Director of Public Prosecutions v Douglas (a pseudonym)

[2015] VCC 1643

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00387

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOROTHY DOUGLAS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2015
DATE OF SENTENCE:	16 November 2015
CASE MAY BE CITED AS:	DPP v Douglas (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1643

REASONS FOR SENTENCE
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Subject: Serious injury, neglect by parent.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 5 year community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Ruddle
For the Offender	Mr R. Keating

HIS HONOUR:

1In these sentencing remarks, I have referred to you by the approved pseudonym Dorothy Douglas.  Where necessary, I have referred to your son, who is the victim of your crime by the allocated pseudonym, Steven Douglas.

2On 9 October 2015, you pleaded guilty before me to an indictment containing one charge of causing serious injury negligently.  That is a charge that carries a maximum penalty of 15 years imprisonment.

3You were represented on your plea by Mr Keating, a solicitor and the Director of Public Prosecutions, Mr Champion QC, together with Miss Ruddle of counsel appeared on behalf of the prosecution.

4Mr Keating provided me with a detailed chronology and outline of submissions which I marked as an exhibit.  That chronology and outline was most helpful.  I have not referred in full to the contents of those documents in these sentencing remarks, but I have had full regard to them in arriving at the sentence that I will shortly pass.

5In the charge that you have pleaded guilty to, you have admitted causing serious injury to your son Steven Douglas between 28 December 2006 and
1 November 2013, a period of nearly seven years.  The prosecution case against you is summarised in a written document which I admitted into evidence as Exhibit A on the plea.  That document is dated 26 August 2015, and was in summary form read to the court by the Director.  As the charge says, the prosecution case against you is that you negligently caused serious injury to your son over a seven year period by negligently omitting to properly care for him and that negligence resulted in him being seriously injured.  For a mother to injure her own child by neglect in this way, is obviously a most serious matter.

6Prior to the plea commencing, the Director gave notice foreshadowing an application to seek orders for the suppression of any publication of the proceeding.  In discussion, the Director agreed that because of the seriousness of your offending, it is most appropriate in this case that the public be fully informed of the kind of offending that you have engaged in, and the seriousness with which this kind of offending is regarded by the courts.  In my opinion, there is a high level of public importance in the public being informed that where appropriate, authorities bring to justice parents who treat their children in the way that you have. 

7There is also a high level of public importance in the work of the courts in this area being allowed to be published, so that the public can see that offenders are fairly dealt with and the victims of this type of crime are being appropriately cared for by society.  It was agreed both by the Director and your counsel that by the use of pseudonyms, you and your son can be protected and the interests of the administration of justice advanced.

8It is not necessary that I here set out in full what is contained in the prosecution opening.  You were born in Cambodia and you are now 32 years of age.  You were 24 years of age when your son was born.  You have two other children, both girls, now aged 13 and nine respectively.  It is not alleged that you offended against your daughters, only your son.  Inexplicably, you treated your son differently to the way you have treated your daughters.

9Your son was born at Dandenong Hospital on 28 December 2006.  You had no antenatal care and there were no arrangements made for you to attend the hospital before his birth.  At that time, you were on the methadone programme and you remain so.

10Your son was estimated to be 36 weeks gestation with no defects.  He was transferred to the special care nursery for care as a result of prematurity and neo-natal drug withdrawal symptoms syndrome.  He was discharged to your care on 25 January 2007.  You did not register his birth.

11At this point, I pause to point out that the period during which it is alleged that you have negligently treated your son commences with the date of his birth.

12Your home was visited periodically during January, February and April 2007 by local council maternal health professionals and there appears not to have been any real concern raised at that time about your care for your son, although the records indicate that there was no further attendance by such professionals after 11 April 2007.  Vaccination was administered by a general practitioner on 28 April 2008 and 4 August 2008, but there is no further evidence of you having obtained any further medical care or health professional involvement after 4 August 2008.  Your general practitioner had no knowledge of the birth of your son and he has never seen or treated him.

13In September 2013, your family was put into contact with a worker from Connections Youth and Family Services.  At that time, your son was not seeing a doctor and was not linked with any other medical or health professionals. Over a period of two months, the worker tried to make arrangements for your son to be seen by health professionals, but you either cancelled or failed to attend any appointments arranged.

14On 31 October 2012, child protection practitioners from the Department of Human Services became involved with your son.  He was located in a cot, wearing a nappy and singlet.  He was assessed as having global development delay, with an appearance reminiscent of a toddler rather than a six-year-old and, a functioning level equivalent to a young infant.  He was unable to speak or walk and was seen to hit himself.

15Upon initial assessment, doctors cited multiple bruises and abrasions, including six bruises to the face.  Various assessments indicated that there was no underlying medical condition then being suffered by your son.  Genetic testing indicates some chromosomal duplication however, the duplications are not associated with any known disorder and, there are no features of genetic disorders present.

16The primary cause of your son's condition was assessed by a medical expert to be parental neglect.  You failed to provide a minimum standard of care for your son including, failing to provide adequate food and nutrition and, failing to provide him with medical care and you denied him the opportunity to access sunlight or engage in physical activity.  Most parents would regard the level of neglect that you have engaged in as repugnant.

17As a result of your neglect, your son suffered a range of injuries, some of which were suffered in the short term, but some have longer term consequences for him.

18As a result of your failure to provide him with adequate food and nutrition, he is significantly underweight with decreased muscle tone for his age.  An example of this is that at the age of six, he weighed only 12.3 kg placing him
6 kg below the 3^rd percentile.  He is also significantly shorter than might be expected for a child of his age, being 86 cm at age six.

19He developed metabolic bone disease due to lack of vitamin D caused by lack of access to sunlight.

20Because he has been denied social interaction or emotional support, he suffered internal distress and an inability to self-regulate.  This caused him to engage in self harm such as smashing his head and hitting himself resulting in bruising.  It is expected he will suffer ongoing psychological harm as a result of lack of human care and contact.  It is also likely that there will be neurobiological impact to your son’s brain which will affect him for life.

21Your son has been removed from you and placed in foster care.  When he was first placed in foster care he could not speak, walk, feed or toilet himself. He had gross motor or skills on par with a six to nine month old child.  There was a marked improvement in his health and development after he was removed from your care.  Noticeably, within one month, he was starting to take steps and feeding himself with finger foods.  By early 2015, he had been toilet trained and can now eat with a spoon and fork and can walk and he now has some basic motor skills equivalent to a three and a half to four year old.  However, he remains physically disabled in terms of strength and stamina.  He has ceased self-harming and his speech continues to improve, but is equivalent to a two to two and a half year old child, rather than an eight year old child which he presently is.  He continues to require speech pathology. 

22I admitted into evidence a victim impact statement from the person now caring for your son in foster care.  That is a telling document that records the impact of your offending has had upon your son.  It is not necessary that I again set out what is there contained.  I have taken the content of the victim impact statement into account in arriving at my sentence.

23It is important to an understanding of this case that the public understands the reasons why you have not properly cared for your own child.  Your background history and a proper appreciation of the many problems that you have, are important in a consideration of the proper disposition in this matter. The very serious matters that I have set out above in normal circumstances would lead to the imposition of a term of imprisonment.  However, the evidence relating to your personal circumstances, to which I shall shortly turn, explain why it is that I have decided that the only fair sentence both from your perspective and the perspective of the public and your son is the imposition of a community corrections order which will include a number of appropriate conditions.

24When you were interviewed you cooperated with the authorities.  From what you said in your record of interview, it is apparent that your son was an unwanted pregnancy and you were overwhelmed by giving birth to two infant children within the space of one calendar year.

25Importantly from a sentencing point of view, you have pleaded guilty to the charge and I treat you as having done so at the earliest opportunity.  By pleading guilty, you have saved the time and cost of what might have been a lengthy trial and by pleading guilty, you have I think evidenced an appropriate level of remorse for your actions.  Because of this, you are entitled in my view to a lesser sentence and this is reflected in the sentence that I will shortly pass.

26I turn to your background circumstances which have been thoroughly documented in a number of medical reports that I admitted into evidence.  You were born in a refugee camp in Cambodia on 13 December 1982.  You migrated to Australia as a refugee with your parents in 1985.  Your parents separated in 1990.  You attended primary and secondary school in the eastern suburbs of Melbourne.  You commenced using heroin in approximately 1988.  Fortunately, you have no prior criminal convictions and this is your first encounter with the courts.  You fell pregnant with your first daughter in approximately May 2000 and she was born in January 2001.  She was born of a very short term relationship with an unknown man.  In 2004, you commenced on the methadone program.

27Your second daughter was born on 28 January 2006.  As I have noted earlier, your son was born 11 months later.  In May 2013, you were diagnosed as suffering from depression by a general practitioner.  You commenced on Zoloft.  You continue to suffer from depression.  You are in receipt of a disability support pension.  From what I can tell you receive little if any support from the fathers of any of your children.

28I admitted into evidence a very detailed neuropsychological assessment of you by Dr Yamin.  After carrying out various test of your cognitive functioning, she assessed you as having intellectual functioning in the borderline range with a full scale IQ of 72.

29In Dr Yamin's report, she said inter alia as follows:

"The results of the neuropsychological assessment suggests that
Ms Douglas is currently functioning in the borderline range (3rd percentile; full scale IQ equal to 72).  Ms Douglas' memory and learning were consistent with her intellectual function and although the results reveal that she does not have a primary memory deficit (that is rapid forgetting of learned information), she can become easily overwhelmed when presented with greater amounts of information.  That is, Ms Douglas was unable to learn the finer details of information presented, but was able to recall most of the learned material, following a delay.

Furthermore, her performance was similarly poor when she was required to form complex associations between the words.  However, she was marginally better when information was presented, as a simple list of words.  Finally, she demonstrated some moderate executive dysfunction, both qualitatively and quantitatively.  She was able to plan simple and complex tasks.  She was disorganised when it came to more complex tasks, that required multiple steps.

She was inefficient in her problem solving and had particular difficulty finding alternate solutions to more complex problems.  In terms of Ms Douglas' high order attention skills, her inhibition, self-monitoring and impulse control were reduced, as was her ability to divide and switch her attention.

Ms Douglas' performance was largely consistent with the previous assessment in 2014. Overall, her assessment results are indicative of borderline intellectual function. She does not have an intellectual disability as defined by the Disability Act. However, individuals with borderline intellectual function, especially with those in the confidence intervals of the extremely low range, as is the case with Ms Douglas, have many of the difficulties experienced by individuals who have an intellectual disability. That is, deficits in reasoning, problem solving, planning, abstract thinking, judgment, learning from instruction and experience and practical understanding.

Furthermore, they have deficits in areas of more complex adaptive function, such as self-management across life settings, including personal care, job responsibilities, money management, recreation and self-management of behaviour.  Whilst parents with reduced intellectual function can parent effectively, they often require additional support and structure to assist them to perform these duties.

It is difficult to ascertain Ms Douglas' level of depression following the birth of her son, Steven.  Certainly, she was moderately to severely depressed and this was left untreated, then one would expect further reductions in her cognition, particularly in the areas of initial acquisition of information, in memory and learning and executive dysfunction, especially with more complex tasks.

Given her already cognitive base, that is global borderline function, this would possibly be debilitating and result in the reduction of her overall day to day performance as a mother.  The culmination of these factors may in part explain the neglect of Steven".

30In her recommendations, Dr Yamin said inter alia as follows:

"Ms Douglas' reduced intellectual capacity will influence her ability to understand and communicate with police, lawyers, courts and other professionals within the judicial system.  Borderline intellectual function may affect the way a person learns.  It may also affect the person's ability to read, write, speak and understand abstract concepts.

Ms Douglas will have difficulty comprehending complex language, difficult vocabulary and archaisms found in the law.  She will benefit from time to time to be allocated for communication.  The use of simple words and sentences, encouragement for her to let you know when she does not understand a question, information or advice.  Use plain and simple English.

Ms Douglas may give the false impression that she understands the information being provided, that she may want to hide the fact that she does not understand it.  It may be beneficial to ask her to repeat back information in her own words.  The best approach is to place the doubt on you by saying something similar to the following, I am not sure whether I explained that well, could you tell me what I have just been talking about."

31Your counsel Mr Keating submitted that any sentence imposed should not include a term of imprisonment.  Whilst he acknowledged the seriousness of your offending he pointed to a number of factors that must be taken into account. In particular, your plea of guilty, the fact you have no prior convictions, your unfortunate family background which is best described as dysfunctional providing you with limited ongoing support, your limited formal education, your borderline intellectual functioning which he correctly submitted, means that any sentence imposed, must reflect reduced reliance upon the principle of general deterrence.

32You are on the methadone program and have been for a number of years trying to rid yourself of drugs.  You no longer take illicit drugs, but remain affected by your past history of use.  You suffer from depression and are being treated for it.

33The Director correctly submitted that your offending is serious amounting to negligence in the care of your child to the criminal standard.  However, he properly conceded that there are a number of high mitigating factors operating here.  He conceded that there are a number of Verdins principles that I must have regard to.  The Director also conceded that a community corrections order is a sentencing disposition open in the circumstances of this case, provided there are appropriate conditions attached to the order.

34Mr Champion conceded that in the circumstances, a properly framed community corrections order can properly reflect fair punishment and denunciation of your offending.  Such an order in the circumstances of this case will properly reflect reduced application of the principle of general deterrence because of your limited cognitive functioning.  As Mr Champion conceded, there is no need for specific deterrence to be reflected in the sentence in this case.

35At the time of the plea on 9 October 2015, I indicated that I was generally accepting of the submissions made on your behalf by Mr Keating, that I should have you assessed as to suitability for the making of a community corrections order.  To that end, I adjourned the plea so that a full pre-sentence report could be obtained.  That has now been done and copies made available both to Mr Keating and the Director.  I have received a report dated 11 November 2015, in which you have been assessed as suitable for the making of a community corrections order and that is the disposition that I will impose with the following conditions.

36Mr Keating submitted that I should not in this case record a conviction.  I reject that submission.  In my view, your offending here is so serious that a conviction does need to be recorded in all the circumstances of this case. 

37There will be a community corrections order made for a term of five years with conviction.

38There will be conditions for supervision and, for judicial monitoring every six months.

39There will be a condition that you serve 350 hours unpaid community work.  I have imposed this condition not only as a form of punishment, but also because the report indicates and, I accept, that you would gain valuable work experience and job skills from undertaking such work and it will probably serve to introduce you to a new group of people which may assist with your social development.

40There will be a condition that you undergo treatment and rehabilitation and programs to reduce reoffending.  You must participate in programs and/or courses that address factors relating to your offending behaviour as directed by the Corrections Regional Manager.  You must participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation that may include employment, educational, cultural and personal development programs as directed by the Corrections Regional Manager.

41There will be a condition that you undergo treatment and rehabilitation for drugs.  I have imposed this condition, not because you are presently and illicit drug user, which you are not, but because you have been on the methadone program for in excess of 14 years which at times makes you drowsy and lethargic.  The condition is imposed so that you might eventually come off the methadone program.

42There will be a condition that you undergo treatment and rehabilitation for mental health.  You must undergo mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or, treatment in a hospital or, residential facility as directed by the Corrections Regional Manager.

43Because of the seriousness of your offending the prosecution seeks an order for the taking of a forensics sample.  For the reasons stated in the order, I have signed it.  I record that the making of this order was not opposed.

44For the purposes of s 6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty to the charge, I would have imposed a term of imprisonment of five years and I would have ordered that you serve a minimum of three years before being eligible for release on parole. Any matters arising out of that Mr Keating?

45MR KEATING:  No thank you, sir.

46HIS HONOUR:  Ms Ruddle.

47MS RUDDLE:  Only one, Your Honour, that you used - - -

48HIS HONOUR:  The correct name?

49MS RUDDLE:  Yes.

50HIS HONOUR:  I know.  I lapsed into that at one stage. 

51MS RUDDLE:  It'll just need to be corrected on the last order.

52HIS HONOUR:  I made a mental note of it as I was reading my sentencing remarks and I'll correct that in revision.

53MS RUDDLE:  Thank you, Your Honour.

54HIS HONOUR:  Thank you for bringing that to my attention.  Have you been able to understand all of that?

55OFFENDER:  (Indistinct) yes.

56HIS HONOUR:  Is there anything that you don't understand or that you want to ask about?

57OFFENDER:  Ah, no, not at all, thanks.

58HIS HONOUR:  If I can summarise it, you won't be sent to gaol.

59OFFENDER:  Yes.

60HIS HONOUR:  When I leave the court, you're free to go.  But within 48 hours, you'll have to report to the Department of Corrections and my associate and Mr Keating will explain where it is you have to go.  Do you understand?

61OFFENDER:  Yes, Your Honour.

62HIS HONOUR:  Now you will be the subject of this community corrections order for a period of five years.  Do you understand that?

63OFFENDER:  Yes.

64HIS HONOUR:  And you must comply with the conditions of the community corrections order.

65OFFENDER:  Yes.

66HIS HONOUR:  That means a number of things.  First of all, you must attend at any place where you are directed by the Corrections people.  Do you understand?

67OFFENDER:  Yes.

68HIS HONOUR:  That includes for work and also for treatment.

69OFFENDER:  Yes.

70HIS HONOUR:  But most importantly, you must not reoffend.  You mustn't commit any offence which is punishable by a term of imprisonment over the next five years.  If you do so, and you are apprehended and convicted, you will be brought back before me.  Do you understand?

71OFFENDER:  Yes.

72HIS HONOUR:  Now I've also included a condition that you will come back before me every six months, so that I can check up on you.  Do you understand?

73OFFENDER:  Yes, Your Honour.

74HIS HONOUR:  Now I am not saying that in order to make you feel frightened in any way, but I - having regard to the nature of this matter, I feel it appropriate that I should keep an eye on you so to speak.  Do you understand?

75OFFENDER:  Yes, Your Honour.

76HIS HONOUR:  So if you comply with the terms of the community corrections order, you will have nothing to fear and it will just continue on as normal.

77OFFENDER:  Okay.

78HIS HONOUR:  Do you understand?

79OFFENDER:  Yes, Your Honour.

80HIS HONOUR:  Very well.

81OFFENDER:  Thank you.

82HIS HONOUR:  Mr Keating, could you have your client sign the terms of the community corrections order please.  Come forward, come forward from the dock if you would. 

83MR KEATING:  Could Your Honour excuse me just while I talk to her.

84HIS HONOUR:  Yes certainly.

85MR KEATING:  I think she understands everything.

86HIS HONOUR:  Yes, thank you Mr Keating.

87MR KEATING:  Will I get her to sign?

88HIS HONOUR:  Yes, if you could have her sign it please.  Very well.  Mr Keating has explained it all to you.

89OFFENDER:  Yes.

90HIS HONOUR:  If at any time there's anything you don't understand, please ask someone.

91OFFENDER:  Okay.

92HIS HONOUR:  Either at Corrections or - I'm sure Mr Keating will make himself available to answer any of your questions. 

93OFFENDER:  Yes.

94HIS HONOUR:  Do you understand?

95OFFENDER:  Yes I do, Your Honour.

96HIS HONOUR:  Very well, on the rising of the court, you're free to leave.

97OFFENDER:  Thank you, Your Honour.

98HIS HONOUR:  But I thank both counsel for your submissions in this matter.  Thank you.

99MR KEATING:  Thank you very much, Your Honour.

100MS RUDDLE:  May it please the court.

101HIS HONOUR:   Adjourn the court.

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