Mok v The Queen
[2011] VSCA 247
•1 September 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0079 | |
| SHI CHI MOK | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE, NEAVE JJA and SIFRIS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 August 2011 |
| DATE OF JUDGMENT | 1 September 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 247 |
| JUDGMENT APPEALED FROM | The Queen v Shi Mok (Unreported, County Court of Victoria, Judge Douglas, 25 March 2011) |
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CRIMINAL LAW – Sentence – Appellant found guilty of negligently causing serious injury to infant son by placing him in hot bath – Whether appellant sentenced on correct factual basis – Whether sufficient weight given to offer to plead guilty and evidence of remorse – Appeal allowed – Appellant re-sentenced.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M J Croucher | Doogue & O’Brien |
| For the Crown | Mr R A Elston SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an appeal against a sentence of three years’ imprisonment with a non-parole period of 20 months imposed on the appellant following conviction on one count of negligently causing serious injury.
I have had the advantage of reading in draft the reasons for judgment of Neave JA and I agree with her Honour, for the reasons she gives, that the learned sentencing judge erred in the respects alleged in Grounds 1(b), (c) and (d) of the appellant’s grounds of appeal. In the result the sentencing discretion is re-opened and must be exercised afresh.
Like Neave JA, I would sentence the appellant to two years’ imprisonment but, unlike her Honour, I would suspend all but nine months of the sentence for a period of two years. My reasons are as follows.
First, despite the very serious consequences of the offence, I place the objective gravity of the offending down in the low to medium range. By definition, it involved a degree of negligence worthy of criminal punishment. But according to the jury’s verdict, and my assessment of the facts, it was negligence constituted of momentary inattention, as opposed to the kind of sustained, near to recklessness negligence often associated with offences of negligently causing serious injury in motor accidents. It was with a view to the latter, not the former, that the maximum penalty for negligently causing serious injury was increased from five to 10 years’ imprisonment.
Secondly, I place the appellant’s moral culpability towards the lower end of the scale. Certainly, he is responsible for what occurred and he should not have allowed it to happen. But according to the jury’s verdict, and my assessment of the facts, his negligence was the result of nothing more egregious than immaturity, inexperience and inattention. That he did not own up to the error as quickly as he should have does not alter that fact. Given his age and immaturity, one can readily understand that he might have hoped and perhaps even believed that the problem would go away without medical intervention. More importantly, there was no thought here of hurting the child or disregarding its welfare. The appellant’s intention was to care for the child by bathing it. The only problem was that he went about it negligently. His degree of moral culpability thus stands in contrast to the higher degree of moral culpability involved in the so-called baby shaking cases of negligently causing injury.
Thirdly, there is no need here for specific deterrence. There is no question that the appellant loves his son and is remorseful of causing him harm. There was also evidence put before us on the plea that the appellant’s relationship with his younger child and his ability to care for her were monitored and assessed in the home by the Department of Community Services before the appellant was gaoled, and that the Department determined that there is no reason to have any concerns about the appellant’s ability to care for the child.
Fourthly, although general deterrence is always a relevant sentencing consideration, in this case it does not loom large. It would be unrealistic to think that the sentence to be imposed in this case would have the slightest effect on the likelihood of similar offences being committed in the future.
Finally, continued incarceration of the appellant is particularly burdensome, because he is separated from his young partner and younger child and, therefore, unable to care for them when they need his support most. Additionally, due to Corrections Victoria guidelines applicable to offences involving injuries to children, as long he remains in prison, he will not be permitted to see either of his children; even at gaol on prison visiting days.
It is right that the appellant should have been imprisoned. The requirements of denunciation and just punishment demanded it. But he has now served almost nine months in prison. In my view, that is enough.
NEAVE JA:
On 10 December 2010 the appellant, Shi Chi Mok, was found guilty by a County Court jury of negligently causing serious injury to his infant son Max Mok, who was 23 months old at the time of the offence (Charge 3). He was acquitted of alternative charges of intentionally causing serious injury (Charge 1) and recklessly causing serious injury (Charge 2). After hearing a plea in mitigation of sentence the appellant was sentenced to three years’ imprisonment with a non-parole period of 20 months. He now appeals against that sentence.
The circumstances of the offending and the offender
The victim normally spent one night each week with the appellant and his wife Zixi Zhao, who is not the child’s biological mother. He lived for the rest of his time with his biological mother, Helene Wan Yee Tse.
The appellant’s evidence was that on the evening when the offence occurred he decided to give the victim a bath. He turned on the hot tap and filled the bath without realising that he had not also turned on the cold water tap. He then put the child into the bath and then left the room for less than 30 seconds to collect clean clothes and a nappy. The child was crying at the time but the appellant’s evidence was that he frequently did so when he was being bathed. The appellant said that when he realised the water was very hot, he picked the victim up immediately and ran cold water over his feet.
The victim sustained full thickness burns to his feet, ankles and the lower parts of his legs, and also had partial thickness burns to his lower back, upper thighs, buttocks, scrotum, anus and genitalia. The appellant’s evidence was that after the child was removed from the bath he observed that the child’s feet were red, rubbed them with ointment and put tissues and socks on them. He said that the child had slept during the night and had not indicated any distress as a result of his burns.
The following day Ms Zhao discovered the injury to the victim’s feet. She and the appellant took Max to the Royal Children’s Hospital in the afternoon. The appellant told hospital staff that the victim had received burns to his feet after having knocked a saucepan of boiling water on himself. Neither the appellant nor his wife informed hospital staff at this time that the victim had also sustained burns to his buttocks. These burns were only discovered by hospital staff at a later stage when they removed the victim’s nappy.
The appellant and Ms Zhao repeated this story to police when interviewed later that night. However, on 28 January 2009, the appellant and Ms Zhao each made a further unsigned statement in which they said that their initial version of events was false and instead said that the victim was burned by having been placed in a bathtub of hot water. The appellant said that he initially lied to police because he was scared.
The evidence at trial was that the temperature of the hot water was approximately 65 degrees Celsius when it came out of the tap. Dr John Harry, Dr Elizabeth McLeod, a paediatric surgeon who operated on the child to relieve the pressure caused by the burned tissue on his feet and Dr John Gall, a forensic paediatrician, each whom saw the child on the day he was brought to hospital, gave evidence about the likely cause of the burns. Their evidence was that the clearly defined ‘tidemark’ or ‘sock’ between the unburnt skin on the child’s legs and the full thickness burns on his feet, together with the absence of splash marks which are typically present when a child struggles to get out of very hot water, indicated that the burns were not accidental and that he had been intentionally lowered into the bath.
Dr Harry and Dr McLeod considered that the fact that the burns on the child’s body were less serious than those on his feet suggested that the child had been lowered into hot water twice, although Dr Harry conceded that it was possible the child could have been lowered into the water with his legs raised and then put into a standing position, so that the different burns occurred in a single immersion.
The appellant was aged 19 at the date of offending and 21 years at the date of sentence.[1] He was born in Hong Kong, where he was brought up by his grand parents. He came to Australia when he was 14 to join his mother but left home at 15 and was then homeless for a period. He was employed at the time of the plea hearing and had a favourable reference from his employer.
[1]The Queen v Shi Mok (Unreported, County Court of Victoria, Judge Douglas, 25 March 2011 (‘Reasons’) [120].
On 9 July 2008, he was convicted of burglary, and obtaining property by deception and theft, and was placed on a community based order for 12 months. On 12 October 2008, the appellant was also found guilty of theft and obtaining property by deception, and was given an accountable undertaking for six months without conviction.[2]
[2]Reasons [130]–[131].
Ground 1
The first ground of appeal was that the judge erred:
a.in finding that Max was ‘held [in the very hot bath] in such a way as to be restrained from moving’;
b.in finding that the appellant ‘deliberately plac[ed] … Max in the hot water twice and [held] him down albeit for a short time’;
c.in finding that there were two separate immersions;
d.in treating as an aggravating factor her finding that Max’s feet were held in hot water for a second and his buttock area for less time.
In her sentencing reasons, the sentencing judge outlined the medical evidence and said that:
after careful consideration of all of the evidence, I accept beyond reasonable doubt that the only plausible explanation upon the evidence in this case is that the burns were occasioned to Max Mok in circumstances where he was
placed in very hot water around 65 degrees and held in such a way as to be restrained from moving.[3]
It is implausible that a child would sit or stand and not move or splash to try and get out of water, the temperature of which was 65 degrees. The resulting injuries indicate how hot that water was.
I accept the opinion of each of the paediatricians that Max would have been in great pain which is at odds with him remaining quietly in the bath until you removed him.
Importantly there are no splash marks or burns to his hands or arms which would have taken place in an attempt by him to get out of the hot water.
Consequently I sentence you on the basis that you caused the burns to Max by placing him in hot water and holding him in that hot water, albeit for a matter of seconds - two or three for the immersion of the feet and less time or lower temperature of the water for the buttock area. I reject your explanation as implausible.[4]
[3]Reasons [80].
[4]Reasons [84]–[87].
Her Honour acknowledged that the appellant must be sentenced on the basis that he had been convicted of negligently causing serious injury rather than intentionally or recklessly doing so. However she then said that she sentenced the appellant:
On the basis that he had failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances in deliberately placing [his] son…in the hot water twice and holding him down, albeit for a short period of time.[5]
[5]Reasons [90]; see also Reasons [148].
The appellant’s counsel submitted that the verdicts of not guilty on Charges 1 and 2 compel the view that the jury did not accept the medical evidence that the clear ‘sock line’ between the burned and unburned skin and the absence of splash marks meant that the appellant must have restrained his son when lowering him into the hot water. It was further submitted that her Honour’s factual finding that the appellant placed his son in the hot water twice was inconsistent with his acquittal on Charges 1 and 2.
Her Honour’s factual finding that the child was restrained when he was lowered into the hot water was not inconsistent with the jury verdict. The jury might have accepted that the appellant deliberately restrained the child so that he could not splash when he was lowered into the bath, but was nevertheless unaware of the high temperature of the water and did not intend that the child be burned and was not reckless as to that matter. As Dr Gall acknowledged in cross‑examination, the possibility existed that there might be no splash burns when a person was inadvertently lowered into a bath containing very hot water. For these reasons I would reject Ground 1(a).
Counsel for the Crown submitted that the judge did not err in finding that Max was placed in hot water twice and that even if this was an error it was immaterial, since the jury had accepted that the appellant’s negligence met the criminal standard. I would reject that submission.
In my view Grounds 1 (b),(c) and (d) are made out. The medical evidence was that the child would have been in acute distress and pain after being burned. Even if the absence of splash marks could be explained on the basis that the appellant restrained the child when lowering him into the water, the appellant must necessarily have been aware that the child was distressed, after the child suffered the first set of burns. If the jury had accepted that the boy was lowered into the hot water twice it is inconceivable that the appellant would not have been convicted of, at the very least, recklessly causing serious injury. Since Grounds (b) and (c) are made out it is necessary to consider how the appellant should be re-sentenced.
Grounds 2 and 3
These grounds allege that the judge gave no weight to the appellant’s offer to the prosecution to plead guilty to the charge of which he was convicted; or to his remorse. I consider that her Honour should have taken account of the utilitarian value of the appellant’s offer to plead guilty to the offence of which he was ultimately convicted and of the fact that the appellant had expressed some remorse.
The finding of sentencing error makes it unnecessary to consider whether the sentence and non-parole period were manifestly excessive. But in considering how the appellant should be re-sentenced I have had regard to the appellant’s submissions on this ground. During the plea hearing the Crown submitted that a head sentence in the range of two to three years with a non-parole period of 1 to 2 years would be appropriate. It was also submitted that a partially suspended sentence would be within range.
The appellant is entitled to rely on his offer to plead guilty, on the fact that he was only 18 when he offended, that he had limited prior convictions, that there was no evidence that he had previously abused the child, and that he is likely to spend his sentence in protective custody. I have also taken account of the hardship he will suffer because Corrections Victoria has not permitted him to see his daughter Pinkcess, while he is in custody, although he has apparently been a good father to her.
Despite these mitigating factors, I consider that both the vulnerability of the victim, an infant aged only 23 months and the lasting effects the injury will have on him, place the offending at least in the middle range of seriousness of the offence of negligently causing serious injury. Max has had to undergo painful surgical procedures on a number of occasions. Further skin grafting is likely to be required in the future. He will have permanent visible scarring on his feet and may have difficulty in running.
The appellant knew that the temperature of the water coming out of the hot tap was very hot and said that he would himself have found it intolerable to have a bath or shower standing under the hot tap. The risk of exposing a small child to scalding if he or she is bathed in very hot water would have been self-evident, even to a person of the appellant’s age and immaturity. The appellant had had ongoing contact with the child since his birth, and indeed, had sole care of the child for some or all of the six months when the child’s biological mother was overseas.[6] He also had some experience in caring for his step-sister when she was an infant. His culpability was arguably higher than that of an offender who shakes a crying baby, without appreciating that this is likely to seriously injure the child.
[6]During this time, the appellant met his current wife, whom he married in February 2008: Reasons [129].
In many cases it will not be appropriate to compare the moral culpability of a driver who negligently causes serious injury, with the moral culpability of a person whose negligence occurs in a non-driving context, because negligent driving creates a very obvious risk that others will be harmed. However in my opinion, the appellant’s inattention involved culpability reaching at least the level of culpability of a driver who negligently causes serious injuries to a passenger because he is distracted by looking at SMS messages on a mobile phone.[7]
[7]In DPP v Johnstone [2006] VSCA 281, an 22 year old offender had driven off the road after being distracted by reading a text message, killing two passengers and seriously injuring a third. The appeal against sentence was allowed but the sentence of two years’ imprisonment imposed on the serious injury count was not altered. The double jeopardy principle applied in that case, which was decided before the increase in the maximum penalty.
The appellant did not take the child to hospital immediately he was burned. Dr Harry’s evidence was that Max was very distressed when he saw him and that he would have been in great pain as a result of the burns. The appellant did not seek treatment for the child immediately. Even if he did not recognise the gravity of the child’s injuries he must have placed higher priority on protecting himself than on ensuring that the burns were treated as soon as possible. Although general deterrence may not play as a great a role in the circumstances of this case as in cases involving negligent driving causing serious injury, it must also be given some weight.
I have had regard to the October 2007 Report of the Sentencing Advisory Council on the Maximum Penalty for Negligently Causing Serious Injury, which led to an increase in the maximum penalty for the offence from five to ten years.[8] Most such offences occur in the context of negligent driving or assault. Between 2000-01
and 2005-06 the median imprisonment length was 1 year and 10 months, but it was increasing over the period covered by that Report. By 2005-2006 it had increased to two years and 1 month.[9]
[8]Crimes Amendment (Child Homicide) Act 2008 (Vic) s 4, which commenced in March 2008.
[9]Sentencing Advisory Council, Maximum Penalty for Negligently Causing Serious Injury (2007) 36-37.
The Court was referred to a number of County Court decisions where partially or wholly suspended sentences were imposed on persons who negligently caused serious injury to children, prior to the increase of the maximum penalty to 10 years. I have also considered JorgensenvR,[10] which was decided after the maximum penalty was increased. In that case, this Court found sentencing error but did not alter a sentence of two years’ imprisonment imposed on an offender who accidentally shot his co-offender in the course of an armed robbery.
[10][2010] VSCA 171.
In the future it may be appropriate for this Court to consider whether sentencing practices for this offence in cases involving injuries to children adequately reflect the increase in the maximum penalty.[11] However having regard to the current sentencing practices and to the other matters to which I have referred above, I would re-sentence the appellant to two years’ imprisonment and fix a non-parole period of fifteen months’ imprisonment.
[11]This would arguably be consistent with the introduction by Parliament of a new child homicide offence, which was intended to allow the courts to depart from sentencing practices in relation to manslaughter and ‘establish new and…higher sentencing level practices’: Victoria, Parliamentary Debates, Legislative Assembly, 6 February 2008, 144 (Robert Clark).
SIFRIS AJA:
I agree with Nettle JA that the appeal should be allowed. The appellant should be re-sentenced to two years’ imprisonment of which, all but nine months should be suspended.
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