Citation: R v McKay [2019] NSWDC 294
Court: District Court of New South Wales
Date: 16 May 2019
Judge(s): Bennett SC DCJ
Background
The offender, a 30-year-old woman, pleaded guilty to two serious offences. The first was wounding with intent to cause grievous bodily harm under section 33(1)(a) of the Crimes Act 1900, arising from a violent knife attack on a man with whom she had an on-and-off relationship. The second was doing an act intending to pervert the course of justice under section 319 of the same Act, arising from a series of recorded phone calls she made from custody in which she pressured the victim to withdraw his cooperation with police and drop the charges.
The wounding offence occurred on 18 January 2017, the day the offender attended Campbelltown Local Court on a related reckless wounding charge involving the same victim and was released on bail. That evening she stabbed the victim twice with two separate knives at a friend's home in Doonside, first in the neck and then in the cheek, causing serious injuries requiring emergency surgery. The victim survived but needed hours of surgical intervention.
The sentencing proceedings were complicated by contested psychiatric evidence from Dr Ellis, a psychiatrist who had assessed the offender on multiple occasions. The central question was the extent to which the offender's mental illness, combined with her heavy drug use, reduced her moral culpability for these offences.
Legal Issues
- What utilitarian discount for guilty pleas was appropriate given the offender had originally faced the more serious charge of wounding with intent to murder?
- Where did the wounding offence sit on the spectrum of objective seriousness, having regard to the standard non-parole period framework under the Crimes (Sentencing Procedure) Act 1999?
- To what extent did the offender's underlying mental illness and drug use reduce her moral culpability, applying the principles from De La Rosa and Bugmy?
- Were there special circumstances justifying a non-parole period shorter than the standard?
- What aggregate sentence was appropriate having regard to all objective and subjective factors?
Decision
Guilty plea discount
The court reduced the utilitarian discount from the 25% sought by the offender to 15%. The offender had not pleaded guilty at the outset of proceedings in the current form of the indictment; she had originally faced the more serious charge of wounding with intent to murder and offered to plead guilty only upon a lesser charge being preferred. The court found this history justified a more conservative discount (at [14]-[18]).
Objective seriousness of the wounding offence
The court placed the wounding offence above the midrange of objective seriousness, at approximately the midpoint between midrange and the upper end of the range (at [29]). The attack was unprovoked and involved two separate knives used in two distinct strikes. The first blow to the neck caused profuse bleeding and carried a genuine risk of death, a risk that materialised to the point where only timely emergency intervention may have saved the victim's life (at [30]-[31]). The second stab penetrated the full thickness of the victim's cheek and caused significant muscular and tissue damage requiring surgical repair (at [31]). Self-induced intoxication could not be relied upon as mitigation under section 21A(5AA) of the Crimes (Sentencing Procedure) Act (at [32]).
Mental illness and moral culpability
The court accepted on the balance of probabilities that the offender has an underlying mental illness, diagnosed by Dr Ellis as including schizophrenia and personality disorder with antisocial and borderline traits. However, the court found that the mental illness could have been managed had the offender complied with her medication regime (at [126]). The illness was significantly exacerbated by her heavy and sustained consumption of cannabis and crystal methamphetamine. Applying the De La Rosa principles, the court found that moral culpability was reduced, but only marginally, given that it was the combination of untreated mental illness and self-induced drug ingestion that produced the offending state of mind (at [142]). The court also accepted Bugmy principles applied, acknowledging the offender's disadvantaged background including exposure to family violence, though the extent of that disadvantage was difficult to quantify on the evidence before the court (at [127]-[128]).
Perverting the course of justice
The court rejected the submission that this offence fell at the low end of the range of objective seriousness. It found the offence to be below midrange, but only marginally so (at [141]). The phone calls spanned from 26 January to 7 March 2017, and involved repeated, deliberate attempts to convince the victim of the stabbing to withdraw his cooperation with police, including acknowledging he would face arrest if he complied but that his penalty would be less severe than hers.
Special circumstances and sentencing
The court found special circumstances warranting a non-parole period less than the statutory ratio. The offender required an extended period of supervised parole in the community to consolidate the progress she had made in custody with respect to medication compliance and rehabilitation (at [140]). An aggregate sentence was imposed, commencing 3 November 2017.
Orders Made
- Conviction recorded for the related breach of apprehended violence order; section 10A of the Crimes (Sentencing Procedure) Act applied (no further penalty imposed)
- Aggregate term of imprisonment of 8 years and 6 months imposed, with a non-parole period of 4 years and 6 months
- Sentence to commence 3 November 2017; non-parole period to expire 2 May 2022; total sentence to expire 2 May 2026
Key Takeaways
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Where an offender negotiates a plea to a lesser charge only after initially facing a more serious indictment, the District Court may apply a reduced utilitarian discount, here 15% rather than the 25% sought, reflecting the limited utility of the plea in those circumstances (at [14]-[18]).
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Under the framework confirmed in Muldrock and applied in Tepania, the standard non-parole period operates as a legislative guidepost rather than a mandatory benchmark; the sentencing court must engage in an intuitive synthesis of all relevant objective and subjective factors rather than adopting a staged or arithmetical approach (at [20]-[28]).
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Applying De La Rosa, a combination of untreated mental illness and self-induced drug intoxication can reduce an offender's moral culpability, but only to the extent that the mental illness itself materially contributed to the offending; where medication non-compliance and voluntary drug use are intertwined causes, the reduction may be marginal (at [142]).
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The court treated the offender's custodial disciplinary record as a relevant consideration, noting that it contradicted representations made both by the offender and by the treating psychiatrist, and declined to simply accept expert reports at face value where internal inconsistencies or contradictions with objective records existed (at [105]-[106]).
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Bugmy principles, recognising the ongoing relevance of a disadvantaged background to moral culpability, were applied across this sentencing, though the weight given to them is fact-dependent and their application does not automatically produce a substantial reduction in sentence (at [127]-[135]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
Cases
- Bugmy [2013] HCA 37
- Callaghan [2006] NSWCCA 58
- De La Rosa principles [2010] NSWCCA 194
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- Qutami [2001] NSWCCA 353
- Tepania v The Queen [2018] NSWCCA 247