Director of Public Prosecutions v Millar

[2022] VCC 113

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

AT MELBOURNE

CRIMINAL DIVISION

CR 20-00711

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAIJA MILLAR 

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JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2022
DATE OF SENTENCE:	10 February 2022
CASE MAY BE CITED AS:	DPP v Millar
MEDIUM NEUTRAL CITATION:	[2022] VCC 113

REASONS FOR SENTENCE
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Subject:  

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Legislation Cited:    
Cases Cited:            
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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr N. Hutton	Office of Public Prosecutions
For the Accused	Mr M. Allen	Gallant Law

HER HONOUR:

1Kaija Millar, on 15 January 2020, just before 10 o’clock in the morning, you parked your car outside a gaming venue in Point Cook. You went inside, and played bingo, then the pokies, for just under five hours. It was a hot day, and the January 2020 bushfires had resulted in a bushfire smoke haze in the Point Cook area.

2It was already 31 degrees in Point Cook by the time you had parked your car. By midday, it was 35.5, and 37.5 by 1.30 pm. By the time you came out  to your car just a few minutes short of 3 o'clock, the temperature had dropped slightly from that peak, but it was still 32.7 degrees.

3For the whole time that you were inside that gaming venue, your fourteen month old child was locked in your car, with the windows closed, in that heat.

4By the time you returned to him, he was foaming at the mouth, convulsing, and not responsive.

5He was taken to the Royal Children's Hospital. As a result of being left in the car, he suffered hyperthermia/heatstroke, a life threatening event which has resulted in life changing injuries. He has sustained a severe brain injury, from which recovery to normal function is not possible. He suffered renal failure, requiring dialysis for some time, derangement of his liver function, and became severely coagulopathic (that is, his blood did not clot normally).  He suffered muscle injuries, and he developed ischaemic colitis. He required prolonged intensive care, a range of medical interventions, including gastrostomy tube feeding due to severe dysphagia. His rehabilitation has been very long and very slow.

6He now has, and will live with, severe cerebral palsy, significant cognitive and communication impairments. His disabilities affect all aspects of his functioning. He is now blind, he requires medication to reduce spasticity, and gastrointestinal and respiratory complications. He has received and will continue to need long term interventions: physiotherapy, occupational therapy, speech therapy, mobility aids, aids for feeding and positioning to prevent contractures. The most recent medical reports with which I am provided say that he is:

7‘Fully dependent on carers for all activities of daily living.  His difficulties will be life-long and it is unlikely he will achieve independent mobility. His care needs will only increase as he gets older.'

8He has therefore been left with a profound and lifelong disability.  His quality of life is significantly reduced, as is his life expectancy.

9Until this, he was a healthy baby, who had achieved all his developmental milestones within the expected range. Nothing this court does today can undo what happened that day or restore your son to the healthy, normally developing child he was.  

10This was not a tragic accident, something unforeseen, unanticipated, and unavoidable. Your son suffered these injuries because you left him, unattended, and uncared for, in that hot, windows closed, locked car in an open air carpark, on a scorching day, whilst you were inside for five hours.

11The injuries he suffered, and will continue to suffer from, for the rest of his diminished life, are a direct consequence of that conduct.

12This brief but heart rending account summarises the factual foundation upon which the charge of negligently causing serious injury to your son to which you have pleaded guilty rests.

13Negligence, for the purposes of this charge, means conduct falling greatly short of the standard of care a reasonable person would have exercised in the circumstances. By your guilty plea you acknowledge that the charge is made out because a reasonable person, a reasonable mother responsible for the day to day care of a baby, would have realised her conduct in leaving him in the car with the windows closed, for that extended time in such heat, created a high risk of death or really serious injury.

14Having said that, it must be borne in mind, that this is not a charge of intentionally or recklessly inflicting serious injury. Nor, is it a charge of intentionally or recklessly exposing a child to a risk of death or really serious injury.  Nor, at the other end of the scale, is this an offence of carelessness, minor mistake or momentary lapse with unforeseen catastrophic consequences.  

15It is one of a serious breach of the duty of care a reasonable person would expect a person who has taken on the responsibility of caring for a dependent 14 month old to exercise, and a breach of that duty of care which necessarily involves a high risk that the child will die or suffer serious injury as a result.

16The maximum penalty for this charge is 10 years' imprisonment. That, in itself, gives some indication of the seriousness with which Parliament regards this offending. 

17It is a serious offence. The injuries suffered, the consequences for your son, and objective gravity identified by this breach, make this is a serious example of a serious offence.

18It is therefore abundantly clear that subject to matters personal to you, general deterrence, denunciation and just punishment are significant sentencing factors. All children should be cared for by their parents when they are too young to be able to help themselves, too young to be able to escape from an intolerable position that they have been put in. The community must mark it’s disapprobation of such appalling behaviour as you engaged in this day and with the devastating consequences for your child. 

19What is then relied on to mitigate the weight to be given to these sentencing principles of denunciation, deterrence and just punishment?  What is relied on to assist me to assess your prospects for rehabilitation, to consider the weight to be given to specific deterrence and to protection of the community as well as to those other matters? 

20You were 32 at the time. You were a first time mother who was struggling to cope. You were married.You had been in a relationship with your husband for 10 years' and having a child was a planned and much anticipated event.  As with many new parents, the daily reality of pregnancy and parenting presented unexpected challenges, and you did not find it easy. You felt your husband was not sufficiently supportive or involved, and you struggled with the demands of parenting.  

21On the medical reports that were provided to me, even before this catastrophe, some of your doctors had been describing you as overwhelmed by the demands of motherhood, and I accept that characterisation.

22Although you had what appears to be, at some levels, a relatively unremarkable upbringing, education and a good continuous employment history up until the time of your child’s birth, and even employment after that, there is a more complex story behind these external indicators.

23At school, you were bullied, you needed extra learning support, and you had a documented history of disengagement, including truanting.  At about 13, you were diagnosed with ADHD, and difficulties in sustaining attention and retaining information were noted. They persisted throughout your schooling. Not surprisingly, given those features, you left school relatively early in Year 11. You undertook a TAFE hospitality course and you obtained employment in hospitality. You remained employed in the hospitality area until about 2017.

24When you were about 18, your parents separated. They both returned to their native Latvia for a time. You remained here, and went to live with an aunt.  By the time you were 20, you had met your now-husband.  On reports provided to me, you were lonely.  You had not made many friends at school and you had not made many after you had left school. You were an only child, you had no siblings to turn to, and your parents were away. You seemed to move on in what was a somewhat rocky, but continuing relationship with the man who ultimately became your husband. 

25At about the age of 20, around the same time you met your husband, you were referred to the psychologist, Ian McKinnon, and you retained an on and off therapeutic relationship with him for the next 10 years.  

26Over that time, you presented to him at times with increasing frequency and at other times you went for extended periods without a need to see him.  He treated you for various things, that can be generally described as behavioural difficulties, anxiety and depression. In his opinion, you have a borderline intellect, and he had noted, well before this, that your general knowledge, verbal reasoning and conceptual thinking were all limited.  That was consistent with some of your school assessments too. 

27Nonetheless, you managed to maintain employment up until 2017, in hospitality and for two years after that, as an Uber driver. That shows a level of adaptive capacity that is better than the recent results of an assessment of your full scale IQ. 

28Following the birth of your child, you were diagnosed as suffering from post-natal depression. For a period, DHHS became involved with your family because of concerns about whether you were coping with motherhood and were able to give your child what he needed, with limited support from your husband. It was clear that you were struggling with parenthood, and your relationship with your husband.  

29With the assistance of DHHS, your mother and mother-in-law, things improved. Your mother and mother in law each took care of your child for a day a week. Ultimately, DHHS determined that there were no longer concerns that required their intervention, that with the supports that were around you, you and your husband and extended family could safely care for your child without State intervention. During the course of DHHS involvement, they noted, that you had difficulty in concentrating, retaining information, and adjusting to differences in the child's routine.

30Since being charged with this offence, you have undergone extensive assessment by experts, and I have been provided with a wealth of reports.  First of a bundle of psychological reports from Mr McKinnon. They all pre-date the offending. They run from November 2014 through to January 2020. 

31Your therapeutic relationship with Mr McKinnon came to an end abruptly, immediately following the charges. He cited a serious conflict of interest and said he could no longer be engaged in your care. Your general practitioner, Dr Melacadsa provided two reports from August 2019 and September 2021 which cover the period before the birth of your child, the period afterwards and the period after the offending. 

32The psychologist, Lisa Jackson, has been treating you post charge. She provided reports dated March 2020 and September 2021. The Neuro-psychologist, Dr Judy Tang, assessed you and provided two reports dated 6 April 2020 and 19 April 2020. You were also assessed by the neuro-psychologist, Rachel O'Meara in June 2020. You have also been assessed by the psychiatrist, Dr Victoria Jackson, who provided a report dated 27 October 2020, and Dr Jeffrey Rubin has also provided a report dated 26 October 2021. 

33In addition, I was provided with information from the DHHS coordinator who  had been in charge of the intervention in your family but which had come to an end by August 2019, with an NDIS plan that had been prepared for you and references from your mother, Anita Hermann, and a supporter, Mr Brian Katchiagna, both dated November 21, that were prepared in the lead-up to the plea. I should note that your parents ultimately came back from Latvia and your relationship, particularly with your mother has been, it would appear, supportive and helpful. 

34As a result of the extensive assessments that you have undergone since being charged, and with the assistance of the historic reports that were documenting in real time the difficulties that you were presenting with, in particular, the difficulties in concentration, and retaining information that had been noted at school, and by DHHS, those deficits are now properly understood to be the product of low intellectual functioning, with an overlay of some psychological difficulties.

35Full scale IQ testing has revealed you have an IQ between 69 and 72. That is, hovering between the top end of the extremely low, and the bottom end of the borderline range. While your full scale IQ does not meet the criteria for intellectual disability in DSM-5 which requires an overall reading of under 70, or under the Disability Act, the failure to meet those criteria, of course, does not prevent me from properly taking into account your low intellectual functioning when assessing your moral culpability and the impact of your intellectual functioning on sentencing. 

36In order to qualify for disability services under the Disability Act deficits in adaptive behaviour as well as  measured IQ falling below borderline are required to satisfy the criteria for eligibility for disability services under the Disability Act. Although you have managed to function reasonably well, you have needed, significant emotional and psychological support.

37The reports that I have detailed that were provided on the plea as to your intellectual and psychological functioning, provide a rich and detailed insight. They all support the submissions made by Mr Allen that, in sentencing you, your intellectual functioning, and the continuing effects of post-natal depression overlying your pre-existing long term anxiety and depression are all significant factors which should and do operate to reduce the sentence otherwise available.

38I accept that your moral culpability is reduced, to an extent, because of your low intellectual functioning, and the effect, in combination with that, of post-natal depression and anxiety that existed at the time of the offending. I accept these features impaired your ability to exercise appropriate judgement and make rational choices.

39However, I am also satisfied that despite these deficits, or alongside these deficits, you knew that you should not have left your child in that car, and that you were exposing him to risk if you did.

40I make that finding as a result of the things that you said, immediately on discovering the parlous state your child was in when you did eventually return to the car.

41Immediately after you discovered him and took him inside, you said to people there that you had been there for two hours. You had not, you had been there for just  minutes under five hours. You said you had gone to the car and checked on him every two hours. You had not. CCTV footage of the car park shows that you did not return to the car at any time, or go out to the car park at any time. 

42When later confronted with that CCTV evidence, you said that you had looked at the car through the window of the venue. Even if you had done that, it would not have allowed you to see him. The car was some distance away, the windows of the car were tinted, and you were certainly not checking his state, or the car for the heat. You said you had kept the air-conditioning on and all the windows were down. You had not. All the windows were shut, the key was not in the ignition, the engine was not running and the air conditioning was not on. 

43When you took him inside, you lied about why he was in the state he was in, blaming bushfire haze for affecting his breathing. You lied about how long he had been in the car, about leaving the windows open and leaving the air conditioning on, and you begged those who had come to your child's aid not to tell your husband that you had been at the gaming venue.

44Even now, you have maintained some of those lies and minimised your behaviour. All of this points to a reduction, but a moderate one, in the weight to be given to moral culpability. That is, I accept that the first limb of Verdins has been enlivened and does justify a reduction in the weight that otherwise would be given to moral culpability. 

45I also accept that limbs 3 and 4 of Verdins are engaged, and as a result of the combination of your intellectual functioning and the anxiety and depression that you have suffered, and continue to suffer, and that the post-natal depression and anxiety you were suffering from at the time, all operate to reduce the weight that would otherwise be appropriate to give to both general and specific deterrence. 

46Whilst I accept that your capacity to exercise appropriate judgment and make rational choices was reduced compared to a person of higher intellectual functioning, and one not suffering post-natal depression and anxiety, and with the overlay of behavioural difficulties that had accompanied you throughout your adult life, I am satisfied that you knew that what you were doing was wrong, and that you were aware that there was a risk to your child by leaving him in the car. The reduction to the weight to be given to general and specific deterrence is therefore moderate.

47I will come to the application of the other limbs of Verdins later.

48Turning to the other matters that are appropriate to take into account in considering the sentence and mitigatory matters.   

49You pleaded guilty, and did so at an early stage. The plea of guilty is entitled to be given full weight for its utilitarian benefits, for advancing the interests of justice, as an indication of an acceptance of legal responsibility, and within the limitations that your conditions impose on you, an acceptance of moral responsibility.

50Your plea of guilty also carries additional weight at a time when the COVID pandemic is still creating such difficulties for the administration of justice. The delays for cases currently before the courts are considerable, and guilty pleas should and must, be given significant additional weight because of the contribution that they make to reducing the backlog in the court's lists. 

51You have a very limited criminal history, and nothing for any offences involving any risks to children, or anything involving violence. Your limited criminal history is totally dissimilar, it relates to dishonesty. Its only relevance from my perspective is that it means it is not your first time before a court. The nature of other offending confirms the assessment, from neuropsychological reports and from the evidence about the way you have lived your life generally, that you function at a higher level than reliance on your full scale IQ alone would suggest. That is, it confirms you do not have, in some aspects, significant deficits in adaptive skills.

52I also take into account as a significant factor, the delay: it has been over two years since this happened, and you have had the burden of this matter hanging unresolved over your head for all that time.  None of that delay has been attributable to you.  It has been a systemic delay because of the time it takes for these matters to come before the court, and that I consider to be a significant burden weighing on you and that I take into account. 

53I consider also that it is appropriate to take into account that whilst many people who come before these courts do so relatively anonymously, the circumstances of this offending and the devastating results for your child have meant that from the time that it happened, your name has been in the public domain and you have been subject to shame, judgment and abuse. Whilst you, of course, have to accept responsibility for your behaviour, and whilst in sentencing, the court holds you accountable,  the extra punishment from the treatment that has been meted out to you by the publicity and by people to you directly, is something that is an additional burden and I take it into account. 

54Whilst none of this is intended to encourage vigilante behaviour, or people taking it on themselves to subject you to abuse, it is an unfair added burden that you have had to carry the abuse and the public exposure of wrongdoing that generally most other wrongdoers are able to avoid. 

55The other additional punishment I take into account is this: Your child is now profoundly disabled. You know that, and you know it is your conduct that brought it about. That is a burden you carry for the rest of your life, and it is something that no court process can change, but I accept that you carry that burden, carry it heavily, and that is a punishment in some ways much more significant and profound than anything my sentencing remarks today will do.  

56I also accept as a hardship in this matter that should be treated as a mitigator, that your child not been returned to your care.  Whilst you found pregnancy and motherhood much more difficult than you had anticipated, I accept that you loved your child, you wanted the best for him and that this remained a much-loved and wanted outcome for you in your life. He has not been returned to your care. He is in the care of a family member.

57Although you express hope that ultimately he will be able to be returned to your care, on the reports that have been provided to me, that may well be an unrealistic dream at this stage.  Even with additional support around you, that may be something that could be difficult, given your deficits. 

58There is some evidence that you continue to falsely assert that you checked on your child, that you continue to minimise your role and responsibility, and that you maintain you were unaware of the dangers of leaving a child in a hot car. Your assertions that you were unaware of the dangers do not sit well with the fact that you lied about the time that you left him unattended, and about the attribution to this condition to bushfire smoke. 

59Even if you did not appreciate that your child could suffer the sort of catastrophic injuries your child did, I am satisfied that you were aware that it was unsafe and dangerous to leave a child in a hot car.That you said you left him uncovered and with a water bottle in reach also indicate that you had an awareness that it was dangerous and it should not happen.

60You have what may be an unrealistic belief about your child's potential for improvement, and your capacity to be able to provide him with all the care that he needs. Whilst at one level, I am troubled by that, I accept that those matters may well be a product of your intellectual functioning, and of the way that you have tried to come to terms with the enormity of what you have done. I do not consider that any of those matters should diminish the weight to be given to the remorse I accept that you feel and experience, and I take that into account, therefore, in finding that you are genuinely sorry, giving weight to your plea of guilty and in assessing your prospects for rehabilitation. 

61The other matter of hardship relied on by Mr Allen and which I accept is, the impact of imprisonment upon you because of your impaired mental functioning, if I can use that as an umbrella term, that is, your level of intellectual functioning, the long-term history of depression and anxiety and the behavioural overlays that have impacted on you.

62Having accepted all those matters, I do not, though, consider that the second limb of Verdins, that is that those matters make imprisonment unsuitable as a disposition is enlivened. I do, however, accept that the fifth and sixth limbs of Verdins are enlivened, that is, that imprisonment will be more burdensome for you as a result of them. 

63I also accept in accordance with what the Court of Appeal has said in Worboyes and other cases, that in considering whether imprisonment is an appropriate disposition, and if so, the length of the term of imprisonment, the impact, the continuing impact of COVID-19 on prisoners that the pare significant both in terms of determining whether to impose a term of imprisonment, and if so, the length of the term. 

64Those impacts are well known, and I think unnecessary to continue to recite at length. Restrictions on movement, restriction on visits, restrictions on access to courses and services, restrictions on being able to communicate with the outside world as well as the fear of not being able to control yourself, your safety in your own environment because of being imprisoned are all significant factors that can and should carry considerable weight.  The longer the pandemic continues, the longer prison populations are at risk and the greater the impact of restrictions is, and I accept and give full weight to all of those. 

65Mr Allen's plea was put on basis that in all of the circumstances, despite the seriousness of the offending, and given that this was an offence that is measured by a failure to achieve an objective standard, rather than subjective wrongdoing, that a community correction order alone, or in combination with a term of imprisonment, by law, restricted to no more than 12 months was the appropriate disposition. 

66The  prosecution submitted that a term of imprisonment was required.

67At the time of the hearing of the plea last year, I had not made up my mind whether a community correction order, whether accompanied by, or unaccompanied by a term of imprisonment was appropriately within the range of what I thought was the appropriate sentence, but I had not ruled it out, and so I directed that you be assessed for community correction order. 

68Given the evidence, the extensive evidence that had been placed before me in relation to your intellectual functioning, I asked for you to be assessed for suitability for a Justice plan, which is the way a community correction order is usually administered for people with intellectual impairment.

69You were assessed and found to be unsuitable for a Justice plan because you do not meet the criteria under the Disability Act for intellectual disability.  That is, a significant sub-average, general intellectual functioning, together with significant deficits in adaptive behaviour.

70At the recommendation of Corrections I requested a full assessment rather than the usual one day turnaround assessment for your suitability for a community correction order. It seemed to me that a more considered assessment of the wealth of materials that had been provided, was going to be of much more assistance in determining your suitability for a community correction order and for the sort of conditions that would appropriately attach. That full CCO assessment has now been conducted and provided to me and to the parties. 

71That assessment report noted your continued assertions that you had checked on your child, despite the CCTV evidence disproving that. The report found that you were at low risk of re-offending, and that you were suitable for a community correction order. 

72I invited submissions on that community correction assessment report because it contained an assessment of the expert evidence, and the applicability of Verdins.  Ultimately, of course, the assessment of your moral culpability, and the applicability of Verdins, the weight to be given to the neuropsychological and other expert reports, is a matter for me, and without necessarily accepting the submissions of Mr Allen about the inadmissibility of parts of the assessment, I have excluded from my consideration all the matters that he objected to in his supplementary submissions. 

73So the matters that I have referred to in terms of making my assessment about moral culpability and about the applicability of Verdins are conclusions that I have reached, having put out of my mind any of the matters referred to in the Corrections assessment report about them.

74I have thought long and hard about the appropriate sentence. You are a young woman whose circumstances are, to some extent, pathetic. You were overwhelmed by the demands of motherhood and you felt unsupported by your husband. Although you had other family support around you, it was not sufficient for you to be able to feel that you were coping well. You continued to seek assistance and support from professionals including, up until the time of this, Mr McKinnon. That did not seem to be enough to assist you to make a reasoned and rational decision about what you did that day. It would appear from the material before me that you were a relatively regular attender at gaming venues. You had had a gaming win not long earlier, which had not only alleviated some of the financial pressure that you felt under, but may well have encouraged you to keep going. You were isolated, and it would appear that going to the bingo sessions at the gaming venue had given you some social contact with people.That they were generally older than you, rather than your peers which, in itself is telling and rather sad. 

75Although you were described as a regular, the extensive reports and assessments provided to me, did not suggest that you have a gaming addiction or that is a significant issue and no submissions were put to me to suggest that that was the case. You clearly have a vulnerability to looking to find ways of alleviating boredom, isolation or loneliness that sadly, for some people, gaming venues can provide, but I do not see that that played a significant role in the offending and I do not consider the need to address a gaming problem as something that needs to be given weight in the sentencing. 

76I consider that you do have good prospects for rehabilitation. Sadly, in part that is because the consequences of this have meant that you are not likely to be able to put this child at risk again. It is unlikely that you are going to be able to care alone and full time for him, at least in the foreseeable future, and your social circumstances mean that it is unlikely at the moment that any other child will be put at risk. When I am talking about your prospects for rehabilitation, I consider that you have and are entitled to be given the benefit for the good prospects for rehabilitation and that is despite what I have said about what appears to be a relatively limited insight and continued minimising or denial of some aspect of the offending.  As I said, I think that is probably more a product of your general functioning and I do not take it as any evidence of lack of remorse. 

77Ultimately, I have come to the view, despite the matters that were so eloquently and forcefully put by Mr Allen, that no sentence, other than one involving a term of imprisonment is appropriate. The offending, the objective gravity of it is just too serious. The need for general deterrence and denunciation is so great that even with the reduction in weight to be given by reason of your circumstances to moral culpability, to deterrence, both general and specific, and the weight to given to your prospects for rehabilitation, none of those matters, in my view, permit a sentence other than one involving a term of imprisonment.

78However, your impaired mental functioning, that is, the combination of your intellectual functioning and the depression and anxiety, together with the impact of COVID, combine to significantly reduce a sentence that  otherwise I would consider to be appropriate. 

79I have also come to view, ultimately, that a term of imprisonment, with a non-parole period fixed, is the appropriate sentence in the circumstances.  In my view, the head sentence should and must reflect the gravity of the offending, and I consider that your interests and that of the community are better served by parole supervision than a lesser term of imprisonment followed by a community correction order. 

80This should not be taken, in any way, as a measure of the worth of your child's life or a measure of the worth or the quantification of the disabilities that he suffers. This is to punish you and to sentence you for your role in negligently causing that serious injury to him. That is, falling so far short of the standard of care for your child, that it is a criminal offence. Could you now please stand:

81Kaija Millar, on the one charge of negligently causing serious injury, to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of three years, and I fix a period of 12 months as the time that you must serve before being eligible for parole. 

82I declare pursuant to s 6AAA of the Sentencing Act, that but for your plea of guilty, I would have imposed a term of imprisonment of five years, and fixed a non-parole period of two years and six months. 

83Are there any further orders that are required to be made? 

84MR ALLEN:  I do not think so, Your Honour.

85Thank you.  Adjourn the court. 

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