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Court of Criminal Appeal


Supreme Court

New South Wales

Case Name: R v Amati

Medium Neutral Citation: [2019] NSWCCA 193

Hearing Date(s): 26 July 2019

Date of Orders: 19 August 2019

Decision Date: 19 August 2019

Before: Simpson AJA at [1]


Johnson J at [10]
Harrison J at [148]

Decision: By majority, the orders of the Court are:

1. Crown appeal allowed.


2. Sentence imposed by the District Court on 18
January 2019 set aside.
3. In lieu thereof, the respondent is sentenced to a term
of imprisonment comprising a non-parole period of eight
years commencing on 7 January 2017 which will expire
on 6 January 2025, with a balance of term of six years
which will expire on 6 January 2031.

Catchwords: APPEAL - Crown appeal - manifest inadequacy of


aggregate sentence - sentence after trial - Respondent
convicted of three offences under s.27 Crimes Act 1900
- wounding with intent to murder, cause grievous bodily
harm with intent to murder and attempt to wound with
intent to murder - Respondent armed with large axe
and knife - Respondent randomly attacked victims with
axe in a convenience store without provocation - initial
attack on two victims captured on CCTV footage -
attack on third victim on street outside convenience
store - significant impact of offences upon all three
victims - Respondent had powerful subjective case -

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consideration of sentencing decisions for s.27 Crimes


Act 1900 offences - aggregate sentence manifestly
inadequate - appropriate case for Court to resentence
Respondent - finding of special circumstances -
Respondent resentenced to aggregate term of
imprisonment of 14 years with a non-parole period of
eight years

Legislation Cited: Crimes (Appeal and Review) Act 2001


Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
AM v R [2012] 225 A Crim R 481; [2012] NSWCCA 203
CMB v Attorney General for New South Wales (2015)
256 CLR 346; [2015] HCA 9
Cvetkovic v R [2013] NSWCCA 66
Director of Public Prosecutions (Cth) v De La Rosa
(2010) 79 NSWLR 1; [2010] NSWCCA 194
Everett v The Queen (1994) 181 CLR 295; [1994] HCA
49
Fardon v Attorney General (Qld) (2004) 223 CLR 575;
[2004] HCA 46
Green v The Queen; Quinn v the Queen (2011) 244
CLR 462; [2011] HCA 49
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hitchcock v R [2016] NSWCCA 226
Little v R [2010] NSWCCA 210
Malicki v R [2015] NSWCCA 162
Ng v R [2011] NSWCCA 227; (2014) 214 A Crim R 191
R v Amati [2019] NSWDC 3
R v Carroll (2010) 77 NSWLR 45; [2010] NSWCCA 55
R v Da-Pra [2014] NSWCCA 211
R v Dodd (1991) 57 A Crim R 349
R v Garforth (Court of Criminal Appeal (NSW), 23 May
1994, unrep)
R v Gommerson (2014) 243 A Crim R 534; [2014]
NSWCCA 159
R v GWM [2012] NSWCCA 240
R v Hall [2017] NSWCCA 313
R v Hamid (2006) 165 A Crim R 175; [2006] NSWCCA
302
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA

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111
R v Huynh [2017] NSWDC 126
R v Macadam-Kellie [2001] NSWCCA 170
R v MD (2005) 156 A Crim R 372; [2005] NSWCCA 342
R v Mulligan [2016] NSWCCA 47
R v Quach [2002] NSWCCA 173
R v Rae [2001] NSWCCA 545
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA
534
R v Thew (Court of Criminal Appeal, unreported, 25
August 1998)
R v Zegura [2006] NSWCCA 230
Shine v R (2016) 260 A Crim R 534; [2016] NSWCCA
149
Tregeagle v R [2016] NSWCCA 106

Texts Cited: ---

Category: Principal judgment

Parties: Director of Public Prosecutions (Applicant)


Evie Amati (Respondent)

Representation: Counsel:
Ms M Cinque SC (Applicant)
Mr PD Lange (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Applicant)
Aquila Lawyers (Respondent)

File Number(s): 2017/5891

Publication Restriction: ---

Decision under appeal:

Court or Tribunal: District Court of New South Wales

Jurisdiction: ---

Citation: R v Amati [2019] NSWDC 3

Date of Decision: 18 January 2019

Before: Judge ML Willliams SC

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File Number(s): 2017/5891

JUDGMENT
1 SIMPSON AJA: I have had the advantage of reading in draft the
comprehensive judgment of Johnson J.

2 I agree, generally for the reasons given by his Honour, that the Crown has
established manifest inadequacy in the sentence imposed, that there is no
basis for the exercise of the residual discretion to dismiss the appeal, and that
the Crown appeal must therefore be upheld and this Court must proceed to
exercise its own sentencing discretion.

3 In reaching the view I am about to express, I have excluded from consideration


any prospect that the respondent might, at some necessarily distant time in the
future, repeat the conduct the subject of the offences, or like conduct. I accept,
on the analysis in Fardon v Attorney General (Qld) (2004) 223 CLR 575; [2004]
HCA 46 and R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994,
unrep) that a prediction of future dangerousness may, in appropriate cases, be
a legitimate factor to be taken into account in sentencing. But there must be a
basis in the evidence for such a prediction. In Ng v R [2011] NSWCCA 227;
(2014) 214 A Crim R 191 to which Johnson J refers, it was the nature of the
crimes for which Mr Ng was sentenced – “a cold-blooded execution” – that was
said to be capable of reflecting the way in which he might at some time in the
future act. Even so, the Court found error in the sentencing judge having taken
that circumstance into account.

4 In this case, as Johnson J has recounted, circumstances preceding and giving


rise to these offences came about as a result of an “unusual interaction of
factors”. There is nothing in the evidence that would provide the basis for any
conclusion to the requisite standard that the prospect of repeated offending of
the same or similar kind should be taken into account in the determination of
the appropriate sentence.

5 In this respect I note a finding of the sentencing judge that the respondent’s
prospects of rehabilitation are good. No doubt her ultimate rehabilitation will

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depend upon her response to her incarceration and whatever services and
assistance she might be given during and after release from that incarceration.
The assessment of the likelihood of her re-offending is most appropriately left
to the State Parole Authority.

6 In other respects Johnson J has set out in detail the relevant circumstances to
be taken into account in sentencing. They present a complex array of factors,
indicating the gravity of the offences tempered by the unusual and compelling
personal circumstances of the respondent.

7 I would maintain the finding of special circumstances pursuant to s 44(2) of the


Crimes (Sentencing Procedure) Act 1999 (NSW) justifying reduction of the
statutory ratio of the non-parole period to the total sentence made by the
sentencing judge. The order I propose will reduce the degree of variation
between the statutory ratio but nevertheless afford the respondent a significant
benefit.

8 In my opinion the appropriate sentence is one of imprisonment for 14 years


commencing on 7 January 2017 and expiring on 6 January 2031 with a non-
parole period of 8 years which will expire on 6 January 2025.

9 The orders I propose are:

(a) Crown appeal allowed;


(b) sentence imposed by the District Court on 18 January 2019 set
aside;
(c) in lieu thereof, the respondent is sentenced to a term of
imprisonment comprising a non-parole period of eight years
commencing on 7 January 2017 which will expire on 6 January
2025, with a balance of term of six years which will expire on 6
January 2031.
10 JOHNSON J: This is a Crown appeal under s.5D Criminal Appeal Act 1912
with respect to an aggregate sentence of imprisonment imposed upon the
Respondent, Evie Amati, in the Sydney District Court on 18 January 2019.

The Offences
11 Following a trial by jury, the Respondent was found guilty of the following
offences committed at Enmore in the early hours of the morning on 7 January
2017:

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(a) Count 1 - wounding Benjamin Rimmer with intent to murder, an


offence under s.27 Crimes Act 1900, punishable by a maximum
penalty of 25 years’ imprisonment with a standard non-parole
period of 10 years;
(b) Count 3 - causing grievous bodily harm to Sharon Hacker with
intent to murder under s.27 Crimes Act 1900, punishable by the
same maximum penalty and standard non-parole period as
Count 1; and
(c) Count 5 - attempting to wound Shane Redwood with intent to
murder, contrary to ss.27 and 344A Crimes Act 1900, with a
maximum penalty of 25 years’ imprisonment and no standard
non-parole period.
The Aggregate Sentence and Indicative Sentences
12 On 18 January 2019, the sentencing Judge imposed an aggregate sentence of
imprisonment for nine years commencing on 7 January 2017, with a non-parole
period of four years and six months commencing on 7 January 2017 and
expiring on 6 July 2021, with a balance of term of four years and six months
commencing on 7 July 2021 and expiring on 6 January 2026.

13 In accordance with s.53A(2) Crimes (Sentencing Procedure) Act 1999, his


Honour noted the following indicative sentences:

(a) for the Count 1 offence - imprisonment for seven years with a
non-parole period of four years;
(b) for the Count 3 offence - imprisonment for six years and six
months with a non-parole period of three years and six months;
and
(c) for the Count 5 offence - imprisonment for five years.
Notice of Crown Appeal
14 On 11 February 2019, a Notice of Appeal under s.5D Criminal Appeal Act 1912
was filed in this Court. The Notice of Appeal was served on the Respondent in
custody on the following day.

15 The Crown contends that the aggregate sentence imposed was manifestly
inadequate.

Facts of Offences
16 The facts of the offences were not in dispute. Each of Mr Rimmer, Ms Hacker
and Mr Redwood gave evidence at the trial and their evidence was not
challenged. The offences committed against Mr Rimmer and Ms Hacker were

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captured on CCTV footage recorded inside a 7-Eleven convenience store


located on Stanmore Road, Enmore and the offence committed upon Mr
Redwood occurred in the street outside that store.

17 At the hearing in this Court, the Crown sought to play in Court the CCTV
recording which depicted the offences committed against Mr Rimmer and Ms
Hacker. Counsel for the Respondent objected to this course relying upon
Malicki v R [2015] NSWCCA 162 at [67]-[68]. The Court determined that the
CCTV footage should be played in Court. As in R v Mulligan [2016] NSWCCA
47, the CCTV footage in question depicted the actual commission of two of the
offences which were the subject of the Crown appeal. Further, the CCTV
footage was important evidence at the trial of the Respondent and was referred
to in the sentencing remarks with his Honour observing that “the objective facts
are clearly shown in the CCTV footage”: R v Amati [2019] NSWDC 3 at [76]. In
those circumstances, it was appropriate that this Court have the same
opportunity as the sentencing Judge to view the CCTV footage.

Background to Offences

18 The immediate events leading up to the offences commenced on Friday, 6


January 2017 when the Respondent (then 24 years old) matched with Mickila
Jahnsen on the dating app, Tinder. They communicated through the
messaging services provided by Tinder and then Facebook from about 3.00
pm that day, including a lengthy exchange about their respective sexual
fantasies, and then arranged to meet for the purpose of going to the Burdekin
Hotel. They expected to obtain drugs at that location.

19 At about 9.50 pm on 6 January 2017, the Respondent arrived at Ms Jahnsen’s


house where Ms Jahnsen’s two housemates were also present. After a drink,
the group left the house on foot to obtain alcohol. They met a friend of Ms
Jahnsen with the intention of purchasing MDMA for the group to consume that
evening. The group travelled to a house in Marrickville where they continued
drinking and took what they believed to be MDMA tablets, but which toxicology
examination later showed to be MDA.

20 At about 12.45 am, a friend of Ms Jahnsen collected the group to take them to
the Burdekin Hotel. During the drive, the Respondent recalled a comment

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being made by one of Ms Jahnsen’s housemates to the effect “You’re so


beautiful” or “You’re so brave”. The Respondent construed the comment to
mean that others in the group had identified her as transgender and that they
had spoken about it whilst she was out of the room. The Respondent began to
feel “incredibly anxious” and “started going into one of [her] depressive
episodes”. The Respondent put her leg against Ms Jahnsen’s leg to “test the
waters”, but Ms Jahnsen responded in a way which the Respondent perceived
as negative.

21 The Respondent then asked to get out of the vehicle. According to Ms


Jahnsen, the Respondent seemed “kind of mad”. The Respondent got out of
the vehicle and made her way home.

22 The Respondent smoked two joints on her balcony and listened to music. Ms
Jahnsen messaged the Respondent on Facebook at 12.49 am to check if she
was all right. A protracted exchange of messages ensued in which the
Respondent expressed her anger and disappointment at being rejected, as she
saw it, because she was transgender.

23 In the course of the messaging, the Respondent said at 1.13 am on 7 January


2017:

“One day I’m going to kill a lot of people … for hating something so innocent …
all I want to do is please … but I’m too ugly … and you will pay.”
24 Ms Jahnsen responded at 1.14 am:

“I didn’t say you were ugly not once … this is the anxiety talking …”
25 Between 1.17 am and 1.31 am, the Respondent messaged Ms Jahnsen as
follows:

“How do you say you adore me and want to see me again … and then spew
this shit about your personal demons like I have nothing to do with them …
you have nothing … because you are nothing but hate … that’s why you would
make a great cop … I know I’m so much more beautiful than you will ever be
… and that’s what you hate … you shouldn’t be in Marrickville go to duck get
Blacktown or some other ignorant fuck hole …”
26 At about 2.00 am, some 30 minutes after the Facebook conversation had
ended abruptly, the Respondent armed herself with a large axe and a knife and
made her way on foot towards the 7-Eleven convenience store on Stanmore

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Road, Enmore. The sentencing Judge summarised the motivation and


intoxication of the Respondent at that time in R v Amati at [22]-[23]:

“22 The primary motivation for the offending was perceived


intolerance/interpersonal rejection, in particular that attributed by the accused
to Mickila Jahnsen.
23 The offender was affected and disinhibited by the combination of illicit
drugs (MDA and Cannabis), alcohol and prescription medication.”
The Attack on Mr Rimmer

27 Mr Rimmer stated that he had been out that evening and stopped at the 7-
Eleven store at about 2.00 am to get something to eat. He selected an item to
purchase and was waiting in the line to pay when he observed the
Respondent.

28 The CCTV footage revealed that the Respondent had entered the convenience
store a short time before holding a large axe (which weighed about 4.5 pounds)
with an 18 centimetre knife protruding from her rear pocket.

29 Mr Rimmer explained that he had “an ill-feeling, something wasn’t right and she
was holding an axe”. He thought that the axe was “a prop, like somebody had
left from a fancy dress party”. Mr Rimmer turned away from the Respondent
and was then struck by the Respondent with the axe. The Respondent swung
the axe with two hands in a forceful blow to the vicinity of Mr Rimmer’s left eye.
Mr Rimmer described in evidence that he felt like he had been “king hit” and
then noticed the blood and “started to panic” because he “thought [he] was just
going to bleed out”. He took his shirt off and tied it around his head in an effort
to stem the flow of blood. Mr Rimmer stated that the blow “just came out of the
blue”.

30 In R v Amati, the sentencing Judge described the offence committed against


Mr Rimmer at [24]-[26]:

“24 The offender entered the store and approached Mr Ben Rimmer, striking
him in the vicinity of his left eye with the axe when he turned his attention to
the counter area. The axe was swung with two hands and the blow was
forceful. It knocked Mr Rimmer to the ground. The injury sustained was
described by Dr Chopra as:
‘… a massive laceration across the left side of his face extending from the
bridge of his nose to his upper left eye (over 10 [cm] in length). The laceration
was through soft issue and through bone. He had significant facial swelling

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and bruising consistent with massive trauma … the patient fractured his nasal
bone, eye socket and cheek bones. The fractures were all complex with
multiple fragments and with heavy distortion, especially to the cheek bone’:
25 Had the positioning of the injury been slightly different catastrophic injury
would have resulted (massive bleed to the brain, loss of vision):
‘Myself and my consultant and other colleagues at the time around the
operation commented that an injury of that magnitude, a millimetre or two
above where Mr Rimmer had his injury would have had significant
consequences or potentially life threatening injuries to him and consequences.’
26 The injury sustained required 5 hours of reconstructive surgery including
the use of titanium plates and screws.”
The Attack on Ms Hacker

31 Ms Hacker was also present in the convenience store soon after 2.00 am on 7
January 2017. She told the jury that she had gone to the convenience store to
buy some milk.

32 As the CCTV footage makes clear, it was whilst Ms Hacker was paying for her
purchase that the Respondent attacked Mr Rimmer with the axe. The
Respondent then attacked Ms Hacker with the axe bringing it down forcefully
with two hands on the base of her skull. Ms Hacker fell forward to the ground.
As the sentencing Judge noted (R v Amati at [28]), the first blow was
cushioned by Ms Hacker’s thick bundle of dreadlocks. The Respondent
attempted to strike Ms Hacker with the axe a second time whilst Ms Hacker
was prone but missed.

33 Ms Hacker told the jury that she realised that she had been struck in the head
with an axe and then watched the Respondent proceed across Stanmore Road
in a diagonal direction “where she was going to intercept another gentlemen
who I was seeing that was in dishevelled clothing” (Mr Redwood). Ms Hacker
stated that the Respondent “was walking very purposely methodically towards
him carrying the axe and when she got to the road she had it in both hands and
made a lower lateral swing” towards Mr Redwood. Ms Hacker then described
becoming aware of “a sensation of falling and really really strong ringing in my
head”. She “was disorientated” and “was trying to sort of stabilise [herself]”.

34 The sentencing Judge said in R v Amati at [28]-[29] concerning Ms Hacker’s


injuries:

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“28 … As a result of the first blow Ms Hacker sustained a left occipital


condyle comminuted fracture (meaning that bone at the base of the skull was
broken into multiple parts).
29 In addition to the need for the initial imaging, treatment and the MH collar
for approximately 2 months, Ms Hacker also now suffers from what she
described as shooting pain down her arm and hand, chest pain and sleeping
issues.”
35 The CCTV footage provides graphic and direct evidence of what were
undoubtedly terrifying attacks upon each of Mr Rimmer and Ms Hacker, carried
out as they waited in the store. It is apparent that no act or words of Mr Rimmer
or Ms Hacker played any part in bringing about the Respondent’s attack upon
each of them. Each person was standing, minding their own business in a
store, when a savage attack was directed to each of them by a complete
stranger.

The Attack on Mr Redwood

36 After attacking Ms Hacker, the Respondent walked out of the convenience


store and headed across the road. She was still carrying the axe with the knife
protruding from her rear pocket. Mr Redwood gave evidence by audio-visual
link from the United Kingdom. Mr Redwood had left a nearby hotel and was
walking along the footpath on Stanmore Road. He told the jury that he could
see events occurring over the road at the convenience store. From that
distance, he thought it “was a drunken fight”.

37 Mr Redwood stated that, when the Respondent was about half way across
Stanmore Road, he noticed that she was holding an axe, having previously
thought that it was a baseball bat. Mr Redwood stated that he “knew at that
point that she was going to try and hit [him] with the axe”. He took his backpack
off his shoulder and swung it at the Respondent as she swung the axe towards
him. He managed to hit the blade of the axe with his bag, but the Respondent
tried once again to swing the axe and he blocked it again with his backpack.
The blow was so hard that his backpack flew out of his hand. Mr Redwood
continued:

“And I tried to run across the road. I am disabled, as you would probably know
by now. I’ve got heart failure so I can’t run. And I got like halfway across the
road almost, fell flat on my face, but I did get to the side of the road and I
turned around expecting an axe to enter my head. It didn’t. So the young lady
in question had carried on walking up the road.”

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38 Mr Redwood described how he then picked up his backpack and was spoken
to by another man in the street. Mr Redwood said that the axe swings involved
a lot of force and that, if he had not been able to stop the axe with his bag, he
expected that he would have been struck on the left-hand side of his upper
chest. Mr Redwood stated that, as he realised that the Respondent was
walking towards him, he “couldn’t come up with any other conclusion [he] just
gathered she was going to try and kill [him] with the axe”.

A Witness Observes Events from the Street and Evades an Attack by the
Respondent

39 Whilst the Respondent was attacking Mr Rimmer and Ms Hacker inside the
convenience store, Nathan Wood was walking along Stanmore Road, Enmore
on his way home. He observed the Respondent leaving the convenience store
after those offences “with the dripping axe” and she approached Mr Wood who
was on the other side of the street. He described the Respondent’s approach
as “slow, steady and deliberate”.

40 The Respondent commenced to raise the axe towards Mr Wood who realised
that he was about to be attacked. He “made a mad dash to the end of the
block” and made a “000” call. As he reached the end of the block, he turned
back and saw the Respondent swing the axe towards Mr Redwood, which cut
through Mr Redwood’s coat. Mr Wood described Mr Redwood as an “elderly,
bearded” man who was “a very distinctive looking homeless person”. As the
Respondent moved away from Mr Redwood, Mr Wood followed the
Respondent up the street to make sure he could obtain a description for the
purpose of the “000” call which was already underway.

Arrest of the Respondent

41 Following Mr Wood’s “000” call, police and ambulance services attended the
location. Whilst patrolling the area, police located the Respondent about 30
minutes after the attack on Mr Redwood. She was lying, seemingly
unconscious, in the garden of 1 Stanmore Road, Enmore. She was arrested
and handcuffed, lifted from the garden and transported to St Vincent’s Hospital.
The sentencing Judge recorded the following events at [34]-[37]:

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“34 Treating paramedics tested her responses on the scene and in transit.
The only response was her eyelids fluttering, observed by ambulance officers
and an accompanying police officer. An ambulance officer also noted flexion in
her left hand. A witness who was observing the scene from the corner gave
evidence of the offender lifting her head and looking directly at him while she
was on the pavement outside the property on Stanmore Road.
35 She opened her eyes shortly after arriving at the hospital, and tried to get
up. She pulled the tube from her nose and continued to struggle. She was
heard to say “After the nose doesn’t the arse come next”, “Fuck me, fuck me”
and “Pain is a part of life”. On being asked her name by an ambulance officer
she responded “I’m not telling you. I don’t have a name”. She continued to
struggle and was sedated.
36 She gave evidence that she has no recollection between smoking a joint
on the balcony and listening to her favourite song, until a vague recollection of
waking up in the hospital and staff asking for her name and next of kin.
37 She was discharged into Police custody on the afternoon of 7 January
2017.”
42 The Respondent has remained in custody since her arrest on 7 January 2017.

Impact of Offences Upon the Victims


43 The impact of these offences upon the victims was substantial. So much may
be seen from the descriptions (set out above) that each of them give of the axe
attack launched out of the blue against each of them. Mr Rimmer opened his
victim impact statement in the following way:

“I do not remember much about the attack, however it has had a profound and
ongoing impact on my life I honestly don't think I will ever be the same again.
Being attacked for no reason and by a complete stranger is something that is
very difficult to overcome and even more difficult to describe in words. One of
[the] biggest challenges I am experiencing is accepting my altered physical
appearance. I have significant scarring and changes to my facial structure.”
44 Mr Rimmer outlined the entirely understandable psychological consequences
for him in the form of anxiety about going out at night. He cannot enter a
service station after sunset because of the traumatic memories and feelings
which result. Mr Rimmer’s wife was pregnant at the time of the attack and he
described the burden which she was required to undertake in caring for him at
a time of major family need. More was said in Mr Rimmer’s victim impact
statement, but this provides some additional insight into the understandable
consequences of this crime upon him.

45 In her victim impact statement, Ms Hacker spoke of her difficulty with


continuing to live in the area where the crime occurred and other problems
which resulted after the attack concerning her relationship. Ms Hacker

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described how this crime had given rise to unwanted changes in her life which
had altered her in significant respects.

46 The physical and psychological consequences of the attacks upon Mr Rimmer


and Ms Hacker serve to explain, as well, the finding of the sentencing Judge
that these offences lay above the mid-range of objective seriousness.

47 No victim impact statement was provided by Mr Redwood. Mr Redwood’s


description of the offence against him provides ample understanding of the
terrifying and life-threatening experience to which he was subjected. The
absence of a victim impact statement does not, of course, give rise to an
inference that the offence committed against him had little or no impact on him:
s.29(3) Crimes (Sentencing Procedure) Act 1999 (as it stood prior to 27 May
2019).

The Respondent’s Subjective Circumstances


48 The Respondent was 24 years of age at the time of the offences and 26 years
old at the time of sentence.

49 The Respondent has no prior criminal history.

50 The sentencing remarks set out significant aspects of the Respondent’s life
and background. The sentencing Judge referred to the Respondent’s early life
at [5]-[6]:

“5 Evie Amati was born male and named Karl Amati in Perth on 1 May 1992
to parents to Melanie Booth and Michael Amati. She grew up in Leederville in
the inner city of Perth. She had a close relationship with her mother growing
up, but a turbulent relationship with her father. She had an awareness of
gender dysphoria at a very young age, recounting ‘“vivid dreams” of being
female when she was 5 or 6. At 15 she recalls “coming out” about gender
identity to her then girlfriend, who thought she was gay. She hid her gender
identity for the remaining years of high school.
6 She attended Shenton College from years 7 to 10. She excelled
academically, achieving an ATAR score of 99.40 in 2010, placing her in the
top 1% of the State. She was selected in the WA School Debating Squad, and
won the WA English literature prize. She was bullied by her peers. During her
final year of high school, with her mother’s financial assistance, she moved in
with her girlfriend. She attended school sporadically at this time, struggling
with feelings of depression and experiencing bullying at school.”
51 His Honour then traced the Respondent’s life history between 2010 and 2016,
saying at [7]-[10]:

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“7 She moved to Sydney in 2010, at age 17, following the completion of her
final exams. She commenced employment with the Community and Public
Service Union (CPSU).
8 In 2011, she commenced studies at Sydney University in a combined
Arts/Law degree. Again she excelled, winning a number of awards including
the Sir Walter Reid Memorial Prize for Excellence in Arts and Law in 2011 and
the John Kenneth Galbraith Prize for Economics II in 2012. She started her
physical transition from male to female in 2012 when she began taking
feminizing hormones.
9 She dropped out of university mid-way through her third year, citing
ongoing depression and reported self-consciousness about the attention she
received from peers when she commenced expressing her gender identity.
She travelled to Thailand for gender reassignment surgery in 2016. The
surgery went well, however the post-surgical process of ongoing dilations was
arduous and extremely painful.
10 She was first treated for depression by her GP in 2012. Her diagnoses
became more severe and from 2012 to 2016 her Sertraline anti-depressant
medication increased from 25mg to the maximum 200mg daily. In July 2016
she was taken to hospital after being found at St Peters station, intending to
jump onto the railway tracks. She presented to Cumberland Hospital with
suicidal thoughts in August 2016.”
52 His Honour referred to a six-month period before the commission of the
offences in January 2017 at [11]:

“In the six months preceding the offence she had separated from her partner
of two years, Tara, and her band had disintegrated. She was living alone and
her social sphere had collapsed. She found work to be an escape from her
depression.”
53 Prior to her arrest in January 2017, the Respondent had maintained stable
employment as a union delegate with a reference tendered at the sentencing
hearing describing the Respondent as being “highly organised and professional
at work, showing maturity beyond her years when often dealing with complex
and challenging situations” (Alicia Miller reference, 5 December 2018).

54 The sentencing Judge summarised other subjective evidence at [62]-[63]:

“62 I take account of the evidence of the offender’s mother at the trial. I also
note the reference from Alicia Miller, a work colleague as a union delegate.
The parents of the offender have written in heartfelt terms as to the
uncharacteristic nature of the offending and the changes that they have
observed in the offender while she has been in custody. Mark Cox, a Perth
based lawyer and long-term family friend, says that she has always been well
balanced, compassionate and considerate apart from this horrible incident.
Family friends Anna Kanaris and Arthur Clarke speak in similar terms. Sabrina
Klinger, accountant and next-door neighbour, has known the offender since
2002, and speaks of her in favourable terms.

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63 This material and the other evidence establishes, as Mr Waterstreet


submits, that she was a sympathetic, empathetic and consistent worker for
several years, regarded as a person of good character with high intelligence
and ability. It also shows that she suffered a form of depression for some time
during her childhood and adolescence in Perth, and after coming to Sydney
she experienced a deteriorating mental health profile without offending.”
The Psychiatric Evidence
55 The Respondent proceeded to trial with respect to these charges with the sole
issue being whether the defence of mental illness had been made good. At the
trial, Dr Yvonne Skinner, psychiatrist, gave evidence in the Crown case with Dr
Jeremy O’Dea, psychiatrist, and Professor David Greenberg, psychiatrist,
giving evidence in the defence case. The sentencing Judge summarised the
psychiatric evidence with respect to the Respondent at [52]-[58]:

“52 A number of psychiatrists retained for the offender accepted that but for
the combination of the offender’s mental state and the ingestion of drugs and
alcohol on the night of the offending the attacks were unlikely to have
occurred. Dr Greenberg and Dr O’Dea identified the relevant mental
dysfunction as a drug induced psychosis. Dr Greenberg was at pains to point
out that it was a complex interplay of a number of factors without any one
factor assuming a dominant role. For the Crown, Dr Skinner was of the view
that no psychosis was operative but rather disinhibition in the context of prior
aggressive or homicidal fantasies, noting her history of depression, self-harm
and mood disorder. Dr Skinner’s view placed a greater emphasis on the role
played by substance abuse which is, as the Crown submits, arguably more
consonant with the verdicts of the jury.
53 As counsel for the offender relies heavily upon the views of Dr Greenberg,
they will be referred to in some detail. The history upon which Dr Greenberg
proceeds has been adopted by the offender in evidence. It is relevantly
summarised in counsel’s submissions as involving a depressive disorder
present for many years and gender dysphoria since her teenage years. She
was never assessed for hormonal medication difficulties before or after gender
reassignment surgery which occurred in early 2016.
54 Dr Greenberg notes earlier references to depression and suicidal attempts
recorded in the medical material in, for example November 2013, March 2016
July 2016 and August 2016.
55 Dr Skinner, reporting to the Crown for the trial, accepted that the offender
had suffered from a long history of episodes of mood disorder.
56 Dr Nielssen was of the view that she had a severe depressive illness, as
was Dr Hampshire, who examined the offender within days of the arrest.
57 Dr Greenberg adheres to the view that the offender’s mental illness,
namely an unstable depressive disorder, was the most significant factor in her
offending, which was completely uncharacteristic. The reasons for her being
overwhelmed were multiple and complex. She had undergone sexual
reassignment surgery and her feminising hormones had not been reviewed by
an endocrinologist. Her depressive moods were aggravated by the use of the
feminising hormones. He remains of the view that she was likely intoxicated

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with a cocktail of prescribed and illicit substances at the time of the offending
and she had a brief drug induced psychosis on top of her depressive illness.
Together with her use of substances, her perceived feelings of rejection by
another female likely exacerbated a more significant relapse of her suicidality
and thoughts of homicide as part of her underlying mental illness so that all
these factors had a continuing role. Dr Greenberg acknowledges that the
extent of the contribution of the mental illness to the offending can only be
inferred from her self-report and the available evidence, but his view is that the
contribution of the mental illness was the most significant factor in the
offending. Notwithstanding the submission of counsel for the offender, it is
unnecessary for me make a finding as to whether her depressive disorder was
the most significant factor in the commission of the offences. It is sufficient to
proceed on the basis that it was one of the factors which were at play.
58 Dr Greenberg considers a number of matters relevant to an assessment
of the risk of reoffending including history of previous violence, absence of
history of antisocial behaviour, historical relationship instability, stable
employment, substance use problems, major mental illness, absence of
significant features of psychopathy, a history of problems with traumatic
experiences including being teased and bullied at school because of her
gender identity, absence of history of violent attitudes, absence of problems
with treatment or supervision response, good insight in regard to the role of
her substance abuse at the time of the offending, lack of recent homicidal
ideation, variable mood in custody with some suicidal ideation, responsiveness
to treatment, and her high level of intelligence as a protective factor.
Acknowledging that it is somewhat speculative, Dr Greenberg thinks that she
has relatively good prospects for rehabilitation and her prognosis is relatively
good provided that she can access available treatment in custody to address
her depression and associated psychological challenges, to continue with
abstinence from all un-prescribed substances and benefit from those
interventions. Without addressing those factors her risk would likely be higher.”
Some Findings of the Sentencing Judge
56 Early in the sentencing remarks (at [3]), his Honour noted that there was no
dispute about the circumstances of the offences or the Respondent’s life
history which was to “be borne in mind in the sentencing process as it provides
the basis for the principal argument for the offender, namely that moral
culpability should be reduced due to her subjective circumstances”.

57 Whilst addressing the objective seriousness of the offences, his Honour


rejected (at [39]) the defence submission “that the dominant cause of the
conduct and behaviour was the underlying medical condition”. His Honour
made the following express findings with respect to objective seriousness at
[40]-[42]:

“40 In each case there are a number of common factors bearing on objective
seriousness. First, while the use of illicit drugs was a significant factor, it is
likely that the offender’s underlying mental conditions also contributed to her
behaviour. Secondly, in each case the offender used a 4.5 pound axe to strike

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at the victim with force using an implement which by its very nature is
dangerous and well capable of killing or inflicting serious injury. Thirdly, the
offending involved a degree of premeditation and planning, namely the
offender arming herself with a knife and axe and walking 450 m to the
convenience store. Fourthly, the likelihood of death in each case was very
high.
41 Both Mr Rimmer and Ms Hacker were struck when they were not looking
rendering them more vulnerable to serious harm. Further, in both cases the
injuries sustained were substantial and have long-lasting consequences. As to
Mr Redwood, the attempt did not involve the infliction of actual physical injury
due only to his self-defence with a backpack, but he was vulnerable given his
physical disabilities.
42 In those circumstances, Counts 1 and 3 fall above mid-range of objective
seriousness and Count 5 is in the mid-range.”
58 His Honour noted (and apparently accepted) the Crown submission that there
was evidence of a history of mental illness including major depressive order,
substance-induced depression, self-harm, suicidal and homicidal ideation and
gender dysphoria so as to invoke the principles in Director of Public
Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [43]; [2010] NSWCCA
194 at [177]. In accordance with authority and the Crown submission, his
Honour accepted (at [44]) that the jury’s rejection of the defence of mental
illness did not preclude consideration of the Respondent’s mental conditions in
the sentencing process. His Honour continued at [45]-[46]:

“45 As counsel for the offender submits, the psychiatric evidence is relevant
to a number of factors including risk of reoffending, extent and severity of her
condition, the extent of the condition at the time of the offence and its
contribution to the offence, the prospects of treatment and rehabilitation, the
need to engage in programs and the availability and relevance of social
support.
46 However it remains necessary to assess and weigh appropriately the
importance of the protection of the public: R v Lawrence [2005] NSWCCA 91
at [23]-[24]; R v Israil [2002] NSWCCA 255. Self-induced intoxication by illicit
drugs and alcohol is not a factor in mitigation as set out in section 21A (5AA)
of the Crimes (Sentencing Procedure) Act.”
59 The sentencing Judge referred to the sentencing assessment report dated 7
December 2018, noting at [48]-[51]:

“48 She has maintained positive relationships with the parents and sister who
live in Western Australia. She intends to live on the South Coast upon release.
She has been in regular employment while in custody and has received
positive feedback. The Corrective Services records confirm her good
behaviour in custody.
49 She continues to report having no memory of committing the offences, but
remembers experiencing homicidal auditory hallucinations, visions and feeling

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scared. She demonstrated insight into her behaviour by describing the


offences as “monstrous” and feeling disgusted by her actions. She also
demonstrated insight into the impact of her offending on the victims, describing
her actions as “catastrophic” and that she had apologised and expressed
remorse. She recognised the link between her mental health, medications and
the dangerous combination of these issues coupled with alcohol and illicit
substances.
50 She had commenced experimenting with alcohol and other drugs after
moving to New South Wales. Before the offending she was binge drinking on
weekends, smoking cannabis daily and using MDMA or LSD on a recreational
basis. On the night of the offences she had smoked cannabis, consumed
alcohol and taken MDMA.
51 While in custody she has participated in the Remand Addictions Program
which is a 20 session program covering a number of topics. She has also
completed the Salvation Army Positive Lifestyle program and sessions of
“Real Understanding of Self-Help” (RUSH). Corrective services records
demonstrate a strong work ethic while in custody.”
60 After summarising the psychiatric evidence, the sentencing Judge said at [59]:

“As counsel for the offender submits (and the Crown concedes, to an
unspecified extent), the long history of mental illness reduces to some extent
her moral culpability and consequently reduces the need for general and
specific deterrence as well as the extent to which she is made accountable for
her actions.”
61 With respect to the Respondent’s prospects of rehabilitation, his Honour said at
[60]:

“The evidence establishes that the offender’s mental state has improved while
in custody in the absence of illicit drug use. She has no prior convictions,
which of course is a matter to be taken into account in mitigation, and she has
significant family support. She is well educated, articulate and intelligent.
Community Corrections assessed her as having a medium to low risk of
reoffending. I accept her prospects of rehabilitation are good, particularly if
mental issues arising from hormone therapy are adequately controlled.”
62 His Honour addressed aggravating and mitigating factors at [61]:

“No aggravating factors have been identified in submissions, and none are
apparent beyond matters which are elements of the offence. However, in
mitigation I note her prior good character, lack of previous convictions,
expressions of remorse and reasonably good prospects of rehabilitation.”
63 His Honour referred to victim impact statements made by Mr Rimmer and Ms
Hacker, noting at [66]-[67]:

“66 The TV footage shows Mr Rimmer having an apparently innocent


conversation with the offender in the vicinity of the cash register of the store.
As he turned away slightly to pay for his purchases she swung the axe
violently, striking him across the face. He underwent facial reconstruction
surgery and one of his biggest challenges is accepting his altered physical
appearance which causes him distress every time he looks in the mirror. He

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remembers lying on the ground and thinking he was going to die and never
see his pregnant wife again or meet his son. He was subject to intense media
scrutiny and had to watch the horrific TV footage many times. He describes
symptoms which are well recognised as being consistent with a type of post-
traumatic stress disorder, although it is unnecessary for me to make any
particular finding on that issue.
67 Ms Hacker suffered orthopaedic injuries to her neck and lost the use of
her hand for some time. She has continuing pain, disturbed sleep and requires
medication and ongoing treatment. She also describes a number of
psychological symptoms which are clearly consistent with sequelae from a
major traumatic event.”
64 His Honour accepted that the Respondent’s time in custody had been and
would be in the future “more onerous than usual due to her gender status and
the antagonism expressed by female inmates” (at [68]).

65 With respect to accumulation and totality, the sentencing Judge said at [69]:

“A degree of accumulation is necessary to reflect individual criminality in each


of the three offences, all of which are very serious and of which involve
different victims, even though they were part of one relatively brief episode of
criminality.”
66 His Honour made a finding of special circumstances given the Respondent’s
relatively young age, prior good record and the need for rehabilitation with
regard to both mental health and drug issues (at [70]).

67 Before imposing sentence, the sentencing Judge expressed his conclusions at


[72]-[77]:

“72 In summary, the Crown position was that the offending was a very
serious and confronting episode and an appropriate sentence should reflect
not only the substantial maximum penalties but also the very real impact it has
had on the three victims, in particular Mr Rimmer and Ms Hacker. In short, the
offender had used a 4.5 pound axe to strike the head of both Mr Rimmer and
Ms Hacker with considerable force, attempting to strike Ms Hacker a second
time while she was prone and swung the axe twice at Mr Redwood. The risk of
death was high in each of the cases, and the fact that death did not occur was
entirely a matter of good fortune in circumstances where the jury’s verdicts
establish that that was her intention.
73 As the Crown submitted, the offender here ingested what she believed to
be a prohibited drug and instead received a similar prohibited drug albeit one
that was potentially more potent in some respects. The policy underlying the
principles developed in relation to drug addiction in R v Henry (1999) 46
NSWLR 346 emphasise the personal choice that most drug users make. Here
the offender was not an addict but a recreational user who willingly ingested
what she thought to be a prohibited drug.
74 The Crown submits that, notwithstanding the conceded reduction in moral
culpability, a sentence of full-time imprisonment is mandated by the overall

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synthesis of the circumstances of the case in light of the purposes of


sentencing.
75 Counsel for the offender submits that, particularly having served over two
years imprisonment, there is a strong case that she and the community would
be best served if she were placed back into the community at the earliest
opportunity. That is partly based on asserted lack of opportunities to consult
with endocrinologists, psychiatrists or general practitioners. Counsel appears
to submit that an intensive corrections order for three years may be
appropriate and refers to the ACT case of R v Gabriela Woutersz [2018]
ACTSC 36.
76 Mr Waterstreet ultimately submitted that the disastrous downfall that led to
these offences has been addressed in all its complexity by the offender, that
her mental illness lessens the significance of the standard non-parole period,
that the scale of seriousness can be, to a large degree, addressed in the
offender’s favour, and that while the objective facts are clearly shown in the
CCTV footage, the chaos and disorder within her mind would significantly
ameliorate moral culpability for the very serious injuries that her behaviour
caused.
77 There is merit in that position, but not sufficient merit to detract from the
conclusion that this is a case in which a significant period of full-time
imprisonment is required. To elevate the mental illness to a paramount
position, as is effectively put on behalf of the offender, would largely ignore the
purposes of sentencing and would not be an appropriate result of the process
of instinctive synthesis of the objective and subjective circumstances bearing
in mind the purposes of sentencing to which I have referred.”
68 His Honour then proceeded to nominate indicative sentences and impose an
aggregate sentence as indicated earlier in this judgment.

Submissions on the Appeal


Crown Submissions

69 The Crown did not challenge the findings made by the sentencing Judge with
respect to the objective gravity of the offences and features of the
Respondent’s subjective case, with these findings involving essentially
acceptance of Crown submissions made at first instance. The Crown submitted
that a manifestly inadequate aggregate sentence had been imposed with
explanations for this flowing from a combination of reasons, including very
lenient indicative sentences, insufficient partial nominal accumulation and an
excessive allowance for special circumstances.

70 The Crown emphasised that the three offences for which the Respondent was
to be sentenced involved a jury finding that the Respondent intended to kill
each of the three victims.

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71 The Crown noted the finding that the offences involving Mr Rimmer and Ms
Hacker were “above mid range of objective seriousness”. It was submitted that,
given this assessment of objective seriousness (which was appropriate), and
taking into account the maximum penalty and standard non-parole period,
together with the injuries inflicted on the two victims, the fact that they were
members of the public lawfully going about their business in a publicly available
store and the absence of any discount for a plea of guilty, the indicative
sentence with respect to each of these offences was not open notwithstanding
the Respondent’s strong subjective case.

72 With respect to the offence against Mr Redwood, which his Honour found to be
a mid-range offence, the Crown submitted there was an excessively lenient
indicative sentence having regard to all factors applicable for that offence.

73 The Crown submitted that the aggregate sentence was manifestly inadequate
and demonstrated an erroneous approach to partial notional accumulation and
totality.

74 Finally, the Crown submitted that the ratio of non-parole period to head
sentence of 50% was indicative of error especially where the aggregate head
sentence was one of nine years’ imprisonment.

75 The Crown submitted that manifest inadequacy had been demonstrated and
that consideration of the residual discretion should not stand in the way of the
Court intervening and resentencing the Respondent.

Submissions for the Respondent

76 Mr Lange, counsel for the Respondent, submitted that the aggregate sentence
was open to the sentencing Judge in all the circumstances of this case. He
submitted that these were highly unusual circumstances having regard to the
combination of factors operating upon the Respondent’s thought processes at
the time of the offences. Even though there were three offences, it was
submitted that the indicative sentences and the ultimate aggregate sentence
did not indicate error on the part of the sentencing Judge.

77 Mr Lange submitted that the sentencing Judge had effectively adopted the
submissions of the Crown upon sentence as to objective gravity of the offences

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and the relevance of factors bearing upon the Respondent’s mental state
including intoxication.

78 Insofar as the Crown sought to rely upon Hitchcock v R [2016] NSWCCA 226
as a useful comparative case, Mr Lange submitted that the circumstances in
that case were quite different given an extended period of planning before the
commission of the offence of wounding with intent to murder.

79 It was submitted that there were powerful subjective factors which applied to
this case so that the sentence of imprisonment did not disclose error.

80 Counsel submitted that the appeal ought be dismissed.

Decision
81 The present case is an unusual one in a number of respects. The Respondent
was to be sentenced for three offences which involved an intention to murder
complete strangers by use of an axe. Two of the victims were injured, and
could easily have been killed, in circumstances where there were attempts to
murder Mr Rimmer, and then Ms Hacker, with a heavy bladed weapon.

82 Mr Redwood was attacked in the street and fortunately did not suffer any
physical injury despite the Respondent’s attempts to kill him with the axe.

83 The elements of the crimes for which the Respondent was to be sentenced lie
at the forefront of the sentencing decision in this case. The Respondent was
not to be sentenced for the alternative counts contained in the indictment which
charged offences of wounding Mr Rimmer and Ms Hacker with intent to cause
grievous bodily harm contrary to s.33(1)(a) and (b) Crimes Act 1900 (Counts 2
and 4). Given the verdicts of guilty on Counts 1 and 3, those counts were to be
put to one side.

84 The attacks upon Mr Rimmer and Ms Hacker are captured on CCTV footage,
the contents of which are chilling and confronting.

85 Having succeeded in striking both Mr Rimmer and Ms Hacker to the head with
the axe causing injuries to them, the Respondent then attacked Mr Redwood,
an elderly homeless man on the other side of the street. Fortunately, Mr
Redwood was able to fend off the attack but, as his evidence makes clear, the
experience was frightening.

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86 That the jury was satisfied beyond reasonable doubt that the Respondent
intended to kill each of Mr Rimmer, Ms Hacker and Mr Redwood is entirely
understandable given her choice of weapon and her messages to Ms Jahnsen
expressing homicidal thoughts which were communicated a short time before
she set out on her journey on foot to the convenience store, a place where
victims were to be found in the early hours of the morning.

Comparative Sentences for s.27 Crimes Act Offences

87 For the purpose of assessing a submission that the sentence imposed in this
case was manifestly inadequate, it is appropriate to have regard to other
decisions of this Court where sentences for s.27 offences have been
considered. Although caution is required in considering the sentences imposed
in other s.27 cases, they remain useful given the relatively small number of
s.27 offences for which courts have imposed sentences. As will be seen, it is
not uncommon for s.27 offences to be committed by persons who were, at the
time, experiencing a significant mental disorder and had no prior criminal
history.

88 Although there have been sentencing decisions for offences under s.27 Crimes
Act 1900, there is no authority, to the Court’s knowledge, where a person stood
to be sentenced for three s.27 offences committed against three victims such
as the present case.

89 In considering the cases, it will be necessary, as well, to keep in mind that the
standard non-parole period of 10 years applies only to s.27 offences committed
since 2003.

90 In R v Thew (Court of Criminal Appeal, unreported, 25 August 1998), the Court


allowed a Crown appeal with respect to two counts of attempted murder under
s.27 Crimes Act 1900. The respondent, who had no prior convictions and was
in a significantly depressed state, placed his daughters aged eight years and
14 months in a vehicle and attempted to poison them and himself with carbon
monoxide. The older girl freed the younger girl and obtained assistance. The
respondent pleaded guilty to the charges. The sentencing Judge imposed
concurrent terms of penal servitude for five years and nine months with a non-
parole period of two years and three months. The central issue on the Crown

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appeal was whether the sentencing Judge had taken sufficient account of the
objective gravity of the offences.

91 Sheller JA and McInerney J allowed the Crown appeal and the respondent was
sentenced to terms of nine years penal servitude with a non-parole period of
five years to be served concurrently. In the leading judgment of the Court,
Sheller JA observed that “This is less than I would have imposed but for the
element of double jeopardy to which the respondent has been exposed”.
Sheller JA relied upon R v Dodd (1991) 57 A Crim R 349 at 354 concerning the
need for reasonable proportionality between the sentence and the
circumstances of the crime. His Honour considered that the description of the
offences in the remarks of the District Court Judge was “quite overborne in his
reasons by the lengthy investigation of the respondent’s state of mind and its
effect on him”. Sheller JA observed that “The respondent committed two
offences, each vile and inhuman and hardly the less so because he planned to
kill himself at the same time”.

92 In R v Rae [2001] NSWCCA 545, the Court (Giles JA, Sully and Levine JJ)
dismissed a sentence appeal against a sentence of imprisonment for 19 years
and eight months with a non-parole period of 14 years and nine months for a
s.27 offence of causing grievous bodily harm with intent to murder. The
applicant had pleaded guilty to an offence which involved an attack upon his
former domestic partner. The applicant poured petrol on the victim and set her
alight. The applicant had no prior criminal history and was described as a
highly intelligent person.

93 In R v Macadam-Kellie [2001] NSWCCA 170, the Court (Greg James J, Wood


CJ at CL agreeing) allowed an appeal against sentence imposed for a s.27
offence of wounding with intent to murder the applicant’s estranged spouse. At
first instance, the applicant was sentenced to imprisonment for 16 years with a
non-parole period of 12 years. The applicant had stabbed his estranged wife
outside the Family Court in the course of proceedings between them in that
Court, and at a time when an apprehended violence order operated to protect
her. The Court found that the sentencing Judge had given insufficient weight to
the substantial psychiatric evidence before the District Court diagnosing a

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major depressive illness and personality disorder. Greg James J held (at [62])
that error had been shown arising from the sentencing Judge’s failure to accept
“the undoubted link between the major depressive illness and the crime”. The
applicant had pleaded guilty to the offence and received a 15% discount which
was applied again on resentence. The appeal was allowed and the applicant
was resentenced to imprisonment for 15 years with a non-parole period of 11
years.

94 After identifying the proposed sentence, Greg James J said at [64]:

“… I would be minded to pass a sentence as severe as this notwithstanding


the major depression and its link with the commission of the offence in that the
objective criminality calling for a substantial element of general deterrence
otherwise than as is affected by the mental condition of the applicant is so
high.”
95 In R v Quach [2002] NSWCCA 173, the Court (O’Keefe J, Smart AJ agreeing)
dismissed an appeal against sentence for a single s.27 offence of causing
grievous bodily harm with intent to murder where a sentence of imprisonment
of nine years with non-parole period of five years was passed. The applicant
had no prior criminal history and was 42 years old at the time of the offence.
The applicant suspected (wrongly) that his wife was having an affair and
attacked her with a bottle whilst restraining her and accusing her of having
disrespected him. Psychiatric evidence was adduced at the sentencing hearing
which indicated a major depressive disorder, but the evidence did not indicate
a causal relationship between the depressive illness and the offence.

96 O’Keefe J observed at [20] that the sentence imposed and the non-parole
period “were very lenient given the objective gravity of the offence and taking
into account the subjective features of the applicant”.

97 In the course of dismissing the appeal (including a ground which asserted


manifest excess of sentence), O’Keefe J referred to statistical information
concerning s.27 offences committed prior to 2002. His Honour said at [42]-[43]:

“42 An examination of the statistics based on 19 cases (one of which is the


present case) in relation to offences under s.27 of the Crimes Act shows the
following:
1. A custodial sentence was imposed in 100% of the cases.
2. A total of 86% of the full term of the sentences imposed fell between 8 and
14 years.

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3. Only 16% of the sentences imposed were below 9 years.


4. In 48% of the cases the non-parole periods (or equivalent) fell between 5
and 7 years, with 5 years being the minimum non-parole period fixed.
43 The above statistics show that the sentence imposed by the trial judge fell
towards the lower end of the scale notwithstanding the seriousness of the
circumstances in which the offence was committed.”
98 The cases to be considered from here involve offences committed after the
standard non-parole provisions came into operation in 2003.

99 In R v Zegura [2006] NSWCCA 230, the applicant had pleaded guilty to a s.27
offence of wounding his former partner with intent to murder. The applicant had
a prior criminal history and was 24 years of age at the time of the offence.
Psychiatric evidence was given at the sentencing hearing with the presiding
Judge concluding that the applicant “may have had some mental condition at
the time of the offences which caused him to have more rigid beliefs than
normal”. At first instance, the applicant was sentenced for the s.27 offence to
imprisonment for eight years and six months with a non-parole period of six
years. On a Crown appeal, the Court (Hoeben J, McClellan CJ at CL and Kirby
J agreeing) allowed the Crown appeal with respect to an aspect of
accumulation with concerning another offence for which the offender was
sentenced. The sentence for the s.27 offence remained the same as that
imposed in the District Court.

100 In Little v R [2010] NSWCCA 210, the applicant was sentenced for several
offences of violence including an offence of causing grievous bodily harm with
intent to murder under s.27 Crimes Act 1900. That offence was committed
against a correctional officer inside a correctional centre by the applicant who
was an inmate. The applicant pleaded guilty to the offences. For the s.27
offence, the applicant was sentenced to imprisonment for 20 years and six
months with a non-parole period of five years and three months. The Court
(Hall J, Macfarlan JA and Simpson J agreeing) dismissed the appeal observing
that the s.27 offence could be characterised aptly as being in “the worst case
category”.

101 In R v Da-Pra [2014] NSWCCA 211, the Court considered a Crown appeal
against sentence for offences of murder and causing grievous bodily harm with
intent to murder. The sentence imposed at first instance for the s.27 offence

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comprised imprisonment for a term of six years with a non-parole period of four
years and six months. The offence occurred in the circumstances of the
applicant being found guilty by a jury of the murder of a 12-year old girl who
lived next door and the s.27 offence committed against the girl’s grandmother.
On the Crown appeal, the Crown did not challenge the proposition that the
respondent’s mental illness was a highly relevant matter to be taken into
account on sentencing and it was accepted that it did serve to greatly mitigate
the sentence that would otherwise have been appropriate (at [454]). R A Hulme
and Bellew JJ referred at [456] to Judicial Commission statistics concerning
s.27 offences:

“Judicial Commission sentencing statistics were also relied upon in relation to


the sentence for the attempted murder of VW. They indicated that since the
introduction of the standard non-parole period for this offence in 2006, non-
parole periods imposed have ranged from 4 years and 6 months up to 16
years. The one non-parole period of 4 years and 6 months imposed involved
an offender who had pleaded guilty. The respondent received such a non-
parole period following his plea of not guilty in respect of the offence in count
3.”
102 In approaching the relevance of past sentencing decisions, R A Hulme and
Bellew JJ observed at [457]:

“Care is obviously required in relation to the consideration of past sentencing


decisions. The correct approach was described by Simpson J in Director of
Public Prosecutions (Cth) v De La Rosa; an approach endorsed by the High
Court of Australia in Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54].
Her Honour said:
‘[303] A history of sentencing can establish a range of sentences that have in
fact been imposed. Such a history does not establish that that range is the
correct range, nor that either the upper or the lower limit is the correct upper
and lower limit. Sentencing patterns are, of course, of considerable
significance in that they result from the application of the accumulated
experience and wisdom of first instance judges and of appellate courts.
[304] But it would be a mistake to regard an established range as fixing the
boundaries within which future judges must, or even ought, to sentence. To
take that attitude would be, de facto, to substitute judicial selection of
sentences in individual cases for the boundaries of sentencing for a particular
offence laid down by Parliament. In this case, that range is from 0 to 25 years.
Of course, it is well established that the maximum sentence is reserved for the
most serious cases. It is equally well established that it would be an
extraordinary proposition that a person convicted of an offence of importing
prohibited drugs would escape any custodial penalty. The point I am making is
that the ranges of sentences actually imposed, while illuminating, are no more
than historical statements of what has happened in the past. They can, and
should, provide guidance to sentencing judges, and to appellate courts, and
stand as a yardstick against which to examine a proposed sentence. But it is

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only by examination of the whole of the circumstances that have given rise to
the sentence that ‘unifying principles’ may be discerned: Wong and Leung, at
[59].
[305] In the end, the sentencing discretion is individual: it must be exercised
by the individual judge, in respect of the individual offender...’.”
103 R A Hulme and Bellew JJ said at [461]-[462]:

“461 We are persuaded that the sentence imposed in this case for the
attempted murder of VW was demonstrably inadequate. Putting to one side for
the moment the respondent's mental illness, the physical attributes of the
offence renders it one that can also be described as falling little short in
culpability of the completed offence. Ms W was extremely fortunate not to have
succumbed to an attack by an intruder into her home in which death was
clearly intended and thought by the respondent to have been achieved.
462 Allowing full weight for the mitigating factors that need to be brought into
account for the respondent's prior blameless life and his mental illness
(reduced moral culpability; little weight to general deterrence; and, we accept,
more onerous custodial conditions) but giving greater emphasis than the
primary judge gave to personal deterrence, respect for the legislative
guideposts of the maximum penalty and the standard non-parole period
demanded that a significantly greater sentence be imposed.”
104 In resentencing the respondent for the s.27 offence, the Court imposed a
sentence of imprisonment for 10 years with a non-parole period of seven years
and six months.

105 R A Hulme and Bellew JJ referred to the use of other s.27 sentencing
decisions at [458]-[460]:

“458 The respondent challenged the Crown's reference to other cases and
provided a useful summary of a variety of ways in which they were
distinguishable. It may be readily accepted that they are distinguishable; that is
apparent from the fact that they all brought sentences substantially exceeding
those which were imposed in the present case.
459 One particular case the Crown referred to in relation to attempted murder
bears attention: Cvetkovic v R [2013] NSWCCA 66. It involved a man who was
estranged from his wife. One day after they met to discuss a financial
settlement they were in a car together when he produced a ‘gyprock saw’ and
stabbed her at least 30 times from which she miraculously survived but
required over 9 hours of surgery and was left with ongoing physical and
psychological harm of significant severity. The offender was convicted after
trial. Two eminent forensic psychiatrists found he was suffering from
depression; Dr Bruce Westmore diagnosed a major depressive illness which
appears to have been accepted by Dr Nielssen. However, there was found to
be no error in the sentencing judge finding that this did not mitigate the
offender's conduct to any great degree.
460 McCallum J (with the concurrence of Price and Schmidt JJ) (at [87])
endorsed the sentencing judge's finding that ‘this was a very serious offence
falling little short in culpability of the offence of murder’. A sentence of 17 years

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4 months with a non-parole period of 13 years was found to be ‘stern’ but not
outside ‘the proper range’.”
106 In Shine v R (2016) 260 A Crim R 534; [2016] NSWCCA 149, the Court
allowed a sentence appeal where a 58-year old offender was sentenced for a
single count of causing grievous bodily harm with intent to murder under s.27
Crimes Act 1900. The applicant was sentenced, at first instance, to
imprisonment for 12 years with a non-parole period of seven years and six
months. The applicant had pleaded guilty to the offence. The applicant was
subject to significant mental illness which it was held affected his moral
culpability with respect to the offence. The applicant attacked the victim with a
knife under the deluded belief that the victim posed a threat to the safety of the
victim’s wife who was a friend of the applicant. The Court of Criminal Appeal
(Bathurst CJ, Davies J and R S Hulme AJ agreeing) allowed the appeal and
resentenced the applicant to a term of imprisonment for nine years with a non-
parole period of five years. In do so, the Court had regard to the applicant’s
mental illness in reducing his moral culpability and the fact that the custodial
sentence would weigh more heavily on him by reason of his mental condition.
A 25% discount was allowed for the applicant’s plea of guilty.

107 In Hitchcock v R, after a successful sentence appeal by the offender, this Court
imposed for a single s.27 offence of wounding with intent to murder, a term of
imprisonment for nine years with a non-parole period of six years. This
sentence took into account a 10% discount for a plea of guilty and a 5%
discount for assistance. The offender in that case had substantial mental
illness and cognitive impairment issues as reflected in the judgments of
Hoeben CJ at CL and Harrison J.

108 Undertaking a similar analysis to that in R v Da-Pra at [456], Judicial


Commission statistics for s.27 offences reveal that for sentences imposed from
January 2008 to September 2018 (post-Muldrock), there is now a sample size
of 31 sentences. In all of these cases, the offender only committed one offence
contrary to s. 27, and the non-parole periods imposed have ranged from 2
years to 16 years and 6 months (Tregeagle v R [2016] NSWCCA 106, where
an indicative sentence for the s.27 offence was 12 years, with a non-parole
period of 8 years’ imprisonment).

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109 From that sample, six offenders proceeded to trial, and upon conviction, the
non-parole periods imposed have ranged from 4 years’ (R v Huynh [2017]
NSWDC 126) to 13 years’ imprisonment (Cvetkovic v R [2013] NSWCCA 66).
In each of these cases, the offenders did not have any prior criminal record.

110 Examination of these other sentencing decisions fortifies a conclusion that the
aggregate sentence imposed in this case was entirely outside any putative
range of sentence for three s.27 offences. Indeed, reference to these other
decisions points to inadequacy of the indicative sentences as well.

111 In AM v R [2012] 225 A Crim R 481; [2012] NSWCCA 203, an appeal was
brought against sentence imposed for an offence of causing grievous bodily
harm with intent to cause grievous bodily harm contrary to s.33(1)(b) Crimes
Act 1900. Although not a s.27 offence, aspects of this decision provide some
assistance on sentence in the present case. The Court noted (at [70]-[71]) that
the extent of injuries sustained by a victim which constitute grievous bodily
harm is of significance in assessing the objective gravity of the offence. Other
factors relevant to that assessment include the presence or absence of
planning and premeditation (at [73]). The fact that a s.33 offence involves an
unprovoked, uncalled for and unjustified attack elevated its objective gravity
and an attack upon an innocent citizen who was going about his ordinary
business was a crime of increased seriousness (at [74]).

The Aggregate Sentence Imposed was Manifestly Inadequate

112 The fact that the three offences were committed over a relatively short period
of time provides little assistance to the Respondent. These were three
deliberate and separate attacks upon different individuals. Each victim believed
that he or she was going to die and that, in fact, was the Respondent’s
intention. The aggregate sentence imposed in this case has the effect that a
period of six months only is added to the non-parole period for the indicative
sentence for the offence against Mr Rimmer. Where there are two other victims
of s.27 offences, this approach bespeaks manifest inadequacy in the sentence.

113 In R v Gommerson (2014) 243 A Crim R 534 at 552; [2014] NSWCCA 159 at
[105]-[106], this Court said:

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“105 The issues of accumulation, concurrency and totality will arise in a


variety of circumstances.
106 Where there are several victims of crimes of violence (including sexual
offences), it is important for the sentences actually imposed to recognise the
fact that several individuals have been victimised by the offending conduct.
Sometimes there may be several victims of the one course of violent conduct,
such as persons robbed at the same time (three victims of robbery in a public
place as in Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116 at 121 [19])
or two victims detained and terrified by an offender simultaneously (as in
Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500 at 512-513 [90]).”
114 After referring to R v Hamid (2006) 165 A Crim R 175; [2006] NSWCCA 302
with respect to sentencing for domestic violence offences against several
victims, the Court continued in R v Gommerson at [108]-[109]:

“108 The decision of this Court in Cahyadi v R [2007] NSWCCA 1; 168 A


Crim 41 is referred to frequently with respect to the statement of principle
concerning accumulation, concurrency and totality (at 47-48 [27]-[29]). It
should be kept in mind that the offences in Cahyadi v R involved dishonesty,
money laundering and passport offences, and not crimes of violence or sexual
assault. There were no individual victims in that case to whom reference
needed to be made.
109 This observation is not intended to dilute the statement of principle in
Cahyadi v R. Rather, it is to provide a reminder that other considerations will
be brought into play as well when issues of accumulation, concurrency and
totality arise with respect to crimes of violence, including domestic violence
(Vaovasa v R; Jeffries v R; R v Hamid) and sexual assault offences involving
several victims (R v Brown; Doyle v R; R v Doyle).”
115 It was necessary that the aggregate sentence imposed actually reflect the fact
that his Honour had regard to the important sentencing factor in s.3A(g) Crimes
(Sentencing Procedure) Act 1999 to recognise the harm done to the victims of
the crime and the community. In reality, the aggregate sentence did not
recognise in any real way the harm done to Ms Hacker and Mr Redwood who
were victims of these serious crimes.

116 It is necessary to keep in mind, as well, that the Respondent had proceeded to
trial, as was her right, with the consequence that there was no entitlement to a
discount for a plea of guilty.

117 The Respondent had a powerful set of subjective circumstances to be taken


into account. She is an intelligent person with a troubled history which has
given rise to mental health issues and presented her with clear difficulties in
her life. It appears that she was able to maintain employment regularly despite

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these circumstances so that her mental health problems were, in a sense,


reactive to circumstances which loomed from time to time.

118 By the early hours of 7 January 2017, the Respondent was significantly
intoxicated as a result of her voluntary use of alcohol and drugs, a factor which
the sentencing Judge rightly observed could not operate in her favour (R v
Amati at [46]). There was a convergence of factors which influenced the
Respondent leading to her, in a form of anger, going out into the street in
search of a person or persons to kill.

119 It should be stressed that what Ms Jahnsen said or did was reasonable and
supportive of the Respondent. However, in an intoxicated and upset state, the
Respondent set out to inflict homicidal violence directed towards strangers.
She armed herself with an axe and a knife. This is not a case of violence by
way of assaults or even more serious non-homicidal attacks. She came upon
two complete strangers in the convenience store and made concerted efforts to
kill each of them with that being her intention. Very significant injuries were
inflicted on one of them with the other being physically and mentally scarred as
a result of the incident. The attack on the third person in the street was
terrifying, although fortunately did not involve any physical injury. These were
features of the objective gravity of these offences that needed to be reflected,
not just in the words of the sentencing Judge, but in the outcome in the form of
the aggregate sentence imposed and the indicative sentences relating to each
offence. That did not happen in this case.

120 I have kept in mind the particular constellation of issues which affected the
Respondent at the time of these offences. I do not seek to understate the
difficulties affecting her as a result of gender dysphoria and associated mental
health difficulties including depression. Whilst giving substantial weight to
evidence concerning the Respondent’s mental health issues, so that there is a
reduction in moral culpability, it remained necessary for the objective gravity of
each of these offences to be reflected tangibly in the indicative sentences, and
then the aggregate sentence to be imposed reflecting the totality of her crimes.
It is necessary that there be reasonable proportionality between a sentence
and the circumstances of the crime or crimes viewed objectively: R v Dodd at

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354. I am satisfied that the sentencing Judge was diverted by the


Respondent’s undoubtedly strong subjective circumstances so as to impose a
sentence that did not reflect the serious objective gravity of the three offences
which she had committed: R v MD (2005) 156 A Crim R 372 at 387; [2005]
NSWCCA 342 at [65]; R v Carroll (2010) 77 NSWLR 45 at 59-60; [2010]
NSWCCA 55 at [62] (applying R v Dodd).

121 There is merit in the Crown submission that the 50% ratio selected by the
sentencing Judge as between the non-parole period and the head sentence
fortifies the conclusion that the aggregate sentence is manifestly inadequate.
This is especially so when the non-parole period for these three offences is a
period of four-and-a-half years only. It is very difficult to see how a non-parole
period of that length could constitute an appropriate minimum period for the
Respondent to spend in custody for her offences in accordance with the
principles in R v Simpson (2001) 53 NSWLR 704 at 718; [2001] NSWCCA 534
at [65] and R v GWM [2012] NSWCCA 240 at [118].

122 There was a substantial disconnect between the sentencing Judge’s findings
and the aggregate sentence and the non-parole period ultimately fixed: R v
Hall [2017] NSWCCA 313 at [103]. The sentencing Judge allowed the
Respondent’s subjective factors to overshadow almost entirely the objective
gravity of these serious offences.

123 Manifest inadequacy is a conclusion. Intervention on the ground of manifest


inadequacy is not justified simply because the result reached at first instance is
markedly different from other sentences that have been imposed in other
cases. Rather, intervention is warranted only where the difference is such that,
in all the circumstances, this Court concludes that there must have been some
misapplication of principle, even though where and how is not apparent from
the statement of reasons: Hili v The Queen (2010) 242 CLR 520 at 538-539;
[2010] HCA 45 at [59]. It may be taken that there will be a range of possible
sentences that could be imposed by a sentencing Judge without error: AB v
The Queen (1999) 198 CLR 111 at 128; [1999] HCA 46. However, in my view,
it has been demonstrated that the aggregate sentence lies clearly outside the

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range of sentences properly available, in all the circumstances of this case, for
three s.27 offences.

124 I am satisfied that the Crown has made good its claim that the aggregate
sentence imposed upon the Respondent was manifestly inadequate.

The Residual Discretion


125 If the Court found error, Mr Lange read the affidavit of the Respondent sworn
24 July 2019 for the purpose of the appeal. The Crown read the affidavit of
Steven Thomson sworn 25 July 2019 which dealt with some issues raised in
the Respondent’s affidavit.

126 Mr Lange submitted that the Court should dismiss the appeal having regard to
the continued progress of the Respondent in custody and the ongoing
difficulties which she is experiencing of the type referred to by the sentencing
Judge given the attitude of some female prisoners towards her. It was
submitted, as well, that it was not necessary for the Court to intervene in what
was a very unusual case which would not provide guidance with respect to any
broader category of cases.

127 The Crown submitted that this is a proper case for the Court to intervene and
resentence the Respondent. There had been no delay in the bringing of the
appeal and no conduct on the part of the Crown which gave rise to any
difficulty for the Crown at first instance.

128 The Court having found error in the form of manifest inadequacy, it remains for
the Crown to satisfy the Court that the residual discretion to decline to
intervene and resentence the Respondent should not be exercised in this case:
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015]
HCA 9.

129 There was no delay in the institution of the Crown appeal or the service of the
Notice of Appeal upon the Respondent. Nor is there any feature in the way that
the proceedings were conducted at first instance which operates against the
Crown with respect to the residual discretion.

130 It is appropriate to take into account the continuing difficulty which the
Respondent is experiencing in custody, as outlined in her affidavit of 24 July

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2019, with those matters being essentially confirmed in the affidavit of Mr


Thomson. It remains the fact, however, that a manifestly inadequate aggregate
sentence was imposed for three very serious crimes. The sentence imposed
significantly failed to reflect the criminality involved in the Respondent’s
offences.

131 It has been said that the primary purpose of Crown appeals is to lay down
principles for the governance and guidance of courts having the duty of
sentencing convicted persons: Green v The Queen; Quinn v the Queen (2011)
244 CLR 462 at 465-466; [2011] HCA 49 at [1]-[2]. I have reached the clear
view that the aggregate sentence imposed in this case was manifestly
inadequate. These were serious crimes committed against three separate
victims with the intention to kill. It is in the public interest that an appropriate
sentence be imposed upon the Respondent.

132 An important part of the jurisdiction to hear Crown appeals is to ensure the
maintenance of public confidence in the administration of justice. In Everett v
The Queen (1994) 181 CLR 295; [1994] HCA 49, McHugh J said at 306:

“Uniformity of sentencing is a matter of great importance in maintaining


confidence in the administration of justice in any jurisdiction. Sentences that
are higher than usual create justifiable grievances in those who receive them.
But inadequate sentences also give rise to a sense of injustice, not only in
those who are the victims of the crimes in question but also in the general
public. Inadequate sentences are also likely to undermine public confidence in
the ability of the courts to play their part in deterring the commission of crimes.
To permit the Crown, as well as convicted persons, to appeal against
sentences assists in maintaining confidence in the administration of justice.”
133 The present judgment draws together a number of sentencing decisions with
respect to s.27 offences which assist an understanding of the range of
sentences for this offence. It is appropriate for the Court to proceed to
resentence the Respondent. This will serve to maintain public confidence in the
due administration of justice.

134 I am satisfied that it is appropriate to proceed to resentence the Respondent for


these offences.

Resentencing the Respondent


135 In resentencing the Respondent, the Court should have regard to and apply
nearly all the findings made by the sentencing Judge at first instance. The

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offences committed against Mr Rimmer and Ms Hacker were above the mid-
range of seriousness. The offence committed against Mr Redwood was in the
mid-range of seriousness. It is appropriate to have regard to the evidence
concerning the Respondent’s mental state and history of mental illness.

136 It must be kept in mind, as well, that on the night in question, she was
intoxicated by the voluntary ingestion of alcohol and drugs with this aspect to
be approached in accordance with the principles acknowledged by the
sentencing Judge, including s.21A(5AA) Crimes (Sentencing Procedure) Act
1999 and the principles in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA
111. That is not to say that the unusual interaction of factors which operated
upon the Respondent on this night are to be substantially diminished. However,
the findings of the sentencing Judge were that the Respondent was setting out,
in response to perceived (but not actual) rejection, to murder persons with
weapons which she had selected for that purpose. She made a concerted
effort to murder each of Mr Rimmer and Ms Hacker with a less effective attack
following against Mr Redwood.

137 With respect to the Respondent’s risk of reoffending, it is necessary to keep in


mind the magnitude of the crimes for which she is to be sentenced. There is a
prospect that a person who has acted in this way on one occasion may act in
that way again in the future if the same coincidence of features come together.
A sentencing court is entitled to take the circumstances of the offences into
account in determining the question of risk of reoffending: Ng v R (2011) 214 A
Crim R 191 at 207-208; [2011] NSWCCA 227 at [62]-[64].

138 However, the evidence before the sentencing Judge, and the further evidence
before this Court by way of the Respondent’s affidavit of 24 July 2019, confirms
the ongoing development of significant insight and the need for care and
support with the availability of such care and support in the community at a
time when the Respondent comes to be released. It is appropriate to maintain
the sentencing Judge’s assessment of the Respondent’s prospects of
rehabilitation and risk of reoffending, whilst keeping in mind that this
assessment is dependent upon the Respondent’s maintenance of the
approach which she has manifested since 2017.

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139 It is appropriate to take into account, as well, the ongoing hardship of the
Respondent’s custody for reasons identified by the sentencing Judge and in
the Respondent’s affidavit.

140 The Court must keep in mind the purposes of sentencing set out in s.3A
Crimes (Sentencing Procedure) Act 1999:

“3A Purposes of sentencing


The purposes for which a court may impose a sentence on an offender are as
follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from
committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the
community.”
141 The requirement for reasonable proportionality of sentence, having regard to
the objective gravity of the offences, is reflected in s.3A(a) being the
requirement for adequate punishment. The imposition of adequate punishment
must have regard to the other purposes of sentencing which operate in the
present case. The Respondent’s moral culpability is reduced with respect to
her grave offences. It remains necessary that the indicative sentences and the
aggregate sentence reflect the need for reasonable proportionality or adequate
punishment in all the circumstances of the case.

142 In sentencing the Respondent, it is necessary for the Court to have regard to
s.68A Crimes (Appeal and Review) Act 2001 so that double jeopardy is not to
be taken into account on the appeal. The approach to be adopted in this
respect was set out in R v Mulligan at [49]-[53].

143 Having regard to the objective circumstances of the offences and the
subjective circumstances of the Respondent, the indicative sentences in this
case should be as follows:

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(a) Count 1 - the s.27 offence against Mr Rimmer - imprisonment for


10 years with a non-parole period of seven years;
(b) Count 3 - the s.27 offence against Ms Hacker - imprisonment for
nine years with a non-parole period of six years; and
(c) Count 5 - the attempted s.27 offence against Mr Redwood -
imprisonment for seven years.
144 The process of notional accumulation undertaken for the purpose of reaching
an aggregate sentence must have regard in this case to the various factors
referred to earlier and, in particular, the requirement that the aggregate
sentence reflect three offences committed with intent to murder three separate
victims.

145 A finding of special circumstances is appropriate by reference to the relative


youth of the Respondent and the need for an extended period of supervised
liberty at the conclusion of the custodial component of the sentence. The non-
parole period should reflect the minimum period for which the Respondent
should be held in custody having regard to all factors relevant to the
determination of sentence and, in particular, the objective gravity of her crimes:
R v Simpson at 718 [63]-[65].

146 The aggregate sentence of imprisonment in this case should comprise a head
sentence of 15 years’ imprisonment with a non-parole period of nine years to
commence on 7 January 2017.

147 I propose the following orders:

(a) Crown appeal allowed;


(b) the aggregate sentence imposed at the Sydney District Court on
18 January 2019 is set aside;
(c) in its place, the Respondent is sentenced to imprisonment for a
period of 15 years commencing on 7 January 2017 and expiring
on 6 January 2032 with a non-parole period of nine years
commencing on 7 January 2017 and expiring on 6 January 2026.
148 HARRISON J: I have had the advantage of reading in draft the judgments of
Simpson AJA and Johnson J. I agree that the appeal should be allowed
generally for the reasons comprehensively set out by Johnson J. I am,
however, unable to agree with the sentence that his Honour would impose.
Without descending into the details of what Simpson AJA has in my view

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accurately described as the “unusual and compelling circumstances of the


respondent”, which Johnson J has otherwise helpfully recorded, my analysis
and assessment of Ms Amati’s particularly complex subjective case leads me
to agree with the judgment of Simpson AJA and with the sentence that her
Honour has proposed.

**********

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