Director of Public Prosecutions v Baxter (a pseudonym)

[2018] VCC 370

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT BALLARAT
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIAN BAXTER (a pseudonym)

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	22 March 2018
CASE MAY BE CITED AS:	DPP v Baxter (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 370

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For the Accused	Mr D. McGlone

HER HONOUR:

1Damian Baxter,[1] you have pleaded guilty before me to four charges of recklessly causing injury.  The maximum penalty for this offence is five years' imprisonment.  You have no prior convictions.

[1] Damian Baxter is a pseudonym.

2The facts underlying your offending are as follows.  You and the mother of your daughter and the victim, Elise York,[2] were in a relationship for about 11 years and you have two children together. Your daughter Rosie Baxter,[3] was born on 8 September 2014 and your son, Spencer,[4] is 17 months older than your daughter.

[2] Elise York is a pseudonym.

[3] Rosie Baxter is a pseudonym.

[4] Spencer is a pseudonym.

3On 14 November 2014, when Rosie was two months old, Ms York returned to work as a childcare assistant at a childcare centre.  While she was working, you were in sole charge of the two children.

4On 9 December 2014, you took Rosie to the Ballarat Base Hospital with a swollen leg, and she was diagnosed with a distal oblique fracture of the left tibia, and was admitted to hospital.  There she was examined, photographed and x-rayed.  The following injuries were discovered, and they underlie the charges as follows:

5Firstly underlying Charge 1, an injury being a left distal tibia shaft fracture, which is a lower-shin, near-ankle fracture; Charge 2, a metaphyseal fracture to the left tibia, that is an upper shin fracture near the knee joint; Charge 3, a fracture to the left ulna (the wrist); Charge 4, a fracture to the right femur (the thigh).  Other injures noted upon the examination of Rosie, which took place on 9 December 2014, included petechial haemorrhaging on the left lower leg, a healing fracture on the left distal femur, and probable healing left tenth rib fracture, and possible subtle right tenth rib fracture.

6When talking to doctors at the hospital, you were unable to recall any situation where fractures could have been caused to Rosie’s legs, stating that Spencer occasionally tried to play with her on the mat, but you were unable to come up with any instance where he could have caused an injury.

7Ms York arrived at the hospital a little later, and was unable to identify any situations as to when the injuries could have occurred, saying she noted the petechial bruising on Rosie’s lower leg the evening before when bathing her, but did not see any swelling at the time. 

8There was an incident recalled by both you, where you apparently had difficulty unwrapping Rosie from her swaddling, which became tight and twisted, and when trying to untangle the cloth, Rosie was flipped onto her right side with her legs still tangled in the cloth.

9It was determined after examination by several experts that the injuries could not have been sustained accidentally, but the precise conduct engaged in by you to cause the injuries was unknown. The aging of the injuries was also difficult, however it was agreed there were multiple-aged different fractures at multiple sites in Rosie’s body.  In other words, that there was evidence of injuries being caused at different times by separate mechanisms, by you.

10The injury underlying Charge 1 was said by the experts to have been caused by a twisting mechanism or direct force being applied.  In relation to Charge 2, the upper shin near joint injury, it was felt that this was indicative of a shaking or shearing force indicative of a shaking motion that could occur if an infant was held by the chest and shaken with the limbs whiplashing back and forth.

11The injury underlying Charge 3 to the wrist was believed by the experts to be a shaft fracture, again likely caused either by a direct blow to the limb or a twisting force applied to the limb.  The fracture underlying Charge 4 was also likely caused by a series of micro-fractures across the primary spongiosa of the bone of the metaphysis.  It was difficult to age this injury, but again, was said to be what was called a metaphyseal fracture, likely to be caused by a twisting mechanism, or a direct force.

12Police undertook surveillance of telephone calls and analysis of the mobile phone services of both you and Ms York.  Those communications, starting on 14 November 2014, certainly revealed an amount of stress by you when minding your two children, and a discussion about problems that were arising.  Following a record of interview between you and police, conversations between you and Ms York to minimise sought to minimise or to come up with explanations that minimised and provided an explanation for the injuries.

13You were engaged in three records of interview.  In the first on 9 December 2014, you said it was stressful minding a 17-month-old as well as Rosie, that you found it overwhelming, but were unable to come up with an explanation for the injuries.  You said you were not aware if in your frustration you had caused any harm to Rosie, and said you were not aware of doing anything forceful to Rosie.  You did talk about slipping over whilst holding her.

14In a second record of interview on 30 December 2014, where further fractures had been revealed after the examination, you believed that an injury could have been caused by Ms York.  You mentioned the swaddling cloth incident, but were again unable to come up with an explanation, saying "I know that she has never been harmed intentionally by me, I don't know how they have happened [Question and answer 317]".

15On 28 June 2015, you voluntarily attended the Ballarat Police Station to participate in a third record of interview, saying you had come in to accept responsibility for Rosie’s injuries, not that they were caused intentionally, but they did occur whilst she was in your care and that at the time you were frantic and were not in your right headspace.

16You said that maybe you were too rough with her, changing her and rushing around.  You said every single day was frantic and that you accepted responsibility for the fact that you were not as gentle as you could have been.  You said you were a bit too rough with Rosie, who would slip on the change table when you were changing her.  You would lift her legs up, she would slip back, and you would use her legs to pull her back down.

17You admitted to dragging her towards you while she was on the change table in a direct pulling action.  You said there had been two slips, not falls, when you had Rosie on your chest, and you said on one occasion when you were not coping you picked Rosie up by her left leg, and her whole weight was suspended by her leg. 

18You said you walked away because of how you had picked her up, and did not tell anyone.  You agreed it was possible that with everything going on in your frustration and distress, you had caused other injuries to Rosie that you did not remember, and that you were not in the right frame of mind to have them.

19Again, there were a number of conversations picked up by police by way of telephone intercepts, where there were conversations between yourself and Ms York in relation to how to handle the matter with police. 

20In a fourth record of interview on the 6th and 7 July 2015 when you were arrested, you said that your interview on 28 June was a lie, and that you had panicked because you were worried your children would be taken from you and placed into Department of Health and Human Services care, so that you wanted to give an explanation and have all the blame shifted solely to yourself.  You again describe the fall in the hallway.  You denied being under any duress or force when you were interviewed in June, and said finally that "I don't know what happened to Rosie, I don't.  But she wasn't intentionally hurt".  Eventually you were charged.

21The process of this matter began with your being charged on the 6th and 7 July 2015.  The matter proceeded after that in 2015, and then to a contested committal hearing on 28 April 2016.  The matter was listed for trial, but eventually after negotiations between the parties, the matter was finally resolved in August 2017, and the matter was listed for a plea. 

22I now turn to your personal circumstances.  You are 31 years of age.  You grew up in Daylesford until you were 18, and were born into difficult circumstances.  You were born when your mother was aged 18, and your father died in a car accident before you were born.  Thereafter you were raised primarily by your maternal grandmother, as your mother was unable to cope.  She re-partnered on a number of occasions.  Other children were born, and your counsel informed me that whilst you lived with your grandmother and had some contact with your mother and half-siblings, you essentially felt unwelcome into that family.

23You left school after Year 10.  At this stage you were in a relationship with Ms York.  You worked as a chef, then moved into other areas, ultimately settling in Ararat with Ms York, who was the primary breadwinner, she having a primary school qualification.  You worked as a cleaner.

24When Spencer was born, the two of you remained home with him for six months.  She then resumed work as a primary school teacher, and you had sole care of him, and this worked well.  Rosie was then born, at which stage the family circumstances had become more difficult.  You and Ms York and Spencer had returned to Ballarat, and Ms York took up work as a childcare worker, an occupation in which she also had qualifications, but because she was not entitled to any leave benefits, worked during her pregnancy with Rosie until a month before her birth, and then resumed work when Rosie was two months old. 

25You were thus left in the care of the two very small children and your counsel frankly told me, you simply were unable to cope with their care. Your counsel, Mr McGlone, told me that in fact the record of interview that you conducted in June 2015 was a true representation of events, and you do take responsibility for the injuries to Rosie.

26The situation is that the prosecution is unable to point to any particular incidents causing the injuries to your daughter, but it is the situation that you have pleaded guilty to a scenario whereby you had sole care of Rosie, that you treated her roughly in that time, and in the course of that, caused the injuries to Rosie which underlie the four charges on the indictment. 

27After Rosie was released from hospital, she was placed on protective orders, and went into the custody of Ms York’s grandparents.  You and Ms York then had access, but it was of a different type.  Ms York was given four hours of supervised access a day, whereas you were only allowed to have a daily phone call with Spencer.

28Things deteriorated insofar as your relationship with Ms York was concerned after this.  Additional to the stressors as to the situation with Rosie, there had been problems between you and Ms York, as you were struggling with the issue of your own bisexuality and this had also become an issue in the relationship.

29In any event, soon after the charges were laid the two of your separated in July of 2015.  There were further telephone intercepts undertaken by police, during which you expressed a degree of animosity towards the children.  Mr McGlone explained it in these terms; that you had very little access to the children, although that increased after the charges were laid; the children by this stage had been in the care of their grandparents; the relationship between you and the children had become more distant; they were more attached to their grandparents, and you found this a source of some anger and frustration.

30He submitted that those comments did not in fact amount to a true animosity towards the children, but lay instead in the anger and despair you felt over the deterioration in the relationship between your children.  Matters between you and Ms York deteriorated further.  Ultimately police took out an intervention order against you in relation both to Ms York and to Spencer, Rosie remaining under protective orders at the time.

31Ms York now lives in Ballarat and has full custody of the children.  There have been a number of Family Court orders made in 2017.  Essentially they allowed for you to have monthly contact with the children, but this has not taken place and you have not seen the children for a period of ten months. 

32The relationship between you and your mother improved when you went to Ararat, and at times you have provided her with accommodation and assistance.  You now live with her in Ballarat.

33A psychological assessment by Dr Simon Kennedy was tendered on the plea, and in a report dated 17 November 2017 it was noted that you were assessed for danger of future violence by Dr Kennedy.  He found that the danger that you presented was low.

34A matter of concern in the psychological report was that you apparently sought to put blame for Rosie’s injuries on your partner, Ms York.  The prosecution correctly in my view pointed out that this must have some effect upon your prospects of rehabilitation, and upon the true remorse underlying your plea.  I do accept however that the circumstances of your life over the past two to three years have been extremely traumatic.  It may be that in your own mind, you are failing to fully accept responsibility for the injuries to your daughter, notwithstanding your plea of guilty.  The situation is, however, that you are in no position at present to have much contact with your daughter, who is now three years of age, and has apparently recovered from her injuries.

35You were not found to suffer from any particular disorder by Dr Kennedy.  It was your counsel's submission that on your instructions the formation of your own family - given your own disrupted upbringing- was extremely important to you, and that the events surrounding Rosie have been of extreme concern to you.

36It was submitted by Mr McGlone that I should place you on a community corrections order on the basis that the harm you caused your daughter was in the context of an extremely stressful situation in which you simply did not cope.  You had previously, he submitted, successfully looked after your son Spencer, and it was clear that the injuries were not inflicted intentionally.

37The plea of guilty, Mr McGlone submitted, could be regarded as a reasonably early plea, as they followed a series of negotiations, so the matter was ultimately settled on an offer by the defence, to a plea of guilty to four charges of recklessly causing injury.

38It was the prosecution's submission that the only appropriate disposition in your case was a term of imprisonment to be immediately served.  Mr Bourke for the prosecution pointed to the defencelessness of your very young and vulnerable daughter, and pointed to the actions the medical experts felt were required in order for the injuries Rosie ultimately sustained to have been carried out by you.

39I was referred in particular to a decision of the Court of Criminal Appeal of Weston [2016] VSCA at p.243.  The circumstances of that case involved far more extensive and serious injuries than the circumstances surrounding this case, and involved a charge of negligently causing serious injury by a man who from the outset displayed animosity and violence towards the month-old daughter of his de facto partner.

40However, a statement of principle was made by the court at paragraph 47, which in my view does have application in this case.

41Their Honours stated:

"The duty of the parents has two key aspects.  To provide the child with what it needs for healthy development, to protect it against harm.  What occurs in a case such as the present, of course, is not merely a failure to protect the child from harm, but the active inflicting of it."

42It was Mr McGlone's submission on your behalf that whilst general deterrence was a principle to which a sentencing court must have regard in cases of this kind, it should not overwhelm what he submitted were your strong prospects of rehabilitation.  Whilst I mistakenly stated at the start of these sentencing remarks, that you had no prior conviction, you do in fact have an old single prior conviction, which has no relevance to the current situation, and there has been no subsequent offending. 

43He submitted that you presented no danger to the community, and that given the circumstances of the case, a community corrections order appropriately met both the punitive and rehabilitative aspects of your case. 

44It was the prosecution's submission that the seriousness of this offending, and the vulnerability of your victim, meant that the principle of general deterrence was an extremely important principle in this sentencing exercise.

45Mr Bourke further submitted that your apparent attempt to continue to blame Ms York for the injuries meant that specific deterrence also had a part to play in the sentencing exercise before this court.  I have considered both submissions with some anxiety.

46This is a very difficult sentencing exercise.  It was also the prosecution's submission that a combination disposition - that is, a disposition involving a sentence of imprisonment and placement on a community corrections order was out of the range. 

47Ultimately it is my view that your offending against Rosie did involve, by reason of your plea, a realisation by you that your treatment of her would probably cause injury.  This is different to, for example, a charge of negligently causing injury, where that state of mind is not required, and what needs to be established is a departure from a duty of care.  The fact that the charge of recklessly cause injury involves an actual contemplation of the probability of injury puts, in my view, your offending in a category of some seriousness, and one which does involve a serious consideration of general deterrence.  Infants by their very nature are entirely vulnerable to their parents.  A message must be sent out to the community that parents have a very high duty of care to their children, and that the sort of treatment that you metered out to your daughter, no matter the stressful circumstances, will be met with a stern response from Courts.

48At the same time, I do accept that the offending occurred in a situation of stress, and in a situation where you were clearly not coping.  In all the circumstances, I have therefore decided that the appropriate sentence is one which does involve a combination, that is, the imposition of a term of imprisonment, combined with a community corrections order. 

49Protection of the community does have, in my view, some part to play also in this sentencing exercise.  Whilst it was noted by Dr Kennedy that generally speaking you pose a low threat of violence in the future, he added the rider that this might not be the case were you to be involved in the care of a child in the future.

50I do accept that you are remorseful, I do accept that you have suffered distress over Rosie’s injuries.  You have lost a great deal in this exercise.  You have lost a longstanding relationship, which is now a relationship of some hostility.  You have lost the children, whom I accept were important to you.  I accept that your plea of guilty was a reasonably early one in the circumstances.  I accept that to an extent you were cooperative with police, and they are mitigatory factors that I take into account in determining this sentence against you.

51However, as I have said, in my view whilst a community corrections order is an appropriate response in this case, it must be combined with a term of imprisonment.  Could you stand up please, sir?

52On each of the charges, you are sentenced to ten months' imprisonment.  You are then to be released on a community corrections order for a period of three years.  Before I can place you on a community corrections order, I must first obtain your consent, and I need to explain to you the conditions of that order.

53They are:

54Firstly, that on your release from prison you must report to the community corrections office within two working days of your release;

55Whilst on the order you must not commit another offence punishable by imprisonment;

56You must inform the Office of Corrections of any change of address or occupation within 48 hours of the making of that change;

57Whilst on the order, you may not leave Victoria without permission of the Community Corrections office;

58You must not attend upon the Community Corrections office whilst under the influence of drug and alcohol;

59You must report to and receive visits from the Community Corrections office, and;

60You must obey all lawful instructions of the Community Corrections office.

61I am going to order that you undertake 200 hours of unpaid community work.  You will be under supervision, and you must attend for assistance for programs designed to reduce reoffending.  Are you prepared to enter this order?

62OFFENDER:  Yes I am.

63HER HONOUR:  Thank you.  Have a seat while the documentation is prepared.  Yes, Mr Bourke?

64MR BOURKE:  The prosecution makes application for a s.464ZF sample.

65HER HONOUR:  Yes, Mr McGlone?

66MR McGLONE:  It is not opposed, Your Honour.

67HER HONOUR:  Thank you, yes I will grant the order.  I am granting an order that police obtain a swab from your mouth.  I need to inform you that if you resist that application, police may use reasonable force in order to obtain that sample.

68Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment for a period of three years, and order that you serve a term of 20 months before becoming eligible for parole.

69Yes, thank you.  Sorry, what is the date today?  22nd, thank you.

70MR McGLONE:  Your Honour, there was one day of PSD.

71HER HONOUR:  Pardon?

72MR McGLONE:  There was one day PSD.

73HER HONOUR:  I declare that one day of this sentence has been served by way of presentence detention.  Have you got any trouble with that Mr Bourke?

74MR BOURKE:  No Your Honour.

75HER HONOUR:  Yes, thank you.  We will get you to sign this please, Mr Baxter. 

76(At this stage the court proceeded with another matter.)

77HER HONOUR:  Thank you, you can take - Mr Baxter can be taken across to the cells, thank you.

‑ ‑ ‑