Director of Public Prosecutions v Valdes (a pseudonym)
[2021] VCC 1496
•8 October 2021
ZA
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-00638
Indictment No. L10098138
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARGENTO PINEDA VALDES[1] |
[1] A Pseudonym
---
JUDGE: | His Honour Judge Parrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2021 | |
DATE OF SENTENCE: | 8 October 2021 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Valdes (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1496 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – Indictment No. L10098138 – one charge of negligently causing serious injury – plea of guilty – substantial mitigating factors – extra-curial punishment – whether community correction order appropriate sentence or period of imprisonment
Legislation Cited: Crimes Act 1958, s54; Sentencing Act 1991
Cases Cited:Director of Public Prosecutions (DPP) v Weston [2016] VSCA 243; Harrison v R; Rigogiannis v R (2015) 49 VR 619; Aston v R [2019] VSCA 225; Walsh v R [2018] VSCA 334; Worboyes v R [2021] VSCA 169; R v Doran v R [2005] VSCA 271; JBM v R [2013] VSCA 69; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Markovic v R; Pantelic v R [2010] VSCA 105; Re JB [2020] VSC 184; R v Miceli [1998] 4 VR 588; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309
Sentence: Convicted and sentenced to a Community Correction Order for a period of three years. Section 6AAA declaration: conviction and sentence of eighteen months’ imprisonment, with a non-parole period of twelve months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Grant | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms L Thies | Galbally & O’Bryan Lawyers |
HIS HONOUR:
1Argento Pineda Valdes[2], on 27 August 2021, you pleaded guilty on Indictment No. L10098138 to the charge that you, at Clyde North in Victoria on 14 June 2019, by rocking, bouncing up and down and squeezing Karla Valdes[3], caused serious injury to Karla Valdes.
[2] A pseudonym
[3] A pseudonym
2Negligently causing serious injury is contrary to s24 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
The circumstances of the offending
3During the plea hearing on 27 August 2021, counsel for the prosecution tendered two documents – the first being a document headed “Summary of Prosecution Opening for Plea Hearing” (exhibit 1) and the second being a document headed “Summary of Prosecution Submissions Concerning Sentence” (exhibit 2).
4I refer to exhibit 1 and note the following salient matters:
· You were born in August 1991 and are presently 30 years old. You were 27 years of age at the time of the offence. At that time, you resided with your family at the family home, at, Clyde North. Also living at that address was your former wife – Lilian Valdes[4] (“Lilian”) – and your two children – Marlon Valdes[5] (who was fourteen months old), and the victim of the current offence, Karla Valdes, who was born in May 2019 and was five weeks old at the time of the offence.
[4] A pseudonym
[5] A pseudonym
· At the time of the offence, Lilian’s mother, Amber Viney[6], also lived with the family and at times assisted with the day-to-day care of the children.
[6] A pseudonym
· On 14 June 2019, you returned home from work between approximately 4.00pm and 4.30pm and then spent some time with your son.
· Lilian had previously arranged for you and Ms Viney to care for the children while she went to the gym with her sister, Ava Haylen[7]. At 4.00pm, Lilian breastfed Karla and expressed some milk in case she needed to be fed while she was at the gym.
[7] A pseudonym
· At approximately 5.30pm, Ms Haylen collected Lilian Valdes and drove her to their gym in Pakenham.
· Karla was unsettled and was crying after her mother left, so you took her into the master bedroom in an attempt to settle her. Ms Viney heard Karla crying excessively and went into the room to see if you wanted any help. When she walked into the bedroom, she saw you sitting on the end of the bed holding Karla in a cradling position in your arms. You advised Ms Viney that you did not need her help.
· You spent some time trying to settle Karla using several methods and different holding positions, including “bouncing her up and down”. However, you were becoming overwhelmed as “she just wouldn’t stop screaming and crying”.
· You then held Karla to your chest and squeezed for “five to ten seconds”. You then placed her down in her bassinet and went into the bathroom to “clear [your] mind”.
· You noticed that Karla was no longer crying and went back into the bedroom to check on her, at which time Karla was unresponsive.
· At approximately 5.50pm, you called your wife and asked her to come home, saying “It’s Karla. She’s not breathing or moving”.
· At 6.02pm, you telephoned 000 and described Karla’s condition to the operator. You told the operator that Karla was not conscious and not breathing in a normal manner. You described her breathing as “shallow”, and her colour as “normal” but with “little red dots”.
· Shortly after you called emergency services, two ambulances attended, with paramedics Kate Britton and Jack Todd assessing and providing care to Karla. She was then transported to Dandenong Hospital by paramedics Somer McMaster and Cameron Reaper, arriving at the hospital at about 7.00pm.
· Both you and your wife travelled to the Dandenong Hospital. While you were in the Emergency Department, you told your wife: “I think I may have squeezed [Karla] too hard”.
While she was at the hospital, your wife approached paramedic, Cameron Reaper, and told him that you were concerned that you may have caused injury to Karla and that you felt you may have bounced her too vigorously.
· Karla was admitted to the paediatric ward of the Dandenong Hospital on Saturday, 15 June 2019, and at a handover shift, paediatric ward staff, Ms Susan O’Sullivan and Ms Emma Roberts became concerned for Karla’s wellbeing due to her presentation and appearance. They altered her care plan to reflect that her condition had deteriorated.
· During the morning between approximately 9.30am and 10.30am, Ms Roberts was then caring for Karla when she had a seizure. You were present at this time and Ms Roberts asked you if you could think of anything that may have caused Karla to become injured. You responded “Could I have done this … She wouldn’t stop crying so I squeezed her”. At the time of saying this, you demonstrated the squeeze, with your hands cupped and fingers touching.
Also, you stated: “She wouldn’t stop, so I shook her”.
Again, you demonstrated by holding your hands near your chest, motioning fast up and down.
You also told Ms Roberts:
“I put her in the cot and sat in the bathroom with my head in my hands for a couple of minutes. She was quiet. I went back to her cot and saw that she was frothing from the mouth and staring. I called the ambulance.”
· While you were talking to Ms Roberts, Ms O’Sullivan entered the treatment room and heard you spontaneously say:
“Look I don’t know if this is relevant or not. I was looking after the baby on Monday afternoon at around 4.00pm, because my wife needed a break from the kids. I was looking after her and she wouldn’t stop crying. I picked her up and squeezed her. I shook her up and down once or twice to stop her crying.”
You then demonstrated the action of cradling a baby.
· You then said:
“She stopped crying and I put her down in the cot and had a shower, my wife returned home one hour later, and we checked on the baby. I noticed that the baby had frothy mouth and was non-responsive, so I called the ambulance.”
· Karla was subsequently transferred to the Monash Children’s Hospital where she underwent extensive testing and her medical treatment continued.
· Dr Joanna Tully, a medical practitioner employed as the deputy director of the Victoria Paediatric Forensic Medical Service, conducted a thorough examination of Karla on 16 June 2019, and consulted her medical records and the results of various scans and procedures that had been conducted since she had been in hospital.
Dr Tully opined that:
“Karla had been found to have intracranial haemorrhages (subdural, subarachnoid and intraventricular), bleeding around her spinal cord, a severe hypoxic injury to her brain, multiple rib fractures, a liver laceration and evidence of possible trauma to her gall bladder.”
Later, Dr Tully also opined:
“Karla Valdes suffered a severe brain injury. During her stay on the PICU discussions were held between Karla’s family and the treating medical team in relation to the possibility that she would not survive her injuries. Karla’s neurological prognosis is uncertain. Although it is not possible to precisely predict her level of functioning, it is likely that Karla will have a degree of nuerodisability (sic) that may be significant or even profound.”
· Dr Tully also considered the admissions made by you and noted that:
“The statements made by Karla’s father (that he may have shaken her and that he squeezed her forcefully around the chest) adequately explains Karla’s injuries. Although the degree of force required to cause these injuries cannot be quantified, it is well beyond what would be deemed normal handling of an infant.”
· You attended the Dandenong Police Station on Sunday, 16 June 2019, where you were interviewed by police. During the interview, you were extremely upset and remorseful, telling investigators that you believed your actions are what have caused Karla’s current medical condition. At that time, precise details of the injuries sustained by Karla were not known, and other possible medical causes of her condition could not be ruled out.
· During the interview, you stated:
ꟷ you returned home between 4.00pm and 4.30pm.
ꟷ at that time, Lilian was getting ready to go out to the gym.
ꟷ Karla had been crying and was unsettled.
ꟷ Lilian left for the gym just after 4.00pm.
ꟷ your mother-in-law, Amber Viney, was at home and looking after your son, Marlon.
ꟷyou had been told that Karla had been fed, but had been awake for a while, so you were hoping that she would go to bed or have a nap.
ꟷ you took Karla into your bedroom, where her bassinet was.
ꟷyou attempted to settle Karla using all the methods you would normally use “to cradle her and to rock her and just try to sooth her so she would calm down”.
ꟷyou noted that Karla was not settling down and you kept changing the positions you were holding her in.
ꟷyour mother-in-law came in to offer you assistance, but you asked her instead to care for and feed Marlon (your son), while you continued to try and settle Karla.
ꟷ you noted that Karla:
“‘… kept screaming and crying and I didn’t know what to do’. You had been ‘rocking her back and forth, sitting on the edge of the bed, bouncing her up and down with her and hugging her and standing up and walking and pacing to trying to get her to calm down’.”
· When asked as to whether you had caused the injuries to Karla, you stated:
“I do think I was probably rocking her too hard. It wasn’t how I would normally try to settle her because she just wasn’t settling.”
You physically demonstrated with your arms and showed investigators how you were cradling Karla and the manner in which you tried to settle her. After conducting that demonstration, you continued:
“I just can’t stop thinking about that and I don’t know if I was doing too much ‘cause I just wanted her to calm down. And it got to a point where I was holding her and I -I had her just in front of me and I was bouncing up and down to try and get her to calm and she wouldn’t, and I held her to my chest, and I did - I squeezed her. But I don’t know how - how hard I was squeezing, or how long but I knew - I knew I had to stop and so I stopped, and I knew that wasn’t right.”
· You stated that you were not sure how long you squeezed Karla, but estimated that you did so for about five to ten seconds.
· You described feeling “overwhelmed” by the situation and put Karla down into the bassinet and went into the bathroom to clear your head.
· After a period of time you noticed Karla had stopped crying, and when you checked on her she was unresponsive and you could not see her breathing. You then called Lilian and immediately after called 000 for an ambulance.
· During the interview, you were given a mannequin baby (used for CPR training) and was asked to demonstrate exactly what methods you had used to attempt to settle Karla. You did, to a certain degree, demonstrate your actions with Karla, but you were not in an appropriate emotional state to complete the demonstration.
5Counsel for the prosecution noted that you have no criminal history, and after you were charged you were bailed and have not spent any time in pre-sentence detention.
6I should point out that in exhibit 2 – the Summary of Prosecution Submissions Concerning Sentence – counsel for the prosecution refers to a report dated 8 June 2021 from Ms Claire Cotter, the CEO and senior occupational therapist at the Cerebral Palsy Education Centre. That document was the subject of a Notice of Intention to call additional evidence, dated 19 August 2021. There was no objection to such a report being referred to during the plea. In all the circumstances, I direct that such report be tendered and marked as exhibit 3.
7In that report, Ms Cotter states that Karla began services at the Cerebral Palsy Education Centre in November 2020. Both Karla and her mother, Lilian, attend weekly group therapy sessions with an occupational therapist, physiotherapist and speech pathologist and, in addition, there are follow-up appointments for equipment.
8In particular, Ms Cotter states:
“Karla has spastic quadriplegia which means that all her limbs, her body and the muscles of her neck, face, mouth and trunk are affected, and some muscle groups are very tight and difficult to move. She needs full assistance from an adult for every aspect of her life. She will not walk on her own, communicate with speech or use her hands to play and function. She can do nothing on her own. She also has cortical vision impairment, and it is inconclusive just how much she can see. However, she appears quite severely affected.
Karla will have very severe cerebral palsy and cortical vision impairment for the rest of her life. Her condition will not improve. In a very supported position, she has learnt to nod and shake her head and is beginning to use these movements to respond to communication. She will need specialised equipment and therapy to maintain any quality of life for the rest of her life. Most people with cerebral palsy have a close to typical life expectancy if there are no medical issues.”
The burden of care is high with an extensive range of specialised equipment needed for her to be placed into for comfort, postural supports, and to access her environment – specialised chair, standing frame, toilet chair, shower chair, adapted car seat, wheelchair, switch operated technology, car modifications, home modifications to enable access.
In addition, another concerning feature of Karla is her ongoing crying and distress which, at this stage, is only alleviated by being held by her mother. Karla requires 24 hour care and ongoing caregiver support to enable her to interact a little with her environment.”
Your personal, educational and employment background
9Your counsel tendered the following documents:
(a) Outline of Plea Submissions, dated 26 August 2021 (exhibit A);
(b) Report of clinical and forensic psychologist, Mr Patrick Newton, dated 8 August 2021 (exhibit B);
(c) Reports from the treating psychologist, Ms Pryanka Nair, dated 12 November 2020 and 13 August 2021 (exhibit C);
(d) two references from your father, Mr Selesio Valdes[8], dated 4 November 2020 and 30 July 2021 (exhibit D);
(e) a letter from Ms Lilian Valdes, your former wife, dated 7 July 2021 (exhibit E);
(f) two letters from Mr Stewart Viney[9], your former father-in-law, dated 25 November 2020 and 9 August 2021 (exhibit F);
(g) a letter from Mr Fernando Valdes[10], your eldest brother, dated 24 August 2021 (exhibit G).
[8] A pseudonym
[9] A pseudonym
[10] A pseudonym
10Partly based on various submissions made by your counsel and partly based on the material to which reference has just been made, I note the following:
· You were born in Melbourne to parents who had migrated from El Salvador more than thirty years ago, before you were born. You are the eighth of eleven children in the family, who range in age between twenty-eight and forty, and grew up in Melbourne’s southern eastern suburbs.
· Your father, Selesio, worked in his own company which provided maintenance and cleaning services to church buildings. Over time, your father expanded this business to offer these services to a diverse range of businesses and others. He retired about three years ago. Your mother, Marianna[11], did not undertake paid work, but devoted herself to child rearing and domestic duties. You informed Mr Newton that your father’s work provided a good standard of living for the family. Both your parents are in their late sixties.
[11] A pseudonym
· You informed Mr Newton that being part of such a large family had generally been a positive experience, as “there was always something going on” and that your childhood environment was dominated by “noise and activity all the time”.
· You told Mr Newton that your parents’ relationship had been harmonious and that discipline in the family was relatively strict, although you added that you had generally been well behaved, so had not typically needed to be disciplined. You also told Mr Newton that your family are your strongest supports as you come to terms with the events surrounding your offending.
· The family are devout Mormons and the family’s activities were centred on the life of the church.
· Your first language is Spanish, which was spoken at home with the family. You had acquired functional spoken English language skills by the time you commenced at Primary School. In Grade 2, you transferred to another school in Hampton Park and completed the remainder of your primary schooling there. You described yourself as being a good student and had progressed through the grades without repeating or suffering other significant difficulties. You had a “good social life” at school and experienced no disciplinary problems.
· You completed your secondary schooling in 2009 and again reported no significant problems with your academic pursuits, or disciplinary or social problems while there. You continued to enjoy a supportive friendship group and was not the target of bullying or harassment. You were neither suspended or expelled from school and upon completion upon Year 12 you obtained a reasonable result.
· After completing secondary school you worked in a warehouse, saving money to fund a two-year period of missionary service with your church. You spent two years in New Zealand as a missionary and then returned to Australia when twenty-one years old and worked as a foreman. You then completed a pre-apprenticeship program as an electrician, took some time to obtain an apprenticeship, and it was not until 2018 that you were able to commence the formal part of your training. You are currently in the fourth year of your apprenticeship and reported that you enjoyed your training and obtained good feedback from your employers. Assuming no interruption to your training, you would complete your apprenticeship in March/April 2022.
· Your only significant adult relationship was your marriage to Lilian. That relationship commenced in 2013 and you were married in 2017. Your first child, Marlon, was born in April 2018 and your daughter, Karla, was born in May 2019. Neither pregnancy was planned.
· You described your marriage to Mr Newton in affectionate terms, tinged with sadness. Both you and your wife had been happy and you welcomed the first pregnancy as a blessing from God. You were excited to become a father and felt an almost immediate sense of connection and affection with your son after birth. However, your wife did experience significant post-natal depression after the birth of your son and you informed Mr Newton that you had gladly taken over care tasks for your son and supported her throughout this period.
· In contrast to your feelings in regard to the pregnancy involving your son, you had felt “scared and anxious” when you found out that Lilian was pregnant with Karla when Marlon was only four months old. You told Mr Newton that after Karla had been born you had felt increasingly burdened and overwhelmed by the situation, you found it difficult to motivate yourself, and that you lacked energy, and had been experiencing pervasive sleep disturbance and other physical changes associated with depression. You informed Mr Newton that, while Lilian had noticed your state of mind, you were not open in acknowledging the problems at that time for fear that they would add to her burdens.
· Although your relationship with Lilian continued for some months after the subject offending, the trust and intimacy between the two of you never recovered, causing you to separate in late 2019. Subsequently, a divorce was granted. You informed Mr Newton that you and your ex-wife remain on cordial and friendly terms when you communicate about childcare and related matters.
· You described yourself to Mr Newton as an emotionally-sensitive child, who was prone to experience relatively-intense distress to teasing from your siblings.
· Again, you informed Mr Newton that your only significant period of emotional upheaval was the experience of “post-natal depression” following the birth of Karla in 2019. This had been preceded by a period of stress in connection with your mother-in-law moving into the family home (in the period prior to Karla’s birth) and the high level of conflict what had been developed between Lilian and her at that time.
· You informed Mr Newton that you continued to experience depressive symptoms since the events of June 2019 and the intensity of those symptoms have waxed and waned in direct proportion to the level of stress you had been experiencing at a given time. He noted that there has been a steady reduction in their intensity over time, although you have not experienced a full remission of your symptoms at any stage since 2019.
· You consulted the psychologist, Ms Nair, for ongoing treatment for your depression, with regular counselling since 2019.
· You have engaged in very little consumption of alcohol (such consumption being prohibited by the church) and have never used illicit drugs at any time. You do not gamble and have pursued a modest lifestyle.
The evidence of the psychologist, Ms Priyanka Nair
11I refer to the report of the treating psychologist, Ms Nair, at the Health Mint Medical Centre (exhibit C). Ms Nair reports that she commenced working with you on 10 July 2019. At that time, she noted that you presented with depressive symptoms, was struggling with emotions of guilt, remorse and grief following the non-accidental injury to Karla.
12At that time, Ms Nair noted also that you were primarily concerned with your daughter’s health and was also processing the damage and potential loss of family.
13Ms Nair also reports that initial sessions were used to obtain a personal history and to provide a safe, non-judgemental space, where you could explore your emotions surrounding the incident. You informed Ms Nair that you have constantly struggled to express emotions and cope by shutting down to others and suppressing what you are feeling.
14You identify as a positive and supportive husband, and tried to avoid conflict and speaking about things you may be struggling with, to maintain harmony in the relationship and avoid “burdening Lilian”. You reported that Karla’s birth was a difficult period, as you felt overwhelmed by the additional workload in the household, although you never spoke of this with Lilian.
15Ms Nair has treated you in a variety of ways, and such treatment has continued for the past two years and presently involves you attending about once a month, although in some months there have been more frequent attendances. Ms Nair notes that despite the ongoing health concerns of Karla, not seeing your family and current legal proceedings, you have always attempted to use skills covered in therapy and to reflect on your internal processes.
16Ms Nair comments that a greater awareness of your history and self-talk has helped you to understand your emotions and behaviour. However, as at 13 August 2021, Ms Nair notes that further sessions have been scheduled, as you remain engaged in the therapeutic process.
The evidence of the psychologist, Mr Patrick Newton
17Your solicitors arranged for you to be assessed by the clinical and forensic psychologist, Mr Patrick Newton. Mr Newton conducted two extended video consultations with you in June and August 2021 – totalling approximately three hours of interviewing.
18In his report, dated 8 August 2021, Mr Newton made a comprehensive evaluation of your current mental status, a review of your personal history, consideration of relevant collateral information and performed detailed psychological testing.
19In his report under the heading “BACKGROUND TO THE OFFENDING”, Mr Newton noted that you provided a version of events that was consistent with the police summary, and in particular, Mr Newton notes that you repeatedly expressed your remorse for your actions and he refers to what you wrote, in part:
“I want my family to know, especially my daughter Karla, just how deeply sorry I am, for taking away her opportunity to a full, happy and healthy life. None of my actions were a reflection of how I felt about her, Lilian or Marlon. All I have ever wanted was to be a father and have a family.
I am sorry for putting Lilian in this position of now raising two young children on her own and tearing our family apart.
I’m sorry for all the late sleepless nights, the constant overload of information, appointments and running around. She has been such an amazing mother to Marlon and Karla and giving them all she has. I am sorry for breaking her heart and breaking her trust, I am sorry for the past two years where her own integrity was questioned on whether she was a good enough parent.
My heart breaks for my son Marlon, how confused he must be about all of this, I want him to know how sorry I am for doing this to our family. I want to be able to talk to him about this and to be able to explain to him why his little sister is the way she is now.
I don’t think I will ever be able to say sorry enough for my actions, but I want my family and everyone who has been affected to know that I truly am sorry and I am trying to be a better person and fix my bad habits … .”
20On the basis of such information, Mr Newton concluded:
“1) Mr Valdes developed significant symptoms of depression after the birth of his daughter in 2019. These were clearly affecting him before she was injured and provide a context for that event. Since the injury, Mr Valdes has been overcome with feelings of guilt and shame for his conduct. He has also experienced the full range of depressive symptoms across emotional, physical, cognitive and interpersonal areas of functioning.
2) While a component of Mr Valdes’ symptoms is the result of his prosecution, it is clear that such factors do not fully account for his presentation. In my opinion, Mr Valdes’ symptoms are sufficiently intense to meet DSM-5 diagnostic criteria for a Major depressive disorder. At present this condition presents at a mild level of severity, but there is a genuine risk that his mental state could deteriorate. At the time of his daughter’s injury this condition was operative at a moderate level of severity.
3) The symptoms of depression have well-recognised effects on the reasoning, decision-making and social cognition of those who suffer the condition: impairing their judgment and hampering their ability to make good decisions and manage problematic situations.
4) Notwithstanding ongoing compliance with psychological treatment, Mr Valdes’ symptoms continue to cause him distress. He should continue with this treatment for at least the medium term regardless of the outcome he receives in regard to these matters. It would likely be helpful if this treatment were supplemented by the provision of medical treatment.
5) Mr Valdes’ sense of identity and direction in life have been shaken by these events. Nevertheless, his personality adjustment remains normal. At base he is an introverted, dependent and submissive man who is strongly motivated to contribute to society in prosocial ways. Mr Valdes manifests no antisocial or psychopathic traits. He does not express anti-authoritarian attitudes and is not alienated from society more generally. Moreover, he does not seek stimulation through risk-taking behaviours.
6) Mr Valdes manifests no significant deficits with regard to his ability to manage his anger. He has a good awareness of the processes underpinning his experience of anger, communicates well, does not endorse attitudes likely to lead to the instrumental use of aggression, and is able to discuss a range of strategies for containing frustration and anger when they arise. Moreover, his personality adjustment is normal and he does not engage in disinhibiting behaviours.
7) Based on this assessment, I concluded that it is more likely that his injuring of his daughter arose from situational stressors the effects of which were exacerbated by limited parenting skills/experience in the context of untreated depression, than as a result of anger-management problems per se.
8) Mr Valdes was lucid and orientated throughout our consultation. He was able to discuss his situation logically and coherently. There was no indication of psychosis or formal thought disorder. Mr Valdes is estimated to be of average intelligence. He should have good potential to benefit from further education and rehabilitative endeavours.”
(My emphasis.)
21Your instructing solicitors posed a variety of questions to Mr Newton, and in his report, Mr Newton addresses each of those questions. In particular, I refer to the following:
“Was Mr Valdes suffering from any recognised psychological condition at the time of the incident?
In my opinion Mr Valdes was suffering from a Major depressive disorder of moderate clinical intensity at the time of the incident in June 2019 (see paragraphs 30 to 34).
Is Mr Valdes currently suffering from any recognised psychological condition?
Mr Valdes continues to experience the core features of the Major depressive disorder that he was suffering in 2019. With the benefit of ongoing treatment the severity of his symptoms has now remitted to the extent that this condition would now be specified to be mild (relative to other sufferers of major depression).
What are the impacts and effects of any psychological condition?
Please see the body of the report – especially paragraphs 30 to 34 – for a discussion of the effects of the depressive condition upon Mr Valdes. The impact of these problems would have been exacerbated by his relatively limited parenting skills and stressors within the home in the time leading up to the injury of his daughter.
Did any recognised psychological condition contribute to the offending conduct?
Please refer to paragraph 34 above. In short, the depressive condition impaired his ability to reason about his situation and to solve problems effectively by slowing his mental processes, making it more difficult for him to filter irrelevant material from relevant material, and adding to a tendency to reach for salient (but ineffective) solutions rather than to generate novel (but more effective) solutions to problems. As noted in my answer to the previous question, these effects would have been intensified by the impact of various family stressors and by Mr Valdes’ limited parenting skills/experience.
Any other matters deemed to be relevant to Mr Valdes’ mental health, context and offending.
Beyond the matters already raised, the main consideration of relevance relates to the potential impact upon Mr Valdes of a term of imprisonment. Specifically, were he to be placed in a custodial environment his pre-existing depressive disorder, the nature of his offending and his naivety to the custodial environment and its mores would all combine to make him a quite vulnerable prisoner. It is likely that he would be at greater than usual risk of attracting negative attention from other prisoners. Moreover, I would expect his mental state to be at high risk of deterioration. In combination, these issues would pose noteworthy management challenges and would be likely to render his experience of incarceration more onerous than that of a prisoner who was not afflicted by Mr Valdes’ particular challenges.”
22In answering those questions, Mr Newton made reference to earlier paragraphs in his report – paragraphs 30 to 34 (and in particular paragraph 34). I refer to those paragraphs, which state:
“30.As noted above, Mr Valdes has reportedly experienced persistent symptoms of depression since the birth of his daughter in 2019. He has been participating in counselling with Ms Nair since late 2019. While this treatment has contained Mr Valdes’ symptoms to some extent, his symptoms have not remitted. He has been reluctant to take medication to alleviate his symptoms, but it is clear that such medication is indicated.
31. In his consultations with me Mr Valdes reported a persisting experience of typical emotional, physical and behavioural symptoms of depression. He is overcome with a deep sense of sadness, guilt and shame for the injury of his daughter and he feels a persisting sense of powerlessness and pessimism regarding his future. Mr Valdes described his life as being bleak and he noted that, beyond interaction with his children, there are few sources of positive emotion available to him. He finds it difficult to motivate himself to participate in activities and remains socially isolated and withdrawn. Mr Valdes has ceased participation in his church community as a result of the judgment he has felt and he feels that few around him understand the depth of his guilt and shame. He feels keenly the loss of his marriage with the structure and sense of purpose it brought to his life. These events have left Mr Valdes questioning and unsure of his path in life with many of the verities which he took for granted now shaken.
32. Mr Valdes continues to experience ongoing sleep disturbance. Not only does his rumination keep him awake, but the relentless focus on his failings and the opprobrium which they have brought cement his feelings of inadequacy and unworthiness. He sleeps fitfully and awakes feeling fatigued and depleted.
33.Clearly a proportion of Mr Valdes’ current depression has arisen as a reaction to the injury of his daughter and his ongoing feelings of shame and regret in regard to it. Some aspects of this could be considered to be reflective of his willingness to take responsibility for his actions and hence of maturity and remorse. Further, Mr Valdes is well aware of the gravity of this matter and it is perhaps not surprising that he is experiencing concern about the sentence which he could face and the broader implications for his future. While such factors are important, they are not sufficient in themselves to account for the totality of his depressive symptoms. Indeed, a review of the collateral material confirms his own reports that he was already experiencing the core features of a Major depressive disorder prior to June 2019. At the time of Karla’s injury, this condition would have been at a moderate level of clinical severity (that is, relative to other depressed patients). At present, these symptoms have improved with sustained treatment so that they fall in the mild level.
34.It is commonly accepted that depressive disorders have a significant impact upon the psychological functioning of those who suffer them. Principally, the symptoms of depression result in a slowing of cognitive processing which renders the tasks of reasoning, weighing options, anticipating the likely consequences of actions and making decisions more difficult for the sufferer. Beyond this, most depressive individuals experience a significantly increased vulnerability to stress and are prone to be more reactive and less efficient. This can impair their judgment and compromise their reasoning. There is also a tendency for depressed individuals to focus on the most salient solutions to a given problem and to find it hard to generate alternative courses of action to manage problematic situations and to keep their challenges in perspective.”
The letter from Lilian Valdes, your former wife (exhibit E)
23I refer to the letter from your former wife, dated 17 July 2021.
24In her letter to the Court, Lilian describes how you and she met in March 2013 through your church and that she felt both of you were “extremely caring, supportive and respectful of each other and rarely had any confrontations”. In particular, she notes that you became her family and made her feel “comfort and security, which [she] lacked from [her] biological family growing up”.
25She notes that you married on 27 February 2016 and during 2017 you were living with your parents, trying to save for your first home. Ultimately you moved into a rental property at the time that you commenced your new job as an apprentice electrician. Your son, Marlon, was born on 4 April 2018, and Lilian notes she was extremely apprehensive about becoming a mother and suffered post-natal depression (undiagnosed) for the first six months after Marlon’s birth. In particular she states:
“… Argento was very aware of my situation and tried his best to make things better for myself. He was very attentive to our son and loved being a father. He would come home from work and spend all his time with Marlon playing because he knew I needed a break and because he wanted to. He would get up overnight to help with feeding so I could rest, and he would sit in his room every night holding Marlon and rocking him to sleep. I did feel grateful to have a partner who was so involved in his family. He loved his son so much and was so proud to be his father.”
26Lilian notes that three months after the birth of Marlon her mother moved into the residence, which caused a lot of strain on you and her, as her mother and Lilian had always had a conflictual relationship.
27Lilian notes that four months after having Marlon she became pregnant with Karla and at such time was still suffering from depression, and such news sent her into a “dark spiral”. She reports that initially she did not want to have another baby, and did not think her mentality could handle it.
28Furthermore, her younger brother had moved into the home at that time, as he had been removed from his ex-partner’s house due to lack of employment and being a drug addict. Lilian notes that:
“With a new baby, another baby on the way, a wife with post-natal depression, a new job, a mother-in-law living in our home and a drug addicted brother in law, this was a lot for Argento and myself as new parents.”
29She notes that on 12 May 2019 Karla was born, and she found this birth not as traumatic or stressful as her experience with Marlon, and she considered she was not suffering depression after having Karla and was really happy with her family. She notes that you seemed to struggle after the birth of Karla and was always tired and felt really disconnected. She reports that she urged you to either speak to a male family member or a professional, but notes with two children under two and working full time, “there didn’t seem to be enough time”.
30She records that the incident occurred approximately five weeks after the birth of Karla and she describes the impact of the incident in the following way:
“It’s hard to put into words the significant impact this incident has caused on myself and my family. It is simply horrific. We’ve all lost so much because of it.
Marlon has lost his fulltime father; someone he has an extreme attachment too. He misses common opportunities and experiences in a person’s childhood because I am always busy caring for Karla and running out to therapy appointments. Unfortunately, I cannot give him the time and attention he needs as a 3-year-old boy. He also will, without choice, have to become a significant carer in his sister’s life, especially as the three of us get older and I am physically incapable of keeping up with the demands of a disabled child.
No doubt he will have some serious emotional and traumatic issues around what has happened to his sister, why his dad has done what he has done. He already shows such confusion around his family’s situation asking questions about his dad not living there and his sister’s limitations.
For me the incident has impacted every aspect of my life. Argento and I are now divorced as of June 9th, 2021. Future plans for more children, a family life is no more.
My work has been put on hold. Prior to having Marlon, I was employed full time and the plan was to return full time once Karla was old enough. Now with Karla’s high care needs I can’t go back to work full time until she goes to school (aged 7) impacting finances significantly.
My mental health has been challenged. I’ve been through a lot of significant traumas and at times it is still hard to deal with. I am burnt out; my life is caring for two children on a daily basis. Feeding, washing, playing, entertaining, supporting etc. as well as running a house, booking, organising and attending therapies for Karla, hospital appointments, phycologists, procedures etc. My free time is following up emails and scheduling. I’ve had to learn a whole new world of health and disability as well being a single mother and having only been a mum for 3 years.”
31Lilian also records that the impact on Karla has been the most significant, in that she has lost what was going to be a full life. She notes that every part of Karla’s life is affected and typical life experiences will either be hindered or unachievable for her. Her level of independence as an adult is unknown, in respect that she will always be in some form of close proximity to her or her brother for her entire life. She notes that since the incident you have taken a significant step back from your parenting role, although she notes that you have kept in contact throughout this period. In particular, she notes that you have contact with Marlon whenever you want, both face to face and over the phone, as he knows that you are still there if he needs you. She notes that you take Marlon to soccer practise on Saturday mornings and sometimes comes over to help around the house, especially with the care of Marlon.
32In relation to Karla, Lilian notes that you say hello to her when you come over, but it has been agreed between both of you that you do not hold her or have much contact with her. She also notes that you are helping out with finances and pay a lot more than what is outlined in the Child Support Agreement. Lilian describes this aspect as being “crucial for the kids”, as it has taken quite a significant amount of financial stress off her, as she is not able to work full time right now and her government support is not enough. Lilian also notes that you have been helping with cooking dinner for the children and herself twice a week which, again, she finds extremely helpful as she is at appointments most of the time, and it has also helped Marlon with feeling that you are there to support him.
33Finally, Lilian states:
“Personally, I am still extremely confused, disappointed and hurt that this has all happened and have been feeling the weight of taking everything on. I still am trying to come to comprehend it all and work towards what is best for the children and me.
We still have a long way to go in terms of how things will look in the future and we will continue to work towards this with the support of professionals and open communication.
Argento is a good man and I know he is extremely remorseful for what he has done to myself, Marlon and mainly Karla. However, he has severely injured a child and does deserve some form of consequence for his actions. I trust whatever is decided will be fair and just. We still have a long way to go in terms of how things will look in the future and we will continue to work towards this with the support of professionals and open communication.”
The letters from Stewart Viney, your former father-in-law (exhibit F)
34In his first letter, dated 25 November 2020, Mr Viney initially describes the period when he first met you and you were courting his daughter. He notes that by the time of the wedding, he had no hesitation in trusting his daughter’s future to you as you had a “fine moral compass” and subsequently, when Marlon was born, he found you to be an attentive and doting father.
35Mr Viney describes the incident involving Karla has “rocked both families to the core”. In particular, he states:
“… From the onset I never held any grudge against Argento and actively supported him from day one. Should Argento have been of a different countenance, my attitude towards him would have so been reflected. I have not gone into the exact details of what transpired during the incident with him. I did not wish to put him through it ‘yet again’. I know how painful this experience has been for him. I am grateful Argento has the support of his immediate family and I felt compelled to provide support from Lilian’s side of the family.”
36Mr Viney also notes that while it is “painful” for you not to be actively involved with your wife and children, he is grateful that you continue to support them emotionally and financially as best you can. He also notes that he is aware of the “anguish” you have been through and commends you for taking up the referral to the treating psychologist. Finally, he states:
“Of course, Karla’s life has been altered inextricably and she will never have the quality of life one would expect for a young girl. She will require constant round the clock care. Argento has to live with this on his conscience and adapt to life without his family. He recognises this and I believe that any determination of a custodial nature would not benefit anyone at all and would not be in the public interest.”
37In his later letter, dated 9 August 2021, Mr Viney notes that you are no longer living with the family and there are now no orders in force protecting contact with Lilian and the children. Again, although there are no formal arrangements regarding contact or assistance, he notes that it is evident you are challenging all your abilities to assist the family to the best of your ability. He confirms that you play an active role in the life of your son, Marlon, and regularly take him to soccer practise on Saturday mornings. You also attend on every occasion at the request of Lilian without question and you are always genuinely pleased to see your daughter. He describes you as a significant person in the lives of Karla and Marlon, which is essential for their continued development as a father figure.
38Furthermore, although noting that NDIS is assisting Lilian, she still requires help around the house and assistance with regard to all the appointments and therapy sessions. He notes that, at your request, you step in without question and help around the house and assist with meals, and Lilian also relies on you from a financial perspective as well.
39Finally, Mr Viney points out that you are nearing completion of your apprenticeship and he has been informed by Lilian that any setback from such current employment would see future prospects severely compromised.
The references from your father, Selesio Valdes (exhibit D)
40In the letter dated 4 November 2020, your father described you as a “good upstanding mature son, man and father, he has always shown love and support to me, his father, to his mother and his siblings”. He notes that you have always been easy to get along with, made friends easily, both at primary and high school, and that he and your mother were never required to attend school meetings for any negative actions on your part.
41Your father also notes that you are an active member of the Mormon Church and have performed missionary service in New Zealand for two years, and you completed this with great success. He also notes that, on returning from your missionary work, you met Lilian and fell in love, and during this period of time you continued to work hard, and as an individual you were always looking at ways to apply yourself to improve and be a good provider. Your father described you as having good strong morals and always thinking about your family, your son, daughter and Lilian. In particular he states:
“… I know that this incident has affected him greatly, and he is very remorseful for his actions, an action that is very much outside his character. Argento misses his family, and hurts deeply about the actions that occurred that night which has greatly impacted his daughter, and even though he cannot be with them, he is constantly thinking about his son and daughter, and ways he can assist.
Since the incident Argento has been withdrawn, however never ceases to be there, whenever he is with the family and with his nephews and nieces, they love him and enjoy been around him as he is always present and truly giving of his time when with them, Argento plays with them and listens to their stories.”
42In his second letter, dated 30 July 2021, your father states that you have not stopped caring for either Lilian, Marlon or Karla, but instead is constantly aware of their needs, and he notes that you have had to relearn how to participate in their lives and does so with love and devotion, with a desire to further get to know your children and ensure that you know that you love them and ensures that they are happy. Finally, your father states:
“Argento is a good man. He is a righteous person and has a good strong understanding of who he is. He is a loving man with so many talents and abilities that he freely shares with others. He is considerate and takes the time to think about things. He is meek yet strong enough to carry others around him. He will always be there and for that I am a proud father knowing that Argento will always try to do his best and be a good citizen on the world and son, brother, uncle and father. I leave this testimony of my son, a man I admire and look up to.”
The reference from your brother, Fernando Valdes (exhibit G)
43Mr Fernando Valdes describes himself as your older brother and, indeed, the oldest of all the siblings.
44In particular, your brother notes that when your children were born you were gentle and protective and admired by all as an example of a good father. Your brother notes that nothing has changed now. Finally, your brother states:
“I know that Argento is a good man who finds himself in a terrible situation. I am privileged to call him my brother and I love him deeply. When he hurts I hurt and when he suffers I suffer. I can say the same for Lilian and Karla and Marlon. I love them deeply and they will always be my family. I hope that Argento can continue to mend his heart and mind after all that has happened. That he can continue to support his family in every capacity. I know he loves his family and will submit himself to anything to help them in what they may need.”
Matters put by your counsel in mitigation of your sentence
45The thrust of the plea put by your counsel was that, notwithstanding the objective seriousness of your offending, there was a vast array of exceptional mitigating factors which, in all the circumstances, should cause the Court to sentence you to a Community Correction Order – with various conditions – rather than an immediate period of imprisonment with a non-parole period (or alternatively a combined sentence of imprisonment followed by a Community Correction Order).
46Your counsel submitted, correctly in my view, that assessing the seriousness of your offending requires consideration of the objective gravity of your offending and your moral culpability. Your counsel referred to well-established authority directing that the objective gravity of a particular incident of negligently causing serious injury – the offence to which you have pleaded guilty – is to be assessed by reference to the degree of negligence involved and the seriousness of the injury involved.[12]
[12]See Director of Public Prosecutions (DPP) v Weston [2016] VSCA 243 at paragraph [44]; see also Harrison v R; Rigogiannis v R (2015) 49 VR 619 at paragraphs [69] and [44]
47Your counsel also noted that the offence of negligently causing serious injury requires a level of negligence of high order and must involve a high risk of serious injury.[13]
[13]See Aston v R [2019] VSCA 225 at paragraph [70]
48It was acknowledged by your counsel that your conduct has had catastrophic consequences for Karla and, furthermore, it was acknowledged that being Karla’s parent you had a high duty of care to provide her what she needed for healthy development and to protect her from harm;[14] and that you failed to uphold that duty to such a degree as to warrant criminal conviction. Your counsel qualified such submission by submitting that the degree of negligence involved was not of the “highest” order (noting that negligence of a higher order is a requisite element of the offence). In particular, it was submitted that:
(a) your conduct was momentary as opposed to being sustained;
(b) your conduct occurred at a time you were feeling overwhelmed;
(c) by definition, you did not appreciate that your conduct was likely to seriously injure Karla;
(d) although too late, you ultimately recognised that you were overwhelmed by the situation and put Karla down to take a shower and calm down;
(e) your attempts to settle Karla by vigorously bouncing and squeezing her should be contrasted to other cases involving allegations of “baby shaking” and in which an accused’s conduct is borne out of frustration, anger and/or loss of temper. Your intention at the time, so it was submitted, was to settle Karla, as opposed to showing a blatant disregard for her welfare.
[14]See Walsh v R [2018] VSCA 334 at paragraph [47]
49It is convenient to also make reference to the prosecution’s submissions on the assessment of the objective gravity in relation to the current offence. I refer to exhibit 2 – that is, the Summary of Prosecution Submissions Concerning Sentence.
50Counsel for the prosecution makes clear that there was no issue as to how the objective gravity was to be assessed and makes reference Director of Public Prosecutions (DPP) v Weston,[15] where counsel noted that such matter involved a director’s appeal against sentence imposed for offences against two victims, including the current offence committed against a four-week old infant.
[15]Op cit
51Counsel for the prosecution made reference in particular to paragraphs 44 to 47, which state:
“Assessing the seriousness of DW’s offending requires consideration of the objective gravity of the offences and of DW’s moral culpability. As this Court recently affirmed in Harrison v R,[16] the objective gravity of a particular instance of negligently causing serious injury is to be assessed by reference to the degree of negligence involved and the seriousness of the injury caused.
[16]Op cit
In this case, the judge said:
‘At the time of your offending, you stood in the position of father to each of the two victims. The duty of care that you owed to each of the child victims was a high one. In particular, the victim of Charge 1 was but four weeks old at the time that you inflicted serious injuries upon her. Objectively, your breach of your duty of care to each of these children is high and in respect of Charge 1, I regard your offending as a serious example of the crime of negligently causing serious injury.
…
Each of your victims were but children aged four weeks and three years respectively. They were in your care. The duty of care that you owed to each of them was of a high order and particularly so in respect to an infant four weeks old. The constellation of injuries suffered by the four week old child are redolent of severe shaking. Your attitude to the infant whilst born out of a combination of below average intellect and personal experience as it may be, is antithetical to proper parenting and the treatment of children. To my mind, your attitude is as unacceptable as it is inexcusable and it resulted in an assault on the victim of Charge 2.’
Unsurprisingly, counsel for DW took no issue with these findings on the appeal. They were, with respect, plainly correct. His Honour’s reference to the duty of care being ‘a high one’ rightly emphasised the stringency with which a court would view the standard of care expected of a parent (or a person in the position of parent) looking after an infant child. The utter dependence of the child on the adult’s care and protection is self-evident. Then counsel finished by quoting the past paragraph:
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.”
(Footnotes omitted.)
(Counsel for the prosecution emphasised the underlined sentence.)
52Counsel for the prosecution submitted that the following matters are relevant to an assessment of the objective gravity of the current offence:
(a) Karla was five weeks of age, extremely vulnerable and completely dependent on you at the time that she was seriously injured;
(b) At the time of the offence, you were caring for her, and as her parent, owed her a duty to protect her from harm;
(c) The offending occurred when you were trying to settle Karla and after you declined an offer by your mother-in-law, Ms Amber Viney, who noticed that Karla was unsettled and offered to assist;
(d) The pattern of injuries caused by you were described by Dr Tully as being likely to have been caused by the following mechanism:
“The pattern of head and spinal injury seen in Karla’s case is thought usually to result from significant acceleration/deceleration - rotational and angular forces applied to the head and neck ꟷ and is commonly attributed to forceful shaking with or without associated impact.”
(e) The injuries suffered by Karla were life-threatening and extremely serious. They included –
(i) intracranial haemorrhages (subdural, subarachnoid and intraventricular);
(ii) bleeding around her spinal cord;
(iii) a severe hypoxic injury to her brain;
(iv) a liver laceration;
(v) evidence of possible trauma to her gallbladder; and
(vi) multiple limb fractures;
(f) Her brain injury was described as severe, and those treating her were concerned that she would not survive. It resulted in cerebral palsy with Dr Tully opining that:
“Karla suffered a severe brain injury. During her stay on the PICU discussions were held between Karla’s family and the treating medical team in relation to the possibility that she would not survive her injuries. Karla’s neurological prognosis is uncertain. Although it is not possible to precisely predict her level of functioning, it is likely that Karla will have a degree of neurodisability that may be significant or even profound.”
(g) Counsel for the prosecution referred to the report from Ms Cotter, the CEO and senior occupational therapist at Cerebral Palsy Education Centre, dated 8 June 2020. The Court has already made reference to that report.
53Ultimately, I consider the objective gravity of your offending is high when one considers the horrific injuries suffered by Karla and indeed the active causing of harm – albeit by negligent conduct – which makes the breach of duty “grave”. I do accept that consistent with the submissions made by your counsel, I do not place your level of negligence at the utmost highest level.
54I now refer to particular issues submitted by your counsel in mitigation of your sentence. Many of these matters are not in dispute:
(a) Your plea of guilty
I return to the chronology prepared by counsel for the prosecution and set out in exhibit 1. In particular, it is to be noted that following the subject offence on 14 June 2019, you were interviewed by police on 16 June 2019 and ultimately charged on 6 January 2020. On 4 December 2020, there was the filing hearing after charges were uplifted from the summary stream, followed by a first committal mention on 29 January 2021 and a further committal mention on 2 March 2021.
Your counsel informed the Court that following the laying of the charge, you, through your legal representatives, engaged in resolution discussions while the matter was still in the “summary stream” of the Magistrates’ Court. Furthermore, the Court was informed by your counsel that you offered to plead guilty to the offence at a very early stage, between the first and second committal mentions, and following extensive negotiations with the prosecution. Such plea of guilty was accepted on 2 March 2021 at or shortly after the further committal mention on that date.
Counsel for the prosecution accepts that such plea was an early plea of guilty to the subject offence.[17]
[17]See Transcript (“T”) 56, Lines (“L”) 28-31
In particular, your counsel submitted that your early plea of guilty in relation to the offence is significant in each of the following ways:
(i) the plea of guilty has significant utilitarian value in that it has facilitated the course of justice by saving the State the time and cost of a trial;
(ii) your plea of guilty has obviated the need for witnesses, particularly your wife, and others, to give evidence in a trial, and to relive the circumstances giving rise to the horrific injuries suffered by Karla;
(iii) in particular, reference was made to Worboyes v R,[18], a very recent decision of the Court of Appeal, wherein the court stated:
[18][2021] VSCA 169
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are
guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”[19]
[19](Op cit) at paragraph [35]
(iv) it was also submitted that based on the various admissions that you made to Lilian, hospital staff and police (in circumstances when at that time it was not clear that your actions had caused the injuries suffered by Karla) there was an immediate acceptance of responsibility by you for your conduct and that your actions caused the injuries suffered by Karla.
In particular, your counsel referred to R v Duncan,[20] wherein Callaway JA stated:
[20][1998] VR 208
“A plea that demonstrates genuine remorse and prospects of rehabilitation, that is entered at the earliest practical opportunity and that saves the state a trial, witnesses both trauma and inconvenience normally justifies a high discount.”
I accept these submissions;
(b) The application of R v Doran[21]
[21][2005] VSCA 271
Your counsel referred to the various admissions made by you to Lilian, hospital staff and police, demonstrating that there was, on your part, an immediate acceptance of responsibility for your conduct and the fact that your actions caused Karla’s injuries. Most of these admissions were prior to it being even clear that you were responsible for the serious consequences suffered by Karla.
These admissions were made voluntarily and, it is submitted, provided the prosecution with important evidence necessary to convict you. It was further submitted that absent those admissions, the prosecution case would have relied solely on inferences to be drawn from medical experts. In such circumstances, it was submitted that you are entitled to a demonstrable discount in sentence to encourage others to make like admissions and, in this respect, reliance was placed on the Court of Appeal decision of R v Doran.[22]I refer to that decision wherein Buchanan JA, Eames and Nettle JJA stated:
[22](op cit).
“Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant’s admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.
The sentencing remarks in his thoughtful and comprehensive sentencing remarks canvassed the relevant sentencing considerations. Those remarks are persuasive. The crimes themselves warranted stern punishment. Nevertheless, I have formed the opinion that the sentence imposed upon the appellant does not adequately reflect the significance of the appellant’s conduct since the detection of the offences which he committed on 11 August 2003. In Ryan v. R, (2001) 206 C.L.R 267 at 295, Kirby, J. referred to the public interest that attached to a plea of guilty in revelation of additional offences which it would have been difficult to prove without confession and to the importance of a public confession of wrongdoing so that the victims would realise that they were wholly innocent. He continued:
‘Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender. This is, likewise, one of the objectives of criminal punishment and thus of judicial sentencing.’”
(Footnotes omitted.)
It is to be noted that where a substantial discount is given in relation to a sentence on the basis of a so‑called Doran discount, the voluntary confession of an accused is in circumstances where the prosecution otherwise would not have been able to prosecute the subject offences. However, as is made plain in JBM v R,[23] the so‑called Doran discount can apply in varying degrees depending on the circumstances of the matter. I refer to the judgment of Weinberg and Priest JJA in JBM,[24], wherein they state:
[23][2013] VSCA 69
[24]Op cit
“That said, there are also some powerful mitigating factors present. The first such factor was the appellant’s plea of guilty, which the trial judge accepted demonstrated genuine remorse. The plea also had significant utilitarian value. In addition, and perhaps more importantly, there was the fact that this prosecution could not have proceeded without the appellant’s cooperation with police, and the full admissions that he made.
It is true, in one sense, that the appellant’s offences were already ‘known to police’. As a matter of reality, however, they were ‘known’ only from a theoretical perspective. What the police had been told could not possibly have formed the basis of any prosecution. It was likely that the appellant would have appreciated that fact.
…
The point can be illustrated by reference to DPP v C P D. This was not a case where:
‘the offender had come forward voluntarily to disclose offences which would otherwise have been unknown. Rather, CPD made his admissions only after being required by police to attend for a formal interview and to respond to the serious allegations which the victims had made in their VATE interviews.’
This Court nevertheless held that C P D’s admissions and his pleas of guilty ‘entitled him to a significant sentencing discount’, though not, in the circumstances, ‘a really big discount’ of at least 50 per cent.
In Ryan v The Queen, McHugh J said, summarising the effect of the decision of the New South Wales Court of Criminal Appeal in R v Ellis:
‘[T]he degree of leniency to be shown for the disclosure of unknown offences will vary accordingly to (1) the likelihood that the offences would have been discovered by the authorities; and (2) the likelihood that the offences could have been proven beyond reasonable doubt in a court without the disclosure.’”
(Footnotes omitted.)
In the circumstances of this matter, there is no issue that you voluntarily made admissions, not only to the police, but to your then wife and hospital workers, which clearly could form the basis of a criminal prosecution. However, absent those admissions, I doubt that it can be said in any meaningful way that a prosecution could not be mounted against you on the basis of the circumstantial evidence which would have been available to the prosecuting authorities, that is, that you had the care of the child leading up to when an ambulance was called to take the child to the hospital and, indeed, the potential evidence of your then mother-in-law as to entering the room where you and Karla was situated and asking whether you required assistance. Obviously, your admissions as to your activities during your period of looking after Karla made the prosecution case very strong.
In all the circumstances, I do not accept that the circumstances amount to a situation where a Doran discount should be given. However, what is clear and unequivocal is that from the first signs that your daughter was ill, you made plain to all that you were concerned that your actions precipitated those problems and in no way did you attempt to dilute your role. I accept that these actions demonstrate your concern, remorse and accepting your responsibility for the tragic consequences suffered by Karla.
(c) Previous good character
It was submitted on your behalf that prior to the subject offending, you were a man of “unblemished character”, had no prior criminal history of any kind whatsoever. In particular, there had been no previous incidents of family violence and, in particular, reference was made to your statement to police by your former mother-in-law, Ms Amber Viney, wherein she describes your parenting in this way:
“I have lived with the family for a year and I observed Argento with the children. He is so patient with the children, with Lilian. He goes out of his way to make Lilian comfortable. He never complains about helping with the kids even when he gets home from work and is tired. He always helps with the children.
He is the best dad. He always looks after Marlon. Does everything for him.”[25]
[25]Statement of Amber Viney, depositions page 49 at paragraphs [37]-[38]
It was further submitted that you are well regarded by those who know you, who describe you as calm,[26] respectful,[27] and kind.[28] Mr Newton also observed that you were a “compassionate and caring man in his orientation to others”.[29] It was submitted that your good character goes beyond a lack of prior criminal history and is emphasised by your active involvement in the church and the two-year mission you completed in New Zealand.
[26]See exhibit F – letter from Stewart Viney, your former father-in-law, dated 25 November 2020; statement of Amber Viney, deps page 50 at paragraph [41]
[27]See exhibit G – letter from your brother, Fernando Valdes; exhibit D – letter from Selesio Valdes dated 4 November 2020; exhibit E – letter from Lilian dated 7 July 2021
[28]See exhibit G – letter from Fernando Valdes dated 24 August 2021; exhibit D – letter from your father, Selesio Valdes, dated 4 November 2020
[29]See exhibit B - report of Mr Patrick Newton dated 8 August 2021, page 10 at paragraph [38]
It was accepted by the prosecution that you were someone of good character prior to the subject offending.[30]
[30]T57, L1-3
I also accept that you were of good character leading up to the alleged offending and in particular, showed no signs of impatience with your children.
(d) Remorse
Your counsel submitted that you are wracked with “guilt” and remorse. Reference was made to the report of Mr Newton which evidences the degree of emotions of stress, shame and despair that has followed your offending.[31]
[31]See exhibit B – report of Mr Patrick Newton dated 8 August 2021, page 3 at paragraph [11]; page 7 at paragraph [29], and page 8 at paragraph [33]
Your counsel also submitted that the referees speak in unison of your regret and contrition:
(i)your father, Selesio Valdes, writes that “Argento carries with him a very deep guilty feeling for his actions” and that:
“… this will forever remain in his heart and being for the rest of his life, the knowledge that he was responsible for hurting his daughter tortures him nightly. Argento was not himself after the incident knowing that his daughter was hurt at this hands, he could not sleep, eat or think, he was a shell of [who] he really is.”[32]
[32]See exhibit D – letter from your father, Selesio Valdes, dated 4 November 2020
(ii)Lilian describes you as a “good man” who is “extremely remorseful for what he has done to [Lilian], Marlon and mainly Karla”;[33]
[33]See exhibit E – letter from Lilian, dated 7 July 2021
(iii)Your brother, Fernando Valdes, observes that at all times you have been “mournful and contrite”. He states:
“I know that there have been many people who immediately cast judgment on [Mr Valdes]. He never responded to it. I imagine he felt that given his actions he had nothing to defend himself or that it was better to defuse the situation by just merely bearing it. I saw first hand how he bore it all without any malice or ill intent.”[34]
[34]See exhibit G – letter from Fernando Valdes, dated 24 August 2021
(iv)The letter from your former father-in-law, Stewart Viney, who states that he is “acutely aware of the anguish [Mr Valdes] has been through as he comes to terms with what has transpired through his actions”.[35]
[35]See exhibit F – letter from Stewart Viney, dated 25 November 2020
I also refer to the report of the treating psychologist, Ms Priyanka Nair, dated 12 November 2020, who commenced treatment on 10 July 2019 (approximately four weeks after the subject offending). She notes that you presented with depressive symptoms while struggling with emotions of guilt, remorse and grief following the subject offending. It is to be noted also that she has continued to treat you from 10 July 2019 and anticipates there will be further sessions into the future.
I do accept the submission that you have been wracked by remorse in regard to the subject offending to the extent that this has impacted on your health and the need for psychological treatment which has been ongoing over the last couple of years;
(e) The application of the Verdins’ principles
Your counsel submitted that each of the so-called principles enunciated in R v Verdins, R v Buckley, R v Vo[36] are engaged on the basis of the material set out in the report of the psychologist, Mr Newton, dated 8 August 2021 (exhibit B).
[36][2007] VSCA 102 (“Verdins”)
I refer to Verdins[37] and, in particular, paragraph 32, which states:
[37]Op cit
“Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
I do accept the evidence of Mr Newton set out in his report dated 8 August 2021. I note there was no objection from counsel for the prosecution in seeking to rely on such material. I consider the report from Mr Newton to be of some substance given the time he spent with you, the detailed history obtained from you, the various testing undertaken by Mr Newton and ultimately, the clarity of opinion, all of which has caused me to accept what is contained in such report.
I accept that all six principles set out in Verdins are engaged on the basis of the evidence of Mr Newton. I also note that counsel for the prosecution accepted that each of the principles enunciated in Verdins is engaged on the basis of the material supplied by Mr Newton.[38]
[38]T57, L5 ꟷ T60, L14
Based on the evidence of Mr Newton, bearing in mind the Verdins’ principles, it was submitted that:
(i) your moral culpability is reduced. This affects considerations of what would be deemed just punishment and lessens the need for denunciation;
(ii) principles of general and specific deterrence should similarly be moderated;
(iii) a term of imprisonment would weigh more heavily on you than a person in normal health;
(iv) there is a serious risk of imprisonment having an adverse effect on your mental health.
I accept such submissions.
In such circumstances, it was submitted by your counsel that a Community Correction Order, containing therapeutic conditions, was preferable.[39]
[39]See R v Verdins; R v Buckley; R v Vo (op cit) principles one to six
In his written submissions, under the heading “Factors Relevant to an Assessment of the Offender’s Moral Culpability”, counsel for the prosecution submitted:
“8.It is submitted that the breach of that duty in this case was significant. While it is accepted that the injuries were inflicted at a time when Mr Valdes was feeling overwhelmed, and that he may not have subjectively realised that his conduct would seriously harm her, it was nevertheless a great falling short of the duty that he owed her as her carer and father.
9. The following factors are relevant to an assessment of Mr Valdes’ moral culpability: -
(a) It is relevant that he contacted his wife and triple zero when he became aware that Karla was unresponsive.
(b)He was clearly distressed and concerned when he was dealing with police, emergency workers and hospital staff;
(c)When speaking to his wife and hospital staff while at the hospital, Mr Valdes made some admissions;
(d) He made detailed admissions when interviewed by investigators on 16 June;
(e) He offered to plead guilty to the current charge at an early stage of the proceedings. That offer was made on 2 March 2021 at the second committal mention.
(f) Mr Valdes has no criminal history and presents as someone who was of good character.”[40]
[40]See exhibit 2 at paragraphs [8]-[9]
I accept that each of the factors referred to at
(a) through (f) are relevant in coming to a view about your moral culpability.When speaking to such submissions on the date of the plea, counsel for the prosecution reiterated it was accepted that the first limb of Verdins may reduce an offender’s moral culpability and affect what is considered to be just punishment and lessen the need for denunciation. In particular, counsel for the prosecution went on to say:
“Now, it’s accepted that that applies in this case because of Mr Newton’s finding that Mr Valdes was impacted by significant depression at the relevant time. Though it would reduce his moral culpability and so affect just punishment and, as I have submitted, moderate perhaps the principle of denunciation or how that applies in this case.”[41]
[41]T57, L15-21
Counsel for the prosecution also submitted that there should be some sensible moderation in relation to general deterrence given that there was still a role to play by general deterrence, as he had earlier submitted.[42]
[42]T58, 20-26
When queried by the Court how strong was the issue of specific deterrence even before moderation, counsel for the prosecution stated:
“It’s not a great factor and Your Honour would be entitled in my submission to accept my learned friend’s submission that because of the impact that these events have had on Mr Valdes’ life and because of his efforts since the offending to seek assistance, to help his family, et cetera, indeed that that sentencing consideration has been already dealt with by Mr Valdes. I don’t take any issue with that, Your Honour.”[43]
[43]T59, L3-10
(f) Matters of hardship
Your counsel submitted that, notwithstanding that you no longer live with Lilian and your two children, you remain very much invested in the family, the lives of your children and, in particular, Karla’s recovery.
In particular, it was noted that you earn approximately $920 per week and contribute $400 to Lilian. In her letter, Lilian describes this assistance as “crucial”, as it relieves her of a significant amount of financial stress. You also cook and deliver meals to them twice a week. Your counsel referred to the reference from Lilian’s father, Stewart Viney, wherein he states, and I again repeat:
“… Argento is channelling all his abilities to assist the family to the best of his ability. As such, the family unit has stabilised and Lilian relies heavily on Argento in all aspects of raising the family. Whilst having significant involvement with the family unit, he is non-intrusive and respectful of their needs and wishes.
…
… At [Lilian’s] request Argento steps in without question and helps around the house and assists with the meals. Lilian relies heavily on Argento from a financial perspective as well, without his assistance the family would certainly struggle. I am aware that Argento is nearing completion of his apprenticeship and Lilian informs me that any setback from his current employment would see future prospects severely compromised.”[44]
[44]See exhibit F – letter from Mr Stewart Viney, dated 9 August 2021
It was submitted by your counsel that such circumstances give rise to the following:
(i) your imprisonment will impose exceptional third-party hardship upon the family – both in financial, material and moral assistance;
(ii) bearing in mind that you are well aware that your actions have caused your family to be in such a difficult situation and that if you were unable to assist them, even in small ways, while incarcerated, it would further add to your anguish and distress which, in turn would make your time in custody more burdensome.
Later, in her oral submissions, your counsel refined paragraph (a) by conceding that financial stress on a person or family where tan offender is the breadwinner, is a usual consequence of a crime and could not be said to give rise to “third-party hardship”. However, your counsel maintained the submission on the basis that the hardship is exceptional due to the level of injuries suffered by Karla that require full-time care of the mother.
Counsel for the prosecution accepted that “hardship” was “definitely relevant” in circumstances where, if imprisoned, you would suffer hardship resulting from concerns about your family’s financial and material welfare – in circumstances where you could not continue to pay the amounts of money that you have been paying to Lilian.
In relation to the first consequence relied on by your counsel, counsel for the prosecution submitted that if you were sentenced to a period of imprisonment, the impact on the family, that is Lilian and the two children, could be taken into account, but as to whether that would amount to “exceptional circumstances” would be a “very difficult question”.[45]
[45]T64, L15-22
Of course, the reference to “exceptional circumstances” relates to the well-known decision of Markovic v R; Pantelic v R.[46] In that decision, the Victorian Court of Appeal (consisting of Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) re-affirmed the common law position that, unless the circumstances are shown to be “exceptional” family hardship, it is to be disregarded as a sentencing consideration.
[46][2010] VSCA 105
In Markovic,[47] the issue was also ventilated that even in the circumstances of family hardship not being judged to be “exceptional”, a sentencing court could nonetheless be called upon to exercise – on that ground – what was referred to as a “residual discretion of mercy”. The court held that, given the concept around “exceptional circumstances”, there can be no basis to exercise a discretion to exercise mercy.
[47]Op cit
I accept that if you were imprisoned you would experience hardship, knowing that your ability to give financial, material and other general assistance to your family would come to an end. I accept that that would be a real hardship to you if you were imprisoned.
However, although not free of difficulty, I am not persuaded that your family and, in particular, Karla, can establish there is “third party hardship”, as I am not persuaded that “exceptional” circumstances apply in this matter.
(g) COVID-19
Your counsel submitted that if you were imprisoned, conditions in custody continue to be more onerous as a result of COVID-19. In particular, she referred to the situation that when newly imprisoned you would be held in confinement as a form of quarantine, after which you will have less access to programs, not be able to receive visits from your family, and may be subject to further lockdowns which are needed for health reasons in addition to the initial 14-day quarantine. Reference was made to the case of Re JB.[48]
[48][2020] VSC 184 per Kaye JA
It was submitted this was particularly relevant in light of Mr Newton’s opinion about the likely deterioration of your mental health if you are placed in a custodial environment and the description of you as a vulnerable prisoner.[49] As a result, prison would be more burdensome for you than it would otherwise be in the present COVID-19 environment.
[49]See exhibit B – report of Mr Newton, 8 August 2021, page 13, paragraph [49]
Counsel for the prosecution submitted that COVID-related issues should be taken into account as amounting to hardship experienced by you if you were incarcerated.
I do consider that COVID-19 issues, as described above, are relevant and would give rise to hardship in prison beyond that which you would experience in normal life;
(h) Delay
Your counsel submitted that although mere delay in itself is not a matter in mitigation, delay which has led to anxiety and uncertainty over a long period of time is punishment in itself. Further, where an accused has used their time since offending to rehabilitate, this is a matter that can be taken into account in mitigation.[50]
[50]Reference was made to the decision of R v Miceli [1998] 4 VR 588
Counsel noted the charges were filed on 6 January 2020 and the plea hearing was on 27 August 2021. To the extent there was delay, this was not the result of your doing, and it was submitted that such delay unduly extended the period of suspense. Further, it was submitted that you have used your time since the offending meaningfully, by making efforts to rehabilitate through the engagement of regular treatment with Ms Nair. It is unclear whether such delay is an undue delay, but I do accept in principle that throughout the period of time, from at least when the charge was laid, or even when, on one view, from when the offending occurred, up until the plea hearing, gave rise to a significant time for you to “stew over” the outcome of the subject prosecution;
(i)Specific deterrence and rehabilitation
Your counsel submitted that you will live with the consequences of your actions for the rest of your life. Furthermore, so it was submitted, it was evident from the report of Mr Newton and the letters from your family, that you have been ruminating on the consequences of your conduct and are so ashamed that you stopped attending your church. Again, you have suffered the loss of your marriage and the relationship with your children in a family setting, all of which constitute a significant and heavy penalty of themselves and contribute substantially to the deterrent effect upon you.
Reference was also made to the report of Mr Newton, where he details a review of your anger management skills and propensity for conflict and aggression. His findings are set out in paragraphs 38 to 40, and caused him to come to the ultimate conclusion that you do not manifest the typical interpersonal deficits seen in those anger management problems.[51]
[51]See exhibit B, report of Mr Patrick Newton dated 8 August 2021 at page 10, paragraph [39]
Furthermore, your counsel submitted that your rehabilitation prospects are “excellent”, considering:
(i) you are without prior convictions and have no subsequent or pending matters;
(ii) you are a man of excellent character who enjoys the support of a strong family network;
(iii) you have voluntarily sought psychological treatment, which is ongoing;
(iv) you have no vices that would cause a repeat of this conduct;
(v) you have shown remorse for your offending;
(vi) in light of the above you have been specifically deterred.
I do consider that the issue of specific deterrence in the matrix of sentencing considerations is virtually non-existent for the reasons expressed by your counsel. I also accept that your “rehabilitation” prospects are excellent.
The position of the Prosecution
55Counsel for the prosecution, in what I consider to be a very fair address to the Court, accepted that many of the matters put forward by your counsel were relevant in the formation of an appropriate sentence. In particular, counsel for the prosecution accepted that there should be some moderation of general deterrence and for that matter, specific deterrence if it became relevant, and that if imprisoned you would suffer hardship because of your ongoing depressive condition and the prospect of having a significant effect on that condition when in prison.
56Ultimately, counsel for the prosecution submitted that the offending calls for a sentence with reflects the principles of general deterrence, denunciation and just punishment. It was submitted that the injuries afflicted on Karla were “grave and lifechanging”. Again, as noted by Ms Cotter, Karla will have very severe cerebral palsy and cortical vision impairment for the rest of her life, with no prospect of improvement. She will need a great deal of assistance throughout the rest of her life.
57Furthermore, consistent with what I have recorded, counsel for the prosecution submitted that the degree of negligence involved in the commission of the offence was high.
58In the circumstances, it was submitted on instructions that the only appropriate sentence would be a sentence which involves the imposition of a term of imprisonment with a head sentence and non-parole period.
59As recorded earlier in these reasons, your counsel submitted, notwithstanding the importance of general deterrence, just punishment and denunciation, the various mitigating factors “in combination” fortified the submission that it is appropriate in all the circumstances to impose a Community Correction Order as an alternative to either a traditional head sentence with a non-parole period or even a combined sentence.
60In particular, it was submitted:
“… that the community, properly informed of Mr Valdes’ circumstances, would expect a measure of mercy to be exercised here. There are unique factors at play that justify a sentence that is served in the community.”[52]
[52]Outline of Submissions of plea, page 15, paragraph [62]
61Again, your counsel emphasised that there were no significant deficits with regard to your ability to manage your anger, or any other kind of antisocial or psychopathic traits which might otherwise hamper your ability to comply with a Community Correction Order.[53]
[53]Reference was made to exhibit B – the report of Mr Patrick Newton, dated 8 August 2021 at page 12, paragraphs [44]-[45]
The assessment as to whether you were suitable for a Community Correction Order
62At the end of the plea, the Court informed the parties that there would be a direction to have you assessed to determine your suitability for a Community Correction Order. It was stressed to the parties that such report was obtained to allow the Court to have a “full hand” of available information before determining an appropriate disposition.
63You were assessed on 31 August 2021 and found to be suitable for a Community Correction Order. It was further recommended that there would be special conditions beyond the core conditions involving unpaid community work and treatment and rehabilitation in relation to mental health.
64The assessing Community Corrections officer, Ms Rachel Kuang, obtained the history from you that you offered admissions to your actions and stated that you were going through depression after the birth of your second child, Karla, and was highly overwhelmed due to family and work. When queried how you felt about the current offending, you stated that you felt “a big weight of guilt” and had been trying to do “the best I can for my former partner and children”.
65You were assessed as low risk of general re-offending and also stated to Ms Kuang that you were willing to perform a Community Correction Order.
66At the time of the assessment, you were assessed by Ms Hannah Child of Forensicare Mental Health Screening Program, who ultimately recommended that mental health treatment be a condition of the Community Correction Order, if imposed.
Conclusion
67You have pleaded guilty to negligently causing serious injury to your then five-week-old daughter, Karla. As submitted by counsel for the prosecution, negligently causing serious injury is a generic offence that applies to any conduct that causes serious injury. The serious nature of the present offence is demonstrated by the fact that Parliament increased the maximum penalty from five years to ten years for offences which were committed after 18 March 2018.
68The injuries suffered by Karla can only be described as catastrophic, involving subdural, subarachnoid and intraventricular intercranial haemorrhages leading around her spinal cord, a severe hypoxic injury to her brain, multiple rib fractures, a liver laceration and evidence of possible trauma to her gallbladder.
69Furthermore, Karla has suffered spastic quadriplegia, which means that all her limbs, her body and muscles of her neck, face and trunk are affected, and some muscle groups are very tight and difficult to move. She has very severe cerebral palsy and cortical vision impairment, which will be with her for the rest of her life.
70Ms Cotter, senior occupational therapist at the Cerebral Palsy Education Centre, noted Karla will need specialised equipment and therapy to maintain any quality of life for the rest of her life. The burden of care will be high, with an extensive range of specialised equipment needed for her to be placed in comfortable postural supports and to access her environment.
71The letter from your former wife, Lilian, is akin in some ways to a Victim Impact Statement, wherein she describes Karla’s requirements and the impact, both on her and potentially your son, Marlon, as to the necessary care that Karla will require during the rest of her life.
72As I have already recorded, I consider the objective gravity of your offending is high when one does consider the horrific injuries suffered by Karla and, indeed, the active causing of harm – albeit by negligent conduct – which makes the breach of duty “grave”. However, I do accept that, consistent with the submissions made by your counsel, I do not place your level of negligence at the utmost highest level. Similarly, I consider that your moral culpability is high, but is not at the highest, bearing in mind the circumstances leading up to the offending and your actions after the offending.
73In this respect, I have recorded that I consider that you were of good character leading up to the subject offending and was well regarded by those who know you, being described as calm, respectful and kind. In particular, the evidence available to the Court would clearly suggest that you were family orientated and was involved with your children. Your former mother-in-law, Ms Amber Viney, as I have already recorded, described you as being “patient with the children” and as “the best dad”.
74I also accept that after the birth of your first son, Marlon, on 4 April 2018, your wife suffered undiagnosed post-natal depression for approximately six months. In her letter to the Court, Lilian states that you were aware of her situation and tried your best to make things better for her. Furthermore, she notes that you were very attentive to Marlon and loved being a father, and would come home from work and spend all your time with Marlon playing because you appreciated that she needed a break, and because you wanted to. Furthermore, she notes you would get up during the night to help with feeding so she could rest.
75Some four months after having Marlon, Lilian became pregnant with Karla, and it was over this period of time you commenced to experience symptoms of depression, as you appeared to struggle with the birth of Karla, was always tired and felt really disconnected. You were in this state when the subject offending occurred.
76Furthermore, I accept that from the moment you became aware it was your actions that caused such problems, you made various admissions to your wife, hospital staff and ultimately the police. Furthermore, the guilt and remorse which followed your realisation that you caused the injuries to Karla has been intense, causing you to seek, within a number of weeks after the subject offending, psychological treatment for such conditions.
77I accept that you are very much aware of the consequences of your actions. Whatever relationship you may have with Karla in the years to come, it is something you will have to bear for the rest of your life that you were the cause of such problems. In particular, given your love for family life and, in particular, your children, such a burden to carry will be a heavy one, with constant reminders of your actions throughout the years.
78Of course, you are now divorced from someone with whom you had a loving relationship up to the time of this offending, and no longer are you able to enjoy what may be considered to be normal family life with your children.
79To your credit, Lilian has made it plain that she encourages your contact with Marlon, but generally tries to limit it with Karla. Again, there is no issue that since the occurrence of the offending you have been actively involved in both supporting Lilian and your family, both financially and materially, and assisting as and when required.
80When considering an appropriate sentence, I am of the opinion that general deterrence, just punishment and denunciation of such offending are important considerations. As I have already recorded in these reasons, I do not consider that specific deterrence looms large at all, as I consider, given your guilt, remorse and reaction to the subject offending, it will be highly unlikely you will ever repeat such an action. In coming to a view, I also take into account the opinion expressed by Mr Newton, that you have no antisocial or psychopathic traits. Furthermore, Mr Newton was of the opinion that as an introverted, dependent and submissive man, you are strongly motivated to contribute to society in a prosocial way and do not express anti-authoritarian attitudes, nor do you seek stimulation through risk-taking behaviours.
81I am also of the opinion, as already expressed in these reasons, that each of the six principles set out in Verdins[54] are encouraged by the material supplied by Mr Newton. In particular, I do consider that bearing in mind that you were in a depressed state at the time of the subject offending does reduce your moral culpability in respect of your offending conduct, does affect the punishment that is just in all the circumstances, and denunciation is less likely to be a relevant sentencing objective. Such is made clear by principle one.
[54]Op cit
82Furthermore, I also consider that general deterrence should be moderated as a sentencing consideration, bearing in mind the nature, severity and impact of the symptoms described by Mr Newton at the time of your offending. In this respect I refer to principle three set out in Verdins.
83Both counsel referred to various decisions with the strong caveat that each matter turned on its own facts and were of limited value. After reading the various decisions, I accept that proposition.
84I am also of the view that you have powerful mitigating factors, to which I have referred to in these reasons, including:
(a) your early plea of guilty, obviating the need for a trial, and also avoiding the situation were your former wife and others would have to give evidence at a trial and relive the circumstances giving rise to the horrific injuries suffered by Karla. Of course, the utilitarian effect is more pronounced in present circumstances, as set out in Worboyes;[55]
(b) the various admissions made by you immediately following the offending, which demonstrates your concern, remorse and acceptance of your responsibility for the tragic consequences suffered by Karla. You performed such without equivocation;
(c) Your previous good behaviour, to which I have already referred to;
(d) Your overwhelming remorse and “guilt”, commencing virtually straight after the occurrence of the offending and continuing to this date to such an extent that you need ongoing psychological treatment to deal with those issues;
(e) The application of Verdins’-type principles, to which reference has already been made;
(f) Matters of hardship you will suffer if incarcerated, including issues surrounding the COVID-19 pandemic, your inability to continue financing Lilian and assisting with your family and, indeed, hardship which will flow from you suffering a depressive condition in prison with the likelihood, according to Mr Newton, that could deteriorate in such a situation;
(g) Your excellent prospects of rehabilitation;
(h) That over the period from when you were at least charged with the offence, you have had the prospect of imprisonment hanging over your head.
[55]Op cit
85I refer to s5(4)(C) of the Sentencing Act 1991, which states:
“Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.”
86I also refer to the guideline judgment of Boulton v R; Clements v R; Fitzgerald v R,[56] which gave direction as to how to apply the legislation relevant to Community Correction Orders, which effectively replaced suspended sentences.
[56](2014) 46 VR 309
87In Boulton,[57] the court stated that a Community Correction Order is a flexible sentencing option that, in theory, can replace the need for imprisonment, even for serious offences, because it may serve all the purposes of punishment.[58] A Community Correction Order can also provide specific and general deterrence.[59]
[57]Op cit
[58]See Boulton v R; Clements v R; Fitzgerald v R (op cit) at 337-338, paragraphs [123]-[130]]
[59]See Boulton v R; Clements v R; Fitzgerald v R (op cit) at 340-341, paragraphs [42]-[145]
88I consider the circumstances surrounding your offending are tragic on many levels. Obviously tragic for your daughter, Karla; also tragic for Lilian, who will carry the burden of looking after Karla into the foreseeable future; tragic for your son, Marlon, who, as Lilian notes, will no doubt be brought into helping assist with the care of Karla as he grows older; tragic for the various relatives on both sides of the family and, indeed, tragic for you also, to the extent that although you were the cause of the injuries suffered by Karla, you will carry your guilt and remorse likely for the rest of your life and, also, as I have already recorded, you have lost a wife who you were happily married to and lost being surrounded by your children, which, at best, will be intermittent in the future. You also will have to explain to your son, Marlon, at some time, the circumstances surrounding your actions causing Karla’s injuries.
89I have come to the view – although I might add the process has been far from easy – that in all the circumstances, you will be sentenced to a Community Correction Order which will contain a punitive feature involving a significant period of unpaid work and also a special condition in relation to attending mental health requirements, as suggested by the Community Corrections officer.
90Please be upstanding:
(a) In relation to Charge 1, you are convicted and sentenced to a Community Correction Order for a period of three years, commencing from this date. In addition to the normal conditions, the following conditions are to apply:
(i) pursuant to s48C of the Sentencing Act 1991, you are to perform 250 hours of unpaid community work over the course of the Order;
(ii) pursuant to s48D of the Sentencing Act 1991, that you undergo any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility. The Court notes you have been receiving psychological treatment from Ms Nair, which should be continued;
(b) Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your plea of guilty in relation to the subject offending, I would have sentenced you to a period of eighteen months’ imprisonment, with a non-parole period of twelve months.
91You are required to report to the Dandenong GSO situated at 46-50 Walker Street, Dandenong, Victoria, 3175, within two days of this date to be inducted into the order.
92Mr Valdes, it is my duty now just to say what you have been sentenced to. You have been sentenced to a Community Correction Order for a period of three years. As you know, you have been assessed for a Community Correction Order and you were found suitable. A Community Correction Order is like any other sentence of the court. You must abide by the conditions of the order. If you do not, you may well be what is called breached. What that means is you will be brought back to me on the basis that you have not complied with the order or breached the order. So it is important that you keep in your mind that it is a sentence of the court and you must comply with the conditions.
93Again, and no doubt this will be explained to you by your legal representatives, one of the conditions of the order is that you have to do 250 hours unpaid community work. Now, I appreciate that you are on the verge of or have become an electrician. This work will have to be done outside those times and you will have to make an effort to find the time to do the work because that is part of the order and if you do not do that, you will breach the order. So it is very important you bear that in mind.
94The second condition I have put in the order is that you be assessed psychologically. Obviously enough, based on the report of Mr Newton you have ongoing psychological problems and thus the care from Ms Nair but you will be assessed and helped in that respect also.
95So bear all that in mind.
96It will be necessary for you to sign some documentation. I might just leave the Bench while you attend to that.
97I should ask, anything counsel want to raise?
98COUNSEL: No, Your Honour.
- - -
0
12
0