R v Jerome [2021] NSWDC 741

Citation: R v Jerome [2021] NSWDC 741
Court: District Court of New South Wales
Date: 5 October 2021
Judge: Haesler SC DCJ

Background

The offender, a 28-year-old Aboriginal woman, had been in a relationship with the victim for approximately ten years. The couple had relocated from Queensland to New South Wales and were residing in Department of Housing accommodation in Mangerton. The victim had obtained an Apprehended Domestic Violence Order (ADVO) against the offender in January 2020, and the order was subsequently varied in May 2020 to include a condition prohibiting the offender from approaching or being in his company for at least 12 hours after consuming alcohol or illicit drugs.

On 6 October 2020, the offender breached that ADVO. She first smashed the television set with a golf club, then stabbed the victim in the thigh with a steak knife. After both parties briefly went outside, the offender followed the victim back inside and stabbed him a second time, inflicting wounds to the upper arm and the right side of the rib cage. The second blow caused a small pneumothorax (partial collapse of a lung), and the victim was admitted to Wollongong Hospital. He discharged himself the following day against medical advice, having been warned of a risk of death.

The offender was found inside the unit by police, who forced entry. She was noted to be intoxicated and incoherent. She was arrested and remained in custody. She entered guilty pleas in the Local Court and the matters were committed to the District Court for sentence.

Legal Issues

How objectively serious were the offences of reckless wounding and contravening an ADVO?
What weight should be given to the offender's diagnosed schizophrenia, particularly where a mental illness defence was available but not raised, and where drug intoxication may have contributed to her symptoms?
How should the court handle the interaction between the ADVO breach as a standalone offence and as an aggravating feature of the principal offences, so as to avoid double-counting?
What sentence, including non-parole period, was appropriate given the offender's deprived background, lack of prior NSW criminal history, mental illness, substance dependence, and the impact of COVID-19 on conditions of custody?
Were special circumstances established, warranting a longer than usual ratio of parole supervision to non-parole period?

Decision

Objective seriousness. Haesler SC DCJ found the assaults were unprovoked and involved a weapon. The second stabbing, in particular, struck a vulnerable part of the body and caused significant injury with potentially life-threatening consequences. The offences were committed in breach of a court order designed to protect the victim, and deliberate disobedience of such orders is treated as a serious matter requiring separate punishment: Suksa-Ngacharoen v R [2018] NSWCCA 142. The court noted that because no prior conviction had accompanied the ADVO, it could not technically be characterised as a breach of "conditional liberty," but underscored that breaches undermine the courts' practical capacity to protect vulnerable people.

Mental illness and subjective matters. The court received a forensic psychiatric report from Dr Richard Furst diagnosing the offender with schizophrenia, with symptoms appearing to have emerged one to two years before sentencing. The Crown disputed Dr Furst's conclusions on the basis that he had not adequately addressed whether the offender's mental state at the time was attributable to methamphetamine intoxication rather than a genuine psychiatric illness. Drawing on Lai v R [2021] NSWCCA 217 and related authorities, Haesler SC DCJ applied caution in relying on the psychiatric evidence for exculpatory purposes, noting the well-established principle that courts must be careful when drug-induced states are conflated with mental illness. The court acknowledged, however, that the offender's background was one of profound disadvantage: family violence, an absent and alcoholic father, abusive stepfathers, homelessness from age 19, and drug dependence from her late teens.

Double counting and totality. Consistent with Pearce v The Queen (1998) 194 CLR 610, the court was careful not to treat the ADVO breach both as an aggravating feature of the wounding offences and as independently punished conduct that inflated the total sentence. The principle of totality was applied when formulating the aggregate sentence.

Special circumstances. The court found special circumstances existed, justifying a higher ratio of parole supervision relative to the non-parole period. The offender's mental illness, substance dependence, limited community supports, and the restrictions caused by COVID-19 on access to programs and family contact all contributed to this finding. The court noted that because the aggregate sentence exceeded three years, any release to parole would be a matter for the State Parole Authority rather than automatic. The judge observed that the custodial authorities and the Parole Authority bore a significant responsibility to provide programs and treatment during the balance of the non-parole period.

Orders Made

First reckless wounding (leg): 1 year 6 months, non-parole period of 10 months.
Second reckless wounding (chest): 3 years, non-parole period of 1 year 9 months.
Contravene Apprehended Domestic Violence Order (s 166 certificate matter): 9 months.
All indicated sentences took into account the early guilty plea.
Aggregate sentence: 3 years and 4 months, with a non-parole period of 2 years, commencing 6 October 2020.
Eligibility for parole consideration: 5 October 2022.
Dr Furst's report (Exhibit 1) ordered to be forwarded with the warrant to Corrective Services NSW.

Key Takeaways

Deliberate breach of an ADVO is treated as a serious, separately punishable offence that undermines the courts' capacity to protect vulnerable individuals, even where the ADVO was not accompanied by an underlying conviction and thus cannot technically be characterised as a breach of "conditional liberty."
Where a mental illness defence under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 is available but not invoked by defence counsel, a sentencing court's ability to give full exculpatory weight to a psychiatric diagnosis is significantly constrained. The court in this case acknowledged the diagnosed schizophrenia as a relevant factor but could not treat it as a complete or near-complete answer to the offending.
Considerable caution is required when a forensic psychiatric diagnosis coincides with heavy drug use; courts must avoid treating drug-induced states as equivalent to independent mental illness, consistent with the approach endorsed in Lai v R [2021] NSWCCA 217.
An offender's deeply deprived background, including childhood exposure to family violence, homelessness, and drug dependence from a young age, remains a relevant mitigating factor at sentence, even where it does not excuse the conduct.
Where an aggregate sentence exceeds three years, release on parole is not automatic and falls to the State Parole Authority; the District Court here expressly noted the consequential obligation on custodial and parole authorities to provide treatment, programs, and a release plan during the non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Crimes (Domestic and Personal Violence Orders) Act 2007 (NSW), s 14 (contravene apprehended violence order)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1987 (NSW), s 166
- Evidence Act 1995 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- Cherry v R [2017] NSWCCA 150
- Devaney v R [2012] NSWCCA 285
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- JDX v R [2017] NSWCCA
- Lai v R [2021] NSWCCA 217
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (