Director of Public Prosecutions v Smith
[2012] VCC 1374
•19 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00545
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY LEE SMITH |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2012 | |
DATE OF SENTENCE: | 19 September 2012 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1374 | |
REASONS FOR SENTENCE
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Catchwords: Intentionally cause serious injury (1 Charge) – 5 month old infant daughter in care of father – aggravating circumstances – mitigating factors included impact of schizoaffective disorder and likely cognitive deficits
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APPEARANCES: | Counsel | Solicitors |
| For the Crown (Plea) | Mr N. Goodfellow | Office of Public Prosecutions |
| For the Accused | Mr R. Thyssen | Victoria Legal Aid |
HER HONOUR:
Introduction
1 You have pleaded guilty to 1 charge of intentionally causing serious injury to your infant daughter, MS, on 12 September 2009. The maximum penalty for this offence is 20 years’ imprisonment.
2 You are 26 years of age. MS was 5 months old when you assaulted her three years ago.
3 You have admitted a prior criminal history which generally involves drug, property and dishonesty offences. Notably, your last appearance for sentencing before this offence was on 19 February 2009. On that date you were convicted and ordered to undergo a community-based order for 18 months on theft, attempted burglary, threat to inflict serious injury, possession of cannabis, criminal damage and possession of controlled weapon offences.
4 I was told that the threat to inflict serious injury offence occurred on 27 July 2007 after you punched the bonnet of a motorist’s vehicle and, when the occupant left the vehicle, you confronted him with a packing knife.
5 As I will explain shortly, more recently, you have been sentenced for subsequent offending and served a term of imprisonment during 2012.
The circumstances of the offending
6 The prosecution’s opening was read into transcript and tendered as an agreed summary. I have read the depositional material, which includes the witness statements, two records of interview and the transcript of the committal hearing on 16 February and 10 April 2012. The prosecution also tendered a bundle of colour photographs showing MS’s injuries. The informant was called and gave evidence to help establish the sequence of events following your arrest.
7 I do not propose to repeat all of the matters outlined in the prosecution’s summary.
8 MS’s mother is your former partner, JW.
9 At the time of the offence, you and JW resided in Hampton Park with MS and JW’s three older children from two earlier relationships, a daughter and two sons, aged 5, 7 and 9. These older children are now aged between 6 and 12 years.
10 On 12 September 2009, at approximately 11am, JW went shopping and to a birthday party with her eldest daughter. Only you and MS were at home.
11 At approximately 5.30pm, JW and her eldest daughter were driven home by a female friend. After they arrived you apparently instructed them to get inside and told JW and her friend that two men had approached the house and, as you attempted to shut the door, it flew open and struck MS in the face. You were fearful, you said, that these men would return to the house because they were the same men by whom you had been attacked a week earlier.
12 At approximately 7.30pm, after hearing her stir JW entered the bedroom. She saw marks on MS’s face and formed the view that MS ‘looked terrible.’ Her friend recommended that MS be taken to hospital.
13 Your initial response at 7.32pm, however, was not to seek police or medical assistance but to act to protect yourself by calling ‘000’ so that, should anything happen, the operator would have a record of a complaint that you had just been assaulted.
14 At approximately 8pm, MS was driven to the Dandenong hospital. She was admitted to the emergency ward.
15 You gave Dr Tulchinsky, the emergency physician on duty at the time, a similar explanation about how MS’s injuries were sustained. Among other things, the medical examination revealed multiple petechia around both eyes and bruises on MS’s right temple and on the occiput. These injuries and an evident red rash around her neck led the doctor to suspect strangulation and he took steps to notify Child Protective Services.
16 You were arrested and interviewed the same evening. Police were told, among other things:
· That MS had sustained injury when she was struck in the face by the front door as two men tried to enter your home;
· That as you tried to close the door, you had unintentionally squeezed and then dropped MS.
17 You specifically denied strangling MS. However, if as you also told police you thought that MS’s injuries were serious, it appears that you allowed some hours to elapse before agreeing to take her to hospital for treatment, during which time you busied yourself packing to stay the night at your sister’s home.
18 Specialist medical evidence has indicated that MS’s injuries were not consistent with an accidental cause or causes.
19 For instance, MS was examined by consultant paediatrician, Dr Brian Conway, on 13 of September 2009. He found:
· obvious purpuric (bruising) and petechial (pinpoint bruising) facial rash;
· a bruise near the corner of the right eye measuring 0.5cm x 1cm and bruising surrounding both orbits;
· a red rash with overlaying scab on the occiput measuring 3cm x 1cm;
· petechiae and purpura on the anterior part of the neck about the width of the mouth and red-purple-blue bruising over the angle of the mandible on both sides;
· a red area on the nape of the neck and on the left-hand side of the upper back.
20 Contrary to the history provided by you and her mother, Dr Conway concluded that the pattern of petechiae and bruising found on MS was consistent with strangulation.
21 When asked about the cause of MS’s injuries, Victorian Institute of Forensic Medicine Head, Division of Clinical Forensic Medicine, Associate Professor David Wells also informed police that the injury pattern was highly suggestive of non-accidental causation.
22 During his cross-examination at the committal hearing Dr Conway did, as your counsel submitted, indicate that the red lateral mark could have been caused by MS slipping and being held tightly around the neck. You are, however, sentenced today on the basis that you have pleaded guilty to the offence of intentionally causing serious injury, namely the combination of injuries that each of the experts have attributed to non-accidental causes. As far as I can tell, despite the answer given by Dr Conway, this was by no means a weak prosecution case and by your plea you have acknowledged the absence of an innocent explanation for the injury and this offence.
23 This is a serious assault, involving as it did physical violence inflicted on a defenceless infant. The aggravating features of this offence include the following matters:
· at the time, you were serving a sentence in the community for offending that also involved threatened violence;
· the age and vulnerability of the infant victim;
· the serious breach of trust in as much as your daughter was left in your care;
· the delay in seeking treatment.
24 The prosecution also submitted that, in this case, the falsity of the report that you were assaulted by two male intruders, made to emergency services, JW and her friend, the police and the doctors, constituted a further aggravating factor. Whilst I have reservations about your account of the circumstances surrounding the occurrence of the offence, I have not treated this explanation as an aggravating factor or, for that matter, as a mitigatory factor. It is not an aggravating factor because, despite the plea, the prosecution has not satisfied me beyond reasonable doubt that this report of an assault and an attempted entry was false. I will explain why the claimed assault and attempted entry circumstances is not mitigatory shortly.
25 The principle question arising during the plea hearing was to what extent temporary or ongoing impaired mental functioning contributed to your offending. I will also explain the mitigatory impact of impaired mental functioning shortly.
26 I was told that initially you were released on bail. However, on 5 July 2011, you were taken into custody on this offence. According to the informant, after your initial release, police were unable to locate you to serve a summons. Following the issue of a warrant, you were arrested and on 19 February 2010 charged and released on bail.
27 In the period between July 2010 and being remanded on this offence on 5 July 2011, you failed to answer bail on at least three dates. You were released on bail on 19 August 2011 and arrested on other matters on 20 October 2011. I was told that on 7 December 2011, your bail in this matter was revoked and you were remanded in custody awaiting the plea hearing.
28 However on 2 May 2012, you were sentenced on other offences to an aggregate term of 5 months’ imprisonment which, with allowance for 49 days of presentence detention, led to your release on 10 August 2012, that is release on that sentence.
29 I was told that following the contested committal hearing the matter was resolved at the first directions hearing stage. The prosecution submitted that the discount to which you are entitled for entering this plea should be confined to its utilitarian value, namely the fact that your plea has spared the witnesses the inconvenience of and the community the cost of a contested trial.
30 However, your counsel, who also represented you at the committal hearing, informed the Court that the initial discussions and negotiations to enter a plea commenced on the second day of the committal hearing. In these circumstances, whilst your plea was not entered at the earliest practicable opportunity, the fact of your plea and its timing nevertheless entitles you to a significant sentencing discount.
31 No victim impact statement was made on behalf of MS. Her condition in the period immediately subsequent to discharge from hospital is unknown. I was told that currently, MS is well and lives with her eldest half sister and this girl’s biological father. I was also told that MS spends six days every fortnight with your parents, who bring her to see you in custody and that your parents are seeking the full-time custody of their granddaughter.
32 In all the circumstances, for the purpose of this sentence I think it reasonable to infer that at the very least the serious injury inflicted at the time on this most vulnerable individual likely caused her significant pain and distress.
Personal Circumstances
33 Your background and personal circumstances are matters to which I am required to have regard in formulating this sentence. These were summarised in your counsel’s submissions and in the report of consultant psychiatrist, Dr Ong, who assessed you in December 2011 in relation to other offending and they were summarised also in the report of consultant psychiatrist, Dr Cidoni who assessed you on 17 August 2012. Notably, Dr Cidoni was privy to Dr Ong's earlier report when he prepared the report commissioned by your legal representative.
34 I was told that you were born in the Geelong area. You are the youngest of four children. You continue to enjoy the support of your parents who are regular visitors.
35 As a child, you required therapy to treat speech delay. You struggled at school and, with the support of an integration aide from grade 4 upwards, you managed to complete school to year 10. Whilst you have not undergone any neuropsychological testing to assess this, in Dr Cidoni's opinion, your intellectual functioning is either in the low average range or mild intellectual disability range.
36 You have an irregular work history mainly in unskilled work and bricklaying. However, in the 12 months preceding this offence you were unemployed and looking for work.
37 It appears that your relationship with JW commenced whilst you were both patients in a psychiatric ward. In 2011, you told Dr Ong that this relationship had involved verbal and physical aggression, although you also claimed that the physical aggression was mutual. Whatever her past behaviour, it seems that on a date subsequent to this offence, JW obtained an IVO based on later occurring abusive behaviour toward her, assaults against JW and her sister and on property damage.
38 You report a long history of contact with psychiatric services from age 17, as well as a history of binge drinking and drug abuse. By your account, you amphetamines from age 13 to 21, depending on to whom this was reported, you used heroin for a year or up to daily from age 13 to 17 and from age 13 you reported up to daily use of cannabis.
39 As I have already noted, Dr Ong assessed you during a period when you were in custody on other charges, which included shop lifting, breach of the IVO already mentioned and your failure to comply with a CBO. This was the CBO imposed in the months preceding this offence in February 2009. Your counsel told the Court that, on 7 December 2011, you appeared at a consolidated hearing in the Magistrates’ Court.
40 Dr Ong’s enquiries appear to have revealed a well documented history of psychiatric contacts and earlier diagnoses of schizophrenia and bipolar disorder, which more recently, led to a combined diagnosis, namely, schizoaffective disorder. Based on your description of your symptoms, in December 2011, Dr Ong concluded that you still met the criteria for schizoaffective disorder.
41 According to Dr Ong, this condition is characterised by psychotic symptoms such as auditory hallucinations, persecutory ideas, ideas of reference, as well as a significant mood component. The condition can lead to disorganisation, impulsivity, poor judgment and planning, deficits Dr Ong considered could have directly contributed to the offences before the Magistrates’ Court at that time.
42 Dr Ong's report did not address the relationship, if any, between your mental illness and the current offence. However, his report that Corrections had raised concerns about your paranoid mental state in a breach report, dated 7 May 2009, does suggest that in the months preceding the violent assault on your infant daughter you probably did present to Corrections displaying symptoms of your mental illness.
43 In August this year, among other things, you told Dr Cidoni that:
· in the two months prior to this offence, you had ceased consulting your treating psychiatrist, Dr Jones, and ceased taking your medication;
· at the time of the offending, you were feeling very paranoid and depressed, you believe that people wanted to kill you and you were suicidal and had been injured in the days prior to the assault after you stepped in front of a motor vehicle;
· your daughter was injured when intruders came through the door, although you contradicted this statement by also telling the psychiatrist that you were unable to recall the specific circumstances giving rise to this offence.
44 Dr Cidoni has diagnosed schizoaffective disorder and poly substance dependence which he believes is directly related to your prior offending. According to your counsel, since July 2011, you have taken daily doses of an antipsychotic medication, Seroquel, and the mood stabiliser, Epilim. Nevertheless, your symptoms remain difficult to control because, despite relatively high doses of medication, you continue to display psychotic symptoms, and in Dr Cidoni’s opinion you require ongoing psychiatric review.
45 Based on the history received by him, Dr Cidoni was satisfied that there had been a relapse in your disorder at the time of this offence, although absent corroborative evidence, Dr Cidoni was unable to determine whether your belief that your daughter was injured when intruders came through the door was delusionally based.
46 Allowing for the plea entered and all of the material before me, you did not satisfy me that, on balance, your explanation of the circumstances surrounding the occurrence of the injury was the product of delusional thinking at the time of the offence. In other words, as I have already noted, the explanation given to emergency authorities, JW and her friend, the police and the doctors is neither a mitigatory nor an aggravating factor for the purpose of this sentence.
47 This is not to say that impaired mental functioning played no role in this offence. As Dr Cidoni opined, your evident cognitive impairment and psychiatric disorder would both have contributed to impulsivity and impaired judgment at times and would have reduced your capacity to cope. In other words, he envisaged a likely link between the areas in which your mental functioning was impaired and the offending.
48 The prosecution has conceded that principles 1 to 5 inclusive, as articulated by the Court of Appeal in R v Verdins & Ors,[1] are relevant to this sentence.
[1][2007] VSCA 102
49 Essentially, the expert evidence of impaired mental functioning and its likely contribution to impulsivity, impaired judgment and impaired capacity to cope whilst caring for your infant daughter acts to reduce your moral culpability and thereby affects the punishment that is just in all the circumstances. Whilst the sentence must seek to deter physical assaults on infants, I have nonetheless allowed for some moderation of general deterrence because you are a less appropriate medium for providing an example to others.
50 However, in this case, the allowance made for moderation of specific deterrence as a sentencing consideration is nominal. This is because there is a need to protect the community and particularly infants from a person with an evident disposition toward violent behaviour. Moreover, in assessing the extent to which specific deterrence should be moderated as a sentencing consideration, I have given weight to the evidence that you have not always maintained you medication and that, despite your current medication regime, you continue to manifest symptoms of mental illness..
51 It was common ground that an immediate custodial sentence is warranted. Accordingly, the sentence also takes into account the presence of an ongoing and difficult to control psychiatric disorder and likely cognitive deficits, by reason of which the custodial sentence will likely weigh more heavily on you than it would on a person in normal mental health.
52 I was not, however, further satisfied by the medical evidence that there was a serious risk that custody would have a significant adverse affect on your mental health.
53 In mitigation of this sentence, I have also treated the plea of guilty as an indication of some level of remorse. Otherwise, the material before me did little to evidence empathy or remorse.
54 All of these matters suggest that your prospects of rehabilitation remain guarded and the risk of further violent offending, particularly in the absence of ongoing and appropriate treatment, is probably high.
Sentencing Principles
55 The primary goal in sentencing for intentionally causing serious injury to an infant is to condemn any form of violence directed to infants and to deter persons in positions of trust and power over a defenceless infant from abusing that trust and power by inflicting violence.
56 The prosecution submitted that with due regard for the aggravating and mitigating factors I have already discussed, the appropriate sentencing range in this case fell between 3½ to 5 years imprisonment with a non-parole period of between 2 and 3½ years. On your behalf, counsel submitted that the suggested range for both the head and minimum sentences was too high. He urged that the non-parole period be reduced so as not to extinguish hope. I was not persuaded by this submission that this is a case where reduction in the minimum period served is properly called for.
57 I was not referred to any comparable sentences involving a parent intentionally causing serious injury to their infant. Regrettably, in many of the cases concerning a parent injuring their infant child, the infant was deceased, an outcome which indicates how vulnerable infants are when subjected to physical violence by adults. In the circumstances described, your daughter was probably very fortunate not to have suffered more serious consequences.
58 Ultimately, the sentence I will impose is intended to reflect both your circumstances and, to the extent that these can be known and are admitted, the circumstances of the offending.
Sentence
59 Please stand, Mr Smith.
60 On 1 charge of intentionally causing serious injury you are convicted and sentenced to 4 years’ imprisonment.
61 The total effective sentence is 4 years’ imprisonment, with a non-parole period of 2 years and 8 months’ imprisonment. This sentence starts today.
62 Pursuant to s.18(4) of the Sentencing Act I will make a declaration when I hear from counsel as to the amount of presentence detention.
63 COUNSEL: 185 days, Your Honour.
64 HER HONOUR: Is that agreed, Mr Davis.
65 MR DAVIS: That's agreed, Your Honour.
66 HER HONOUR: I declare that the period of 185 days is to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the Court.
67 Pursuant to s. 6AAA of the Sentencing Act I indicate that but for your plea of guilty, a sentence of 5 years and 4 months’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment would have been imposed.
68 At the plea hearing, pursuant to s.464ZF(2) of the Crimes Act 1958, the prosecution sought an order for the taking of a forensic sample – scraping from the mouth and/or blood sample. I have acceded to their application, and in doing so, I have taken into account the seriousness of the circumstances of the offending, the fact that the application was not opposed and your prior convictions and the interest the public has in obtaining such a sample. I have signed that order.
69 I must also caution you that a member of the police force may use reasonable force to obtain that sample.
70 Your mental health issues require management and monitoring whilst in custody. For this reason copies of the psychiatric reports that have been tendered will be given to the prison authority today, together with a recommendation that any psychiatric condition be monitored and treated.
71 Counsel, are there any other matters I need to deal with?
72 COUNSEL: No, Your Honour.
73 HER HONOUR: All right, will you please remove Mr Smith. Thank you for your attendance today, counsel.
74 COUNSEL: Thank you, Your Honour.
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