By Paul Gregoire and Ugur Nedim
NSW police were again called to attend the home of Sandra Wornes on 28 July 2019, as the 46-year-old woman had once more physically assaulted her long-term partner Mr Robson.
Wornes, who suffers from a personality disorder, had grabbed the 47-year-old man by the neck and punched him.
Despite the offender being twice charge with assault and an apprehended domestic violence order (ADVO), which required her to reside at her mother’s house, being imposed, Robson called police the following morning, as he awoke to find Wornes sitting on his bed.
Then, on 3 August, 47-year-old Robson was at his neighbour’s, when he heard his back gate, and on investigating, he found Wornes inside his house running a bath. So, Robson called her mother, and subsequently said he was going to call police, at which point Wornes stabbed him in the neck.
Robson went on to hide all the knives in the house, saw to his wound, and on considering Wornes had left, he sat down on the front steps to call police. Yet, Wornes then appeared behind him, and commenced stabbing her partner, lacerating his shoulder, forehead and hands.
Wornes then stabbed Robson repeatedly in the chest and stomach. He raced out to the roadside and called emergency services, losing consciousness as he did. And paramedics and police arrived at the scene, with officers noting that the perpetrator had also cut her own neck.
Guilty as charged
Wornes pleaded guilty to one count of wounding with intent to cause grievous bodily harm, contrary to section 33 of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period (SNPP) of 7 years.
An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.
Two counts of common assault, under section 61 of the Crimes Act, were placed on a Form 1 and taken into account during sentencing. This crime carries a maximum penalty of 2 years prison time and/or a fine of $5,500.
Form 1 offences are charges laid against the accused, of which they haven’t been convicted, but rather, on their request these are then taken into consideration on sentencing for the primary offence, as under the terms of section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Two offences of contravening an ADVO, as per section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), were also before the court. This summary offence carries a maximum penalty of 2 years prison and/or a fine of $5,500.
These ADVO breaches were placed on a certificate as related offences, under the provisions of section 166 of the Criminal Procedure Act 1986 (NSW).
This resulted in NSW District Court Judge Jeffrey McLennan recording a conviction against each of the offences but imposing no extra penalty, in accordance with the stipulations of section 10A of Crimes (Sentencing Procedure) Act 1999 (NSW).
On 24 March 2021, his Honour sentenced Wornes to 8 years imprisonment, with non-parole set at 5 years, in relation to the primary offence. And this sentence reflected a 25 percent discount as a result of the utilitarian value of her early guilty plea.
Appealing errors of judgement
Wornes appealed her sentence to the NSW Court of Criminal Appeal (NSWCCA) on 8 April last year. She did so based on two grounds.
The first was that the sentencing judge was in error in considering her personality disorder fell outside the scope of the De La Rosa principles, while the second asserted that an error had occurred with the finding that a lack of prior convictions was not significant in relation to domestic violence.
In his sentencing remarks, the primary judge outlined that Wornes has a personality disorder, consisting of schizotypal and borderline traits. He also noted that the offender suffered from alcohol abuse disorder, which likely resulted in behaviour similar to that of a major mental illness.
Judge McLennan made a distinction between mental illnesses and personality disorders, and further outlined that Wornes’ lawyer argued that his client’s disorder fell within the principles set out in the 2010 NSWCCA case DPP versus De La Rosa.
The De La Rosa principles
Then Chief Judge at Common Law Peter McClellan set out in De La Rosa that when “an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing”.
The principles include the ability to reduce a sentence due to mental health contributing to a crime, the imposition of a harsher sentence to deter others not being warranted, while deterring the offender through sentencing may not be practical, unless their illness makes them more of a danger.
In the case of Wornes’ appeal, NSWCCA Justice Peter Hamill found that Judge McLennan was of the opinion that a personality disorder was not captured by the De La Rosa principles, and the primary judge then went on to consider this “a matter of law”.
Justice Hamill added that Judge McLennan wrongly based his findings on two authorities that didn’t support his assumption, and further his ruling was based on a rejection of the “determinist view of human behaviour”, which the defence did not rely upon as Wornes had accepted responsibility.
However, three tendered psychiatric reports by Dr Andrew Ellis found that Wornes’ personality disorder did distort her views, and while her intoxication had contributed to the crime, so too had the diagnosed disorder.
And this was no post-offence diagnosis either, as there was a long-detailed history of the disorder.
“The inescapable conclusion is that the sentencing judge underestimated the importance of the psychiatric evidence in this case and fell into error in doing so,” said Justice Hamill, as he found the first ground made out.
And in terms of the second ground regarding the primary judge having failed to reduce Wornes’ sentence due to her lack of prior convictions because her offending was domestic violence-related, Justice Hamill found this too to be an error in judgement and this ground was upheld as well.
Resentencing
“The principal offence was extremely serious,” the NSWCCA justice made clear, adding that this was due to it being “a sustained and unprovoked attack” in the victim’s home, “although the offences also reflected the applicant’s inability to regulate her emotions and exercise self-control”.
“Objectively, I assess the offence as falling within the broad spectrum that encompasses the mid-range of objective seriousness for” the crime of wounding with intent to cause grievous bodily harm, his Honour added.
Factors to be taken into account on sentencing included that Wornes was in breach of bail and an ADVO when committing the crimes, that personal deterrence and retribution were of importance in sentencing and while general deterrence was reduced due to mental health, it was still significant.
Moral culpability was also lessened due to mental health issues, although this was complicated by the offender’s use of alcohol, and the fact that she was a first time offender was relevant, as too were the distorted views and emotions that her personality order led to.
Under the provisions of section 44 of the Crimes (Sentencing Procedure) Act, Justice Hamill also found special circumstances due to the offender’s mental health issues, which meant that Wornes’ parole period could be longer than the statutorily required 25 percent of the head sentence.
So, on 26 August last year, his Honour quashed the 2021 sentence imposed by the NSW District Court, and he resentenced the inmate to 6 years inside, with a non-parole period of 4 years.
And NSWCCA Acting Justice Carolyn Simpson and Justice Mark Ierace agreed with their colleague’s orders.
