Director of Public Prosecutions v L, R
[2018] VCC 1163
•30 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| L R K R C T |
---
| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Shepparton |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 30 July 2018 |
| CASE MAY BE CITED AS: | DPP v L, R |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1163 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For Accused L, R | Ms K Rolfe | Slater and King Solicitors |
| For Accused K, R | Ms S Wilson | Sally Wilson Solicitors |
| For Accused C, T | Ms D Dempsey | Victoria Legal Aid |
| For the Director of Public Prosecutions | Ms D Guesdon | |
| For the Director of Public Prosecutions (at plea) | Mr D Cordy |
HIS HONOUR:
1LR, KR and CT, you have each pleaded guilty to a single charge that between 15 October and 27 December 2013, you negligently caused serious injury to JA. JA was born on 24 May 2008. Accordingly, he was around five-and-a-half years old during the period of your offending.
2You, LR, are JA's father. You, KR, are married to LR; thus, you were JA's stepmother. You, CT, are KR' mother; thus, you are JA' step-grandmother.
3You, LR and KR, have pleaded guilty to a set of particulars that go to make up the negligence that caused the serious injury to JA. You, CT, have pleaded guilty to a different set of particulars. In your cases, LR and KR, the particulars to the charge were set out in the indictment as follows.
"The Director of Public Prosecutions charges that LR at Wangaratta in Victoria between 15 October 2013 and 27 December 2013, negligently caused serious injury to JA. Particulars: (1), failing to provide JA with adequate nutrition, thereby causing malnutrition; (2), failing to seek medical treatment of JA when he was suffering headaches, being consistent with subdural haemorrhages and associate intracranial pressures, thereby causing a tonic-clonic seizure."
4These particulars were for you, KR, just to be clear.
"Failing to provide JA with adequate nutrition, thereby causing malnutrition, and; (2), failing to seek medical attention for JA when he was suffering headaches being consistent with subdural haemorrhages and associated intracranial pressures, thereby causing a tonic-clonic seizure."
5In your case, CT, you pleaded guilty where the particulars are:
"Failing to provide JA with adequate nutrition, thereby causing malnutrition."
6To understand the circumstances and the gravity of your offending - that is, what you did or failed to do, and why - I need to speak first, but briefly, of your backgrounds, and also the circumstances of the child, and how he came to be in your care.
7You, LR, met JA's mother, at the Wangaratta Special School where you both attended due to you both having an intellectual disability. You were also neighbours in Wangaratta. For many reasons, both of you - that is, you and JA's mother - were not up to being parents when JA was conceived. You, LR, were just 16 years old. You did not play much of any role in JA's life in his first years.
8JA’s mother was very unsettled, moving with JA to Queensland. It seems she met up with her estranged father, forming a relationship with him. There were multiple difficulties and problems thereafter. By the time JA was two years old, child protection intervened. JA was removed from his mother and placed in foster care. You were made aware of that by the Department of Health and Human Services, or its predecessors, and thereafter, generally kept in the picture about JA.
9It seems at the initiation of you, KR, but supported by you, LR, by 2011, you had arranged for supervised and then unsupervised visits with JA. First it was visits involving just you, LR, and then you as well, KR. You and your wife - that is, the two of you - were married in 2010, as I understand it.
10In July 2011, you had your first child, Isabella. In December 2012, through Child Protection processes, and no doubt the family division of the Children's Court, it was decided that JA would be moved from foster care into the permanent care of you as his father, LR, in a home in Wangaratta.
11It would seem that the Department of Health and Human Services were satisfied of the capacity of both you to care for JA. That confidence was no doubt fortified because of you, CT, as an older adult and one who was experienced as a carer for foster children. And it was, it seems, arranged that you would all move to the house CT had so as to be able to accommodate both the young daughter Isabella and JA.
12The evidence showed that at the time JA left the foster home, he weighed a healthy 22 kilograms. He was a robust, active, four-and-a-half year old child. Both of you have indicated later that you were inadequately advised of JA's developmental delays and problems. However, at the time that JA moved into your home, it seems both of you had high hopes of being able to provide a stable family life for JA.
13You had just had your first child yourself, a daughter, who by that point, was approaching one. But the fact was that both of you were young and very inexperienced parents, who in this period moved from having no children to having two under the age of five. It was obviously more complicated than just having two young children in that JA had come into the house from the foster home that he had grown up in, and the other child, Isabella, was really very young.
14Plainly, JA's first two years were very problematic, resulting in the Department of Health and Human Services removing him from his mother. He had endured many delays and difficulties in his development.
15After JA came to your house - it seems shortly after, really - he was enrolled in the nearby kindergarten. The evidence established that initially he was a happy, engaging child who appeared well looked after. You both spoke to psychologists who engaged for the purposes of this plea, and in doing so, you indicated that JA was initially settled and was of no real problem at least for the first six months or more.
16It was in August 2013 that things became, or commenced being, more difficult. The response of each of you to those difficulties involved serious and detrimental neglect of his well-being as a vulnerable child.
17So to you, CT. What was summarised by the prosecution from all the evidence, and agreed by each accused, was the following set of circumstances. I will read at some length from the prosecution opening, commencing at paragraph 14, although, as it turns out, the paragraph numbering of the prosecution opening got a lot disjointed. But in any event:
"Initially at kindergarten, JA was an engaging and happy child. In late August 2013, you, Mrs KR, advised the kindergarten that you had noticed a change in his behaviour. On 22 October , JA was found in the bathroom of the kindergarten opening another child's lunchbox.
"The next day, he was found at the kitchen lying on the floor eating something prior to snack. Food was found to be missing from the lunchboxes of other children. The next day, JA was found trying to take what was suspected of being food from another child's bag. When asked what he was doing, JA said that he didn't know. The kindergarten was concerned for JA and felt something was odd.
" On 28 October, you, Mr LR, asked the kindergarten not to give JA any cakes or sweets because it made him sick. On 11 November 2013, KR allowed JA to take some birthday cake from the kindergarten and indicated that it would be a secret from dad. On 18 November 2013, JA attended the kindergarten with a black eye. In the course of being spoken to by the kindergarten about the eye, KR was advised that JA always appeared hungry and that he had been caught looking for food.
"You, Mrs KR, told the kindergarten that you had noticed the same thing at home and that last week, JA had taken some food out of the freezer. You, KR, said that JA had been told he could not eat frozen food. You asked whether JA should be taken to the doctor. You were advised to do so, and you were told that the kindergarten thought JA always appeared hungry and a bit vague with a lot of bruises.
"You, KR, was told that it had been noticed also that JA had been suffering hair loss. You told the kindergarten that JA's behaviour at home had changed, and that JA would change his demeanour from one minute to the next and that he would wet himself.
"The next day, notably, he attended at the kindergarten and the staff were advised then he was going to the doctor. On that day, you did, KR, take JA to the local Ely Street Clinic, and you saw Dr Keenan. You said you were concerned that JA was wanting snacks all the time, that he bruised easily and had recently lost weight.
"He was examined by Dr Keenan who weighed him and found him to weigh 16.6 kilograms. He subsequently organised some blood tests to be conducted, and his blood was sampled. Results indicated that he should undergo further platelet function tests. These tests were not subsequently carried out, and I will speak of this issue later.
"But he continued to attend kindergarten, right to the last day of the year of 16 December 2013. It was noticed by one of the workers at the kindergarten that he ate ravenously when there was party food for the end of the year. He was last to leave and became distressed and started crying when he was told he had to stop eating. A staff member picked him up and surprised to feel how much weight he had lost and how fragile he had become over the course of the year.
"On Christmas Day 2013, JA was at home and feeling unwell. He was complaining of headaches. He'd been withdrawn and spent most of the day in his room and was disinterested in Christmas presents. Over the next couple of days he continued to complain that his head was hurting . He was given Panadol to relieve the symptoms; however, it did not relieve his pain.
"When interviewed by the investigators, you, KR, observed JA was screaming in pain and had to be restrained by the shoulders until he stopped screaming. You claimed that you told him, "We can't do anything else, we've given you Panadol." On Friday 27 December, JA was at home when he suffered a seizure and then was taken to the Wangaratta Hospital by you, LR, although at your urging, KR."
18I will just defer in discussing what was observed by the hospital staff and other staff when he was at the Wangaratta hospital. So despite what was the deteriorating health of JA, no medical attention was sought until 27 December, and that was, as I have said, because JA had a seizure. He was taken by you, LR, at your encouragement, to the hospital, as I have said.
19It seems from what has been said by you that looming in the background was a fear that if JA was seen to have been ill or ill-treated, then Department of Health and Human Services may seek to take him under the care but also your own daughter.
20Medical staff called the police, who commenced an investigation on 28 December 2013. What was apparent was injuries to JA's wrists and ankles. Also, he was withdrawn and lethargic. His weight at the Wangaratta Hospital on 27 December 2013 was 15.4 kilograms. As I said, when weighed a little earlier by the local GP on 19 November, he weighed 16.6 kilograms. The loss of weight in this period of time was concerning, and it is to be, and it is noted that when he left the foster care at the end of 2012, he was 22 kilos.
21It would have been expected that he would have grown and thrived, rather than loss such a significant percentage of his body weight. JA was transferred to the Royal Children's Hospital on 31 December 2013. What was observed is indicative of the seriousness of this offending. What was summarised by the prosecution reads as follows.
"JA was extremely malnourished on presentation to the hospital. He had reduced muscle bulk and fat stores. He had a distended abdomen and sparse head hair. Importantly he had lanugo; a fine downy hair seen in newborns and malnourished people, typically those with anorexia nervosa. This was on his back. He also had glossitis, a smooth tongue caused by a number of conditions. In this case it was likely to have been caused by a number of conditions, but in this case it was likely to have been caused by vitamin deficiencies given his significant malnutrition.
"His thin stature with the loss of soft tissue bulk resulted in thin limbs with loose skin, the glossitis and fine lanugo hair, his thin scalp hair, the dry nature of his skin and radiological findings of growth arrest lines" - I take that to be "arrest" - "in his growth. In his long bones were convincing evidence that his malnutrition was caused by weeks to months of starvation.
"Once admitted to the hospital, he had a voracious appetite and gained over three kilograms in six and a half weeks. That excellent weight gain confirmed that his previous severe failure to thrive was due to the lack of provision of an adequate amount of food, and the expert opined that those matters made it likely that it had been a deliberate decision to deprive him of food.
22The specialist medical practitioners investigated possible causes of the seizures. What was discovered was that JA had sustained subdural haemorrhages on both sides of his head. Such haemorrhages can be caused by significant force to the head, after increased intracranial pressures leading to significant pain, headaches, and ultimately the seizure suffered by JA.
23It was the view of the paediatric medical specialist that in the circumstances of JA complaining of frequent headaches to the point of screaming in pain, and his general poor condition, that emergency treatment should have been sought earlier than it was.
24However, it needs to be understood that both you, LR, and you, KR, are not charged with and have not pleaded guilty to causing any head injuries or having used blunt force or trauma upon JA. Your negligence was not seeking medical treatment in a timely fashion for the problems which were revealed, ultimately, as being head and brain injuries leading to the seizure.
25A more problematic matter or aspect of the injuries observed in hospitals are the linear injuries to JA's wrists and ankles. In respect of this, the prosecution opening stated the following:
"The prosecution is unable to prove beyond reasonable doubt which of the three accused tied JA up."
26In submissions, the experienced Crown prosecution said the following:
"So as to make myself clear there, Your Honour, Your Honour ought not sentence any of the three accused for causing those injuries referred to in respect of the tying up."
27In respect of the failure to provide sufficient nutrition, each of you, including you, CT, have acknowledged your failure and pleaded guilty to causing serious injury by this form of negligence. It is not alleged that you deliberately or even recklessly starved JA or did not feed him at all.
28Rather, you did not meet community standards as ordinary, reasonable parents and grandparents would have, so as to ensure that JA had sufficient food, so as not to become malnourished to the point that his situation met, in combination with other injuries, the definition of "serious injury."
29Your conduct fell so far short of the proper standards that criminal punishment is required. The description of JA's condition at the Royal Children's Hospital makes it obvious why criminal punishment is called for. However, while providing adequate nutrition should have been straightforward enough, it seems getting the balance right with JA was more complex. There was no doubt that JA ate ravenously when in the Royal Children's Hospital and commenced to improve and do well quickly. His return to good health is another factor I will return to shortly.
30However, as was raised by counsel for you, KR, the expert evidence about managing JA's eating behaviour was that it was problematic. The expert opinion was that from her experience of seeing JA in a clinical setting, and what she knew from his carers was that by 2015 he was eating excessively and was obsessive about food. She concluded that managing his eating behaviours would have been quite difficult.
31As mentioned, the physical aspect of JA's poor condition once he was taken to the hospital by you, LR, at your encouragement, KR, was that it improved steadily and reasonably quickly, but psychologically JA is still damaged and bewildered. His victim impact statement, written as a ten-year-old, was heartfelt and compelling. Thus in assessing the gravity of the offence of neglect of a child, what stands out is the young age and vulnerability of JA. I will speak more of the fundamental role of parents in caring for children.
32However, here, in respect of both of you, LR, and you, KR, part of your offending was not seeking medical attention quickly enough. You had taken JA to the doctor on 19 November. Nothing except some further blood tests were recommended. JA continued to be underfed, but at the time - that is, on 19 November - nothing was indicated in terms of medical treatment for him at that time. It was not until Christmas Day that his problems and pain with headaches became clear.
33Part of the process of assessing the gravity of particular example of the crime of negligently causing serious injury is to consider the extent of the injury and any long-term consequences. Also, it is necessary to assess the level and nature of the negligent conduct. In respect of the injury, thankfully, any consequences of not providing enough food have resolved without long-term problems, and it seemed to resolve quickly. In respect of the failure to seek medical attention at an earlier point in time, physical injuries also resolved without any longer-term consequences.
34As to the level of negligence, I have spoken of the obvious vulnerability of such a young child, but with respect to malnourishment, a small factor to consider was that it was not as easy as it may have seemed to get things right; that is, at the medical appointments on 19 November, where JA was weighed, no concern was raised about malnourishment but concerns were raised by you, Ms Kelly, about JA's eating with the kindergarten staff, and they with you.
35Later concerns by the staff evolved over December, leading up to the last day before the Christmas break, about 16 December. Thereafter, once JA had had the seizure, he was taken to the hospital as was appropriate. The point is it was just not earlier enough.
36Thus, while any neglect of the welfare of a child is serious, I cannot allow the general vulnerability of children to overwhelm my consideration of all the particular circumstances of this case. It is serious offending. Parents have vital responsibilities to care for and protect children. The failure to do so can amount to a criminal offence. But given the level of negligence and the limited period of the serious injury, I do not see this as at or near the most serious end of the spectrum.
37As to the moral culpability of each of you, plainly, you should have done more to care for JA. Each of you realises that now and deeply regret your failings. However, my assessment of your moral culpability is tied up with aspects of your personal circumstances - especially you, LR, with your intellectual disability.
38I turn in more detail to your personal circumstances, commencing with you, LR. As was just stated, central to your circumstances is your intellectual disability. This lifelong condition ties into, or indeed is likely to, have resulted from your profoundly disadvantaged and dysfunctional upbringing.
39You are particularly sensitive about a certain dreadful aspect of your family of origin. Mindful of the significant trauma caused to you, your mother and siblings, by your maternal grandfather, I will not speak of this awful time in any detail. I note what was said by the very experienced County Court judge, Her Honour Judge Pullen, in her sentencing of your maternal grandfather, to the almost unheard-of sentence of 22 years and 5 months imprisonment with a non-parole period of 18 months for his grave crimes against your mother.
40Your mother's difficulty continued throughout your childhood which saw you move many times from Melbourne to country locations, including in refuges. She did her best, and I have had the benefit of a number of assessments done by expert child psychiatrists and clinicians for the Department of Health and Human Services or their predecessors - in particular, the disability services area of that department.
41You were declared as eligible for services under the Disability Services Act due to your intellectual disability at an early age. You are in the mild to moderate level of intellectual disabilities. You manage mostly at special school. Since 18, you have been in receipt of the disability pension. Your day-to-day functioning is adequate, though you rely heavily on your wife and mother-in-law.
42I have read carefully the earlier material relating to your intellectual disability as well as the recent reports from Dr Deacon. I called for a justice report, and that, too, referred to your past. I will speak briefly of it.
43You had delayed development of milestones in regard to crawling, walking and talking. You had ongoing difficulty with dexterity. You did not attend any earlier intervention services or kindergarten, and due to ongoing vision problems, you began to wear glasses for reading from eight years. You were diagnosed with hearing difficulties.
44You were, at the age of seven, subject to another child throwing petrol on you, causing second-degree burns and ongoing sensitivity to the sun. There was other abuse to you. As mentioned, in 2004, following major conflicts, you moved with your mother and siblings to a refuge before relocating to Wangaratta where you remained living with uncles and siblings.
45The early part of your life was disrupted by domestic violence, moving homes, and changing schools. What was discovered from the records was that you functioned at a very low level in education and had major difficulties in organising, planning and attending to ordinary daily tasks. You have difficulty in concentrating, and at school, were easily distracted.
46You had limited success after school in retaining any work. The one real job that you had was very brief, and its nature bespeaks of your difficulties. You were able to obtain a job in the fish and chip shop preparing the cardboard boxes to receive the hot food, but you were unable to do this task successfully and your employment was shortly thereafter terminated.
47You have not been able to gain a license and you rely on your wife for transport. You are indeed, as I was told, assisted by her in some of the more technical or matters requiring fine motor skills in dressing, even to this age. Notwithstanding that, you have played Australian Rules football and continued to do so here and in Wangaratta, and have other sporting interests. As I said, you were declared eligible to receive disability supports but however, access to resources have been sporadic.
48In the particular circumstances of this case of neglect and causing injury by omission in a family setting, your intellectual disability is very relevant to my assessment of your moral culpability. You rely on your wife and your mother-in-law, the latter who has, as I have said, considerable experience in parenting foster children. Your wife was, of course, inexperienced at parenting and her first-born was under one when JA arrived and shortly thereafter the offending.
49In my view, your intellectual disability does have a causal relationship with your inability to do for JA what you should have done; that is, what reasonable people without your deficits would have seen as being necessary to avoid a serious injury.
50Your partner and mother-in-law have said that efforts were made to get help from the Department of Health and Human Services, but it never came to anything. They were efforts made by you. Your wife, KR, regrets that she did not take up that task instead of leaving it to you with your deficits.
51One of the most important sentencing purposes in a crime of this kind is denunciation of your offending. There is a real need to state the public abhorrence of neglected children. Protection of the vulnerable is paramount. However, your intellectual disability, and thus your low moral culpability, means I must moderate the weight to be given to denunciation.
52Likewise, the ordinarily weighty sentencing purpose of deterrence to others must be suitably moderated as I consider you, with your intellectual deficits, as simply not the appropriate vehicle to send the message of deterrence to others.
53Your intellectual disability also means I must consider whether certain forms of punishment would weigh more heavily on you than would be the case if you were not intellectually disabled. In blunt terms, you yourself would be very vulnerable in prison and do any term harder than others.
54As your personal circumstances since you committed this offence against JA, first, you have remained in a stable and close marriage with your wife and your co-accused, KR. Both of you were understandably subject to immediate interest from Child Protection, not just with respect of JA but your daughter, Isabella. JA has now been the subject of a permanent care order, as I understand it, and you both have nothing to do with him for his sake.
55After losing direct care of Isabella, you and KR worked with the Department of Health and Human Services in order to improve your parenting and capacity. Understandably, the scrutiny has been intense and extended to your other daughters born on 5 May 2017 and most lately on 24 May 2018.
56Thus, you and KR now have four daughters and according to the Department of Health and Human Services, they are well-loved and cared for. You have occasional supervision, but it seems you and your wife are now well able to shoulder the considerable burden of four children under the age of seven.
57There is a prior matter in respect of getting angry on a train, but it is of no relevance, and note you have not been in any trouble in the long intervening period since this matter came to police attention in December 2013. That fact is to your credit.
58Given the intervening oversight in the concluded assessments of Department of Health and Human Services in the five years where you have had three more daughters, and given your past as well, I consider your prospects to remain out of trouble as being very good. You have learnt a hard lesson from what happened to your son and from being charged and before the courts. You are well-deterred, in my view.
59Your plea of guilty, especially in light of your early offer to plead guilty to the charge that ultimately was on the indictment, must be given significant weight. I take the plea as a sign of your remorse. There is other evidence revealing of your regret that you did not more than you did for JA. I accept that this remorse is genuine. I put to one side your ill-considered reaction and words in the record of interview which you now deeply regret.
60The delay in this case is a matter of great significance. What I say to you in respect of you, LR, applies to the other accused. I do not need to recite passages from the appellate cases. The principles relating to delay are not in controversy in this case. The bare facts reveal a very considerable time has passed from 27 December 2013, when you, LR, took JA to the Wangaratta Hospital and shortly thereafter the police investigation commenced.
61JA's condition was investigated and his first VARE was conducted on 31 December 2013. Search warrants were executed on that day. So too were interviews under caution with you, LR, you, KR and you, CT. A further VARE was conducted on 26 February 2014. It was a complex police investigation, and not surprisingly, a year passed before you were charged, coming first to the courts in February 2015.
62You were each committed on a range of charges in October 2015. Each of you indicated you would plead guilty to the charge that you ultimately have faced. However, that was not satisfactory to the prosecution and you were committed to this court. Once this case was before this court it was intensely managed, but it was bedevilled with many unfortunate circumstances such that it was not concluded until pleas of guilty were entered on 27 April 2017. Even, in your case, LR, further complications intervened until the particulars on the indictment were finally amended just prior to the hearing of the pleas in mitigation in Shepparton.
63What needs to be taken into account is the length of the delay. Here, it is very considerable: over four-and-a-half years. Within that period, I discern a very heavy weight upon each of you in the sense that you understood that you were facing very serious charges and, in that time, none of you have been in any trouble at all. In the intervening period a child was taken from you, including from the household where you were, CT.
64So it relates principally to both you, Mr and KR, but also to you, CT. But over that time, what the resolution revealed, or what was revealed, is your very considerable reform. But nonetheless, there was perhaps described as "extra-curial punishment" in the sense that your child was taken from you. Each of you has shown to the authorities your reformed capacity to look after children.
65The early offers to plead guilty meant that none of the delay was of your making. Regrettably, trials that are estimated to last a lengthy period, such as this one would have, present significant difficulties for this court on circuit. This was exacerbated by the Wangaratta court having to absorb many, many more trails as the Shepparton court was not available to the County Court for two years. While efforts were made by all, the case did not come on until April 2017 when a date for legal argument saw the case ultimately resolved.
66Thus, in this case, there is a very significant, or very considerable level of mitigation to be given to all accused because of the delay in finalising this case.
67I move now to you, Ms KR. You were raised in a solid, supportive family by your mother. You and your mother have always been close. She was living with you and LR at the time of the offending. That remains the case to this point, and the three of you are still in the one household. Indeed, as a family, you are purchasing the house in Glenrowan.
68You are now 27, but you were 22 when JA came to live with you. You had your first daughter in July 2011, so that she was really a young, young child. You were an inexperienced mother with little outside supports. Your husband was very reliant on you and you on your mother. You were simply not up to the task of parenting your own one-year-old and a child who had gone through what JA had gone through in his early years.
69Your moral culpability is to be understood in this context. You took JA to the doctor but did not follow up the referrals involving blood tests in Melbourne. You did not manage his nutrition at all well, and you are now deeply remorseful for that. You waited too long to take him to see a doctor, and by the time of his seizures, your insistence that he be taken to the hospital was too late. You did not meet community expectations as a parent to a vulnerable child. However, as I have said, I do not see your offending at the most serious end of the spectrum.
70You were raised in Horsham. Your parents split when you were about ten. Your father died in 2012. You moved to the north-east around the time that you moved into secondary school. You were tested by the medico-legal psychologist, Ms Lechner, which confirmed her observations that you were of average intelligence. You left school early, midway through Year 10. Later you tried adult education to obtain some VCE or VCAL subjects, but you fell pregnant and got married to LR.
71The circumstances of you having your first daughter and then seeking out contact and involvement with JA have been mentioned already. You maintained that you were not provided much if any support for JA, as was promised by the Department of Health and Human Services. As mentioned, you have little by way of social networks and supports, keeping to yourself and your family life. You now have four daughters and are absorbed in caring for them as well as helping your husband.
72You have been closely scrutinised by the Department of Health and Human Services in all aspects of your parenting when each child came along. There are no concerns as to your capacity now. In this respect, you have rehabilitated in a very practical and observed way. You have never been in trouble before or since. You are entitled to call on that in asking for a merciful sentence.
73Your plea of guilty is of real value, especially when you offered to plead to this offence as early as you did. The plea has very significant utilitarian benefits, as it saved JA from the trauma of giving evidence. Also, it reveals your remorse. There were other expressions of remorse, and I conclude your remorse is genuine, and directed at JA and not at your own predicament.
74The very long delay, as outlined already, is a significant factor in mitigation because this matter has been hanging over your head even though, as I have said, you offered to plead guilty. In the meantime, you have rehabilitated and you have done so under the scrutiny of the Department of Health and Human Services. There was the loss of your child in the sense that Child Protection became involved for a period of time as well. That is no small matter.
75Your counsel urged the imposition of a community corrections order. I will elaborate on this shortly. They also argue that because that you now have four children - three at the time of the plea, the youngest having been born since on 24 May this year - he said that I ought consider hardship to a third party - that is, the children - and the likely carer, which was said to be LR' mother, I ought consider this as mitigatory because of the exceptional circumstances involved.
76In brief, should you or your husband and your mother be imprisoned, the children would likely go into the care of the Department of Human Services, likely to be placed with LR' mother, the woman that I have already described has suffered greatly through her life.
77It has been held that exceptional circumstances, or the exception circumstances for the criteria, are met where children, especially very young children - in this case, a child that is only some months old - are separated from both parents and likely placed in state care. Precisely how things would work out with LR's mother's playing a role as the care remains uncertain. I consider that with the very young infant born on 24 May this year, as well as the other young children, that to be separated by reason of imprisonment from you and indeed from both parents and CT would amount to a hardship meeting the exceptional circumstances test.
78It mitigates, and as was always the case, it is particularly relevant where the submissions as to sentencing including, as it did in this case on the prosecution side, that a short term of imprisonment with a community corrections order was within range, and on the defence side, a community corrections order alone. Thus, this matter impacts upon the sentencing where it is finally balanced as to whether imprisonment would be imposed.
79Turning to you, CT. You are now 58. You were 53 at the time of the offending. You have never been in any trouble with the law before or since. That is a matter permitting you to seek a more merciful sentence. You were raised in Melbourne, left school at 15, working in the family milk bar and other like shops until you were married at 21 and moved to Horsham. KR is your only daughter.
80It is a perplexing fact in this case that for a number of years prior to the birth of your daughter, you were a foster parent to many children. After a break, when your daughter was young, you then resumed this role as a foster carer when you moved thereafter to the north-east of Victoria from Horsham. You continued to care for foster children for many years, and it seems up until Ms Richards had her first child and needed your help.
81You were recognised by welfare organisations for your significant contribution as a foster carer. There was nothing adverse known about your performance as a foster carer to the contrary. That stands in contrast to this matter, where you have pleaded guilty to negligence in the form of not providing sufficient food to JA.
82As noted, LR, with his intellectual disability, relied on his wife and she on you. Ms Richards spoke - that is, KR - spoke of not wanting to ask too much of you as you were ill with long-standing diagnosis of leukaemia. You are treated by a local general practitioner and an oncologist in Melbourne. You remain on a disability pension, living with your daughter and son-in-law, and the four children
83You continue to provide significant help in the family. Again, Department of Health and Human Services has approved you being part of the household. The matters mentioned in mitigation so far for both the other accused, such as the significant delay, your plea of guilty and its timing, in your case, genuine remorse and prospects for complete reform - all those matters apply to you as well.
84Counsel for each of you urged that I impose a community corrections order and not the punishment of last resort: imprisonment. Prosecutors submitted that such a sentence for any of you would involve the court in ignoring the principles of denunciation and just punishment. The prosecutor submitted that a community corrections order alone would be an inadequate response, but that a community corrections order, together with some imprisonment, was within range.
85The sentencing task here is one involving an acute tension. It cannot ignore that the offending involved neglect of a vulnerable child, and it is serious and troubling to our community that such offending occurred. These important community values of protecting children must be upheld and reasserted. However, I cannot give the matters in mitigation mere lip service because the crimes involve neglect of a child. Here, the catalogue of mitigatory matters are significant. I will not repeat them as I have spoken of them already in the course of these reasons.
86What follows is that with all the matters for and against you, can I conclude, is the question, can I conclude that gaol and gaol alone can satisfy or meet the sentencing purposes? Parliament has made it clear that I can only impose gaol if I conclude that all sentencing purposes cannot be properly met with a sentence other than imprisonment.
87In resolving this conundrum, I am guarded by the Court of Appeal's decision in Bolton & Ors and cases since that have followed, applied and clarified that important decision. But I also note that in introducing the new community corrections provisions, the Attorney-General in the previous government spoke of the importance of community corrections orders in being able to preserve families; that is, keep families together, thus ensuring greater rehabilitation and thereby protection of the community. This was emphasised, rather than the separation and split that would occur by gaol term.
88Also what was noted by the Attorney-General is that the new community corrections orders were no soft options. The Court of Appeal has reaffirmed that community corrections orders are punitive, but the strength of them is that what can occur, or simultaneously occur, is punishment with rehabilitation. It is always a sentencing purpose that the court must consider; that is, the establishment of conditions that facilitate rehabilitation. The community corrections order can do that in practical terms.
89What the Court of Appeal stated was that a community corrections order can be a just and appropriate punishment for many serious offences, including those were serious injury is caused, but in fact, caused intentionally or recklessly. Here, the serious injury that was caused, which has resolved, was caused negligently.
90In short, the sentencing landscape was altered by our Parliament in establishing the new regime of community corrections orders, and identified by our Court of Appeal of interpreting those changes. Again, I cannot simply leap to a community corrections order if the circumstances of the crime and the offenders require a sentence of imprisonment.
91Here, in my view, the important sentencing purposes of denunciation - moderated as they are, as discussed in your case, LR - and deterrence of others - again, suitably moderated in your case, LR - and the purpose of establishing conditions that facilitate rehabilitation, and in my view, they are satisfied by the imprisonment of a community corrections order alone. Other sentencing purposes, such as specific deterrence and protection of the community, are not of great weight at all in the circumstances of this case.
92The community corrections orders that I will detail shortly are, in my view, not soft options. They will be onerous. They will allow each of you to show you truly regret what you admitted to do in caring for JA. You can show that by doing the community corrections order, in every regard, that you can contribute to the community by unpaid work and by undertaking properly-directed programs that will assist you in parenting.
93You, LR, will be on a justice plan because of your intellectual disability. The role of Disability Services is important in facilitating your rehabilitation.
94As between you three offenders, there are aspects of each of you that are not present in the other. Your intellectual disability, LR, being the most obvious. There are aspects of the offending that loom larger in some aspects for some, rather than others.
95In your case, CT, there was more limited particulars negligence and that must be acknowledged. However, between the parents - you, LR, and you, KR - notwithstanding the slightly different moral culpability and the need for general deterrence to be moderated in your case, when aspects of your personal circumstances and the hardships of the penalties are considered, given your role as the mother to four children, I have in the end resolved that the punishment for both of you, LR, and you, KR, ought be the same. In respect of you, CT, there will be a slightly more lenient approach.
96For each of you, the community corrections order that I will outline will be read back to you in detail shortly, but each of you are punished as follows.
97For committing the crime of negligently causing serious injury to JA, you, LR, are convicted and placed on a community corrections order that will last for two years and six months.
98You will be subject to the Justice Plan. As part of your community corrections order, I order that you do 180 hours of unpaid community work. You ought do programs that can assist you or ensure that you do not reoffend. They are likely to be parenting programs. That will be a matter for Justice and Disability Services and the Office of Corrections. These programs that you do can be considered as part of your unpaid work.
99You, KR, you are convicted and placed on a community corrections order for two years and six months. You too are to do 180 hours of unpaid work. You too are to do programs to reduce your risk of reoffending. Any programs you do can be deducted or considered as part of the 180 hours of unpaid work.
100You, CT, are placed on a community corrections order for two years and two months, with conviction. You are required to do 140 hours of unpaid community work, and programs to reduce your risk of reoffending. Those programs can be deducted from your unpaid community work.
101Had you pleaded not guilty to these offences, I would have imposed the following penalties. I have spoken of the real importance of your pleas of guilty and the circumstances of your earlier but rejected offer. Thus, had you pleaded not guilty and been found guilty of these offences, I would have imposed a sentence of imprisonment being in each case two years and six months with a minimum term of 18 months.
102There are other orders that have been sought and I intend to grant each of those orders. They relate to forensic samples being taken from each of you so that your DNA can be extracted and placed on the database. I have considered the application, and as I said, I intend to grant it due to the seriousness of the offending, and it is in the interests of justice that you provide a forensic sample.
103You should understand that in the taking of the forensic sample, the authorities are authorised to use reasonable force if you do not cooperate in the taking of the forensic sample. The forensic sample will be by swab from your mouth. I will explain to you, as your lawyers will, that you must go to the police station to have the swab taken. You do that in a window that opens up 28 days from now. It remains open for 28 days. So within that period of time, you have got to get that done.
104There is also a disposal order, as I understand, in respect of you, LR, and I intend to make that order as well. Are there any other matters?
105COUNSEL: No, Your Honour.
106HIS HONOUR: Given the nature of the dock there, each of the accused can come out of the dock, come out behind their lawyers, to sign these corrections orders which will take some time.
107Ms Guesdon, I understand there was at the time of the committal and thereafter at every turn in this court, an order relating to the non-publication of the names of the accused because it would serve to identify the victim. So that has not been altered, and I do not see any reason to do it presently. They are known by their initials, as I understand it. There will be a properly anonymised reasons for sentence in due course.
108MS GUESDON: Yes, Your Honour.
109HIS HONOUR: LR, remain seated. The community corrections order that I have placed you on is 30 months, or two years and six months. It starts today and goes to 29 January 2021. There are terms that apply to everyone on a community corrections order and they apply to you. In your case, you will be on a Justice Plan as well.
110So you are not to commit an offence for you could be imprisoned during the time this order is in force. That means: do not commit any crimes. Any. You must receive visits from the Office of Corrections. You must report to the Office of Corrections within two clear working days. That will be down in Wangaratta. All right? There is an address here, and the others will show you where that is, and assist you in that regard.
111You must let the Community Corrections Office know within two clear working days if you change your address or if you get a job. You cannot leave Victoria without getting permission. That is anywhere over the border. Cannot go to Albury. You must obey all lawful instructions from the Office of Corrections. In addition, you have got to do 180 hours of unpaid community work. They will work out what suits you. Throw yourself into it and get it done.
112You must participate in programs that address factors relating to your offending. That will be sorted out by the disability people and the Office of Corrections. And you must participate in the services that are specified in your Justice Plan. So the Disability Services people will get engaged with you, and you have got to co-operate with them too, so that they assist you - assist you to stay out of trouble is the principal thing, but there might be other bonuses and benefits.
113In respect of you, Ms Richards, again, that will last for 30 months from 30 July to 29 January 2021. I have read out all the matters that apply to everyone. I will repeat them, perhaps in short term.
114You must not commit an offence for which you could be imprisoned during the time of the order. If you do, you come back before me. That is the thing. And there might be those who think I am naïve at the moment, but if you commit another offence, any of you, there will be simply one result that will occur, and that will be you will be imprisoned. You will never be the same if that happens.
115You must report to the community corrections centre there in Wangaratta within two clear working days, he address there on Murphy Street. You must let the Office of Corrections know if you change your address or your job. You cannot leave Victoria without getting permission. You must obey lawful directions.
116You must do 180 hours of unpaid community work as directed by the Regional Manager. That is not going to be straightforward, but you have just got to do it, and you must also participate in programs that address factors relating to the offending such as parenting programs, and they can be deducted away.
117Likewise, CT, you are under a community corrections order, 30 July to 29 September, in your case, 2020, pure. You must not commit an offence for which you could be imprisoned during the time that this order is enforced. You must report to and receive visits from the Office of Corrections.
118You must report to the Community Corrections Centre there in Wangaratta within two clear working days. You have got to tell them if you change your address or job. Do not leave Victoria without getting permission, and obey their lawful instructions.
119You have got to do 140 hours of unpaid community work within the 26 months that you are on the community corrections order. You will just have to get it done. You must participate in programs that address factors relating to your offending, and any hours that you do in that regard can be taken as part of your unpaid community work.
120If you sign these documents and I do, it brings the matter as far as I am concerned and you are concerned, in the County Court, to an end.
121Provide copies of those to each of the accused and likewise the orders relating to forensic samples and the disposal order. Is there anything else required?
122COUNSEL: No, Your Honour.
123HIS HONOUR: I thank counsel for their patience today and Ms Guesdon for your assistance throughout in a difficult day. Thank you.
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