District Court New South Wales Medium Neutral Citation: R v Youseff [2012] NSWDC 252 Hearing dates: 25, 26 October 2012 Decision date: 26 October 2012 Before: Neilson DCJ Decision: Wound with intent to cause grievous bodily harm Sentenced to 6 years and 9 months imprisonment with a non-parole period of 4 years. Finding of special circumstances and matter on Form 1 taken into account. Specially aggravated kidnapping Sentenced to 6 years and 9 months imprisonment with a non-parole period of 4 years. Finding of special circumstances. Sentences partially accumulated, with a total head sentence of 7 years and 3 months and a total non-parole period of 4 years and 6 months. Catchwords: CRIMINAL LAW - sentence - wounding with intent to cause grievous bodily harm - specially aggravated kidnapping - detain victim for advantage (a psychological gain) whilst in company and occasioning actual bodily harm Legislation Cited: Crimes Act 1900 ss 33(1)(a), 86(3) Cases Cited: Ayoub and El Masri v R [2000] NSWCCA 196 R v Speechley [2012] NSWCCA 130 Category: Sentence Parties: Regina (Crown) Nada Vanja Youseff (Offender) Representation: Mr J Sfinas (Crown) Mr A Barber (Offender) File Number(s): 2011/076478 Judgment 1Nada Vanja Youseff stands for sentence as a consequence of adhering to two pleas of guilty entered at the earliest available opportunity in the Local Court. The first charge was that on 8 March 2011 at Kingsgrove she did wound Robin McKivatt in an attempt to cause her grievous bodily harm. That is an offence contrary to s 33(1)(a) of the Crimes Act 1900. It is a very serious offence. The maximum penalty is imprisonment for twenty-five years. There is a standard non-parole period of seven years. 2The court attendance notice for the second offence is one of the most poorly drawn documents that I have seen. With the necessary corrections, the charge was that on 8 March 2011 at Kingsgrove the offender did, without consent, detain Robin McKivatt with the intention of obtaining an advantage, to wit a [psychological] gain, the said Robin McKivatt [having had] occasioned actual bodily harm [to her] during and after being detained, while the said [Nada Vanja Youseff] was in the company of Ali Charbaju. That is an offence contrary to s 86(3) of the Crimes Act 1900. The offence can be shortly described as specially aggravated kidnapping. Again, it is a most serious offence. Parliament has prescribed a maximum penalty of twenty-five years imprisonment. No standard non-parole period has been fixed. 3In addition, the offender asks me to take into account on a Form 1 in connection with the crime of wounding with intent to cause grievous bodily harm an offence of causing another to take an intoxicating substance. That is alleged to have occurred at the same place and on the same date. That again is a crime which carries a maximum penalty of twenty-five years imprisonment. 4The facts of the case are disturbing. The victim, Mrs Robin McKivatt, was at the time of the offences fifty-three years old. At an early age she developed jaundice, which left her with cognitive impairment and a speech impediment. Mrs McKivatt has been diagnosed as suffering from a "mild intellectual disability". The adjective "mild" is used to differentiate Ms McKivatt's intellectual disability from other forms of intellectual disability. The five grades of intellectual disability are borderline, mild, moderate, severe and profound. To suffer from a mild intellectual disability a patient must have an IQ of between 50 and 69. It must be pointed out that the low average range of IQ is 80 and the average range is between 90 and 109. Whilst the victim's intellectual disability has the technical nomenclature "mild borderline disability", Dr Susan Hayes, a Professor of Behavioural Science in Medicine and a forensic psychologist, points out that this is a serious intellectual disability. In the same report concerning the victim, Dr Hayes points out that the victim's son, Jason McKivatt, who was twenty-eight years old as at 26 April 2012, suffers from a learning disability. 5The offender was aware of the victim's intellectual disability. Answer 99 in the electronically recorded record of interview of the offender conducted on 9 March 2011 is this: "Um, I think she's mentally slow in the head. Um, she cries out for a lot of attention. She want's people feeling sorry for her all the time so she goes around crying all the time, that's why no one takes much notice of her anymore. Other than that I don't know much about her. I don't even know where she lives, I don't know anything about her." 6However, earlier in the same record of interview the offender admitted that Jason McKivatt had been her gardener "for a long time". She pointed out that the victim followed her son "like a bad smell", everywhere. She also went on to say a number of pejorative things about the victim. She referred to her as always being drunk and of engaging in sexually inappropriate behaviour with young men. She also made pejorative comments about the victim's personal hygiene, and of her constantly following her son around and often having disagreements with him. The same record of interview suggests that the victim may have been doing work for the offender in her home, essentially as a cleaner, although the evidence concerning that is scant. 7Jason McKivatt's source of income is mowing lawns. On the admission of the offender, he had been mowing her lawns at her premises in Stoney Creek Road, Kingsgrove for a long time. According to the agreed facts it was for almost a period of two years. On 8 March 2011 Mr Jason McKivatt received a telephone call from Ali Charbaju, who would appear to be the same as the Ali Charbaju referred to in the second court attendance notice. That young man is the offender's son. At 8 March 2011 he was under eighteen years of age. Ali asked Jason to attend the Stoney Creek Road premises in order to mow the lawns. Both Jason and his mother, the victim, attended the offender's premises sometime after 1.15pm. When the victim and Jason arrived at the offender's home, they noticed that there was present, in addition to the offender and her son, a number of girls, one of whom they believed was a daughter of the offender. Some time after the victim and her son arrived at the offender's home, the victim entered the house and stayed inside whilst Jason was outside mowing the lawns. The victim was offered wine by the offender and also by a girl whom she believed was called Amanda. All told the victim drank about five glasses of white wine. Both the victim and her son had a meal at the offender's premises. It is not clear when the meal was taken. 8At some point in the afternoon, Jason left the premises but the victim stayed at the premises because the offender asked the victim to do so. It would appear that the leaving of the premises by Jason was late in the afternoon, indicating that the meal taken may have been an early supper. When Jason McKivatt left he assumed that his mother was following behind him. Only when he was some distance away from the offender's home did he realise that that was not the case. Jason rang his mother's mobile telephone on several occasions but was unable to contact her. I can only assume that the calls went unanswered. 9At some time after Jason left the offender's home, the victim was dragged into the kitchen and attacked by the offender. The victim was thrown to the ground. She was "kicked and punched all over" but was unable to describe her assailants. The use of the plural in the agreed facts clearly points to there being more than one person carrying out the attack whilst the victim was on the ground. As she was being attacked the victim felt pain her ribs, in her left breast and in the region of one of her shoulders. The offender then went to a drawer and obtained a knife. The knife was approximately twenty centimetres in length or, to use terminology with which I am more familiar, about four inches long. It had a serrated blade. The handle was black and was about ten centimetres in length, and therefore the blade itself must have been ten centimetres (or four inches) long. With that knife the offender stabbed the victim "multiple times". 10The victim tried to defend herself but suffered injuries to her scalp, her shoulder, her left breast and her arm. The attack then stopped. The victim was picked up and sat on a chair. Her hands were then taped together with duct tape and that tape was put over her mouth. 11As the victim was sitting on the chair so bound, the offender and others threatened her. At some stage the victim began having difficulty breathing and one of the offenders took the duct tape off her mouth. At some point after the duct tape had been removed from her mouth, someone forced two white tablets into the victim's mouth, which she was forced to consume. After consuming those two white tablets the victim felt "giddy" and noticed that her vision had become blurred. 12Blood and urine samples, which were taken from the victim after she was hospitalised, indicated that Diazepam was detected within her blood. The other substances detected in the victim's blood were alcohol and codeine, and an anti-inflammatory was detected in the victim's urine. The only conclusion that I can reach is that the Diazepam was the drug that the victim was forced to ingest. It is the ingestion of the Diazepam which is the subject of the crime on the Form 1. 13Considering the offences that might be dealt with on a charge of causing another to take an intoxicating substance, that offence was clearly towards the bottom of the range. Minds differ as to whether forcible ingestion, which has occurred here, or covert ingestion, where the victim is unaware that some drug is being administered to her or to him, is the more significant crime. It is not necessary for me at this time to make any ruling in that regard. 14Sometime after that the victim managed to get the tape off her hands and then she rose to her feet. The offender saw her and pushed her out of the door of the house with the help of other persons whose identity is presently unknown. 15At approximately 9pm the victim ran across the road and went to a house belonging to Mr Hadi Stambouliah. When Mr Stambouliah answered the door he was confronted by the victim, who was crying and screaming loudly. He observed that she was injured and rang the emergency telephone number. 16Mr Stambouliah in a statement said that the victim was almost incomprehensible when she was talking to him, and was just saying things such as "I'm bleeding from the mouth; I'm scared; they're going to kill me; they took my phone, my keys, my shoes and my car, why did they turn on me? I just want to die, they tied me up." 17The victim was taken by ambulance to the St George Hospital and was treated by, amongst others, Dr Mary Langcake. Dr Langcake described the victim's wounds thus: "Two wounds to the scalp anteriorly and in the middle - the length and depths of which are not described. Lacerations of the left shoulder posteriorly - one described as three centimetres in length and one described as one centimetre in length. Four wounds to the left forearm on the inside aspect described as being one centimetre long and one small wound on the outer aspect of the left forearm, the length of which is not given. A wound to the left outer aspect of the left breast described as being a one centimetre laceration." 18Specialist imaging revealed air in the tissues of the left armpit and the left pectoral muscles, and a very small left apical pneumothorax and an undisclosed facture of the nasal bone. 19The small left apical pneumothorax, together with what is described as "surgical emphysema", suggested that one wound had penetrated the left chest cavity. 20Dr Langcake was unable to comment with any certainty on which of the wounds was deep enough to have penetrated into the left chest cavity, however free air in the tissues on imaging seemed to indicate a tracking in the direction of the laceration to the victim's left breast. 21Only a penetration of the left breast explains, on the evidence currently before me, the cause of the left sided apical pneumothorax. 22The wounds to the victim's head and eyebrow were sutured under local anaesthetic. They have been described thus: "Starburst laceration at the hairline of the mid frontal regional 4 x 3 centimetres requiring seven sutures Four centimetre superficial laceration to the left parietal region which was closed with dermal glue Between 5 and 6 centimetre anteroposterior laceration in the right parieto-occipital region which was closed with four sutures A 1.5 centimetre left lateral breast wound closed with three sutures." It is that latter wound which seems to have caused the left apical pneumothorax. 23Later on 9 March 2011 the victim underwent surgery under general anaesthetic. There was a washing and suturing of the left shoulder and left arm lacerations. The wound in the left shoulder extended deeply through the attachment of the deltoid muscle and that required suturing. Exploration of the left forearm muscles showed that three upper most wounds had actually pierced into the belly of a muscle although there was no involvement of any tendon. A wound on the lateral aspect of the left forearm did not involve the fascia and therefore could not have penetrated the subdermis. 24As far as the wound to the left breast, which appears to have penetrated into the left chest cavity is concerned, Dr Langcake expressed the view that the wounding to the chest cavity could have been potentially life threatening. 25The police conducted an examination of the offender's home. They found apparent blood on the floor of the dining room and on the southern wall and the eastern wall and on parts of a dining room chair which had been overturned. The inference to be drawn is that that was the chair on which the victim had been sat and to which she had been taped in order to restrain her. 26Police also observed a strong smell of bleach coming from the kitchen sink. Such may have been used to try to rid the kitchen sink of blood and the like. After removing items from the sink, police located at the bottom of the sink two spoons, a knife and numerous strands of hair. The blade of the knife was bent at the hilt and had several red and brown stains as well as several strands of brown hair stuck to it. The hair located in the sink was similar in colour to that located on the floor of the kitchen. The inference to be drawn is that the bent knife was the knife used by the offender in her attack on the victim. The presence of hair is consistent with stabbing of the scalp of the victim.' 27On top of the microwave was located a silver coloured plastic bag within which was a baseball cap, which would appear to have been heavily soaked with what appeared to be blood, with the majority of the inner lining stained red. An inference that could be drawn is that that baseball cap had been worn by someone involved in the assault upon the victim. 28According to the agreed facts, the offender was arrested and at about 4am on 9 March was taken with her son to the Hurstville Police Station. However, I am told that there is some inexactitude as to exactly the time that the offender was arrested. I am asked to backdate any sentence to the 8 March 2011. 29The offender has been in custody since the time of her arrest. I am told that that is a period of one year, seven months and seventeen days. The offender's son, Ali Charbaju, is to stand trial in this Court on 5 November next. 30The offender has no recollection of her conduct on the evening of 8 March 2011. The victim herself cannot explain it and the motive for the attack upon the victim is completely unknown. However, certain things can clearly be ruled out. The attack could not be described as "domestic violence". There is no suggestion that it was some act of vigilantism. There is no suggestion that there was any motive of revenge. I do know that before the attack a cask of white wine was consumed. The victim herself had had about five glasses of white wine. That is consistent with her blood alcohol reading of 0.056. 31I do not know if the only persons taking white wine were the offender and the victim or whether other women may also have been taking wine. I do know, however, that the offender, by her own admission, was also smoking cannabis. 32The smoking of cannabis and the taking of white wine suggest intoxication. Intoxication would explain the lack of recollection by the offender of what occurred on the evening of 8 March 2011. Intoxication might also explain why the offence occurred. When people are drunk they become disinhibited and do many things that, when sober, they would not do. 33Something could have been said which upset the offender, causing her to act in the way she did towards the victim. Equally, disinhibited, the offender may no longer have been able to put up with what she might have considered annoying conduct by the victim. 34The disturbing things, of course, are causing the victim to stay at the offender's home and sending the victim's son away so that the victim would be alone. There is then a frenzied knife attack upon the victim, in which she sought to defend herself. She sustained a large number of lesions and a large number of those lesions are clearly wounds within the meaning of the law. 35The victim was then restrained and her mouth was taped over and her hands taped together and she was made to sit in a chair. This has all the hallmarks of gratuitous violence and, were the authorities to have acted in such a high-handed fashion, one might almost use the word torture. 36I have been provided with diametrically opposed submissions. On behalf of the Crown, Mr Sfinas submits that each of the two principal offences is one towards the top of the range of seriousness. Mr Barber of Counsel, for the offender, submits that each is towards the bottom of the range of seriousness. 37When one considers wounding with intent to cause grievous bodily harm, the extent of the injuries is obviously of great moment but not in itself conclusive. Here I have a large number of wounds, in the legal sense, and other lesions. However, fortunately for all concerned, it would appear the victim has made a good physical recovery from her injuries. However, any tribunal of fact can readily accept that any person, whether intellectually disabled or not, would find the experience which the present victim underwent not only horrifying but terrifying. 38The victim, because of her background, has been unable to personally prepare a victim impact statement. A victim impact statement was prepared on her behalf by her sister, Miss Jan Newton. The victim impact statement tells me that the victim suffered both physically and emotionally from her ordeal. 39Apparently the victim struggles to understand why someone would do to her the things which were done to her. The victim asks, "Is it because I'm different?" The victim is haunted by bad dreams at times and, at other times, by an inability to sleep and of fears of being kicked across the ground and being laughed at. The victim's sister confirms that the victim was in great physical and emotional pain during her recovery from her physical injuries. 40The last two sentences in the victim impact statement are these: "When Robin asks me, "Why?", I tell her that there is always a reason why people do what they do but there is no excuse. Robin says, "Nada was my friend - friends don't do that, do they?" No they don't!" Of course, the quote "No they don't" are the words of Miss Newton rather than of the victim herself. However, one can understand the victim being absolutely perplexed by her terrifying ordeal, which she thought had been visited upon her by someone she considered "a friend". 41There is nothing that can justify the violence meted out to the victim. In fact, there was no explanation for it at all. One can only try to concoct the reason why the offender was motivated to do what she did. Perhaps she took exception to something that the victim said or did and, disinhibited by alcohol, over-reacted. 42The evidence does not offer any further explanation. Towards the beginning of these reasons I set out what the offender herself said about the victim in her electronically recorded interview on 9 March 2011. Clearly, the offender was there showing some personal animus against the victim which appears to have been played out in the gratuitous violence offered to the victim in the attack upon her by the offender. 43But again, going back to the issue of the extent of the gravity of the wounding with intent, one can appreciate that the victim has been left with terrible memories and fears and doubts following upon the attack against her. While from the physical injuries she appears to have made a full recovery, it is hard to believe that she would completely omit from her memory the terror which she experienced in the attack. 44An offence contrary to s 33(1)(a) can be committed with only one wound being inflicted. Here there were a number of wounds inflicted. The wounds were to "vital areas", to the head and chest. They were not, for example, merely to the arms and legs but to areas where there are vital organs including the lungs, heart, major blood vessels and, for example, as far as the attack to the victim's head is concerned, one of the wounds was to her eyebrow and it is fortunate that there was no injury to her eyes. It is also fortunate there was no penetration of the victim's skull by the knife wielded by the offender. 45The evidence is unclear as to the period of time over which these wounds were inflicted. It was after an early supper. It was, clearly, after late afternoon and before 9pm. The offending conduct could have taken place over half an hour, an hour or a couple of hours. The facts do not enable me to determine. However, this was hardly a fleeting attack, an attack that was brief. It appears to have been sustained over some period of time. 46As far as wounding is concerned, I would categorise this case as being in the mid-range of seriousness. I have on purpose omitted the words "objective seriousness". It is in the mid-range of seriousness in the sense in which all crimes must be considered. 47As far as the offence contrary to s 86(3) is concerned, the elements of the offence clearly include a detention of someone against his or her will for an advantage. The only advantage pleaded here is a psychological advantage but one might infer that the reason the victim was detained was to visit her with violence, to inflict injuries upon her and, perhaps, to humiliate her. 48Another essential element is that the offender was in company. She was in company with her son. She admits that by her plea, but other evidence suggests that others may also have been present, perhaps two other younger women. 49The final element in the offence under s 86(3) is the infliction of actual bodily harm. Here, the bodily harm inflicted was much greater than actual bodily harm. It was wounding which itself could amount to grievous bodily harm. 50In so far as the injuries sustained by the victim went beyond actual bodily harm, the infliction of the wounds as far as the s 86(3) offence is concerned should be seen as being aggravated pursuant to s 21A(2). 51In any case of kidnapping there are a number of matters to be considered. They include the period of detention, the circumstances of detention, the nature of the person being detained and the purpose of the detention. See, for example, R v Speechley [2012] NSWCCA 130 at [55]. I have already referred in to the period of the detention. Here it may have been for a few hours, it could have been for less. One case with which I dealt the period of detention was seven days. The period of the detention is, in the grand scheme of detention, not particularly long. However, the circumstances of the detention were significant. The detention began as the victim was being dragged into the kitchen. She was then attacked by being kicked and punched all over when she was on the ground. The offender, who was wielding a knife, then attacked her. 52A large number of knife wounds were inflicted. When that attack had stopped, the victim was picked up, put on a chair and her hands were taped together and her mouth was taped over and then she was made to ingest a drug. After some time she was able to get the tape off her hands, rise to her feet and seek to escape and, in doing so, was pushed out of the door by the offender and others unknown. These were very different circumstances to the circumstances referred to in Ayoub and El Masri v R [2000] NSWCCA 196, where the conditions of detention over seven days were almost polite. 53Again, when I consider the nature of the person being detained, this count's happening to an intellectually disabled adult aged fifty-three must have been extremely frightening, demeaning and insulting. A mature lady of fifty-three ought not be detained in circumstances that University freshers might once have thought appropriate for a hazing ceremony. 54Again, I am required to consider the purpose of the detention, a purpose which only can be subject of conjecture. Here it was at least for the purpose of injuring the victim and perhaps insulting her. 55This offence is at least in the mid-range of seriousness for an offence contrary to s 86(3). There was not only detention but also restraint by having her hands taped together and her mouth covered with duct tape. 56I turn now to consider the offender's personal circumstances. At the time of the offence the offender was fifty-two years old. She is now fifty-four. She is the mother of six. Her children now appear to range between the ages of thirty-five and perhaps twenty or at least nineteen. Her youngest child, her son, Ali, is yet to stand trial for his part in this crime, if he played a part in it. 57The offender is a mother of at least two grandchildren. Her thirty five year old daughter, Belinda, has a teenage son. Belinda suffers from Lupus Erythematosus Type III. Belinda dearly misses the support of her mother because her mother was providing to Belinda and her husband and son assistance, and in particular to her daughter whilst she was undergoing, amongst other things, chemotherapy. 58The offender's second child is a daughter, Amanda, aged thirty who is a mother of a four year old. When the offender is released from custody she proposes to live with Amanda. 59The offender's third daughter, Safa, is twenty-three and single. The offender's eldest son, Haysam, is currently aged twenty-one or maybe a bit older. He was acting as the offender's carer prior to his being taken into custody for driving offences. I have been told, without objection from the Bar table, that he is to be shortly released from custody. 60The offender's two younger sons are Azam and Ali, who are either twenty and nineteen, or twenty-one and twenty. They live together in Miller. 61The offender was born in Croatia and moved with her family to Germany when she was two years old. Her family remained in Germany for nine years before migrating to Australia in 1969 when the offender was eleven years old. Between the ages of eleven and sixteen the offender was sexually abused by her eldest brother. To escape his abuse, the offender married her first husband at the age of sixteen. However, that marriage failed after two years. There have been two subsequent marriages. The second marriage was to a man who was addicted to heroin and he introduced the offender to that drug. The offender's third relationship is referred to as being one marked by domestic violence, which ended after some eighteen years. 62Not only did the offender marry at sixteen, she also left school at sixteen and commenced to train as a hairdresser. She completed her hairdressing course in the early 1970s and worked casually in that industry during the birth of her children. However, according to the pre-sentence report, the offender has not worked for the last ten years and, at the time of the crime now in question, was in receipt of a disability support pension. 63It would appear that the offender has suffered from a depressive illness for many years. One can understand that a young girl who is sexually abused by a close family member for a period of five years from age eleven to age sixteen might develop a depressive illness. It would appear that the offender started receiving treatment for depression in about 2002 after a stillbirth. It was shortly after that stillbirth that the offender broke off her third marriage or third relationship. She then came under the care of a Dr Wisemann, who prescribed antidepressant medication. 64On 16 February 2007 the offender presented to the psychiatric unit at St George Hospital and advised that she was feeling suicidal and had thoughts of taking an overdose. She told the hospital authorities that she had been using cannabis, methylamphetamine and benzodiazepines prior to her admission and that she had had in the past a twelve year history of dependence on heroin with subsequent treatment by methadone. The diagnosis at the time was of depression due to disorders, due to the use of cannabis and due to dependence on other drugs. 65She was admitted to the psychiatric unit from 16 until 19 February 2007. According to a report of Dr Robert Furst of 25 August 2012, during that time the offender displayed symptoms of paranoid delusions but she was not treated with any antipsychotic medication. When discharged from the psychiatric unit, a referral was made to the local SMART recovery drug and alcohol service but there is no evidence that the offender attended at that service. 66It is important to note that prior to that admission not only had the offender been using cannabis but she had also been using methylamphetamine and also abusing prescribed drugs, benzodiazepines. 67The offender admitted to Dr Furst that she had abused cannabis since her twenties. She generally used about one gram per day. She was still using cannabis up until the day of her arrest. Her second husband introduced her to heroin in 1981 and she became dependent upon that drug. She stopped using that drug with the assistance of methadone through the Jacaranda Clinic at the Liverpool Hospital. Dr Furst takes a history of that occurring in 2001 but according to the pre-sentence report it occurred in 2003 and that is the more likely explanation bearing in mind that the offender admitted being heroin-dependent for twelve years. 68In 2009 the offender found it necessary to go back to Croatia. There had been the deaths in her family of her father, an uncle and her grandparents. She went back to Croatia to settle the family estate but there were complications with one of her uncles who made a threat to kill her, producing a handgun in the bedroom of the home in which the offender was staying and demanding the title deeds to the family home. 69The offender returned to Australia on 28 February 2010 under "a lot of stress". When she arrived home, her son had gone into custody and that gave her less support at home because her son was acting as her carer. Later on or about that time, the offender's mother died after suffering from dementia. 70One can understand that with a history of childhood sexual abuse, a relationship marred by heroin dependence, another relationship marred by domestic violence, a stillbirth and subsequent treatment for depression, and with the problems arising in 2009 and 2010, the offender should have ongoing problems with a major depressive disorder. That is the diagnosis now provided for the offender's psychological or psychiatric problems. However, such diagnosis does not explain the criminal behaviour in which the offender engaged on 8 March 2011. 71The offender has developed epilepsy. That epilepsy appears to have been of late onset. After recounting the death of the offender's mother, Dr Furst's history continues in this fashion: "She recalls feeling very depressed, did not sleep well, and smoked a lot of cigarettes. Ms Youseff was also highly anxious about the welfare of her son and the ongoing problems in settling her family's estate. She suffered a number of seizures, as often as daily and then 2-3 times in one day. There were some days without seizures. She recalls having a number of seizures one day in late February 2010 when riding on a bus. There were occasions of tonic-clonic seizures, including one occasion when Ms Youseff lost consciousness and hit her head on the coffee table at home. Other seizures were only partial or absence seizures." 72The doctor then records that the offender attended St George Hospital for treatment of seizures on 3 December 2010, 4 December 2010, 10 December 2010, 16 January 2011 and 24 January 2011. She was managed with the anti-convulsant medication Keppra. Initially that was 250 milligrams daily. That was subsequently increased to 750 milligrams per day. 73According to Dr Furst's report the offender was under the care of a neurologist at the St George Hospital. When prescribed the Keppra, the offender was taking an antidepressant medication Efexor XR but the Efexor XR and the Keppra did not go well together and that caused the offender to stop taking her antidepressant medication. 74Since her incarceration the offender's depressive illness has been treated by Dothiepin, which has been prescribed for her by Dr Lisa Brown of Justice Health. One can see that since at least 2010 the offender has been suffering with epileptic seizures. An issue has arisen in this case as to whether the offender suffered from an epileptic fit on 8 March 2011. In his report, Dr Furst says this about epilepsy: "Epilepsy is a chronic brain disorder characterised by the [sic] current unprovoked seizures, during which there is abnormal unregulated electrical discharge that occurs within the brain's cortical grey matter and transiently interrupts brain function. A seizure typically causes altered awareness, abnormal sensations, focal involuntary movements, or convulsions (widespread violent involuntary contraction of the muscles), which is the type often referred to as generalised tonic-clonic seizures. Although seizures usually only last about 1-2 minutes, there are well described post-ictal (after-seizure) phenomena that have psychiatric relevance, including ongoing altered states of consciousness and awareness, headache, and post-ictal psychosis. About 30-50 percent of all people with epilepsy have psychiatric difficulties, the most common of which are changes in personality, psychosis, violence, and depression. Personality changes seen in epilepsy are most often associated with a heightened experience of emotions, and "viscosity of personality", which often manifest as slow, serious, ponderous or pedantic communications, which are often circumstantial. Episodic violence is usually associated with the frontal and temporal lobes. Whether the violence is a manifestation of the seizure itself or of its intra-ictal psycho pathological origin is unclear, however it is uncommon for patients to be violent during the seizure episode." 75The doctor then goes on to point out that he had been given a history that the offender had a epileptic seizure on the morning of 8 March 2011, and that left the doctor to express the view that the offender was "probably post-ictal at the time in question". 76Another thing to bear in mind is the doctor also tells me that the use of cannabis and alcohol can contribute to the frequency and severity of epileptic seizures. The question is, did the offender have an epileptic seizure on the morning of 8 March 2011? I am not so persuaded on the balance of probabilities. It was not mentioned when the offender was interviewed by the police in the early hours of 9 March 2011. It has never been mentioned or, if it were, it has not been reported on by Dr Brown, the psychiatrist at the Silverwater Correctional Centre. It was not mentioned to Teresa Sartor, a probation and parole officer who interviewed the offender on 13 July 2012. The only time it has been mentioned was when the offender was interviewed by Dr Furst on 10 August 2012. 77Furthermore, the offender did herself not give any evidence so that this history, although this one history recorded by Dr Furst is some evidence of the fact, has not been corroborated by any sworn evidence. In the light of the lack of any other reference to it, I cannot be persuaded on the balance of probabilities that the offender did suffer from an epileptic seizure on the morning of 8 March 2011. Even if the offender did suffer from such a seizure, her subsequent behaviour is inconsistent with the types of behaviour referred to by Dr Furst. All I know is that the offender was entertaining the victim and other women, that they were drinking alcohol, that the offender was smoking marihuana and that a meal was taken and that then this attack upon the victim occurred. To suggest that the offender was labouring under the effects of an earlier seizure that day is inconsistent with such voluntary behaviour. 78The thing that is abundantly clear is that the offender has no history of any crimes of violence, either in the past or subsequently. She herself has been the victim of violence but of a sexual violence. She has also been the victim of domestic violence. Her criminal history is short and really of no moment in the current sentencing exercise. 79On 29 July 1985 she was charged with possessing heroin in the ACT. She was given a six month suspended sentence. On 22 November 1985 she committed the offence of low range PCA, with a blood alcohol reading of 0.07. At the same time she committed some other driving offences. 80On 11 March 1986 she was guilty of shoplifting. On 11 August 1986 she was charged with breaking, entering and stealing, for which this Court sitting at Campbelltown eventually placed her on the equivalent of a s 9 bond for a period of three years. 81On 10 September 1986, 27 April 1987 and 10 December 1987 the offender committed crimes of stealing. The largest penalty was of eighty hours community service, which was successfully completed. Otherwise, the offender has no criminal history and it is clear that between 10 December 1987 and 8 March 2011, a period of over thirteen years, the offender had not committed any crime at all. 82There are no earlier crimes of personal violence. Again, it makes the circumstances of this case quite unusual and reinforces in my view, my conclusion, that this offence was largely caused by disinhibition due to intoxication. 83The offender has, since being in custody, being doing well. She has been regularly treated by Dr Lisa Brown, is undergoing psychological counselling, is attending both Alcoholics Anonymous and Narcotics Anonymous and she is clearly resolved to rehabilitate herself, to wean herself off her drug and alcohol addictions. 84There is in evidence a reference from a correctional officer at Silverwater Women's Correctional Centre which speaks of the offender's co-operation with the prison authorities, her assistance in keeping the wing in which she resides clean and of her willingness to help other offenders cope with life in custody. 85In her report of 4 November 2011, Dr Brown said [if my reading be correct]: "Being of an older age than most other inmates and not having any significant forensic history previously has made an adjustment to prison life to be particularly difficult. Ms Youseff is a shy and unassertive woman who, at times, has had difficulty protecting herself from other inmates." 86The doctor then goes on to refer to other pressures under which the offender laboured from outside of the prison environment. 87In his report, Dr Furst said this: "Ms Youseff is a vulnerable inmate in a correctional centre by virtue of her epilepsy, especially given the frequency of her seizures over recent years. She may be exploited by other inmates and may lack the supervision that would otherwise be available from her family and medical professionals in the community. A custodial sentence is likely to weigh more heavily upon Ms Youseff than the average inmate by virtue of her epilepsy and depression." 88Those, of course, are different considerations to the ones raised by Dr Brown. However, it appeared clear to me that the offender's psychiatric illness has been bettered controlled since the offender's admission to gaol than it was prior to her committing the offences now in question. 89There is also no suggestion either from Dr Brown or from the offender herself, who gave no evidence, or from any other source, that the offender's epilepsy is not adequately controlled since her incarceration. 90However, I accept that the offender's age and her lack of any significant criminal background would cause her difficulty in being a prison inmate. This is the offender's first experience of custody. I trust it will be her last. The probability is that it will be her last and there are clearly special circumstances to warrant the breaking of the statutory nexus between the head sentence and the non-parole period, which I shall come to in due course. 91What are the prospects of rehabilitation? If the offender maintains her resolve to stay abstinent from cannabis and other drugs and alcohol, it is highly unlikely that there will be any further criminal conduct by her. In her letter to me, which is exhibit 6, the offender says this: "I am on the right medications and I am a lot better. I have done four courses and achieved certificates. I have been doing Narcotics Anonymous and Alcoholics Anonymous regularly and psychology. When I get out I still will be getting counselling and Narcotics Anonymous and Alcoholics Anonymous." 92Dr Furst thought that the risk of offending in a similar matter was "probably low", especially if the offender continued to receive assertive treatment through psychiatric and medical services that he recommended either in custody or in the community. In my view, it is unlikely that this lady, who is now fifty-four years of age, will commit any crime of this nature again. I therefore accept that the prospects of rehabilitation are good and the prospects of recidivism are low. 93An issue arises as to remorse. Remorse is not merely regret. Remorse requires an acceptance of the part played by the offender in the offending conduct and empathy for the victim of the crime. In her letter to me the offender said this: "I am writing this letter to tell Robin and her family how very sorry I am that she had to go through all of this. I had no idea how bad this was until I saw the brief. There is no excuse for this but I have no explanation for this behaviour. I have never done (anything) like this before." That letter is undated and I can only assume it is recent. 94In the pre-sentence report dated 13 July 2012 the following is stated: "In an attempt to discuss the facts regarding the offence, Ms Youseff stated she did not recall the offences but remembers sitting around and drinking alcohol and smoking cannabis with the victim prior to the offence. She later recalls being arrested by the police about 2 am and being told details of the offence. Unfortunately Ms Youseff expressed a tendency to reflect on the victim's character rather than accept or take responsibility for the offence." 95In his report following upon examination on 10 August 2012, Dr Furst says this: "Ms Youseff is aware that her actions were excessive and she expressed remorse in relation to the commission of the offences. She has not been violent before and was open to psychiatric, psychological and medical treatment to address her offending behaviour." 96I already pointed out that the offender has not given evidence, so she was not cross-examined about the sincerity of her remorse and whether it was prompted by genuine remorse or by the realisation that the expression or remorse might lead to a reduced sentence. Suffice to say that there appears to have been some belated measure of contrition, which shows that the offender's mental state is heading in the right direction. However, I cannot accept that there was remorse from the beginning. Only with a realisation of the severity of what she had done as the offender expressed true remorse. 97In many ways the offender's personal circumstances are favourable to her, in particular her attempt to rehabilitate herself, to get off alcohol and drugs, and a growing realisation of the gravity of what she has done. That having been said, however, I still must concentrate on the seriousness of the offences which the offender has committed. As I said, they are in that mid-range of seriousness of crimes of this nature. 98The crimes are serious ones. Not only must the offender be punished for her completely unacceptable and inexcusable and unexplained conduct, but there must be general deterrence for and denunciation of the crimes committed; of restraining, against her will, an intellectually disabled woman of mature years and exposing her to gratuitous, unnecessary violence which had the potential of causing much more serious injuries than were actually inflicted. 99It has been submitted on behalf of the offender that I should make the sentences wholly concurrent, because this was one episode of violence. However, I am unable to accede to that submission. In my view there must be some partial accumulation because not to do so would elide the seriousness of the injuries required for the charge against s 33(1)(a) into the lesser category of actual bodily harm required by s 86(3). 100I should point out that statistics available from the Judicial Commission tell me that for the offence contrary to s 33(1)(a) there is a sample of 104 cases of which seventy-seven are non-consecutive sentences. The median sentence is five years and the median non-parole period is three years. At the top of the eighty percent range the head sentence is eight years and the non-parole period is five years. For the offence contrary to s 86(3) there is a sample of seventy-three cases and of those fifty-one represent non-consecutive sentences. The median head sentence is four and a half years imprisonment and the median non-parole period is three years. At the top of the eighty percent range the head sentence is nine years and the non-parole period is six years. Those statistics do not differentiate between those who pleaded guilty. 101It must also be borne in mind that offences under each section can vary widely. For example, wounding with intent to inflict grievous bodily harm is the same as inflicting grievous bodily harm with intent to do so, and the extent of the harm can vary remarkably. Likewise, the circumstances of any specially aggravated kidnapping can vary significantly. 102I have come to the view that I should start each of the sentencing exercises before me, with a theoretical head sentence of nine years imprisonment. I reduce that by twenty five percent to account for the utilitarian value of the plea of guilty by the offender at the earliest available opportunity. Such is conceded by the Crown in this particular case, and such conduct is of great utility because it stops the victim having to re-live the offence by giving evidence and to allow an intellectually disabled lady to do that causes her great relief. That reduces the head sentence to six years and nine months. Applying the statutory formula, the non-parole period should be five years imprisonment. 103However, clearly there are special circumstances to break the statutory nexus between the head sentence and the non-parole period. I have come to the view that in respect of each offence the non-parole period ought be four years. The sentence for the second offence will commence six months after the sentence for the first offence, to reflect the accumulation. Effectively, that means there will be a non-parole period of four and a half years with a further term of two years and nine months. Is that right? Yes, that is right. 104Nada Vanja Youseff, on the charge that on 8 March 2011 at Kingsgrove in this State you did wound Robin McKivatt with intent to cause grievous bodily harm you are convicted. I sentence you to imprisonment. I set a non-parole period of four years, commencing on 8 March 2011 and expiring on 7 March 2015. I impose a further period of imprisonment of two years and nine months, to commence upon the expiration of the non-parole period and expiring on 7 December 2017. The total sentence is therefore six years and nine months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. I take into account in passing that sentence the matter on the Form 1. 105On the charge that on 8 March 2011 at Kingsgrove in this State you did, without consent, detain Robin McKivatt with the intention of obtaining an advantage, namely psychological gain, and the said Robin McKivatt, having had occasioned to her actual bodily harm during and after being detained, while you, Nada Vanja Youseff, were in company with Ali Charbaju, you are convicted. I sentence to you to imprisonment. I set a non-parole period of four years, commencing on 8 September 2011 and expiring on 7 September 2015. I impose a further period of imprisonment of two years and nine months, to commence upon the expiration and the non-parole period and expiring on 7 June 2018. The total sentence is therefore six years and nine months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2013