HIS HONOUR: This is an appeal against severity of sentence passed by Magistrate Bartley sitting in the Local Court at Sutherland on 3 March 2016. The appellant was charged with an offence contrary to s 59(1) of the Crimes Act 1900. The charge was assault occasioning actual bodily harm to Emma Sciberras at Miranda on 22 February 2015 at approximately 1.45am.
The assault occurred at the Miranda Hotel situated on The Kingsway at Miranda. It was in the early hours of a Sunday morning. It is evident from the facts that the appellant and her boyfriend had been in the hotel for some time. Another patron, Ms Sciberras, had borrowed the appellant's boyfriend's cigarette lighter and had failed to return it promptly. About half an hour after the cigarette lighter had been borrowed, the appellant confronted Ms Sciberras. Ms Sciberras was in the poker machine area. The appellant and her boyfriend entered the poker machine area and walked up to Ms Sciberras who was standing at one of the machines. The appellant stood about half a metre in front of the victim facing her. She asked the victim to return her boyfriend's cigarette lighter, and the appellant then punched Ms Sciberras in the face with a closed fist. The impact caused Ms Sciberras to fall backwards onto the ground, striking her head after having landed on her back. The appellant then stepped towards the victim and stood looking down at her while other patrons of the hotel came to the scene. Ms Sciberras stood up and, clearly, the pair grappled. Bystanders became involved and attempted to separate the two women. Security personnel eventually separated Ms Sciberras and the appellant and then called police. Ms Sciberras sustained bruising and swelling to the back of her head. She attended the St George Hospital where she was treated for concussion.
The appellant first appeared before the Local Court at Sutherland on 26 June 2015, some four months later. She entered a plea of not guilty on 3 September 2015 and the matter was eventually fixed for hearing on 18 January 2016. On that day the appellant reversed her plea, and pleadingguilty and subsequently stood for sentence before Magistrate Bartley on 3 March 2016. The appellant's plea of guilty was late and entitled her to the minimum discount for pleading guilty, a discount of 10%.
The appellant wrote a letter addressed to the victim dated 1 March 2016, which I infer was tendered in the Local Court. After introducing herself in the opening paragraph of the letter, the appellant went on to say this:
"I agree that I did get into an altercation with you and I acknowledge that you needed to have treatment. I am sorry that you needed to have treatment.
I would like to sincerely apologise for my behaviour on that night and can assure you that it is not how I would normally act.
I have been suffering with depression for quite some time. At the time of the incident I was having my medication adjusted as my doctor was trying to work out what medication would work best for me. I acknowledge that I should not drink alcohol whilst on [medication].
I believe that my depression worsened as a result of being informed by my doctor that I was born without a uterus and I will never have the chance to have my own children."
There is no direct evidence of the last statement, but I accept that that information had been recently conveyed by the appellant's general practitioner to her and may have contributed to her taking to alcohol on Saturday, 1 February 2015. However, equally it may have been a night out at licensed premises with the idea of general enjoyment. Clearly the appellant had been in the licensed premises for some time and was intoxicated and that intoxication negatived her prescribed medication.
For the purposes of being sentenced the appellant was interviewed by a senior community corrections officer on 26 February 2016. On p 2 of the pre‑sentence report the following material is provided:
"The offender recalled being involved in physical altercations during her schooling years, claiming it was due to being bullied and standing up for herself. In relation to the matter before the Court the offender seemed to justify her behaviour and appeared to have little insight into ramifications of her actions. Ms Sutherland attributed a part of her offending behaviour to a change in her prescribed medication and consuming alcohol."
Later in the report the senior corrections officer expressed the opinion that the appellant preferred to attribute partial blame for her offending behaviour to changes in her prescribed medication and her consumption of alcohol on the night. In other words, the senior corrections officer had reservations as to real remorse and contrition for the crime committed by the appellant. That appears to be borne out by the terms of the apology offered by the appellant to the victim in the letter which I have quoted, where she expressed regret for the need for the victim to have treatment rather than for the whole episode of the assault and the consequent indignity and interference with her normal enjoyment of life.
The learned magistrate imposed a sentence of imprisonment for 15 months but suspended that pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. His Honour also included in the terms of the good behaviour bond following upon the suspension of sentence that the appellant report to the Community Corrections Service at Liverpool within seven days and that she commence therapy by a psychologist, as advised by her then treating psychologist, or any successive psychologist.
The appellant had asked the Local Court to deal with her under s 32 of the Mental Health (Forensic Provisions) Act 1990. The same application has been made to me. It is necessary to briefly consider the appellant's background. She was born on 15 November 1996. At the time of the offence she was 18 years old. She is currently 19 years old. The appellant was interviewed for some four hours on 12 September 2015 by a psychologist, Ms Ann-Marie de Santa Brigida, at the request of her solicitor. The only medical information available to me is contained in Ms de Santa Brigida's report. The appellant gave the psychologist a history that in Year 8 she first experienced symptoms of depression. On my understanding the appellant was in Year 8 in the year 2009. Symptoms of depression included sleep problems, a feeling of insecurity and, therefore, a difficulty in falling asleep, attenuated energy and motivation, feelings of worthlessness and sadness, and loss of pleasure in activities that she had previously found pleasurable. In Year 9, that is in 2010, the appellant commenced self-harm by cutting herself and also stated that occasionally she would cut her arms and on one occasion that she cut "I hate you" onto her leg.
On 10 June 2011 her general practitioner Dr Hamad prepared a health care plan. I assume it was a mental health care plan. He has not been put before me. However, I do know that after the completion of that plan the appellant came under the care of a psychologist, Ms Therese French, who reported back to Dr Hamad on 4 August 2011. On 22 September 2011 Dr Hamad prepared a further health care plan which clearly involved a further referral to Ms French, who again reported to Dr Hamad on 12 December 2011.
It would appear that in 2013 when she was in Year 12 the appellant was expelled from school. The psychologist obtained this history of the appellant's schooling:
"Ms Sutherland stated that she attended Austral Primary School where she completed Year 6, and she stated that she experienced no problems in primary school. She stated that she subsequently attended John Edmondson High School and she reported that she was suspended on numerous occasions for fighting with another student, pushing a teacher and in Year 12 she was expelled for punching the deputy principal."
I do know from the psychologist's report that in April 2014 the appellant was prescribed Effexor by Dr Hamad. On 2 October 2014 the appellant unfortunately made an attempt on her own life. That caused her to be admitted to Campbelltown Hospital where she was an in-patient for two weeks. The diagnoses made at that hospital were of anxiety, depression and a personality disorder. On discharge from the hospital the appellant was referred to the Dialectical Behaviour Therapy Program at the Fairfield and Liverpool Hospitals. There she was diagnosed as suffering from a borderline personality disorder. In her report, Ms de Santa Brigida said this about that diagnosis:
"It is also noted that affective instability due to irritability, dysphoria and anxiety is a feature of Borderline Personality Disorder. It is noted that intense anger and difficulty controlling anger is also a feature of this disorder. It is further noted that impulsivity is a feature of Borderline Personality Disorder and this can manifest in a multitude of ways, including difficulty in reigning in their own behaviour, unstable relationships that fluctuate between idealisation and devaluation, self-damaging behaviour such as overspending, substance abuse and recurrent suicidal behaviour and/or self-harming behaviour."
The next sentence of Ms de Santa Brigida's report makes her assertion that the appellant was suffering from that condition at the time of the offence in question.
If the diagnosis be correct, and there is nothing to suggest otherwise, a borderline personality disorder would have affected the appellant all her life and therefore would have been extant before the time of diagnosis and would still be current. One cannot cure a personality disorder of any type. However, the symptoms of it can be kept in check by medication. Clearly the medical practitioners were attempting to do that. At the time that the offence now in question occurred they were experimenting with changing the medication or the dosage of the medication However, the fact remains that at all material times the appellant must have known about the diagnosis, its consequences on her behaviour and of the need to take her medication and not to take alcohol with the medication because alcohol could undo the effect of the medication. This, in my assessment, is what occurred on the evening of Saturday 21st and the morning of Sunday 22nd February 2015. The appellant's psychiatric condition spoke when, by her conduct in taking alcohol, she negatived the effect of the medication designed to overcome the symptoms of her medical problem.
At some stage, I do not know when, Dr Hamad appears to have referred the appellant to Ms Jessica Fedeli, a psychologist at the West Hoxton Medical Centre. I take the place of Ms Fedeli's practice from Ms de Santa Brigida's report. In the same report Ms de Santa Brigida points out that Dr Therese French was at the same practice as Ms de Santa Brigida but it is clear from Ms de Santa Brigida's report, and contrary to the submission put to me on behalf of the appellant, that Ms Fedeli was at the same practice. By the time the appellant was interviewed by Ms de Santa Brigida she was attending upon Ms Fedeli.
For the purposes of making the application under s 32 of the Mental Health (Forensic Provisions) Act 1990 Ms de Santa Brigida prepared a psychological treatment plan merely requiring the appellant to continue attending upon Ms Fedeli. It is clear that the appellant would have been attending upon Ms Fedeli in any event.
I am satisfied that the appellant did suffer from a medical condition at the time of the offence and at the time she should stood for sentence such that she fell within s 32 (1) (a) of the Mental Health (Forensic Provisions) Act 1990. It is clear that she is not a mentally ill person. The second limb of s 32 (1) requires the Court to consider whether it would be more appropriate to deal with the defendant, to use the terminology of the Act, in accordance with the provisions of the Mental Health (Forensic Provisions) Act 1990 than deal with her according to law.
The appellant's condition was being treated appropriately in any event. Doctors need from time to time to adjust levels of medication and perhaps change the medication being provided for a condition even though the condition might remain the same. Here the crime that was committed by the appellant was committed because she voluntarily took liquor which disinhibited her, allowed her to overcome the effects of medication and allowed her behaviour to be affected by her mental illness. When a person has a propensity to act violently if intoxicated then that person must abstain from intoxication. In fact, at law intoxication in such circumstances is seen as an aggravating factor rather than a mitigating factor. Here the appellant knew that she was prone to violence when un-medicated, was taking appropriate medication, but knew that if she took alcohol the medication would be overcome. She went ahead and did so. In my view this appellant must be dealt with according to law and ought not be dealt with under the Mental Health (Forensic Provisions) Act 1990.
The crime is not a trivial one, nor are there any extenuating circumstances. One must feel absolute sympathy for the appellant because of the news which had only been recently conveyed to her. For any person to be denied fertility is a shattering experience. Nevertheless, it does not justify taking to binge drinking or even taking to drink to assuage one's grief when one knows that the taking of alcohol could lead to an act of violence.
The crime committed could be categorised as "a coward punch". This was an act of violence in a place open to members of the public. In Pattalis v R [2013] NSWCCA 171 Hoeben CJ at CL, with whom McCallum and Schmidt JJ concurred, said this at [23]:
"Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, have been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. Regrettably, it is now notorious {as his Honour recognised } that a single punch can not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers will impose meaningful penalties."
The facts in that case were that a man leaving licensed premises at a night club in Pitt Street, Sydney in the early hours of a Saturday morning threw a punch at another person standing nearby, who had also left the same premises, causing that man to fall to the ground sustaining injury. The offender in that case had been charged with the same offence with which this appellant was charged, assault occasioning actual bodily harm. This offence could have been dealt with on indictment in this Court. If so, the maximum penalty is imprisonment for five years. If dealt with in the Local Court the maximum penalty is imprisonment for two years.
However, the appellant appeared before the Local Court as a young lady of prior good character, a young lady who had only recently reached her legal majority, a young lady who has had the misfortune of being diagnosed with a serious mental illness, and had only been recently been diagnosed with a physical disability which clearly affected her greatly.
Whilst both specific deterrence and general deterrence are important one must resist the temptation to overreact to such acts of violence. Unfortunately his Honour's reasons for judgment have not been transcribed and are not before me. However, in my view to contemplate a full time custodial sentence in these circumstances, where there is no direct medical evidence of the extent of the victim's injuries nor any evidence to suggest that there was any ongoing problem caused by the injury, where the appellant was a very young lady labouring with a number of problems is in my view excessive. In my view the appropriate penalty in a case such as this was of a bond pursuant to s 9 to be of good behaviour.
For those reasons I set aside the sentence passed by the Local Court at Sutherland on 3 March 2016. Brittney Jade Sutherland, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 I order that you enter into a good behaviour bond for a period of 18 months from today. The conditions applying to the term of the bond are as follows:
1. you are to appear before the Court if called upon to do so at any time;
2. you are to be of good behaviour;
3. you are to reside at [redacted];
4. you are to advise the Registrar of the Court by prepaid registered post of any change of residential address during the term of the bond;
5. you are to report to the officer in charge of the Community Corrections Service at Liverpool within seven days;
6. you are to accept the supervision of and obey all reasonable directions of Community Corrections during the term of the bond; and
7. you are to continue treatment provided by Ms Jessica Fideli at West Hoxton Medical Practice until discharged by her from her care or to commence and continue other treatment by a psychologist to whom you may be referred by Dr Hamad of West Hoxton.
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Decision last updated: 26 October 2016