why she acted as she had, that she "did not want to leave him behind". She confirmed that she had tried to kill herself on account of her cancer diagnosis.
Mrs Owen was arrested on 19 June 2020. She declined to participate in an interview with police.
Remarkably, for someone of his age, Keith has made a full recovery from his injuries. Even more remarkably, and as testament to his innate compassion and love for Mrs Owen, he told police he did not want to see Mrs Owen charged; and believed that she was not responsible for her actions when the offending occurred.
[3]
Medical evidence of Mrs Owen's mental health condition
Mrs Owen relied upon a joint psychiatric report of practitioners, Dr Lyange and Associate Professor Basson within the Mental Health Bunya unit of Cumberland Hospital. They interviewed Mrs Owen on 20 April 2020, only two weeks after the offending.
As I understand them, although radiological investigations performed shortly before the subject offending had not revealed definitive metastatic disease, subsequent discussions with the urology team within the hospital indicated that complete surgical resection of the tumour was untenable.
They reported, from their conversations with Mrs Owen, that she had been "absolutely terrified" after being informed of having cancer and her fears that Keith would not survive on his own if she was to die from it. She had reported that her fears were influenced from her own experience of her daughter dying from cervical cancer.
The psychiatrists perceived that she had been motivated by concern for Keith's welfare in the event of her death, which she regarded as imminent and unavoidable as a result of a probable diagnosis of cancer; against a background of agitated depression. As at the date of the interview, she was reputed to be at a high risk of self-harm or suicide.
Mrs Owen also relied upon the report of another psychiatrist, Dr Allen, of the Older People's Mental Health Service, of the Western Sydney Local Health District. He reported on 12 June 2020. Using the DSM (5th edition) criteria, he diagnosed her as having a Major Depressive Disorder, Severe, with Melancholic Features in partial remission.
Dr Allen confirmed that opinion in a supplementary report dated 12 July 2021. He also opined that at the time of the offending, her reasoning and judgment was adversely affected by that depressive illness. He opined:
"Her thinking became absolute and negative, for example, her belief that ther husband would not manage without her. Her judgement became distorted such that she believed her actions were for her husband's welfare. These distorted thought processes adversely impacted on her ability to exercise reasoned and ordered judgement at the time of the offending conduct. Her understanding of the consequences and wrongfulness of her actions was impaired as a result of the Depressive illness."
[4]
THE GRAVITY OF THE OFFENDING
It is generally understood that the matters typically relevant to the gravity of the offending are the extent and nature of the injuries; the degree of violence; and the mental element of the offence.
As to the first of those considerations, that is the extent of the injuries, in R v Mitchell (2007) 177 A Crim R 94, the victim suffered a serious brain injury and was reduced to a vegetative state after a brutal attack. Howie J said at [27]:
"A very important aspect of an offence under s 33 is the result of the offender's conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a s 35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted. …"
As to the degree of violence, a Court will look at the ferocity of the attack.
As to the last of the considerations, the intention that the harm inflicted is that it is grievous bodily harm.
I am mindful that notwithstanding the declared intentions of Mrs Owen, that she has taken a plea to the subject offence. She is not to be punished on the basis of an intention to kill her husband as that would infringe the De Simoni [1] principle.
Mrs Owen's Counsel submitted that the victim was stabbed only once causing a build up of fluid on the left side of his chest and a small wound on his left hand. He made a full recovery.
Mrs Owen also submitted that the circumstance that the wound was inflicted with a weapon does not materially elevate the gravity. She submitted that her conduct could not be regarded as involving planning or pre-meditation.
I do not accept the last submission. Mrs Owen undertook sufficient planning to ensure that a kitchen knife was brought into the bedroom. She plunged the knife into Keith's chest and kept it there even when he struggled. She plunged it in, to put the matter as delicately as one can, in a moment when he was exquisitely in a vulnerable state.
But for what it is to follow, I would have had no hesitation in regarding the conduct as falling at least within the mid-range and possibly beyond it.
[5]
The significance of mental abnormality
Mrs Owen submitted that her mental disorder significantly reduced the gravity of her offending, and cited, in particular, Dr Allen's opinion for the contention that her offending was causally contributed to by her suffering severe mental disturbance. Her moral culpability was limited.
The Crown conceded, fairly I think, that Mrs Owen has demonstrated a causal connection between her mental health issues and her offending behaviour. Further, the Crown concedes that at the time of the offending Mrs Owen was not in a position to rationally think due to her illness and mental disorder and that she may not have been able to exercise sound judgment.
I accept the offender's submissions that her depressive illness reduced her culpability in a way which reduces the seriousness of the offending. I accept Dr Allen's evidence and in particular, his opinion that Mrs Owen's mental illness impaired her capacity to make reasoned and ordered judgements. It is not without significance, in this context, that even according to the victim himself, he had stated that he could not live without Mrs Owen. That Mrs Owen appeared to take that statement, and others like it, literally, was the result of mental disorder. And, as the High Court pointed out in Muldrock v The Queen (2011) 244 CLR 120 at [58] that serves to reduce the weight accorded to the principles of retribution and denunciation.
Her mental illness also serves to make Mrs Owen a less than fully appropriate medium for general deterrence: Muldrock at [53]. I do not consider that it is the case that Mrs Owen was altogether unaware that what she was doing was wrong. It was the combination of her own internalised concerns as to how her husband might cope when she was gone and vague expressions from Keith evincing his own apprehension as to how he would cope after such a long marriage which, under her impaired state of mind, led her to commit the offending.
Given the significant reduction of her culpability, the fortuitous circumstance that the injuries suffered by Keith have not been enduring and the circumstance that there was probably no more than two stabs (the second being incidental to the first), I find that the offending is at below the mid-range but above the low end of the range for gravity for a serious offence of this kind.
[6]
Aggravating factors
The Crown identifies several matters aggravating the offending. First, the Crown relies upon the use of the knife (s 21A(2)(c)) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act') which, the Crown contends is not an element of the offence itself. I accept the submission, in a technical sense, although I think it is more reflective of the gravity of the offending.
Secondly, the offending occurred in the home (s 21A(2)(eb)). I accept that this circumstance aggravates the offending.
Thirdly, the victim was elderly (s 21A(2)(l)). Fairly, the Crown accepts that this matter would not be given much weight in the circumstances.
[7]
Victim Impact Statement
I have taken into account Keith's typed statement which was read out during the hearing by his son, Craig. Aside from demonstrating his compassionate attitude, it also bespeaks a remarkable magnanimity. It contained no reference to his own injuries or what he felt. He said that the current ADVO 'situation' was doing him and his family "more harm than good". His position is expressed simply but eloquently: he wanted Mrs Owen to "come home" and help her with her mental and healing process.
[8]
MRS OWEN'S SUBJECTIVE CASE
Mrs Owen is now 76 years of age. Her health and background have previously been remarked upon, in respect to her mental health.
On 12 August 2021, Mrs Owen was admitted to Nepean Hospital and was discharged on 17 August 2021. She was diagnosed as having had a stroke.
A letter from Mrs Owen's oncologist, Dr Mojuaber, dated 23 September 2021, confirmed that she had recurrent bladder cancer. The oncologist said that further treatment would not be with curative intent and her prognosis was 'guarded' with an average anticipated lifespan of 12-18 months depending on her response to treatment. Dr Moujaber's more recent letter (27 November 2021) indicates her prognosis might even be less than that.
Presently, she resides with Craig at the Werrington County area in stable accommodation. She is currently a recipient of a pension. She is also currently engaged with a psychiatrist at the Specialist Mental Health Older People Service to receive treatment for her mental health.
Mrs Owen has no prior criminal history. That would generate a level of leniency even without reference to her current circumstances.
[9]
Plea
The Crown does not dispute that Mrs Owen is entitled to a 25% discount on her guilty plea.
[10]
Facilitating the administration of justice
I do not accept Mrs Owen's submission that the plea of guilt represented an additional willingness to facilitate the administration of justice in the context of Court delays arising from the impact of COVID-19. This submission is partly grounded in a view that the medical evidence raised as a prospect that she may not have been criminally responsible. Mrs Owen has, it appears, at all times been legally represented, and therefore had the benefit of legal advice, presumably based upon a view as to whether she might be found criminally responsible.
I note that Mrs Owen did not participate in an interview with police when afforded the opportunity and there are no other tangible signs (other than the common place agreement to certain facts for sentencing) which enliven this particular mitigating factor.
[11]
Remorse/contrition
When interviewed by the Penrith Community Corrections Office, she was reported to have minimised her offending by stating that she had difficulty remembering the circumstances of the offending. That said, she attributed her actions to her mental health and difficulties with her cancer diagnosis. She accepted responsibility for her violent behaviour. She was reported to have presented as remorseful for her behaviour and understood the impact of her offending upon her husband and family.
The psychiatrists, Dr Liyanage and A/Prof Basson, jointly opined that she expressed significant remorse two weeks after the offending and that she had been extremely self-critical and had expressed strong belief that she should be 'punished' for what she had done. Dr Allen also reported that she had displayed very marked remorse.
The Crown does not challenge a finding that she is remorseful, notwithstanding that she did not give evidence directly in this hearing.
I have no doubt that she is fully remorseful, is by appalled by and ashamed at her conduct.
[12]
Rehabilitation/likelihood of re-offending
On 23 April 2020, Mrs Owen underwent a Mental Health Inquiry by the Mental Health Review Tribunal. She was detained in Westmead Hospital as an involuntary patient. The Tribunal considered that she had severe melancholic depression.
The psychiatrist, Dr Allen, indicated that as at June 2020, Mrs Owen had responded positively, but slowly, to the antidepressant and antipsychotic medications she was receiving. At that point, she still experienced strong waves of suicidal thoughts when alone, but they had decreased. She had found comfort in receiving the support of her family and had not had further thoughts of harming her husband or anyone else. Dr Allen reported her expressing a 'sense of disbelief' in her offending.
Dr Allen reported that Mrs Owen was highly motivated to accept treatment for her depressive illness. The melancholic symptoms of depression had resolved. He expected her to have a full remission from her depressive illness; although she would likely require anti-depressant medication, and psychological therapy, for at least two years and probably indefinitely. That said, the sentencing process impacted on her emotional stability and she remained at a high risk of self-harm; even if there had been no further thoughts of homicide or harm to others since her hospital admission. Dr Allen believed that she required close supervision and management by a Community Older Person's Mental Health Service.
In a separate letter, dated 19 June 2020, Dr Allen set out a list of her regular medications.
In a supplementary report of 12 July 2021, Dr Allen referred to some factors associated with her prognosis of the episode of Major Depression with Melancholia, as including her responsiveness to, and compliance with, treatment with medications and psychotherapy; the responsiveness of the bladder cancer to treatment.
The Penrith Community Corrections Officer indicated in the sentencing assessment report of 27 July 2021 that Mrs Owen was willing to undertake any necessary interventions to address her offending; noting that she was currently engaged with a psychiatrist. Mrs Owen was reported to have supplied a satisfactory response to the Corrections Officer's report.
Importantly, the Corrections Officer assessed as being at a T3 "Low" risk of re-offending. Given that risk, if she was to be made the subject of a supervised order, Community Corrections would monitor her for any indicators of increased risk.
Mrs Owen has been on conditional bail since her arrest in June 2020. She has since demonstrated good behaviour, though of course under close supervision.
I consider that she is most unlikely to reoffend, in terms of harming Keith or anyone else. I consider that she looks back in shock and shame when she considers what she did to her husband.
The Crown concedes, correctly in my view, that she has good prospects of rehabilitation for her to spend the rest of her life with her husband and family.
[13]
Effects of full-time incarceration
In a letter of 12 June 2020, Associate Professor Sandra Turner, of the Westmead Cancer Care Centre, wrote of the likely care that Mrs Owen would need to help her deal with her cancer diagnosis. Professor Turner was Mrs Owen's radiation oncologist. This featured not only dealing with the physical aspects. Professor Turner noted that she would need close emotional support from family members. She believed that it would be extremely deleterious to Mrs Owen's physical and mental state if she was imprisoned, rather than undergoing recovery and ongoing medical care in the community.
In Dr Allen's latest report, the psychiatrist identified as one of the factors associated with her prognosis for her mental health condition the process and outcome of the the court proceedings relating to the offence. In considering the appropriate punishment for a person with a mental condition, it may be that a custodial sentence will weigh more heavily on them (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]).
Mrs Owen's Counsel noted in his written submissions Dr Moujaber's prognosis that Mrs Owen is likely to die within the next 18 months. As indicated, Dr Moujaber's more recent letter indicates the period may be shorter than that.
In addition to these matters, Mrs Owen noted her age which, it would be anticipated, would make full-time incarceration onerous even without her mental health issues and cancer diagnosis.
Her Counsel finally cited her vulnerability to contracting COVID-19, due to her age and ill-health and also referred to social distancing restrictions imposed on inmates as a result of the Pandemic.
I accept all of these matters, even if the last of them is less material than the other matters, would mean that if she was to serve a term of full-time imprisonment, it would be especially onerous for her.
This factor, whilst it is to be weighed on the scales, is of lesser significance than other features of Mrs Owen's subjective case and the gravity of the offending.
[14]
Hardship to others
I referred earlier to Keith's victim impact statement. As earlier remarked, he wants Mrs Owen home. He also described her as his "best mate". It was submitted that a period of full-time detention would occasion hardship to Mrs Owen's family. It was not clear by that submission whether reference was made only to Keith's needs, or extended to hardship to Craig or Mrs Owen's grandchildren.
Although perhaps marginal, I am persuaded that there would be hardship to Keith if Mrs Owen was the subject of full time detention, I am persuaded that this is an 'exceptional' circumstance such that weight should be given to hardship that an otherwise justified sentence would cause to a third party (R v Edwards (1996) 90 A Crim R 510 at 516-17). Although it was not entirely clear what was his own physical or mental health condition, I am satisfied, on the probabilities, that Keith has such a powerful bond with Mrs Owen that it would be a crushing result for him, taking into account his age, to be deprived of the company of his wife for the remaining, relatively, brief period of her life, given the grim prognosis.
[15]
Mercy
In Webb & O'Sullivan [1952] SASR 65 at 66, Napier CJ said that:
"Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy."
This principle has been applied in this State (Commissioner of Taxation v Baffsky (2001) 122 A Crim R 332 at [75]).
Mrs Owen submits that considerations of common humanity would deflect the Court from imposing a period of full-time imprisonment.
I accept that the mercy principle has a role to play in this sentencing exercise.
[16]
Instinctive synthesis
I take into account, first, the maximum penalty and statutory non-parole period for the offending in question. Plainly, even making allowance for the relatively low level of seriousness for the offending in question, this was a serious offence. In this regard, Keith Owen may have uttered generalised concerns about whether he would be equipped to emotionally cope with the anticipated loss of his partner of 50 plus years, but he had no sensible reason to see the violent attack inflicted upon him as coming. Unlawful as it would have been in any event, the offending did not occur in a context of some mercy killing. The maximum penalty for this particular offence has been described is the longest determinate sentence available for an offence in the Crimes Act 1900 (NSW): R v Hookey [2018] NSWCCA 147 at [57].
I take into account, secondly, the various sentencing considerations in s 3A of the CSP Act. I have already indicated that Mrs Owen does not fully represent an appropriate medium for general deterrence on account of her reduced culpability. Nevertheless general deterrence still has weight. Mrs Owen knew that what she did was wrong even if, misguidedly, and with an impaired capacity to reason, she felt she was morally justified. It was not the case that Keith had a terminal disease. Even if he was to be rendered heart-broken by the loss of his wife, like many widows or widowers, he had the capacity to receive consolation from an adult child and grandchildren. Persons, even in comparable circumstances to Mrs Owen, need to be deterred from embarking on a similar course of conduct. The similar considerations of retribution and denunciation are also of reduced force in this context. Further, even leaving aside the reduction in the need for specific deterrence that should also flow from my findings of mental abnormality contributing to the offending, Mrs Owen's subsequent remorse would also facilitate a view that this consideration is also substantially moderated.
I accept, on the probabilities, that with the assistance she will derive from her compliance with medication and psychological assistance, her rehabilitation prospects are good and that she does not propose any substantial risk of re-offending. As is indicated, however, the prospects of rehabilitation are contingent and there is therefore a residual concern about protection of Keith.
The critical issue is whether the threshold in s 5(1) of the CSP Act has been satisfied. In R v Eckersley [2021] NSWSC 562, Beech-Jones J (as his Honour then was) at [78]-[79] recently outlined, in the particular context of sentencing an offender for manslaughter, the approach when considering this threshold (citations omitted):
"… This (s 5(1)) requires a consideration of the alternatives to imprisonment and the extent to which they fulfill the sentencing objectives in s 3A. However, the requirement is only to consider them, not be dictated by them …. Just because a Court might consider that the available alternatives are inadequate does not necessarily mean that imprisonment is appropriate. The Court must be positively satisfied that is so ….
The Sentencing Procedure Act provides for various non-custodial alternatives. One alternative is a conditional release order under s 9 ... Another is a Community Correction Orders with various conditions imposed under s 8 including observance of a curfew, performance of community service or a treatment condition (s 89(2)(a), (b) and (c)). A Community Correction Order is the most serious sanction that can be imposed if the test in s 5(1) is not overcome."
In most criminal cases, a conclusion that the threshold in s 5(1) was overcome would not necessarily result in the offender being jailed. Section 7 and Part 5 of the Sentencing Procedure Act enable a court to impose an Intensive Correction Order ("ICO") for many offences in particular circumstances and where it would otherwise impose a term of imprisonment that does not exceed 2 years (s 68(1)). An ICO is not one of the alternatives to be considered in determining whether s 5(1) is satisfied (Mandranis v R [2021] NSWCCA 97 at [25])…"
On the question whether that threshold is crossed here, specific deterrence is reduced. To an extent, Mrs Owen, through her expressed shame, has punished and continues to punish herself.
Notwithstanding the circumstances actuating her offending, Mrs Owen must be made accountable for her actions. I have sought to recognise the harm done by her actions to her loving husband and the community so far as the protection of the vulnerable is concerned. However, to compound the wounds suffered by Keith Owen by his wife who has been his life-long companion, following an isolated attack, out of character, is a factor which has to be weighed heavily in the scales. Nevertheless adequate punishment and recognition of the physical harm to the victim are considerations no less significant even with a strong subjective case; even if the victim himself has shown the bravery and compassion that this victim has shown. To be the subject of an unprovoked, unplanned wounding of the kind that Mr Owen received is not a matter purely of interest to the victim, but of interest and concern to the community.
On balance, I consider that the threshold is crossed, a matter which was not vigorously contested by Mrs Owen's Counsel although I note that he did submit that this might be an exceptional case where a term of imprisonment would not apply.
I am inclined to consider that, taking into account her guilty plea, the terms of that imprisonment should be one year and 6 months.
[17]
Whether the term should be served by Intensive Correction in the community
This brings into consideration whether, as Mrs Owen's Counsel submitted, the term of imprisonment should be served by intensive correction.
As Counsel for Mrs Owen pointed out, aside from the considerations raised by s 66 of the CSP Act, by reason of s 4B, given the nature of the offence, as being a 'domestic violence' offence, there is an additional question of whether the victim will be adequately protected. Mrs Owen's Counsel submitted that if an ICO was imposed, an appropriate additional condition would be a treatment condition, whereby she receive close supervision of the Special Mental Health Older People Service.
The Crown conceded that there are reasons for the Court to find that the victims or any other person's safety would not be at risk in this matter in the current situation if the court was inclined to make an ICO.
On the basis that Mrs Owen continues to receive the close supervision of the Service, I find on the probabilities, that Keith Owen will be adequately protected if an ICO is ordered.
That leaves s 66. As to s 66(1), as the Crown concedes, there is no danger to the community generally. For the purposes of s 66(2), such risk of re-offending as is presented by Mrs Owen, is best addressed under close community-based supervision including the prescribed medications and such psychological counselling as is thought appropriate by specialists. As to s 66(3), as Simpson AJA recently observed in her Honour's concurrence in Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCCA 294 at [186], there may be cases where considerations in s 3A and 4B of the CSP Act effectively foreclose making an ICO, rendering consideration of ss 66(1) and (2) otiose; especially having regard to the nature and gravity of the offending.
I have already factored into the imposition of the sentence of imprisonment the various matters referred to in s 3A. They are not antithetical to the notion that the sentence be served otherwise than by full-time incarceration.
I set out in its entirety the Crown's submission, which I accept:
"The Crown concedes that the sentencing this offender to a non full- time custodial sentence is warranted and an Intensive corrections order (ICO) with sufficient supervision conditions imposed to ensure treatment of Mrs Owens illness and mental health development and rehabilitation that needs close monitoring, care and support may address the overall criminality of this matter notwithstanding the objective seriousness that apply due to the seriousness of the current offence."
Mrs Owen, please stand. On the offence of wounding Keith Owen with intent to cause him grievous bodily harm you are convicted, and I order that:
1. You are sentenced to a term of imprisonment for a period of 1 year and 6 months, commencing 13 December 2021 expiring on 12 June 2023.
2. The term of imprisonment is to be served by intensive correction in the community, subject to your compliance with:
1. the standard conditions applicable for the duration of the order, being that:
1. you must not commit any offence; and
2. you must appear before the court if called upon to do so at any time during the period of intensive correction; and
1. the additional conditions which apply for the duration of the order, namely:
1. you abide by the directions of the Penrith Community Corrections Office; and
2. a "treatment condition" requiring you to receive treatment for your mental health problems as outlined in the reports of Dr Bruce Allen dated 12 June 2020, 19 June 2020 and 12 July 2021, as considered appropriate by the Special Mental Health Older People Service and to generally abide by such directions as that service thinks appropriate.
1. You should understand that if you do not comply with the standard or additional conditions, you are liable to spend the rest of the period of imprisonment in full-time detention.
2. I direct that you are to telephone Penrith Community Corrections Office within 7 days to receive instructions about your obligations.
I direct that the COVID-19 forms be destroyed.
[18]
Amendments
17 December 2021 - Fixed typos
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Decision last updated: 17 December 2021