Citation: R v Daldy-Rowe [2019] NSWDC 899
Court: District Court of New South Wales
Date: 28 November 2019
Judge: Judge W Hunt
Background
The offender attended the Lismore Base Hospital emergency department in the early afternoon of 10 November 2018. After being seen and discharged, she refused to leave, became increasingly agitated, and directed profanities at nursing staff. When security officers arrived and attempted to remove her, she produced a syringe from her handbag, yelled that she had HIV, and made lunging and swiping motions towards hospital security staff.
During the subsequent physical restraint, the offender scraped the syringe down the arm of one of the security staff, causing a scratch approximately 33 centimetres long, and told him she had killed him. She also resisted police officers who later attended, banging her head on the floor repeatedly and requiring four officers to bring her to her feet.
The offender pleaded guilty in the Local Court to the principal charges and was sentenced in the District Court on 28 November 2019. She had been in continuous custody since her arrest on the day of the offences.
Legal Issues
- What was the appropriate objective seriousness of the offence of using an offensive weapon (a syringe) with intent to commit an indictable offence (intimidation)?
- What weight should be given to the vulnerability of hospital security workers as victims?
- What effect did the offender's mental health diagnoses, substance abuse disorder, and borderline personality disorder have on her moral culpability?
- How should the principle of totality be applied in arriving at an aggregate sentence across multiple related offences?
- Were special circumstances established, justifying a departure from the standard ratio between non-parole period and head sentence?
Decision
Judge Hunt assessed the objective seriousness of the offensive weapon charge at approximately the mid-range. The judge acknowledged the defence submission that a syringe is less inherently dangerous than other weapons, but weighed against that the vulnerability of the victims, the immediate and reasonable perception of risk created by wielding a potentially HIV-contaminated syringe, and the underlying indictable offence of intimidation, which itself carries a maximum of five years on indictment.
The judge identified the emotional harm caused to the victims as substantial. The security officers and ward staff were treated as particularly vulnerable by reason of their employment, which required them to interact with agitated and difficult members of the public. The judge also noted the presence of other patients in the waiting room, including at least one young child, who had to be moved as the situation escalated.
The offending was characterised as spontaneous and unplanned, occurring within a short timeframe. The judge took into account the offender's significant mental health issues, including borderline personality disorder and a substance abuse disorder, and found that these somewhat reduced her moral culpability, though they did not excuse her conduct. The offender's guilty pleas attracted a 25 per cent utilitarian discount on each matter.
Special circumstances were found to exist, reducing the non-parole period below the standard statutory proportion. The judge directed that a copy of the psychological assessment be provided to Justice Health and the State Parole Authority to assist in managing the offender during custody and on parole.
Orders Made
- Resist officer in execution of duty (s 166 certificate matter): Fixed term of nine months, commencing 10 November 2018, expiring 9 August 2019.
- Aggregate sentence (s 33(B)(1)(a) offensive weapon and s 59 assault occasioning actual bodily harm, with two common assaults on Form 1): Four years and three months, commencing 10 February 2019, expiring 9 May 2023.
- Non-parole period: Two years and six months, with earliest release to parole on 9 August 2021.
- Psychological assessment directed to be provided to Justice Health and the State Parole Authority.
Key Takeaways
- The District Court placed the use of a syringe as an offensive weapon in the mid-range of objective seriousness, treating the nature of the nominated indictable offence (here, intimidation rather than a more serious offence) as a relevant factor in calibrating that assessment.
- Vulnerability arising from employment was recognised as an aggravating consideration: hospital security workers are placed in inherently vulnerable positions because their roles require direct engagement with agitated and potentially dangerous members of the public.
- A spontaneous, short-duration offending episode was treated as a mitigating factor, distinguishing the conduct from planned or premeditated criminal behaviour.
- Borderline personality disorder and substance abuse disorder were accepted as bearing on moral culpability, even though they did not provide any justification for the offending.
- Where multiple related offences arise from a single incident, the principle of totality requires the court to avoid a crushing aggregate sentence, and partial accumulation with reference to the factual interplay between offences may be appropriate.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33(B)(1)(a) (using offensive weapon with intent to commit an indictable offence; maximum 12 years)
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm; maximum 5 years)
- Crimes Act 1900 (NSW) (common assault; maximum 2 years on indictment)
- Crimes Act 1900 (NSW), s 59 (resist officer in execution of duty; maximum 5 years on indictment)
- Criminal Procedure Act 1986 (NSW), s 166 (certificate procedure for summary matters dealt with on sentence)
Cases cited: None identified in the judgment.