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District Court 5 June 2017

R v AB

[2017] NSWDC 179

Assault & violence
CRIMINAL LAW WOUNDING OF CARER SERIOUS MENTAL HEALTH ISSUES DYSFUNCTIONAL UPBRINGING ASSISTANCE TO AUTHORITIES.

Citation: R v AB [2017] NSWDC 179
Court: District Court of New South Wales
Date: 5 June 2017
Judge(s): Sides QC DCJ

Background

The offender, referred to as AB, was a young person aged 15 years and approximately seven months at the time of the offence. She had spent most of her life in the care of the Minister for Family Services and had been placed with Guardian Youth Care, an out-of-home care residential provider. The victim was a carer employed by that organisation.

On 13 April 2016, following a prolonged and escalating confrontation at the residential premises, AB retrieved a 20-centimetre piece of jagged glass from a broken photo frame in her bedroom. She pursued the victim, grabbed her by the hair, placed her in a headlock, and slashed the victim's neck. The wound was a 3 to 4 centimetre laceration penetrating multiple layers of tissue and required three sutures to close. AB made repeated and graphic threats before, during, and after the attack, including statements to police that she should have "really cut her."

AB pleaded guilty to wounding with intent to cause grievous bodily harm. The prosecution accepted that plea in full discharge of the indictment, with a not-guilty plea to a separate count also recorded. The maximum penalty for the offence is 25 years imprisonment. Because of AB's age, no standard non-parole period applied.

  • What sentence was appropriate for a serious wounding offence committed by a young person aged 15 at the time?
  • How should the court weigh AB's profound personal disadvantage, including a dysfunctional upbringing, multiple placement breakdowns, and serious mental health diagnoses, against the objective seriousness of the offending?
  • Whether the sentence should be served as a juvenile offender pursuant to s 19 of the Children (Criminal Proceedings) Act.
  • What parole conditions were appropriate, particularly regarding contact with the victim?

Decision

The District Court accepted that the offending was serious. AB had threatened the victim explicitly and repeatedly before arming herself with glass and carrying out the attack. Her post-offence statements to police, threatening further violence on release, aggravated the overall picture. The court noted a prior incident at Bankstown Hospital in which AB had punched the same victim.

Against that, the court gave significant weight to AB's background. She had been in state care since early childhood, had experienced multiple placement breakdowns, and carried diagnoses of Post-Traumatic Stress Disorder, Conduct Disorder, and emerging Borderline Personality Disorder. The court accepted that her dysfunctional upbringing and the circumstances of her being the only one of her mother's three children in care had contributed to her distress and mental health difficulties.

The court applied the principle that rehabilitation is the primary sentencing consideration for young offenders, consistent with the approach in cases such as R v K [2000] NSWCCA 24 and R v JTR (2012) NSWCCA 280. It also took into account AB's plea of guilty and her assistance to authorities. The sentence was structured to allow for AB's release to parole while still reflecting the seriousness of the wounding.

The court ordered that the sentence be served as a juvenile offender under s 19 of the Children (Criminal Proceedings) Act. A parole condition was imposed prohibiting any contact with the victim and prohibiting the victim from supervising or caring for AB during the parole period.

Orders Made

  • AB convicted of wounding with intent to cause grievous bodily harm.
  • Sentenced to imprisonment for a total term of 3 years, commencing 13 April 2016.
  • Non-parole period of 18 months, with release to parole on 12 October 2017.
  • Parole subject to standard supervision conditions under the Crimes (Administration of Sentences) Act 1999.
  • Additional parole condition: AB not to be supervised by or in the care of the victim, and not to have any contact with the victim by any means.
  • Sentence to be served as a juvenile offender pursuant to s 19 of the Children (Criminal Proceedings) Act.

Key Takeaways

  • For young offenders, rehabilitation carries primary weight in sentencing, even where the offence is objectively serious and involved premeditation and a weapon.
  • A prolonged history of state care, placement instability, and diagnosed mental illness formed significant mitigating circumstances, reducing the weight given to general deterrence and retribution.
  • The District Court confirmed that the standard non-parole period provisions do not apply where the offender was a child at the time of the offence, even where the charge carries a maximum penalty of 25 years.
  • Under s 19 of the Children (Criminal Proceedings) Act, a court sentencing a young person for a serious children's indictable offence may order that the sentence be served as a juvenile offender.
  • Parole conditions can be tailored to protect the specific victim of an offence, including prohibitions on contact and on the victim performing any supervisory or care role in relation to the offender.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(1), 23
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Mental Health Act 2007 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- R v K [2000] NSWCCA 24
- R v JTR (2012) NSWCCA 280
- R v Milwood [2012] NSWCCA 6