R v Daldy-Rowe [2019] NSWDC 899

District Court New South Wales

Medium Neutral Citation: R v Daldy-Rowe [2019] NSWDC 899 Hearing dates: 28 November 2019 Date of orders: 28 November 2019 Decision date: 28 November 2019 Jurisdiction: Criminal Before: Judge W Hunt Decision: Convicted Make a finding of special circumstances Taking into account 2 matters on a Form 1 and having a 25% discount applied, the offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 4 years and 3 months with a non-parole period of 2 years and 6 months. For the matter on s166 Certificate 9 months fixed term of imprisonment is imposed Catchwords: CRIMINAL LAW – Sentence – Intimidation – Assault occasioning actual bodily harm – Intimidation – Use offensive weapon with intent – Syringe – Form 1 – Common assault – Resist officer in execution of duty – Vulnerable witnesses – Perception of injury – Emotional harm – Spontaneous offending – Substance abuse disorder – Borderline personality disorder. Legislation Cited: Crimes Act Category: Sentence Parties: The Crown Amber Michelle Daldy-Rowe Representation: Counsel: J Hanna – The Crown

Solicitors: Director of Public Prosecutions Legal Aid Commission File Number(s): 2018/00345583

Judgment 1. HIS HONOUR: Amber Michelle Daldy-Rowe stands for sentence in relation to a number of offences. These include using an offensive weapon with intent to commit an indictable offence to wit, intimidation in breach of s 33(B)(1)(a) of the Crimes Act, that matter carries a maximum penalty of twelve years imprisonment and no standard non-parole period has application; an assault occasioning actual bodily harm on Mr Majer in breach of s 59 (1) of the Crimes Act, that matter has a maximum penalty of five years imprisonment and no standard non-parole period has application. Additionally when sentencing Ms Daldy-Rowe in relation to the s 33(B)(1)(a) matter, I will take into account two further offences on a Form 1 which has been signed by the parties and myself today which has two charges of common assault, each of which on indictment carry a maximum penalty of two years imprisonment. It is inevitable consistent with the legislation and authority that those matters being taken into account will place upward pressure on the sentence to be imposed for the s 33(1)(b) offence. 2. Additionally there is one matter of resisting an officer in the execution of duty in breach of s 59 of the Crimes Act that the parties ask me to take into account; this is before the Court on a s 166 certificate. That is a matter that on indictment carries a maximum penalty of five years imprisonment. It is common ground between parties that Ms Daldy-Rowe has been in custody since her arrest on the day of the offences being 10 November 2018 and that all her custody was referable to these matters and that any sentence will be available to be backdated to that day. It is also common ground that Ms Daldy-Rowe pleaded guilty in the Local Court and is entitled to a twenty-five per cent utilitarian discount in relation to each of the offences. My understanding of the facts which I will summarise shortly has been enhanced by watching a portion of exhibit B which is some footage taken from the closed-circuit television without any sound recording. Although that footage did not permit any understanding of the offender's movements before there was a worsening of matters, it gave me some perspective as to the timeframe involved in and the effect on a variety of persons. 3. At about 3pm on 10 November 2018 the offender attended the Lismore Base Hospital emergency department. Around that time there were about eight other people seated in the waiting area. A little while later, she was asked to leave the hospital premises as she had been seen to and discharged. She refused and kept repeating words to the effect of, "My back is sore and I am scared I'm going to have a seizure," that was against a backdrop of her seeking some anti-seizure medication at the hospital. The accused then walked towards the counter and began calling out profanities including, "Cunt" and "Bitch" which were directed at the nurse who was asking that she leave. The offender became increasingly agitated at this point in time. The nurse then advised the offender that she was calling security to which the offender replied, using words to the effect of, "Bring it on I'll take them on and stab them." She then commenced to start rummaging in one of the bags that she had with her. 4. In due course, security arrived and moved the other occupants of the emergency department waiting room to a different room away from the offender. She was then told to leave by Mr O'Driscoll, a security officer at the hospital who said words to the effect of, "You have to leave. Leave now." The offender refused to leave and said words to the effect of, "I have to find my lighter," and when asked to leave, again she responded with words to the effect of, "I'm trying to find my fucking lighter," while shuffling around in her handbag. The offender then quickly pulled a syringe from her handbag with her left hand and yelled out words to the effect of, "Yeah I've got HIV." That is the commencement of the facts in relation to the use offensive weapon. 5. The facts in relation to one of the common assaults on the Form 1 are that the offender then lunged towards Mr Rowan Allen, who was employed as a wards person, while holding the syringe out in front of her. Mr Allen then jumped backwards. The offender then lunged at Mr Allen again. He grabbed a row of four chairs and placed them between himself and the offender to act as a barrier between them. 6. The facts in relation to the other common assault on Deepak Singhla are that the accused then turned to him. He was also employed as a security officer at the Base Hospital; he was attempting to distract the offender by talking to her. The offender then made a swiping motion towards Mr Singhla with the syringe. It is not suggested in either of the cases of common assault that there was any collision of the syringe with the victim of the assault, it was the treat occasioned by that conduct. 7. The facts in relation to the second matter on the indictment are an assault occasioning actual bodily harm in which Mr Majer is the victim. Mr Katt, who is employed as a health and security assistant at Lismore Base Hospital at this stage grabbed the accused by her left wrist and brought her to the ground. Mr Singhla, Mr O'Driscoll and Mr Majer, who was also employed as a health and security assistant, then assisted Mr Katt which restraining the offender. She continued to act aggressively and was thrashing about. She then punched forward with her left arm and scraped the syringe she was holding in her left hand down Mr Majer's arm causing a large scratch mark to appear that was approximately thirty-three centimetres long. She then said words to the effect of, "I've killed you I have HIV." 8. The police attended in due course and attempted to restrain the offender while she was still on the ground. She was advised by police that she was being placed under arrest and was required to return to the police station with them. She then started saying words to the effect of, "You dog get fucked you cunt." She was acting in an aggressive manner towards police while they attempted to place handcuffs on her. Police requested that the accused stand up, she refused to do so and banged her head on the floor eight times. Four police officers were required to get the offender to her feet. She refused to walk and pushed and pulled against the police officers as they tried to walk her in due course to the rear of the police truck. 9. In terms of assessing the objective seriousness of each of the offences, I take into account that the offending, particularly in relation to Mr Majer, involved the use of actual violence, the injury and emotional harm that was caused, particularly but not limited to Mr Majer was substantial and the victims were in a vulnerable situation by dint of their employment at the hospital and particularly those who were detailed to have security duties, it is inevitable that that form of employment places the victims of this matter and others in their positions in a vulnerable position first because they are obliged to work in interaction with the public and are often required to work with, as was the case here, highly agitated and difficult clientele. Additionally in the circumstances of this matter, it needs to be borne in mind that the patients who were waiting at the hospital were not there by choice but were there because they were either sick or injured and from the footage. It could be seen that at least one relatively young child needed to be ushered away as things started to worsen because of the offender's conduct. I take into account the matters were unplanned, clearly a spontaneous event in a relatively short time frame and that they had been the subject of pleas of guilty. 10. The parties were divided as to the characterisation of the objective seriousness of the use offensive weapon charge. Mr Crick put that when one considers some of the weapons that are used including for instance, motor vehicles, that the weapon involved here was less serious. Mr Crown put that the objective seriousness was in the high range because of some of the matters that I have identified. One of the parts that needs to be taken into account in assessing the objective seriousness of this class of offence is the indictable offence which was in relation to which the weapon was used. Sometimes the indictable offence will be for instance, murder, reckless wounding and so on and I do take into account here that the actual indictable offence nominated in the charge was intimidation which has itself a maximum penalty of five years on indictment. That said, because of the matter to do with the vulnerability of the witnesses and the immediate perception of risk because of the use of a syringe, particularly by somebody who might reasonably have been thought to be a drug user because of her other conduct, I take the view that the objective seriousness is between the points contended for by the parties and is about at the mid-range. 11. As to the characterisation of the assault occasioning actual bodily harm, it is accepted that the physical harm was relatively minor, although I have seen a photograph of the scratch to Mr Majer's arm and it reaches in an area shortly below his armpit area down to about almost his wrist area so it was a not insignificant wound of its kind but the real problem with the offence was the perception that there might have been much more serious physical harm that is, infection by HIV virus that that threat persisted across about six months until there was some final testing done and the emotional harm caused is what takes that matter into above the mid-range and a point between the mid-range and the high range of objective seriousness when compared with all the other kind of conduct that is caught by that offence. As I have said, each of the common assaults were relatively short time focus but carried with them the threat involved in the use of a particular implement in the circumstances in which it was being brandished. It is inevitable that taking into account those two matters on the Form 1 will make the sentence as I have said for the in principle offence higher than it otherwise would have been. In terms of the resist police officer, across the range of conduct contemplated by a resist charge, I take the view that the objective seriousness of that matter fell into the lower range but not at the lowest end of the range given the level of struggle that was involved. 12. Two eloquent victim impact statements were read by the officer-in-charge on behalf of two of the victims who are present in court. I have taken that material into account in the way that I am permitted to by legislation and the authorities. Those statements spoke eloquently of the extended effects that this offender's behaviour has had on people who are generally constructive, contributing members of the community and it shows how ill-considered irrational behaviour can impact most severely the lives of others. This is a matter where things pull in different directions; why? Because the offending itself, as I have identified, was very serious and had not insignificant impacts. 13. Against that, the offender who is now forty years of age has had what can only be described as a tragic life. I accept that she has come to realise the impact of her conduct and she has written a letter which has been addressed to Mr Majer and I have taken it into account. Of course her remorse, as expressed to the psychologist and embodied in that letter does not achieve the full weight that it would have if it had been the subject of sworn evidence. Against that, I am prepared to accept that the offender, having slowly had the chance to consider her behaviour, has some level of remorse. I am prepared to accept much of the assessment of the family history that is provided in the helpful psychological assessment and one of the reasons I am prepared to do that is because when one reads Ms Daldy-Rowe's record consistent with the different stages of her life as it is set out in the psychological report, there is some support for the contentions in that report. 14. The offender has a constructive relationship with her mother and there is some evidence before me that her mother enjoys some difficult health and it has been difficult for her to, because of her own health conditions, visit the offender during the period that she has been imprisoned in the Sydney metropolitan area. There is some hope that there can be some change to those custodial arrangements so that she can reside at a correctional centre closer to where her mother lives in this general area. Suffice to say that her mother had a very difficult relationship with the offender's biological father. He subjected the offender's mother to significant physical abuse. The offender herself was not abused but she and her mother and siblings had to walk on egg shells around her father while ever he lived with them. As a young person, she swore to herself that she would never be in the same position as her mother. 15. The psychological position is slightly more complex in the sense that the father tended to favour her siblings who were all boys and ignored her. She grew up as a person both fearful of her father but craving his respect and love. Perhaps unsurprisingly, and the Court sees this in repeated cases ad nauseum but of course the offender in due course, having left home at the age of thirteen, commenced some limited drug use about that time, commenced to repeat her mother's pattern by falling into a relationship with a violent, manipulative man who encouraged her into the vocation of prostitution to fund both her own drug habit and his. That happened across many years and it was only as recently as 2015 that she was able to free herself from that horrible relationship. During the course of her relationship with that man, she had a miscarriage early on and has had the saddest incident of having a child with significant disabilities effectively become stillborn. The offender needed to deliver that child and it is clear on the psychological formulation that that event, together with her dysfunctional upbringing and abuse that she suffered at the hands of her long term partner have been matters that have contributed to the constellation of difficulties that she has particularly in relation to a substance abuse disorder and of course, borderline personality disorder. It is well understood and this is set out in the psychological report that borderline personality disorder is a very difficult condition to treat and the offender will need to undertake something that is called dialectical behaviour therapy when it is available to her to try and better her situation. It can be seen that the parlous upbringing that this offender experienced together with her fragile mental health means that she is perhaps less morally culpable than some people who have an ordinary upbringing and without any psychiatric difficulties. 16. As I have said, this is a difficult sentencing exercise because matters pull in different directions. I take the view that if the offender is able to apply herself to some rehabilitation during the inevitable period that she spends in custody that she will have better prospects for rehabilitation than I can currently assess. Given that she has a lengthy record of relatively minor matters across three jurisdictions and for decades, I am unable to form the view that she is unlikely to re-offend. 17. The Crown did not want to be heard against a finding of special circumstances and I take the view because of the offender's psychological and psychiatric vulnerabilities together with the need to re-establish herself in the community when she has her liberty that it is appropriate to find special circumstances so that she spends a longer period of time on parole. That said, it is also inevitable that she will need to serve a not insignificant period of time in custody as a result of all these matters. 18. The approach that I have taken is to deal with the sentencing of the s 166 matter first. In relation to that matter, but for the twenty-five per cent utilitarian discount, the appropriate sentence would have been one of twelve months. She is convicted in relation to that offence and there is a nine month fixed term to commence on 10 November 2018 when she went into custody and that sentence has now expired, expiring on 9 August 2019. I have formed the view to impose an aggregate sentence in relation to the two other matters. Accordingly it is necessary to announce an indicative sentence in relation to each of the offences and to apply the utilitarian discount to the indicative sentences before arriving at an aggregate sentence. 19. Before the application of the discount, the sentence for the s 33(B)(1)(a) matter taking into account the two common assaults on the Form 1 would have been a starting point of five years. With the application of the discount the indicative sentence becomes three years and nine months. In relation to the s 59 assault occasioning actual bodily harm, against a maximum penalty of five years the starting point sentence before application of discount would have been three years which means that the sentence imposed in relation to that matter is two years and three months. There is different criminality in relation to both matters. It is important to take into account notions of totality. There will be some notional amount of partial accumulation in relation to those two indicative sentences when aggregating the sentence but I do take into account the factual interplay between all of the matters and the relatively short temporal focus. The aggregate sentence is one of four years and three months. It commences three months into the fixed term sentence for the resist offence because I have regard to the need to partially accumulate in relation to that matter. So the four years and three months is to date from 10 February 2019 which means that that sentence expires on 9 May 2023 which is the longest period of time that the offender could serve in custody in relation to these matters. Having found special circumstances I fix a non-parole period of two years and six months which means that the earliest date of release to parole is 9 August 2021. I direct that a copy of the psychological assessment be provided both to Justice Health and to the State Parole Authority so that those bodies can take that material into account in treating the offender both while she remains in custody and when she is admitted to parole.