R v Amanda Convery aka Crombie [2013] NSWDC 69

District Court New South Wales

Medium Neutral Citation: R v Amanda Convery aka Crombie [2013] NSWDC 69 Hearing dates: 28 February 2013 Decision date: 28 February 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of an overall term of imprisonment with a nonparole period of two and a half years, and a period of eligibility for parole of three and a half years, making a total overall sentence of six years. Catchwords: CRIMINAL LAW - Sentence - Assault police officer in the execution of duty - Use offensive weapon to commit an indictable offence - Assault occasioning actual bodily harm Cases Cited: R v Fernando (1992) 76 ACrimR 58 Category: Sentence Parties: The Crown Amanda Convery aka Crombie Representation: Director of Public Prosecutions Aboriginal Legal Services File Number(s): 2012/102298

Judgment 1HIS HONOUR: The offender, Amanda Convery, grew up in circumstances in which the decisions she made as to how she would live her life, in particular whether she would use drugs and whether she would commit crimes, were be made against a family background where she was surrounded by violence, drug use and offending surrounding her. 2On top of that, Ms Convery suffers from a significant mental illness and a significant level of intellectual disability. She committed two serious crimes and they have caused significant harm, but in assessing the appropriate sentences to impose it is important to understand that, because of the sort of things I have already mentioned, her moral culpability is much less than it would otherwise have been. 3Two police officers were engaged in traffic duties in Redfern in the early hours of 1 April last year. About 5 o'clock that morning Ms Convery, under the influence of drugs and having not taken her antipsychotic medication for some time, was walking along the street singing and swearing and holding a glass tumbler. She was approached by police who spoke to her about her behaviour. She then went on to the concourse of Redfern railway station. She continued to shout and she continued to swear. Constable Carasco approached her and asked her to quieten down and go home. 4She kept gesticulating at Constable Flood, the other police officer, indicating that she should come over. At this stage Constable Flood ignored that suggestion, but over the next sixty minutes Ms Convery continued to swear at the police officers. She called them "white cunts" and "white dogs". The two officers were busy. They were involved with traffic duties which resulted from a large crane involved in building works being parked on the roadway. 5Eventually Constable Carasco returned to Ms Convery. She said, "Why did you come over? Why didn't the other one", (clearly a reference to Constable Flood), "come over? I'm going to smash her." It was at about 6.02 that Constable Flood did go over to Ms Convery and spoke to her about her offensive language and behaviour. Ms Convery then said, "Do you want to charge me? Hey, I'll fucking show you." She then put the tumbler she had been holding on to a ticket barrier and pulled a syringe out from her dress. She then used the needle on the syringe to stab Constable Flood very close to her left eye, in fact only one centimetre away. 6She did not stop after this. She continued to punch Constable Flood a number of times. Eventually after she stopped Constable Flood noticed that she was injured. She had a great deal of pain to her nose, and there was both a puncture wound to her left temple and a scratch down her left cheek where the needle had been dragged downwards. 7Whilst Ms Convery was hitting Constable Flood, she was saying, "I want to go into custody, you white cunt." Constable Flood went to both defend herself and arrest Ms Convery, and was assisted by Constable Carasco, who ran over the road as soon as he saw what was happening. She was handcuffed and taken to Redfern Police Station. She was introduced to the custody manager. She said to him that she was iced. Her demeanour was such that she couldn't be interviewed by police. 8Constable Flood went to Sydney Hospital, where the injuries that I have spoken about were noted. Of course of great concern to Constable Flood was the possibility that she had contracted a disease from being stabbed with the needle. One can easily understand how that would cause significant psychological harm. It was entirely foreseeable that having been stabbed by a needle, the officer would suffer significant psychological consequences. 9She read her victim impact statement to me in Court. She spoke about her feelings. She spoke about what she went through, what she thought, the plans she made, and what was going to happen to her and her family if the worst came to the worst. Although after some time it was discovered that as a matter of extreme good fortune Constable Flood had not contracted any disease from what the offender did, even today she was clearly distressed by having to recount what had happened to her and what she has been through over the past eleven months. 10I have read many victim impact statements in my time. I have had many read to me. They are often eloquent explanations of the harm that offences cause. It is important that judges are reminded there are real human beings who are harmed by offences for which they sentence. Often those victim impact statements make a suggestion to me as to how I should go about sentencing the offender, almost invariably suggesting that a harsh sentence should be imposed. 11In contrast to what usually occurs I want to commend Constable Flood in the strongest terms for what she has said. She says: "I hope the decision that is made here today is for the best interests of the general public and the best interests for Amanda Convery, the offender." 12That is a truly remarkable statement to make in a victim impact statement. 13I should also mention something else about the aftermath of this offence. A few days after the attack a police officer contacted the offender's legal representative. A request was made for the cooperation of Ms Convery as to the release of her current medical status so that the possible ramifications for Constable Flood could be more accurately understood as soon as it could be done. Ms Convery consented to her Justice Health records being made available to that officer. That is consistent with what Ms Convery has said both in Court and to others as regards her remorse for what she has done to the officer. 14I spoke briefly earlier about Ms Convery's background. It was a background where she was subject to sexual abuse, where she witnessed domestic violence, and where people around her were involved in drug use, all from a very tender age. I will give an example. Ms Convery got involved in petrol sniffing at the age of five. A fiveyearold child cannot reason about whether it is a good idea or a bad idea to sniff petrol when other children around them are doing exactly that same thing. Somewhat remarkably she was introduced to cannabis by a relative who, and I know this is unusual to say, appears to have had Ms Convery's best interests at heart. He wanted her to give up petrol sniffing and use cannabis instead. She began to get into trouble with the law when she started copying her brother's behaviour and so I have no hesitation in accepting that the principals to be found in R v Fernando [1999] NSWCCA 66 are to be applied, and significantly so in the present case. 15The choices which Ms Convery made about how she would live her life as she grew up were very much influenced by the terrible circumstances in which she was brought up, and I repeat on top of that she experienced problems with her mental function. Those problems, of course, continue to this day. 16Let me speak about those problems of and mental function. She has a significant history of being treated for schizophrenia. She experiences paranoia and hears voices from time to time. When she is treated and when she complies with her medication she is in a much better state, but when she chooses to stop taking her medication and when she chooses to take illegal drugs those two matters cause her mental functioning to go downhill, and so it was on the morning of 1 April last year. 17I do not want anyone to think that Ms Convery is able to simply say, "I suffer from a mental illness. I was mentally ill at the time of the offence therefore I should not be punished," because despite all Ms Convery's difficulties it is ultimately her decision as to whether she takes the drugs prescribed for her and her decision as to whether she takes illegal drugs in the knowledge that they will significantly adversely affect her mental state. 18Ms Convery has a significant criminal history. It began, as I said, when she started copying her brother's behaviour, and so there are many matters on her criminal history involving offences committed by her when she was under eighteen. She is now twentythree. She did spend some time in juvenile detection, but since turning eighteen she has not spent any time in a prison apart from being bail refused for the offences that she currently faces. I have got no doubt that she has noticed to a significant extent the different conditions that apply in juvenile detention and in prison, particularly Mulawa. 19Although for obvious reasons general deterrence has much less of a part to play in the sentencing exercise, personal deterrence remains of some importance. 20The conditions of anyone serving a sentence at Mulawa are not good, but on top of that Ms Convery's residual paranoia and residual problems in mental functioning, which remain even after taking the drugs prescribed for her, mean that she will do her time in custody harder than someone who does not suffer from those disadvantages. 21It is also to be said that the prospects for Ms Convery's rehabilitation are guarded. She is going to need an enormous level of support when she is released back into the community. Because of the length of the sentence that I am about to impose, it is not me who states the conditions of parole, but I will say this, a great deal of effort must be spent on Ms Convery when she is released into custody in order to help not only her, but also the community. If she is not given what she needs then I have got little doubt that she will commit further crimes. Some might be minor, but others might be as serious as the ones for which she is sentenced today and if that happens then someone else is going to be harmed. So spending a great deal of effort on Ms Convery upon her release from custody is not done simply to help her, but to prevent other people being as harmed as Constable Flood has been. 22I note that there is a standard nonparole period applying to one of the offences, that is the offence of assaulting a police officer in the execution of her duty and occasioning actual bodily harm to her. The maximum penalty for that offence is seven years and the standard nonparole period is three years. My reasons for not imposing the standard nonparole period for that matter are to be found in these remarks on sentence. The other offence is an offence of using an offensive weapon to commit an indictable offence, the indictable offence being assault occasioning actual bodily harm. 23The question of accumulation was raised. It was raised by the Crown, who submitted that I would not accumulate. I am not going to totally accumulate, but there is to be a partial level of accumulation for this reason. The two offences do not entirely overlap, they focus on different aspects of Ms Convery's criminality. For that reason there will be a level of partial accumulation, but not all that much it must be said. 24A submission was made that there were special circumstances in this case and of course the Crown did not argue against that submission. Indeed the effective nonparole period that I have decided to impose is less than half the total term. I recognise that is unusual, certainly since the late 1980s where the legislation began to change the rules regarding the proportion that a nonparole period should bear to its head sentence, but these are very special circumstances. As I have mentioned many times, it is in the community's interests that Ms Convery be supervised for an extended period whilst she is on parole and a close watch needs to be kept upon her. 25The sentences I impose are as follows. For the offence of using an offensive weapon with intent to commit an indictable offence I set a fixed term of imprisonment of two years, to date from 1 April 2012. That is a fixed term because of the sentence I am about to announce. For the offence of assaulting a police officer in the execution of her duty I sentence Ms Convery to imprisonment. I set a nonparole period of two years to commence on 1 October 2012, and I impose a period of eligibility for parole of three and a half years. Thus the overall sentence consists of a nonparole period of two and a half years, a period of eligibility for parole of three and a half years, making a total overall sentence of six years, with Ms Convery being eligible to be released to parole on 30 September 2014.