R v Stokes [2000] NSWCCA 105 | Case summary

The facts 5 On Tuesday 27 October 1998 at 3.10 pm the respondent went to the Pacific Islander Consultancy Service, where the victim, Muia Allen, was employed. The respondent knew the victim, a young woman of seventeen years, as she had been having an affair with the respondent's husband. 6 The victim had just returned to the office and found the respondent sitting with another Samoan friend named Toe and Toe's Samoan husband in the reception area. They had been sitting there for some time waiting for the victim to return. As the victim entered the reception area she saw the respondent and her friends and said "Is there anything wrong ?" The respondent replied "Where's Tuu'u?" referring to the respondent's husband. An argument then ensued between the respondent and the victim as to his whereabouts. 7 The victim walked out of the office to the stairwell and the respondent and her friends followed. The argument continued in the stairwell and the respondent became angry, calling the victim a "slut" because she believed that her husband wanted to be with the victim. The respondent attempted to grab the victim but was restrained by her friends. The respondent then said to the victim "I am going to give you two black eyes." 8 The victim then walked down the stairs and went outside on to the footpath. The respondent's friend Toe approached the victim and spoke to her about the respondent's husband. The respondent and her male friend then came outside. Some further discussion ensued, concluding with the respondent's two friends telling her to leave the victim alone. 9 The victim then walked into the building. As she went to go up the stairs the respondent called out her name. The victim stopped, turned around and saw the respondent coming up the stairs followed by Toe. Toe was saying to the respondent, "Don't hurt her", to which the respondent replied, "I am not going to do anything." The respondent approached the victim and continued to berate her about the victim supposedly seeing the respondent's husband. The victim informed the respondent that it had actually been the respondent's husband contacting her. The respondent became angry that the victim was not doing enough to discourage the respondent's husband. 10 Whilst this was occurring, a stranger by the name of Mr Chris Teale entered the building. As the victim turned around to walk up the stairs, the respondent approached her from behind, grabbed her ponytail, and commenced to punch her about the face. Mr Teale attempted to break up the two women and noticed the respondent was holding some sort of an implement. Teale observed the respondent stab the victim in the left side of her face with the implement, causing an injury to the victims eye. The victim immediately clutched at her bleeding eye and fell to the ground. Whilst the victim was on the ground the respondent kicked the victim in the face twice. The respondent then left the premises with her two friends in a dark blue station wagon. 11 The man Teale then called an ambulance whilst the victim lay on the ground. Teale asked the victim why this had happened and she replied, "I have been sleeping with her husband." The victim was taken to Liverpool Hospital, where she was seen by a Dr. Irani, who noted the victim had a penetrating injury to the left eye consistent with a sharp instrument, as well as two stab wound to the left side of her head. On 16 November 1998 the victim underwent surgery to have her left eyeball removed. 12 On 28 October 1998 police spoke to the respondent outside her residence concerning the event. Whilst there, police noticed a blue station wagon and noted blood stains on the inside of the driver's door. The respondent was arrested and charged. There was some question during the sentencing hearing as to whether the implement used by the respondent was a screwdriver or a set of car keys. The relevant witness statement was not tendered during the proceedings, nor he did not give evidence. 13 The respondent, who gave evidence on the sentence proceedings, denied using a screwdriver to stab the victim. Her evidence was she had used her car keys and that she did not intend to inflict any injury upon the victim. The Crown did not call any evidence to controvert the respondent's evidence. 14 I now turn to the subjective features. At the time of the offence the respondent, who is a Pacific islander, is was twenty-eight years old. She is now thirty. She was a single mother with four children. The eldest of her children was nine years old, and the youngest about a year old. The respondent separated from her husband around November 1998. He has had no contact with his children since he left the family home. The respondent was not aware of his whereabouts. 15 The respondent was born in West Samoa was raised by her grandmother, who would often beat her. When she was twelve years old she moved to New Zealand at the behest of her parents to gain a good education. Her immediate family stayed in West Samoa and she was looked after by an uncle in New Zealand. 16 The respondent met her ex-husband in 1986 when she first met him at the age of 15 years of age. After she had gone to live with him and was initially held against her will she then married him in 1991. The respondent's husband was violent towards her and he would regularly beat her during their twelve year relationship. The respondent's family were aware of the beatings but did not endeavour to intervene. After one beating, when the respondent's arm was broken and she was hospitalised, an Apprehended Violence Order was taken out against the husband. This did not deter the husband from beating the respondent until she left him. 17 As well as the beatings he was also having extra marital affairs. In 1998 the respondent became aware her husband was having an affair with the victim. The respondent said that when she discovered this she was shocked and went to see a psychiatrist at the Campbelltown Medical Health team because she felt ill. 18 The respondent suffers from depression and has tried to take her own life many times. In 1998, when the respondent was eight months pregnant with her fourth child she deliberately crashed her car into a tree whilst her children watched her. 19 After the respondent's husband left, the respondent commenced having contact with her family again. Her family are now very supportive of her and she now spends every day with her parents. Her family is aware of the offence and are supportive of her. The respondent and her family have both spoken to the family of the victim and the respondent has herself apologised to the victim. Since the offence the respondent has been visiting a counsellor every fortnight and the depression has abated. 20 One of the serious aspects of this case is that the prisoner has three previous convictions relating to assault: two for common assault and one for assault occasioning actual bodily harm. The respondent was placed on a recognisance for each offence. At the time of the present offence the respondent was on a recognisance and had failed to appear in relation to another assault charge for which she was sentenced on 7 September 1999 and placed on a recognisance. 21 The maximum penalty for an offence under s.35 of the Crimes Act is penal servitude for seven years. Unlike s.33 where a specific intent to inflict grievous bodily harm needs to be demonstrated, for an offence under s.35 one only needs to demonstrate an intent to cause some physical injury: R v Stokes (1990) 51 A Crim R 25. 22 The Crown's submission is that the objective criminality is so extreme and the intent is at the highest level that the sentence imposed was manifestly inadequate and that, in accordance with proper practice in sentencing, a custodial sentence of some type would have been the only appropriate option. The Crown submitted that there was a clear intent by the respondent to cause injury to the victim's face and that the objective criminality must be near the top of the range because of the nature and circumstances of the offence. 23 It is submitted to day by the Crown that with the appellate restraint and the issue of double jeopardy in the end result periodic detention is a proper sentence if the Court were to decide to intervene. 24 The respondent has submitted that the suggestion that the objective criminality must be near the top of the range be rejected and has put that, whilst the Crown may be correct in referring to the objective criminality of the offence, the seriousness is mitigated to a significant degree by the fact that the incident was provoked in the sense that the victim was engaged in a sexual relationship with the respondent's husband and that the implement which caused the injury, on the evidence, was not a weapon of the kind usually associated with such an injury. 25 The Crown points to two contended errors. Firstly, that it had been conceded that periodic detention was appropriate and that his Honour erred in his interpretation of the decision in R v Gary Walter Day (1998) 100 A Crim R 275. That case referred to a single father on a drug charge bringing up three teen or near teenage children, his wife having died some years earlier. He was unemployed and on a sole parent's benefit. It was pointed out at p 277 of that report: "The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. That is but part of the price and risk of criminal behaviour. As Gleeson CJ pointed out in Edwards at 516: 'Justice will not have been seen to be administered evenhandedly if exceptions are made (on this account) in cases which are not truly exceptional'." 26 At p 278 of the report in Day, the Crown has quite properly pointed out, the age of the children was not the only matter of potential relevance. "Other circumstances, for example those which may have reduced the objective criminality of the accused to the point where a non-custodial sentence was an option, that is of the kind seen in Roberts ", an unreported decision of Hunt J (as he then was) on 31 March 1989, "or actual threat to the health of a dependant, may cause the case to be truly exceptional." 27 He then referred to a passage in the judgment of Kirby P in Niga, an unreported decision of the Court of Criminal Appeal of 13 April 1994. "In sentencing a young, single parent I believe that special consideration may properly be given to the impact of the sentence upon children or other dependants of such a prisoner. This is not to create a class of persons who are immune from punishment because of their dependants. It simply means that in looking at all the facts relevant to the circumstances of the prisoner it is appropriate and just to take into account the way the sentence on the prisoner will fall upon other persons who are innocent and on the community which must often then support them." 28 His Honour the sentencing judge in his remarks on sentence in this present matter, adverted to the appalling history of the respondent and her relationship with her former husband - the broken fingers, the broken arm and the cuts and bruises, and that she was rendered unconscious by a blunt instrument. His Honour referred to the report of Ms Jane Devlin. At p.3 of the judgment his Honour quotes that report: "Kaisarina is a woman of simple beliefs who, through her experience, had come to believe she had no choices, freedom or autonomy and nowhere to belong. Indeed, her husband seems to have represented the only real attachment she had ever had and he and her children were the only family with which she had ever lived. With little experience to the contrary, Kaisarina came to believe she loved Tataese", the name for her former husband. 29 The view expressed by the psychiatrist, as quoted by his Honour, was: "Kaisarina found Tataese increasingly absent during her pregnancy due to his affair. With the last pregnancy she was unable to deal with the conflicting emotions when being attacked, rather than seeing those as her opportunity to escape and her confused mental state and her fear of abandonment resulted in her desperately tending to stick to the relationship. Though her parents did not like Tataese they tried to mediate the situation for her sake by talking to the mother of the victim. However, this was not successful and Kaisarina saw her relationship slipping away and her mental state continued to deteriorate." 30 His Honour correctly said at p.5 of his judgment that this is the sort of offence that ordinarily attracts a substantial prison sentence by way of full-time custody and his Honour adverted to the very substantial ill-effects on the children and his Honour referred to R v Day, to which I have referred. 31 The issue in this case is as to whether the case is in fact truly exceptional. It is, in my view, not correct to deal with this case as simply one which would create hardship for the children. Clearly that is the case. There is an obvious very real danger in not exercising a custodial option, the fact of deterrence generally and the fact of deterrence to this woman who has resorted to violence, particularly against women, on occasions in the past and where she has been allowed conditional relief or has avoided custody, and, as is correctly pointed out in the passage of Kirby P, the Court has to be concerned that it does not create a class of people who are immune from punishment. 32 This respondent is not immune from punishment. However, this is not, as I have indicated, just a case involving hardship to the children. An examination of her record, her history, the appalling events in the curious relationships that develop between those who are subject to bashing and those who do the bashing, and the love feelings that are clearly held notwithstanding the treatment, have had a very severe effect on this respondent. The attempts at suicide ought not be disregarded. Her keenly felt need to assist her children cannot be disregarded. It is not a case where his Honour has simply had regard to the effect on the children, although that is obviously, as his Honour sets out, a matter which has to be taken into account. 33 In my view, notwithstanding the great need to deter this respondent and deter this sort of conduct generally, the history, the circumstances and the terrible problems that has led the respondent into this offence, does make this a truly exceptional case. I do not find any error on the part of his Honour in the sentence that he has imposed. 34 I would therefore dismiss the appeal and reconfirm the sentence. 35 POWELL JA: I agree and I would only add that while I consider that the respondent's personal circumstances, coupled with her family obligations, did render this a truly exceptional case, that may not be the attitude which the Court would need to take if ever the respondent were to offend again. 36 HULME J: I agree with the reasons of both of my brothers and with the order proposed. 37 POWELL JA: The order of the Court thus is that the appeal is dismissed and the sentence below is confirmed.

R v Stokes

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Judgment (8 paragraphs)

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