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District Court 20 September 2024

R v Cheshire-Elwin

[2024] NSWDC 440

Assault & violencePublic order & justice offences
CRIME AGGRAVATED ENTER DWELLING WITH INTENT CAUSE GRIEVOUS BODILY HARM MENTAL HEALTH BUGMY CONSIDERATIONS INTENSIVE CORRECTION ORDER

Citation: R v Cheshire-Elwin [2024] NSWDC 440
Court: District Court of New South Wales
Date: 20 September 2024
Judge(s): Fitzsimmons SC DCJ

Background

The offender pleaded guilty to three principal offences arising from two separate incidents on the evening of 11 September 2022 in Ulladulla, NSW. The offences were stalk/intimidate with intent to cause fear of physical harm, aggravated entry of a dwelling with intent, and reckless grievous bodily harm in company. Two further offences of property damage and larceny were dealt with on a certificate under s 166 of the Criminal Procedure Act 1986.

The first set of offences involved the offender entering the home of a long-term friend and, during an agitated and drug-affected confrontation triggered by a misunderstanding about her deceased brother, lunging at the victim with a small bladed knife. The victim fled his own home. Later that same evening, the offender and her co-offender assaulted a passing stranger who had intervened out of concern for the offender's safety during an argument. The second victim suffered severe head injuries, multiple facial and orbital fractures, seizure activity during transport, an induced coma, and permanent vision impairment.

Sentencing proceeded on the basis of agreed facts, a detailed psychological report from Dr Andrew Wong, expert medical evidence about the second victim's injuries, and character evidence from the offender's family.

Legal Issues

  • What weight should be given to the offender's mental health diagnoses and traumatic upbringing (Bugmy considerations) in assessing moral culpability and moderating deterrence?
  • Whether the offender's intoxication was a matter of free choice for the purposes of s 21A(5)(aa) of the Crimes (Sentencing Procedure) Act 1999
  • What were the respective roles and relative culpability of the offender and her co-offender in the joint assault, for parity purposes?
  • Whether the s 5 threshold for imprisonment was crossed and, if so, whether an intensive correction order (ICO) was appropriate rather than full-time detention

Decision

Objective seriousness

The court assessed the stalking and aggravated entry offences as serious but well below the worst category of such conduct, noting they arose spontaneously from a manic and drug-induced state rooted in genuine grief over the offender's deceased brother (at [76]-[77]). The reckless GBH in company was assessed as falling just below the mid-range of objective seriousness, notwithstanding that the victim was acting as a good samaritan and suffered catastrophic and permanent injuries (at [78]-[82]). The harm to the second victim, while not a distinct statutory aggravating factor because GBH was an element of the offence, was nonetheless taken into account under the purposes of sentencing in s 3A(g) (at [83]-[84]).

Mental health and Bugmy considerations

The court accepted Dr Wong's evidence that a clear nexus existed between the offender's mental health and her offending, finding she was experiencing an unmanaged manic episode exacerbated by stimulant drug use at the time of both incidents (at [89]). Applying Bugmy v The Queen (2013) 249 CLR 571 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, the court held that the offender's profoundly traumatic upbringing, including childhood sexual abuse, physical abuse by her stepfather, neglect and early homelessness, reduced her moral culpability and warranted less weight being given to punishment, deterrence and denunciation (at [90]-[91]). The court accepted diagnoses of complex PTSD, bipolar disorder, prolonged grief disorder, stimulant use disorder, severe alcohol use disorder and cannabis use disorder (at [89]).

Parity with the co-offender

The court found both offenders equally culpable for the joint assault, noting it was the offender who struck the first blow but the co-offender whose punch caused the victim to fall (at [81]). In applying the parity principle from Green v R; Quinn v R (2011) 244 CLR 462, the court identified meaningful differences favouring the offender: her criminal history was limited and free of prior violence, she was not on conditional liberty at the time (unlike the co-offender), her remorse was unqualified, and her prospects of rehabilitation were assessed as good rather than guarded (at [97]).

Aggregate sentence and ICO

The court was satisfied the s 5 threshold had been crossed and imposed an aggregate sentence of 3 years imprisonment (at [99]-[106]). However, applying Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, the court found that community safety was best served by an ICO rather than full-time detention (at [108]-[110]). The court reasoned that the offender's positive rehabilitation steps, maintained with significant family support, would be substantially set back by full-time custody, and that the ICO conditions would still serve the purposes of punishment, accountability and denunciation (at [110]-[111]). The offender had also spent approximately 152 days in pre-sentence custody and was subject to strict bail conditions, including a curfew, which the court treated as quasi-custody (at [98]).

Orders Made

  • The two certificate offences (property damage and larceny) result in conviction without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999
  • An aggregate sentence of 3 years imprisonment is imposed
  • The sentence is to be served by way of intensive correction order under s 7(1) of the Crimes (Sentencing Procedure) Act 1999
  • Standard conditions apply: no further offences; supervision by a Community Corrections Officer
  • Additional conditions: 400 hours of community service; treatment with Dr Thangavelu in accordance with that doctor's directions; treatment at Goulburn Community Health Centre in accordance with the centre's directions; report to Goulburn Community Corrections within 7 days

Key Takeaways

  • The District Court confirmed that where GBH is an element of the charged offence, the extent of the victim's physical harm cannot be treated as a distinct aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, but it remains relevant to the purposes of sentencing under s 3A(g) (at [83]).

  • Applying Bugmy, the court recognised that a profoundly traumatic childhood, including sexual abuse, physical abuse and early homelessness, reduces an offender's moral culpability even where the offending does not occur until adulthood and is connected to a later relapse into substance abuse (at [90]-[91]).

  • A clear nexus between diagnosed mental illness, including an unmanaged manic episode exacerbated by stimulant use, and the commission of an offence will reduce the weight afforded to both specific and general deterrence, though it does not necessarily reduce the objective seriousness of the offending to a marked degree (at [89]-[90]).

  • In a joint criminal enterprise, culpability must still be assessed by reference to each offender's individual conduct; where roles are genuinely difficult to separate, a finding of equal culpability is open, but differences in criminal history, conditional liberty, remorse and rehabilitation prospects remain relevant to parity (at [81], [97]).

  • Under Stanley v DPP (NSW) [2023] HCA 3, community safety is the paramount consideration when deciding between an ICO and full-time detention; where the evidence establishes that community-based supervision better addresses reoffending risk and supports rehabilitation, the court may impose an ICO even for offences of significant violence resulting in a three-year aggregate term (at [108]-[111]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007, s 13(1)
- Crimes (Sentencing Procedure) Act 1999, 21A, 21A(5)(aa), 53A, 66
- Crimes Act 1900, ss 35(1), 111(2)
- Criminal Procedure Act 1986, s 166

Cases
- Baden v R [2020] NSWCCA 23
- Bugmy v The Queen [2013] 249 CLR 571
- DC v R [2023] NSWCCA 82
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- Green v R; Quinn v R (2011) 244 CLR 462
- Hall v R [2021] NSWCCA 220
- Hesketh v R [2021] NSWCCA 262
- Hoskins v R [2021] NSWCCA 169
- KR v R [2012] NSWCCA 32
- Muldrock v R (2011) 244 CLR 120
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v Quinlin [2021] NSWCCA 284
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3