R v McLean [2015] NSWDC 128

District Court New South Wales

Medium Neutral Citation: R v McLean [2015] NSWDC 128 Hearing dates: 6 March 2015 Date of orders: 06 March 2015 Decision date: 06 March 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 15 months and a head sentence of 2 years and 6 months. Catchwords: CRIMINAL LAW – Sentence after judge alone trial – Recklessly cause grievous bodily harm - Alcoholic blackout - Vulnerable victim. Category: Sentence Parties: The Crown Andrea Joy McLean Representation: Counsel: Ms A Cook – The offender

Solicitors: Director of Public Prosecutions Legal Aid Commission – The offender File Number(s): 2012/88130

SENTENCE 1. HIS HONOUR: Late last year after a relatively short judge alone trial I found Ms McLean guilty of the offence of recklessly causing grievous bodily harm to a gentleman by the name of Mr Brian Nimo. 2. The facts which I found which establish that offence are set out in the judgment I gave on 19 December 2014. I will repeat very briefly what occurred in order to explain the sentence I will shortly impose. 3. Mr Nimo lived in a unit complex. Also in the unit complex lived a friend of his, Mr Laurie Waters. Mr Nimo's carpets were being cleaned so he went to Mr Waters' unit and asked if he could spend the day there. Mr Waters had to go out but he allowed Mr Nimo to remain in his apartment. 4. Shortly after Mr Waters left Ms McLean walked in. They had known each other for a number of years and indeed Ms McLean appears to have been of considerable assistance to Mr Nimo over the years, cooking and cleaning for him on occasions. 5. Mr Nimo and Ms McLean were both drinkers. Both have suggested that they had limited amounts of alcohol to drink that day but a blood alcohol level later taken from Mr Nimo at hospital tends to suggest that he had drunk considerably more than he suggested and the circumstance that if Ms McLean is telling the truth and she genuinely does not recollect what she did to 6. Mr Nimo because she was suffering an alcoholic black-out, also tends to suggest that she too drank more than she is prepared to admit. That heavy alcohol users would deny the level of their alcohol abuse is not at all unknown. 7. What seems to have precipitated the attack on Mr Nimo was that Ms McLean went to the toilet, and when Mr Nimo realised that she had not returned he went to look for her, he found her curled up on Mr Waters' bed. He nudged her on the shoulder and said she should not be sleeping there, at which her response was to get off the bed and begin to punch and kick Mr Nimo. He tried to block those punches. His glasses fell to the floor and, afraid that they would be trodden on, he bent down to pick them up. As he was putting his glasses back on he felt a blow to his forehead and that was the last thing that he remembered until Mr Waters came home and roused him from unconsciousness. 8. Precisely what it was that Ms McLean hit Mr Nimo with is not at all clear, it may have been the walking stick which was discovered to have had a bend in it sometime after these events that I have described or it may have been something else. It was certainly unlikely to have simply been Ms McLean's fists. It is, and I am satisfied of this beyond reasonable doubt, the case that she must have used some form of weapon. 9. Fortunately and somewhat surprisingly, given what Mr Nimo looked like when police first attended and the amount of blood in which he was lying, he appears to have made a relatively good recovery. I set out the injuries that he suffered, in paragraph 136 of my judgment of last year. He suffered a laceration to his head of such significance that a considerable amount of blood was lost. He suffered a fracture of one of his vertebrae which required that he wear a cervical collar for six weeks. He suffered fractures to both of his hands which required that he wear splints on them for four weeks and he suffered an injury to his right knee that required he wear a splint for six weeks. 10. Although as I have just mentioned he was found to be lying in a pool of blood and his injuries appeared to be much more severe than they turned out to be, it is the case that many, if not most cases involving the element of grievous bodily harm involve much worse injuries. 11. Ms McLean has had a number of challenges in her life. By using the word "challenges" I do not wish to underestimate them at all. She has had difficulties that arise, both because of what other people have done to her and because of mental conditions from which she suffers. Her parents separated when she was 11. That often affects children to a significant extent but worse in Ms McLean's case was the circumstance that her father took up with her mother's best friend and moved in across the road. Ms McLean told a psychiatrist that she would see her father taking out her new partner's children but seemingly having little time for his own off-spring including of course herself. 12. A little while later when she was 12, she was raped by a friend of her baby-sitter, this was not disclosed for many years because Ms McLean believed that she would not be believed. 13. She moved with her family from Melbourne to Sydney and did not make the transition easily. She attended a number of high schools, she was beaten up at school and achieved a low grade in her final examinations. She began to engage in sex work as a means of paying a debt off, which was not hers in the first place, and it is in those circumstances not terribly surprising that 14. Ms McLean would resort to alcohol to numb her feelings. Her feelings were of low self-esteem and Ms McLean used alcohol and sometimes drugs to escape from them. On top of this she has had, what has sometimes been diagnosed as, bipolar affective disorder. 15. Ms McLean's life has not been easy. Perhaps somewhat belatedly, indeed primarily after having been charged with the offence that I found her guilty of, she has begun to make substantial efforts to deal with some of the difficulties that she faces, in particular dealing with her problems with alcohol. 16. I have no trouble at all in accepting the conclusion of Dr Emma Collins about the way in which a custodial sentence will affect Ms McLean. Dr Collins says that Ms McLean "Is psychologically vulnerable and is likely to struggle with coping in a prison environment." 17. The offence for which I found Ms McLean guilty carries a maximum penalty of ten years imprisonment, it also has a standard non-parole period of four years. I have taken both the maximum penalty and the standard non-parole period into account in formulating the appropriate sentence. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. I note also that the offence could be dealt with summarily. In my view it would have been quite wrong for it to have been dealt with in that manner. It remains a theoretical possibility that it could have been but, as I say it would have been inappropriate if that were to have occurred. 18. Ms McLean of course does not get a discount for pleading guilty on the basis that that plea would provide a utilitarian benefit to the criminal justice system. On the other hand as I noted in the judgment of last year, this trial was conducted in an efficient manner, much evidence was not disputed and so I will take into account in Ms Mclean's favour, that circumstance. 19. This offence was clearly unplanned and spontaneous and, at least as far as the extent of the injuries is concerned, out of character for Ms McLean. She does have a criminal history with offences of assault on it but she has never been to gaol and although her step-father speaks about Ms McLean's temper it certainly does appear to be the case that what Ms McLean did to Mr Nimo on this occasion is very much unusual behaviour for her. Indeed as I have already noted Mr Nimo was a person whom she usually helped, not harmed. 20. A great deal of evidence related to the need for Ms McLean to be assisted in various ways in order to overcome her problems with alcohol and to reduce as far as possible the chances that she will commit further offences in the future. Evidence was called by the Crown today about the ability of such treatment to be provided in the custody situation. Certainly treatment can be provided but I have no hesitation in accepting that it is quite likely that treatment inside gaol is more difficult to obtain and thus less effective than treatment outside gaol. Waiting lists can be lengthy, resources are stretched, the prison population is at high levels and the sometimes, seemingly inexplicable movement of prisoners from gaol to gaol all interfere with optimum psychological treatment being available to inmates. I will certainly take that into account but it is not the case that just because treatment is better outside than inside, a custodial sentence should not be imposed. 21. It is difficult to assess Ms McLean's prospects of rehabilitation given the largely unexplained reason that she would have attacked Mr Nimo in the first place, although I do accept that she is making substantial efforts to now overcome her problems with alcohol. 22. Another matter that Ms Cook relies on, which I will certainly take into account in Ms McLean's favour, is the delay which has come about between the commission of the offence and today when Ms McLean is finally facing sentence for it. This matter was listed for trial on two occasions before it eventually started before me. Ms McLean has had this matter hanging over her head for a considerable period of time which I repeat is something I will take into account in her favour. 23. It is a fundamental rule in sentencing that a sentence must reflect the objective gravity of what an offender did. Although as I have said there are many, if not most cases where the grievous bodily harm occasioned to a victim is worse than that occasioned to Mr Nimo, there remain features which point to this being a particularly serious offence. 24. Whilst it may well be the case and indeed it probably is that Mr Nimo did not look as bad as he did when police arrived and filmed him on a mobile phone, there is no doubt that he must have been obviously injured when Ms McLean abandoned him, having been responsible for those injuries. He was a vulnerable person, his age, the fact that he needed a walking stick on occasions and indeed his level of intoxication that day all suggest that he was scarcely able to defend himself against a sudden and unprovoked attack, with a weapon of some sort, by Ms McLean. 25. 25 Ms Cook presses upon me the suggestion that an alternative to full-time custody should be imposed. The difficulty with that submission in this case is that I am satisfied that a sentence of imprisonment is required, such that no alternatives become available. 26. There are clearly special circumstances in this case, not only is this Ms McLean's first time in custody but the many psychological matters that are referred to in the reports and which I have referred to in these remarks on sentence, demonstrate the need for an extended period of supervision on parole at the expense of the non-parole period. 27. Ms McLean you are sentenced to imprisonment, taking into account five days pre-sentence custody. That sentence will have commenced on 1 March 2015. I set a non-parole period of 15 months and a head sentence of two years six months. The non-parole period will expire on 31 May 2016 on which day Ms McLean is to be released to parole.