Director of Public Prosecutions v Lambert (a pseudonym)
[2022] VCC 1819
•28 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAD LAMBERT (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2022 | |
DATE OF SENTENCE: | 28 October 2022 | |
CASE MAY BE CITED AS: | DPP v Lambert (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1819 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Negligently causing serious injury – Victim was the accused’s step-son and aged between six and eight at the time of the offending – Negligence persisted over a prolonged period of almost two years – Withholding food – Failing to provide appropriate hygiene standards – Failing to provide adequate care and supervision – Engaging in excessive discipline – Victim suffered a life-threatening condition due to malnourishment and required hospitalisation – First time in custody – Early guilty plea – Favourable prospects for rehabilitation – No prior convictions
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP v Weston [2016] VSCA 243; Worboyes v The Queen (2021) 96 MVR 344; DPP v Weston [2016] VSCA 243; Mok v The Queen [2011] VSCA 247; DPP v L, R [2018] VCC 1163; DPP v Shen & Anor [2021] VCC 602; DPP v Millar [2022] VCC 113 and DPP v Kellway (a pseudonym) [2022] VCC 661; R v Verdins (2007) 16 VR 269
Sentence: 4 years and 6 months’ imprisonment with a non-parole period of 2 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Stephanides | Office of Public Prosecutions |
| For the Accused | Mr R de Kretser | Armstrong Legal |
HIS HONOUR:
Introduction
1Brad Lambert,[1] you have pleaded guilty on indictment to one charge of negligently causing serious injury, contrary to s 24 of the Crimes Act 1958. This offence carries a maximum penalty of 10 years’ imprisonment.
[1] A pseudonym.
2An agreed prosecution summary of your offending was read aloud in Court.[2]
[2]Exhibit A.
3Oliver[3] was a six year old child when your offending commenced. He was your stepson. You lived with him and his mother Shelley Gill,[4] your de-facto partner. You and Oliver’s mother have two biological sons[5] who also lived in the same house. Your daughter from a previous relationship would come and stay with you every second weekend from Friday to Sunday.
[3] A pseudonym.
[4]A pseudonym.
[5]The eldest was aged four and the youngest two when the offending ceased.
4Oliver was entitled to your love, affection and care. Not only was Oliver a vulnerable child on account of his young age, but he was also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). You were aware of his diagnosis. His treatment was difficult and he experienced many side effects to the medication he was taking. You were effectively his father and should have nurtured him, supported and protected him. Instead, your conduct towards Oliver was callous, it was cruel and inhumane. You committed a gross breach of trust by being criminally negligent over a significant period of time, just short of two years.
Circumstances of the offending
5On 18 September 2020, police attended your home address in order to conduct a welfare check on Oliver. They attended because the welfare officer at Oliver’s school raised a number of concerns. The welfare officer told the police that Oliver had disengaged from remote online learning for approximately a month and his family was not returning the school’s calls. The school had concerns about Oliver’s mental health and that it was possible that he was being neglected.
6Having arrived, the police officers spoke to Oliver’s mother. Upon request, Oliver came to the doorstep. The police made the following observations:
· Oliver presented as extremely unhealthy, pale and thin. His skin colour was almost grey.
· He had a red lump on his forehead and red marks on his wrists.
· He was wearing dirty, stained pyjamas with dirty stained socks.
· He appeared extremely short, frail, thin and malnourished. He had the physique of someone who was maybe four or five years old.
7Senior Constable West took Oliver aside and spoke to him. Oliver disclosed that you hurt him, you did not let him eat, you called him nicknames such as ‘teabag’, you hadn’t allowed him to have a bath or shower in a long time and that you made him sleep in the toilet every night without blankets or pillows. Oliver said that the lump on his forehead was caused by you.
8Upon request, Oliver lifted his shirt revealing how thin he was. He also lifted his pyjama pant leg revealing a dark-coloured bruise on his leg, that he said you inflicted upon him with your work boots. Despite being eight years old, Oliver was wearing a nappy.
9Oliver was removed from the address by police and taken into protective custody.
10Police took photographs of Oliver at the police station.[6] After being fed, police conducted a VARE[7] with Oliver.
[6]Exhibit B.
[7]Visual and Audio Recording of Evidence.
11A VARE was also conducted with Oliver’s stepsister who was aged 11 at the time.
12Significant instances of neglect and abuse were discovered. They can be set out in four separate categories and form the basis of the charge of negligently causing serious injury. The four categories are:
(i)Withholding food;
(ii)Failing to provide appropriate hygiene standards;
(iii)Failing to provide adequate care and supervision;
(iv)Engaging in excessive discipline.
Withholding food
13As a form of punishment, you regularly withheld food from Oliver. Not only was food withheld, but you made Oliver hold an imaginary ice cream or burger up to his mouth and act as though he was eating it. This imaginary eating of food was done in the presence of other family members who consumed real food in front of Oliver. Oliver told the police, “I stand there, eating an imaginary big Mac and ice cream and chocolate shake and all that… I have to eat imaginary. I had to eat a big Mac every night.”
14Oliver’s stepsister disclosed that every second Friday when she was present, “we have McDonald’s for dinner, we all have dinner except for Oliver. He has nothing.” She said that you did not let Oliver have anything, not even snacks. She said that everyone sat at the table except for Oliver because there were not enough seats. Oliver was forced to stand next to the TV and watch everyone eat.
15She stated, Oliver had “No lunch, no dinner, no breakfast, because daddy wants him to starve.” She added, “Daddy doesn’t want him alive, because he ruins everything, runs away a lot, hits everyone, gets into fights, sort of, that’s about it.” She said she witnessed this behaviour by you firsthand, and that it went on for one to two years.
16Oliver stated that food was withheld from him for days at a time. Sometimes you allowed him to have leftover food, but sometimes he had to wait five days or more to eat. There were occasions when you allowed him to eat expired or spoiled food but his mother told him to put it in the bin.
17Oliver recalls four occasions when he helped himself to food because of his hunger. As a result, food was moved to the garage and placed in boxes and lockers high up to prevent Oliver from accessing it.
18Department of Health and Human Services (DHHS) reports revealed:
(i)A complaint was made to DHHS by Oliver’s teacher on 25 October 2018. Oliver had been caught stealing food from other children’s lunchboxes. He presented as hungry and was ultimately given food by the assistant principal. Oliver was only six years old at the time.
(ii)An anonymous concern with DHHS on 31 August 2020. The concern centred around Oliver not being allowed to eat, being very thin, and not getting sufficient sleep. The concern raised that Oliver had lost approximately 5-10 kilograms since the previous term and appeared to weigh less than 20 kilograms.
Failing to provide appropriate hygiene standards
19Despite having a bedroom, you forced Oliver to sleep in the toilet. No bedding was provided. The door leading into the toilet could not be opened from the inside.
20Oliver described his feet as hurting and swollen. He described his feet at times turning red and purple and black because “I am putting diseases in my socks.”
21On weekends, he wore pyjamas at home. You prevented him from wearing fresh clothing. Your daughter described Oliver as often wearing no clothes, except for a nappy. She said you would make him stand in the corner with his hands on his head.
22You prevented Oliver from having regular showers. At the time of your arrest, Oliver had not been permitted to shower for months. The paediatrician who examined Oliver noted his poor level of hygiene. Oliver was wearing dirty pyjamas and dirty socks, and had dirt embedded in the skin of his knees.
Failing to provide adequate care and supervision
23Oliver disclosed that on occasions he was left alone at home locked in the toilet. This would occur when you took your sons for a walk and your partner had gone shopping.
24On 26 August 2019, a passer-by called triple zero after observing Oliver sitting on the nature strip outside his house visibly distressed. You were seen walking inside your house, closing the door and leaving Oliver crying outside.
25On 5 August 2020, Oliver was observed by a female running down the road wearing pyjamas and socks, but no shoes. She called triple zero. Police arrived and located Oliver hiding in the garage crying, and in a frightened and dishevelled state.
Engaging in excessive discipline
26You would make Oliver stand in the corner of the room with his hands on his head and facing the wall for extensive periods of time. Your daughter told the police that this could last for approximately an hour.
27On one occasion, when Oliver was seven or eight years old, he turned around to face away from the wall. You picked him up and threw him onto a tiled floor causing a bump on his head. He was unable to attend school the next day due to the injury. When he returned to school, the injury was still visible. You told Oliver that if anyone questioned him about the injury, he should respond by saying it was “none of your business.”
28On 20 November 2018, DHHS was notified of a disclosure made by your daughter. She stated that you kicked and hit Oliver in response to him soiling himself. She said you kicked and hit Oliver until he had bruises and black eyes. Oliver wasn’t allowed to go to school until they healed.
29Oliver described being locked in the toilet on a regular basis. It occurred almost every time when you were away from home. It occurred when you were at work. According to Oliver, you had told your partner not to let him out. Oliver described the toilet as his bedroom. Your daughter confirmed that when Oliver got into trouble, you would hit him and lock him in the toilet.
30Oliver told the police that on one occasion in early September 2020, he had taken some ham and an energy drink belonging to you. When you returned from work and discovered that he had taken the food and drink, you confronted him and kicked him in the shin while wearing your safety composite steel-capped work boots, causing bruising to his shin.
31Your daughter noticed marks on Oliver while he stood in the corner in only his nappy. She had seen you kick Oliver on multiple occasions, both with and without shoes on. She had also observed you punching Oliver with a closed fist to various parts of his body and throwing things at him like books and toy trucks.
Medical Evidence
32Oliver was admitted as an inpatient at the Royal Children’s Hospital on 18 September 2020. He remained in hospital for 24 days, until 12 October 2020.
33Dr Kerryn Moreira, the assessing paediatrician at the hospital, confirmed the following:
(a) At the time of his admission, Oliver exhibited signs of muscle-wasting, vitamin deficiency, stunted growth, physical neglect and recent injury.
(b) His precarious life-threatening state of health required assessment and treatment from multiple medical teams at the Royal Children’s Hospital.
(c) As part of managing his malnutrition, Oliver was admitted into the intensive care unit for 2 days.
(d) Oliver was already diagnosed with ADHD and constipation. During his admission, he was diagnosed with the following conditions:
(i)Chronic malnutrition with stunting (of height) and resultant re-feeding syndrome
He presented as looking thin and pale with poor muscle bulk and minimal subcutaneous fat stores. Despite being eight years old, Oliver only weighed 16.9 kilograms. His height was 109.2 centimetres which was below the 3rd percentile for his age. He had physical evidence of severe malnutrition such as growth failure, muscle soft tissue wasting and biochemical evidence of malnutrition and starvation. The severity of his growth failure, the abnormal blood test results, and the requirement for intensive care management, was indicative of a life threatening condition.
(ii)Feet erythema - likely secondary to thiamine (vitamin B1) deficiency
Oliver had red-purple swollen feet and developed a fever within 24 hours of admission. The swelling was found to be secondary to vitamin B1/Thiamine deficiency. He required intravenous thiamine supplements, and later, oral supplements to improve the condition of his feet.
(iii)Deficiency in Zinc, Vitamins C, D, B1 and carnitine
Oliver had deficiencies in the above-mentioned vitamins which are primarily found in food and play an essential role in chemical pathways in the body required for growth and development. The extent of these deficiencies was consistent with Oliver suffering a prolonged period of inadequate nutrition.
(iv)Sick Euthyroid – abnormal TSH, normal T4
Oliver initially presented with elevated levels of thyroid stimulating hormone, however this improved throughout his hospital stay.
(v)Physical injury
Oliver had a ‘C’ shaped bruise on his lower left leg, which he disclosed was as a result of you kicking him. The shape, size and location of the bruise were found to be compatible with this explanation. There were other skin markings, bruises and scars, the cause of which could not be attributed.
(vi)Dental trauma
Oliver had 3 dental crown fractures, caries (cavities in two of his baby teeth) and gingivitis which required dental surgery under general anaesthetic.
(e) The overall medical opinion was that Oliver had experienced cumulative harm from significant neglect and emotional maltreatment. He demonstrated physical, psychological, and developmental consequences as a result of living in a physically and emotionally abusive and neglectful home environment.
Police interview
34You were arrested and interviewed on 18 September 2020. You gave the following account:
(a) When asked about your relationship with Oliver, you said “I kinda leave it for [Shelley] … I know in the back of my mind I could’ve given more love and attention… I will come home from work and the boys run up to me, ‘Daddy’. They give me hugs and kisses. I probably haven’t given Oliver a hug in months. So just little things like that.” You said “you can’t force love” as Oliver is not your biological child. You added that you left it to your partner as you felt if anyone was going to give him love and attention, it should be her.
(b) All your attention went to your biological sons. You said, “I’m always thinking of them first… It’s a bit harsh to say, but because he’s not biologically my child my focus is always on my own… so, yeah, he just kinda loses out on that love and attention.”
(c) You denied there being a problem with Oliver’s hygiene, saying “he seemed fine to me.” You said Oliver was eight years old and responsible for his own decisions as to whether he needed a shower.
(d) You denied withholding food from Oliver and said that he eats all the time. You said that only chocolate was withheld from him in response to poor behaviour. You blamed his ADHD medication as the reason behind Oliver’s weight loss.
(e) You denied being responsible for disciplining Oliver, saying that you left that to his mother.
(f) When asked if you cared that Oliver was underweight, you replied “I do care, but I probably don’t care as much as I should.”
(g) You admitted that you and your partner would tell Oliver to wear a nappy but that was in response to him pooing everywhere in the house.
(h) As a disciplinary strategy, you admitted to utilising ‘time out’ and making Oliver stand in a corner until he would eventually say sorry. You said this occurred every few days.
(i) You said that if the three boys fought, Oliver would usually be the one that got told off or in trouble. You rationalised that by saying that the other two children were your biological children so it’s easier to send Oliver for a time out than your own children.
(j) You admitted to withholding food by ‘taking away meals’ in response to Oliver defecating. You said “if he poos himself, he wouldn’t get dinner that night.”
(k) You said that Oliver missing out on meals increased over the COVID period and that when this happened, Oliver would usually watch whilst everyone else ate. You said that Oliver would miss a meal for poor behaviour a couple of times per week.
(l) You denied using physical discipline with Oliver at all. You denied causing the bruise on Oliver’s leg.
(m) You maintained that Oliver slept in the bunkbed in the bedroom. You denied that he slept in the toilet. You said that you sometimes sent Oliver to the toilet when he was having trouble getting his poo out.
(n) You denied ever forcing Oliver to eat imaginary food whilst the rest of the family were eating real food.
(o) You said you had told Oliver not to call you dad.
(p) You said that you would feel ‘very distraught’ if your two sons were treated in a manner similar to Oliver. You said that if Oliver’s mother wasn’t going to take responsibility and give Oliver love and affection, then “of course I’m not.”
Impact of the offending
35Oliver who is now aged 10, has made a victim impact statement.[8] I agree with prosecution and defence counsel, the statement is moving in its simplicity. Oliver says he felt sad and scared when you committed the offending conduct. He says, “I was a ‘10 out of 10’ scared as I had no idea when it was going to stop.” He adds “I feel angry like why did he do it to me”. He says he couldn’t always sleep. He would sleep on the toilet and sometimes on the toilet floor.
[8]Exhibit C.
36Thankfully, Oliver is now living with someone who genuinely cares for him, his maternal grandfather. He is now happy. He gets to go on excursions, see his friends and play video games. He says, “I am happy, grateful and safe living with pop.”
37His grandfather has also made a victim impact statement.[9] He has retired from work to give Oliver all the affection, love and hugs that he sorely missed and deserved from you. Oliver’s grandfather struggles to trust people and is on edge. He and Oliver are receiving psychological help to cope with the lasting impact upon Oliver of your offending.
[9]Exhibit D.
38The prosecution tendered without exception, a report prepared by Bernie Beyer, a mental health nurse practitioner dated 10 September 2022.[10] Mr Beyer has provided Oliver with mental health support. He has seen Oliver some 30 times between November 2020 and September 2022.
[10]Exhibit G.
39Mr Beyer states that Oliver continues to hold the belief that if he wasn’t taken away from the family home by the police, he would have died. He continues to experience intrusive thoughts, mood swings and significant reactivity to real or perceived situations of threat. He has formed a false belief that he is to blame for the abuse he endured. He continues to struggle with feelings of anger and rejection. Mr Beyer states, quite understandably, Oliver will require long term intensive therapy. His experience of abuse and neglect places Oliver at a significant risk of poor mental health outcomes.
40I note that at the plea hearing, prior to receiving Mr Beyer’s report, your counsel Mr de Kretser, accepted that your conduct will have lasting psychological impact on Oliver.[11] His sensible concession is borne out in Mr Beyer’s report.
[11]Exhibit M1, [7].
Personal Circumstances
41You describe yourself as being fortunate to have the parents you have and being born in your family. Your father worked for Australia Post and mother as a secretary and then in the disability sector. You are the eldest of three children. You have enjoyed and continue to enjoy a good relationship with your parents and siblings.
42You were a good student and participated in extracurricular activities including tennis. You obtained a number of school-based merit awards for high achievement in information technology subjects. You completed Year 12 in 2002. You then commenced and successfully completed a Bachelor of Business Information Systems at Swinburne University. While at university, you obtained employment with a major supermarket where you have remained. Over the last 15 years, you have progressed to senior roles. At the time of your plea hearing, you were employed as an ‘Online Manager’ with the company.
43You have continued playing competitive tennis, playing three times a week.
44You have had no issues with alcohol and have never used any illicit substances.
45You have had a number of serious relationships. Your second relationship produced a daughter who is now 13 years old. You have not had any contact with your daughter following your arrest.
46You commenced your relationship with Oliver’s mother in around 2015. You had known each other from secondary school. You reconnected on Facebook in 2015 and moved in together the following year. I was told that your relationship with Oliver’s mother ended some 12 months ago.
Gravity of the offending
47Any criminal conduct perpetrated against a vulnerable child would rightly draw the community’s condemnation. You offended against a child that considered you his father. Oliver was an innocent and vulnerable child. He was only six years old when the offending commenced and eight years old when he was removed from the family home. His vulnerability was exacerbated by his formal diagnosis of ADHD.
48Mr Newton[12] asked you what you wished to say in response to your offending. You wrote out that you apologised for not loving Oliver, not treating him as a son, not understanding his feelings, not understanding or making any effort to understand his ADHD, not giving him the attention he deserved and not making more effort to provide him with support.
[12]Exhibit M2.
49You recognise that you made no effort to understand ADHD. Instead, you treated Oliver’s meltdowns as the behaviour of a ‘bad child’ and developed resentment towards him. During COVID-19, Oliver was home all the time. He struggled with home schooling. The so-called discipline that you meted out increased. This led to further escalation in Oliver’s behavioural problems, which was in turn met with discipline of increasing severity. This vicious cycle remained uninterrupted until the offending was detected.
50Oliver was entitled to the love, affection and care that you gave to your own biological children. He was entitled to consider you responsible for his physical and developmental needs. He was entitled to be protected by you from harm.
51In DPP v Weston, the court said:[13]
The duty of the parent has two key aspects: to provide the child with what it needs for its healthy development, and 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. It is the active causing of harm – albeit by negligent conduct – which makes the breach of duty so grave.
[13] DPP v Weston [2016] VSCA 243, [47].
52The reality is you failed to attend to his physical and developmental needs and failed to protect him from harm. On the contrary, you positively engaged in negligent conduct that interfered with Oliver’s healthy development. The conduct occurred in a number of different ways which involved physical discipline, withholding food, neglecting his hygiene and making him sleep in a confined area without even a blanket or pillow. This varied conduct occurred over a significant period of some two years. Each time you offended, you had ample opportunity to reflect and refrain. However, you chose to continue with your conduct and make Oliver’s life a misery. Your offending was cruel, it was shocking. It demonstrated a total disdain for Oliver. You humiliated Oliver in front of your own children. Your cruelty extended to not only giving him no food, but making him stand and imagine he was eating in front of you and your children, while you all enjoyed real food. You made him sleep in a confined space on a cold tiled floor. You frankly acknowledged in your police interview that you had no feelings for Oliver and he wasn’t your responsibility. Your conduct over an extended period clearly bore that out.
53Your criminal negligence placed Oliver’s life in danger. He was in a precarious state of health when the police removed him from your home. The photographs taken of Oliver by the police make plain the torment he endured. While Oliver may have made a good physical recovery, the psychological damage inflicted by your conduct will be long lasting.
54This is clearly very serious offending and I regard your moral culpability as high.
Defence submissions
55On your behalf, Mr de Kretser presented a plea in mitigation, and relied upon detailed written submissions.[14]
[14]Exhibit M1.
56Mr de Kretser conceded, quite properly, that your offending was very serious. He acknowledged that you had a high duty of care to protect Oliver from harm and provide for his healthy development. He accepted that general deterrence, just punishment and denunciation were particularly relevant sentencing purposes. Mr de Kretser sensibly conceded that a sentence of imprisonment with a non-parole period was inevitable.
57In mitigation, Mr de Kretser emphasised the importance of your plea of guilty. I accept that your plea of guilty was entered at the earliest opportunity.[15] As a result of your plea, Oliver and other young witnesses, including your daughter, have been spared the added trauma of giving evidence and being challenged. Your plea of guilty has saved the community the time and expense associated with contested matters. By your plea, you have accepted responsibility and facilitated the course of justice.
[15]This matter was initiated in the summary stream before being uplifted.
58Further, your plea of guilty has been entered at a time when the criminal courts are facing a considerable backlog of trials. The courts must encourage those who are guilty to so plead and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[16]
[16]Worboyes v The Queen (2021) 96 MVR 344.
59I am prepared to accept that your plea of guilty shows some limited remorse.[17] Otherwise, you displayed no remorse in your police interview. You still appear to be struggling with grasping the enormity of your actions upon a helpless child. Mr Newton at [29] states:
Mr [Lambert] was unable to be meaningfully engaged in a discussion of the impacts of these behaviours upon [Oliver]. He seemed oblivious of the potential impacts upon [Oliver] and minimised the potential physical and medical effects of his conduct. Indeed, Mr [Lambert’s] reflections on the effects of this matter were focused upon the implications for his relationship with Ms [Gill] and his children, his own future career and his reputation.
[17]I have had regard to Exhibits M3 and M4.
60Mr de Kretser submitted that you have been on bail for some two years since being charged on 18 September 2020. I accept the matter has been hanging over your head in circumstances where you knew imprisonment was inevitable. During that period you have continued working full-time. You have attempted to undertake parenting programs[18] and co-operated with DHHS. You have been granted regular supervised access to your sons.
[18]See Exhibit M5.
61You have no prior or subsequent convictions and there is nothing else pending. You have otherwise lived a productive life, maintaining employment with a single employer for over 15 years.
62I have taken into account Mr Newton’s assessment pertaining to your psychological make-up. Mr Newton states that you are a rigid, perfectionistic and emotionally incompetent man. These traits have been part of your personality since childhood and are sufficient to meet the criteria for an Obsessive Compulsive Personality Disorder.
63Mr Newton states:
While the impacts of this conduct should have been clear to any rational observer, in Mr [Lambert’s] case his rigid blaming of [Oliver] combined with his choice to remain ignorant of ADHD and other childhood problems, his disowning of responsibility for caregiving and the isolation of the pandemic to hamper the development of insight (sic).[19]
[19]Exhibit M2, [47(6)].
64You also present with prominent traits of narcissistic personality disorder in the form of impaired empathy, egocentricity and self-centredness. These are not of sufficient intensity to meet the criteria for a full personality disorder but are likely to interfere with treatment.[20]
[20]Ibid [47(8)].
65This will be your first experience of custody. While there is now a degree of normality, I accept that conditions in custody will continue to be onerous due to quarantining, lockdowns and restrictions on rehabilitative programs.
66I also accept Mr Newton’s opinion, that you are likely to be a relatively vulnerable prisoner. Mr Newton states:
… Mr [Lambert] would be likely to be a relatively vulnerable prisoner. Not only is he naïve to the custodial environment, but he interacts in a mildly eccentric manner, suffers significant social anxiety and lacks well developed communication skills. In addition, his offence type carries significant opprobrium within prison populations. It would be likely that he would be at higher than average risk of negative attention from other prisoners and that he would require the provision of more than usual support to navigate the transition to the custodial environment. Given such considerations, it would be reasonable to conclude that his experience of incarceration would be somewhat more onerous for him than for other prisoners who did not experience his particular issues. [21]
[21]Ibid [51].
67I accept that limb 5 of Verdins[22] is enlivened.
[22]R v Verdins (2007) 16 VR 269.
68Despite your personality traits, Mr Newton makes it clear that you have always been fully aware of the wrongfulness of your actions.[23]
[23]Exhibit 2, [39].
Sentencing
69I have had regard to the sentencing decisions referred to me by the prosecution and defence.[24] Ultimately, each case turns on its own particular facts and circumstances and previous sentences are not precedents. However, the cases provide a helpful yardstick of the range of sentences available.
[24]DPP v Weston [2016] VSCA 243; Mok v The Queen [2011] VSCA 247; DPP v L, R [2018] VCC 1163; DPP v Shen & Anor [2021] VCC 602; DPP v Millar [2022] VCC 113 and DPP v Kellway (a pseudonym) [2022] VCC 661.
70Ms Stephanides submitted that this was a very serious example of the offence. General deterrence, denunciation and just punishment were particularly pertinent sentencing purposes. She highlighted the significant breach of trust over an extended period. She submitted that your moral culpability was high.[25]
[25]See exhibit E.
71Mr de Kretser conceded that this was grave offending involving a high degree of negligence. He pointed to the fact that Oliver has made a good physical recovery. While Oliver may have made a good physical recovery, the psychological torment of your offending will continue to haunt him.
72Both Ms Stephanides and Mr de Kretser concurred that a term of imprisonment consisting of a head sentence and a non-parole period was inevitable.
73I have taken into consideration all the material tendered on your plea and all relevant sentencing considerations.
74The sentence I impose must send out an unequivocal message to those who are parents or in the position of a parent, that offending of this nature on vulnerable children will be punished by sending its perpetrator to prison. The important purpose of general deterrence must be served.
75You must be justly punished for your offending and the community’s condemnation of what you did must be made clear.
76I regard your prospects of rehabilitation as favourable. You have no prior convictions and have lived a productive life. You maintain the full support of your parents and siblings. However, Mr Newton stresses the importance of you receiving extensive and structured parenting education before any child is placed in your unsupervised care. You must develop skills and knowledge around the emotional and physiological development of children and appropriate discipline and behaviour management strategies.[26] Such education will ultimately benefit and protect the community.
[26]Exhibit 2, [49] – [50].
77Despite assessing your rehabilitation prospects as favourable, the duration of your offending and your limited insight means that specifically deterring you from further offending remains important.
78On Charge 1, negligently causing serious injury, you are convicted and sentenced to a term of 4 years and 6 months’ imprisonment. I set a non-parole period of 2 years and 9 months’ imprisonment.
Pre-sentence detention
79Pursuant to s 18 of the Sentencing Act 1991, the period of 57 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
80Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 6 years’ imprisonment with a non-parole period of 4 years.
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