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District Court 13 December 2021

R v Owen

[2021] NSWDC 680

Assault & violence
SENTENCE SIGNIFICANCE OF MENTAL ABNORMALITY PROSPECTS OF REHABILITATION HARDSHIP TO THIRD PARTIES

Citation: R v Owen [2021] NSWDC 680
Court: District Court of New South Wales
Date: 13 December 2021
Judge: Abadee DCJ

Background

The offender, a 74-year-old woman, pleaded guilty to wounding her husband of 56 years with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The offence occurred on 6 April 2020 at the couple's home during a COVID-19 lockdown. The offender stabbed her husband once in the chest with a 20 cm kitchen carving knife while he was in bed. She also stabbed herself and, when her son arrived, was found pressing a second knife against her ribs.

The offender had recently received a diagnosis of high-grade urothelial carcinoma with a likely secondary bowel malignancy. She became severely depressed following that diagnosis, believing she faced an imminent and painful death and expressing deep fear about how her husband would manage without her. Her husband had made a remark, in the week before the offending, that he wanted to die first and could not live without her. Psychiatric evidence established that the offender acted out of a distorted and agitated concern for her husband's welfare, not out of malice or anger.

Her husband sustained a wound to his left chest wall that caused a contusion to the apex of the heart, a tear in the pericardium, and a moderate pericardial effusion with early signs of cardiac tamponade. He was hospitalised until 15 April 2020 and made a full recovery. Remarkably, he told police he did not want his wife charged and believed she was not responsible for her actions.

  • Whether the objective seriousness of the offence and the applicable standard non-parole period of 7 years precluded a non-custodial sentence
  • The significance of the offender's mental health condition, including agitated depression linked to a cancer diagnosis, as a mitigating factor going to culpability
  • Whether the sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) were adequately served by a non-full-time custodial sentence
  • Whether an Intensive Correction Order (ICO) was an appropriate disposition given the offender's age, health, prospects of rehabilitation, and the hardship to third parties (principally her husband)

Decision

Abadee DCJ acknowledged the offence was objectively serious. A stabbing to the chest, directed at a vulnerable and unsuspecting victim who was at the time in a position of intimacy and trust, carried significant criminality. The standard non-parole period of 7 years reflected the legislature's assessment of the gravity of offences under s 33(1)(a), and the Court was required to take that into account as a reference point rather than as a rigid benchmark.

Despite the objective seriousness, the offender's moral culpability was substantially reduced by her mental health condition at the time of the offending. Psychiatric evidence established that she was suffering from severe agitated depression, was suicidal, and acted from a delusional concern that she could not leave her husband to cope alone after her anticipated death from cancer. The Court found that her mental state significantly impaired her judgment and capacity for rational decision-making, reducing her moral responsibility below what the objective facts might otherwise suggest.

The Crown itself conceded that a non-full-time custodial sentence was warranted. His Honour accepted that submission. The Court found that an ICO, with appropriate supervision and a mandatory treatment condition tied to the offender's mental health management, adequately addressed the purposes of sentencing in the particular circumstances, including the need for rehabilitation, the low risk of reoffending, the offender's advanced age and serious health conditions, and the hardship that full-time imprisonment would cause to her husband and family.

Orders Made

  • The offender was convicted of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW)
  • Sentenced to 18 months' imprisonment, commencing 13 December 2021 and expiring 12 June 2023
  • The term of imprisonment is to be served by way of an Intensive Correction Order (ICO) in the community, subject to:
  • Standard conditions: not committing any offence; appearing before the court if called upon during the order period
  • Additional condition: abiding by the directions of the Penrith Community Corrections Office
  • Treatment condition: receiving mental health treatment as outlined in the reports of Dr Bruce Allen (dated 12 June 2020, 19 June 2020, and 12 July 2021), as considered appropriate by the Special Mental Health Older People Service, and complying with that service's directions
  • Non-compliance with standard or additional conditions would render the offender liable to serve the remainder of the term in full-time detention
  • The offender was directed to contact the Penrith Community Corrections Office within 7 days

Key Takeaways

  • A standard non-parole period functions as a legislative reference point, not a mandatory minimum: the District Court was required to take the 7-year SNPP into account but was not bound by it where the offender's individual circumstances, particularly severe mental illness, substantially reduced moral culpability.
  • Severe agitated depression linked to a terminal cancer diagnosis was treated as a significant mitigating factor, reducing the offender's moral responsibility even for a stabbing that caused potentially life-threatening injuries.
  • The Crown's concession that a non-full-time custodial sentence was appropriate carried weight in the Court's reasoning, and was accepted in full by Abadee DCJ as consistent with established sentencing principle.
  • Hardship to third parties, including a dependent elderly spouse, remains a relevant (though not determinative) consideration in the sentencing discretion and may support a community-based order where other factors also favour it.
  • An ICO with a mandatory mental health treatment condition can satisfy the statutory purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including rehabilitation and community protection, even for objectively serious offences, where the offender's circumstances are sufficiently compelling.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 4B, 5, 21A, 66

Cases
- Commissioner of Taxation v Baffsky (2001) 122 A Crim R 332
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Mandranis v R [2021] NSWCCA 97
- Muldrock v The Queen (2011) 244 CLR 120
- Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCCA 294
- R v De Simoni (1981) 147 CLR 383
- R v Eckersley [2021] NSWSC 562
- R v Edwards (1996) 90 A Crim R 510
- R v Hookey [2018] NSWCCA 147
- R v Mitchell (2007) 177 A Crim R 94
- Webb & O'Sullivan [1952] SASR 65