R v AB and CD

[2020] NSWDC 671

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v AB and CD [2020] NSWDC 671

Hearing dates:

10/3/20-25/3/20, 21/8/20, 8/9/20

Date of orders:

8/9/20

Decision date:

08 September 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Re the offender AB:

Convicted and sentenced to an aggregate term of imprisonment of 6 years 6 months with a NPP of 3 years 10 months (8/9/20-7/7/24).

I find special circumstances.

The indicative sentences are:

Count 1 – 5 years 6 months with NPP 3 years 3 months.

Count 2 – 2 years 3 months.

I direct that a copy of the psychological report of Kris North be forwarded to Corrective Services.

Re the offender CD:

Re Count 2 - Convicted and sentenced to a Community Corrections Order for a period of 2 years. In addition to the standard bond conditions, the following conditions are to apply:

1. That the offender accept the supervision of Community Corrections for as long as deemed necessary.

2. That the offender engage in counselling and/or other psychological treatment as directed by Community Corrections.

The offender is to report to the Penrith office of Community Corrections by telephone within 7 days.

Catchwords:

Crime – Sentence – Causing grievous bodily harm to a child, being reckless as to causing actual bodily harm – Failing to provide child with the necessities of life

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

NSW DPP – Crown
AB – Offender
CD - Offender

Representation:

Counsel:
Ms V Engel for Crown
Mr Gelbert for offender AB
Mr L Brasch for offender CD

File Number(s):

2018/259535, 2018/191462

Publication restriction:

Non-publication the identity of the child victim. Therefore the names of the offenders/parents are also not for publication.

sentence

1. Mr AB and Ms CD stood trial before a jury at Parramatta from 10 March until 25 March 2020, when verdicts of guilty were returned for the following offences.

2. Mr AB was found guilty of, firstly, an offence of causing grievous bodily harm to a child, being reckless as to causing actual bodily harm. The maximum penalty for that offence is ten years' imprisonment, and a standard non parole period of four years is specified. Secondly, he was found guilty of an offence under s 43A(2) of the Crimes Act 1900 of recklessly and without reasonable excuse failing to provide a child with the necessities of life. The maximum penalty for that offence is five years' imprisonment.

3. Ms CD was found guilty by the jury of an offence under s 43A(2), that being recklessly and without reasonable excuse failing to provide a child with the necessities of life, which as I have said carries a maximum penalty of five years' imprisonment. The maximum penalties and standard non-parole period where applicable are of course important guide posts in the sentencing exercise that I have had regard to.

FACTS

4. It is for me to make findings as to the factual basis upon which the offenders are to be sentenced. My findings must be consistent with the verdicts of the jury. Any aggravating matters must be proved beyond a reasonable doubt, while matters in mitigation need only be proved on the balance of probabilities. The Crown prepared for the purposes of sentencing a document entitled "Suggested Facts on Sentence". This document was conceded by counsel for each offender as being an appropriate factual summary of the evidence, subject to some exceptions about which further submissions were made.

5. I have used that document, supplemented by my own findings based on the evidence at trial, to determine the factual bases on which the offenders are to be sentenced.

6. The child, EF, was born on 25 February 2018, and at the time of the offences he was seven weeks old. He lived with his parents, the offenders, in Dundas. Also living at that house was Ms CD's nine year old son from an earlier relationship, whose name is GH, and Ms CD's older sister Monica.

7. As Mr AB worked as a mechanic during the day, the normal sleeping arrangements were for Ms CD to look after EF each night, other than on a Saturday night when Mr AB would ordinarily care for him to allow Ms CD to catch up on sleep. EF was at this time sleeping in a bassinet which was kept in the downstairs lounge room. The bedrooms in the house were upstairs, and so the parent looking after EF would sleep on the couch downstairs.

8. On 28 February 2018 EF was taken by his parents to Westmead Children's Hospital where he was treated for a blocked tear duct. At that time the doctor described him as otherwise well and settled. On 7 March 2018 a registered nurse conducted a home visit where she assessed EF and spoke with the parents. She considered that Ms CD was coping well, but thought that Mr AB was overwhelmed. Mr AB told the nurse that he had felt overwhelmed, but had spoken to his father and to his boss and that he now felt okay.

9. The nurse told Mr AB that it was normal for some fathers to go through postnatal depression. She offered to make a referral to a counsellor, but Mr AB said he was okay because he had the support of his father. At the time of this visit the nurse conducted a head to toe examination of EF and concluded that, apart from the swelling associated with his blocked tear duct, he was otherwise normal.

10. On the evening of Saturday, 14 April 2018 Ms CD, Mr AB, Monica and EF were at home. GH was staying in the Blue Mountains with Ms CD's mother and her partner, having been picked up by them on Friday evening, as was the usual weekend practice. On the Saturday evening Ms CD, Mr AB and Monica ate together at home and they watched a movie. EF was breastfed and placed into his bassinet about 8.30 to 9pm. Monica went upstairs to bed at around 9.30 or 10pm and said she saw Ms CD breastfeeding EF.

11. Ms CD later told police that she last successfully breastfed EF between about 10.30pm and midnight, but thought that she went to bed herself at around about 11 o'clock, leaving EF downstairs with Mr AB. This was only the second or third time that Mr AB had looked after EF on his own. Mr AB later told police that EF was not fed during the night, and indeed no expressed breast milk or prepared formula was available for him to feed EF had he wished to.

12. Monica reported having heard EF crying for about half an hour during the night, which she thought was around 2 or 3am. According to Mr AB when later interviewed, EF woke up screaming at around 2am, and was more unsettled than usual. He took EF into the laundry so as not to disturb others in the house. He told police that EF remained unsettled for about an hour and a quarter, but eventually fell asleep around 3.45am. He told police that the child woke up again at about 4.45am and was fussy, and that he eventually placed him on his stomach in the bassinet before going outside for a cigarette.

13. Monica woke up around 5.00 to 5.30am and said she heard EF crying again. She was concerned and so she went downstairs, where she found EF lying face down in the bassinet and picked him up because she was concerned that his head was not tilted to the side. At the time she said Mr AB was outside having a cigarette. She held onto EF for a short period before Mr AB came back inside and took EF from her. She noticed that EF was crying softly at that time.

14. She spoke to Mr AB about not putting the baby face down and after this she went to the bathroom. She next saw EF on the couch with Mr AB, before she herself went back to bed. About 7am Monica came back downstairs and saw Mr AB asleep on the couch with EF on his chest. Shortly after this she said Ms CD came downstairs and went outside for a cigarette. At about 8.11am Ms CD took a photograph of EF asleep on his father's chest. Monica spent the morning upstairs preparing to leave for work.

15. When she came downstairs to leave for work she saw Mr AB on the couch and Ms CD holding EF. Monica said that she remembered Ms CD saying something about EF teething, and made reference to seeing a tooth coming out of his gum. Further, she said that in a conversation around 11am, Ms CD told her that she intended to go to a chemist to get some teething gel. At about 12.30pm Monica went downstairs where she saw Mr AB holding EF, who was quiet and had his eyes open.

16. This observation coincides with the trip that Ms CD made from the house in search of teething gel, and a CCTV recording obtained from Priceline Pharmacy at North Parramatta confirms that she attended there at 12.37pm. EF was at that time in the care of Mr AB, and according to Monica the child appeared normal, although her attention was primarily on preparing some food. When Ms CD returned home Monica was outside in her car. Ms CD showed Monica the teething gel that she had just purchased.

17. The last time Monica saw EF that day was at about 12.45pm before she went to work, when she observed the child to be sleeping while being held by Mr AB. After Ms CD returned home with teething gel she took over the care of EF while Mr AB went upstairs to sleep. That was at about 1pm and Mr AB slept until about 6pm. At around 6pm that night Ms CD's mother Joanna arrived at the house to return GH. When she arrived both offenders were in the living room downstairs and EF was in his bassinet.

18. She said that Ms CD seemed tired and told her that EF had not been sleeping. Joanna looked at EF and saw that his right hand was twitching. She asked Ms CD about this and was told that she did not know why it was happening, and that it had happened that morning. Joanna said that Mr AB also reported having noticed the same thing that morning. Joanna was concerned about the twitching and thought it was not normal, although she said it did not last long.

19. She said she asked the offenders about EF's appetite and was told by Ms CD that he had been fussy, and there had been no fixed pattern to his feeding. Joanna noticed that EF was smacking his lips, which she thought might indicate he was hungry and suggested that Ms CD try to feed him. Ms CD then attempted to breastfeed EF and Joanna noticed that he was not feeding well. At that point Joanna suggested that an attempt be made to feed EF some formula.

20. Mr AB fetched some bottles from upstairs, which were still in their original packaging, and Joanna sterilised them with boiling water. At some stage during her visit Joanna went out to the car where her partner Joe was waiting, and told him she thought something was wrong with EF. She then returned to the house with her partner and made two bottles of formula. After this she tried feeding some of the formula to EF, but he would not take it. While holding him she again noticed the twitching and that the baby's right arm was tensed up with his hand clenched into a fist.

21. She commented to her partner Joe that this was not normal. She asked her daughter how long the twitching had been going on for, and was told by Ms CD words to the effect of, "Since this morning some time," and that Mr AB had also said something like, "Yeah, he has been doing it since this morning." Before leaving the house Joanna told her daughter that she did not believe that EF was teething, and said words to the effect of, "You need to go and see a doctor first thing in the morning, and preferably ask for a referral to see a paediatrician."

22. On that Sunday night Mr AB slept upstairs while Ms CD was downstairs on the couch with EF in his bassinet next to her. When Monica returned from work at about 10.30pm she saw Ms CD asleep on the couch, while EF was sleeping on his back in his crib wrapped in a blanket. Ms CD told police that she awoke again between about 3 to 4am on Monday morning, and noticed that EF was awake but very quiet and was still having tremors.

23. She told police that he continued to refuse both breast milk and formula, and that she eventually decided to take him to Westmead Children's Hospital after having Googled what it might be. After this she woke Mr AB and told him that she was taking EF to hospital. EF was presented by Ms CD to the emergency room at Westmead Children's Hospital at 6.10am. At that time doctors noted a jerking in his left leg and arm, eyes deviated to the left, tongue flickering and lip smacking.

24. EF was then in a condition known as status epilepticus, which Dr Wong said was a medical emergency. He was sent for an urgent CT scan of the head. Mr AB came to the hospital later that morning, as did Ms CD's mother Joanna and her partner Joe. Both parents were interviewed separately by staff of the Child Protection Unit. After being interviewed, Mr AB had a conversation with Joanna's partner Joe, who asked whether it was possible that EF had been injured by nine year old GH. Mr AB denied this possibility, but told Joe that, "They're blaming me because I was the last with the baby."

25. He also told Joe that while caring for EF he had been carrying him upstairs really quickly and wondered whether the baby's head might have hit the railing on the stairs. According to Joe, Mr AB also said words to the effect, "You know how you throw a baby up and you go 'whee, whee'," and gestured with a throwing motion with his arms above his head, and that he also said, "Well, I was doing that to EF and I threw him up and he came back down, and, like, he slipped out of my hands and I felt his back go."

26. After extensive medical examinations doctors at Westmead Hospital treated EF for the following injuries: acute bilateral subdural haemorrhages, acute subarachnoid haemorrhages, bilateral hemorrhagic brain contusions, white matter cleft consistent with parenchymal brain laceration, extensive hypoxic ischemic brain and brain infarction, acute ligamentous injury to the cervical and thoracic spine, acute spinal epidural and subdural haemorrhages, retinal haemorrhages to the left eye too numerous to count, and anaemia secondary to haemorrhage, which in fact required a blood transfusion.

27. As a result of his injuries EF was placed in traction for at least six weeks due to the ligamentous injuries to his spine. Paediatrician Dr Grace Wong gave evidence at trial that the bilateral hemorrhagic brain contusions in the frontal lobes and the contusions in the left temporal lobe are typical of injuries caused by movement of the brain, resulting in collision with the skull. She said that these signs are strongly indicative of trauma due to high force rotational head injury.

28. Dr Wong also said that the hypoxic ischemic injury was severe and extensive and resulted in multiple areas of brain infarction causing irreversible brain cell death. She said that the ligamentous injury was almost certainly caused by the same mechanism, that is an acceleration/deceleration injury to the head and neck. As to the retinal haemorrhages, Dr Wong said that these are highly specific signs of abusive head trauma, and that the pattern of haemorrhages suggested that the injury occurred within a few days of the child's presentation to hospital.

29. Dr Wong was of the view that the injuries were most likely sustained some time after 10.30pm to midnight on the Saturday evening, but prior to about 8am on Sunday morning. The trauma to EF's brain and spine was severe, and it is likely that he will suffer permanent neurological disabilities as a result.

30. Paediatric rehabilitation specialist Dr Botman gave unchallenged evidence that EF's overall development is delayed, and when assessed at age nine months he had few if any words, and his gross motor skills were delayed, as demonstrated by the fact that his predominant mode of mobility at that time was crawling, which would not be expected in a child of his age. He also displayed an unusual hesitancy to use his left hand. There is a strong suspicion that he will later be diagnosed with some form of cerebral palsy.

31. Dr Wong also stated that the delay of nearly 24 hours between the tremors being detected and EF's presentation to hospital significantly worsened the severity of his brain injury. That is because, as she explained, the period of time immediately following a brain injury is critical, because if appropriate treatment is provided quickly this can reduce the degree of hypoxic ischemic injury, and therefore the severity of any subsequent brain damage.

32. Furthermore, Dr Wong noted that because EF had not been properly fed during most of Sunday and into Monday morning, this lack of fluid and nutrition is likely to have the worsened the degree of secondary brain damage.

OBJECTIVE SERIOUSNESS

33. In sentencing the offenders it is important that I make an assessment of the objective seriousness of the various offences.

34. I start with the offences of which Mr AB has been found guilty. Firstly, the seriousness of the offence under 35(2), that being the offence of recklessly causing grievous bodily harm, is marked by the fact that it carries a maximum penalty of ten years' imprisonment, and a standard non parole period of four years is specified.

35. These are of course important guides in the sentencing exercise to which I have had regard. In assessing the objective seriousness of this offence I remind myself that the offence is one of causing grievous bodily harm, being reckless as to causing actual bodily harm. The offender is not to be sentenced for intentionally causing grievous bodily harm or even for being reckless as to causing grievous bodily harm. A major difficulty, and frustration to some extent, in sentencing for this offence by Mr AB is the absence of any independent evidence as to exactly what happened to EF while in his care.

36. Ultimately the Court must make a determination based on the available evidence, and any inferences that can rationally be drawn from it. The most important evidence in my view is the medical opinion evidence, combined with the history provided by the parents and others. Firstly, there is no doubt that EF was healthy and normal during Saturday, 14 April 2018, and that he remained so up to the point somewhere between about 10.30 to midnight when his care was taken over by Mr AB.

37. There is no doubt that it was while in Mr AB's care that he suffered these very severe life threatening and long lasting injuries. On 16 April 2018 Mr AB spoke to a number of people about what might have happened to EF. He told paediatrician Dr Burns at the Children's Hospital, who was working at that time with social worker Leanne Ross, that EF had been awake at 2am and was screaming and unable to be settled until about 3.45am, during which, according to the notes made by Dr Burns, there was "uncontrollable crying" and "constant screaming".

38. Furthermore, Dr Burns was told by Mr AB that the baby woke again at about 4.45am, but that at that time he was whimpering and his eyes were closed. Mr AB was also interviewed by police that day at about 11.30pm at the Children's Hospital. He also told police that EF had woken and was crying at about 2am, and that he had walked around with the baby for more than an hour trying to settle him, and that eventually he had fallen asleep and was placed into his bassinet.

39. This is also consistent with what Mr AB told Ms Torres-Avery of the Joint Child Protection Response Team on 20 April 2018, where he said that EF had been up for more than an hour, whereas he usually settles after about 20 minutes, and that during this he had taken the child to the laundry where he had changed his nappy. This history is fairly consistent with the conversation that occurred on 22 April 2018 between the two offenders, which was recorded by a hidden listening device in their car on that day.

40. In that conversation Mr AB said EF had slept until about 2 or 3 o'clock in the morning, and was getting really fussy and that he had picked him up and taken him into the laundry and had been "bopping him up and down", but that he remained fussy for about an hour.

41. I have regard to all of this evidence, as well as the opinions expressed by the various medical experts. I am satisfied beyond a reasonable doubt that the serious injuries suffered by EF were occasioned while he was in the sole care of Mr AB some time between about midnight and about 7am the next morning. It is not possible to determine the precise time when the injuries occurred. However, in my view they most likely occurred during the period of more than an hour when, as explained by Mr AB, EF was crying or screaming uncontrollably. I am satisfied beyond a reasonable doubt that probably at that time, but at least at some stage that night or early morning, there was an incident in which Mr AB shook the baby with such force that serious internal injuries were caused to him.

33. In doing so, as the jury's verdict confirms, he acted recklessly, realising the possibility that his actions may result in actual bodily harm to the child. As is implicit in this finding, I do not believe that Mr AB ever intended to deliberately harm EF. No such submission was ever made to the jury. Rather, and as was put to the jury by the Crown, Mr AB, an inexperienced father, was on the night in question attempting to manage on his own with a child who would not settle and was crying inconsolably. Mr AB, had neither the experience nor the means, such as milk with which to feed the child, to manage that situation effectively. It was in that situation that in my opinion he lost control and shook EF violently and in extreme frustration.

34. As was submitted by the Crown, the offending however is aggravated because it occurred in the home of the victim, involved a gross breach of trust and also involved a victim who was vulnerable. It was submitted by the Crown that this offence falls above the middle range of objective seriousness, while it was argued by the offender that the offence sits around the mid-range. In my assessment the offence is around the mid-range.

35. Turning to the second offence in Mr AB's case. The offence under s 43A(2) carries a maximum penalty of five years' imprisonment, which clearly marks it as a fairly serious offence. The offending behaviour making up this offence commenced upon Mr AB becoming aware that there was something wrong with EF. While I cannot be satisfied as to exactly when he came to that realisation, I consider that he must have been aware of this within hours of having shaken EF, and certainly by the time that EF was placed into his care again when Ms CD left to buy teething gel.

36. I am satisfied beyond a reasonable doubt that EF was displaying tremors, which have been explained by the doctors to have been seizures, from about 8am that morning. While I cannot be satisfied that Mr AB saw the tremors or other abnormalities at that particular time, I am satisfied beyond a reasonable doubt that he was aware of abnormalities in the child by the time Ms CD left to attend the pharmacy. As was submitted on behalf of Ms CD, Mr AB was in a very different situation to her at that time because he was "on notice" of the fact that there had been an incident of violence, that is his own shaking, which might provide an explanation for EF's unusual behaviour.

37. However, despite the fact that he must have known, or at least suspected that it was his actions that were the cause, he remained silent and took no action to ensure that EF received the medical attention that he desperately needed. This offence also is aggravated by reason of a breach of trust and because it involved an extremely vulnerable infant. In my view this particular offence is well into the mid-range of objective seriousness.

38. I turn then to the objective seriousness of the offence with respect to Ms CD. As I have already observed, she was in a very different position to Mr AB. She had no knowledge, because Mr AB did not tell her, that EF had been shaken. Having regard to the evidence given by Dr Burns, which was given some further support by Ms Ross, I am satisfied beyond reasonable doubt, despite Ms CD's denial in her police interviews, that Ms CD told Dr Burns that she had seen tremors from some time shortly after 8am on Sunday morning.

39. It is perhaps understandable, given her ignorance of EF having been shaken, that she initially took no action. In my view the evidence supports a conclusion that Ms CD initially did believe that EF's unusual behaviour was due to teething, and that the tremors might have been associated with pain. This conclusion follows from the fact that she mentioned teething to Monica at about 11am on the Sunday morning, and that she herself travelled to a chemist where she bought teething gel just after 12.30pm.

40. In my view Ms CD did not form the view that there was anything seriously wrong with EF until some time after her own mother left on Sunday night. In this regard I note that Joanna, that is Ms CD's mother, in her evidence said that she told her daughter to take EF to the doctor. However, it was clear from her evidence that she did not regard the situation as requiring urgent action that night. However, this has to be balanced against the fact that the offender was the child's mother, and had been observing EF all day, during which I am satisfied he continued periodically to display unusual behaviour and a failure to feed.

41. Furthermore, there is the fact that it was only Ms CD, and perhaps Mr AB, who were fully aware of the baby's behaviour and of just how little he had been feeding since the night before. Ms CD had been on notice of EF's tremors and other unusual behaviour throughout Sunday from about or shortly after 8am. Her actions in failing to seek medical attention earlier that day are understandable, given her complete ignorance of what had happened to the baby while she was asleep.

42. However, in my opinion the focal point of her offending is her failure in the late hours of that Sunday night and into the early hours of Monday morning to seek any medical attention, given the child's continued strange behaviour, and the risk of dehydration associated with his having failed to feed properly since Saturday night. I approach her offence on the basis that she was aware from at least late Sunday night of the possibility that EF required medical attention, but failed to seek it until the early hours of Monday morning.

43. As is obvious, her awareness of the possibility that EF needed medical attention must have become more and more clear as each hour went past, in circumstances where her child was still displaying strange behaviour and not feeding. Her offence is also aggravated by reason of the victim being a vulnerable person, and also by reason of a breach of trust.

44. In my opinion her offence, while not at the lowest level of objective seriousness, lies clearly below the mid-range.

SUBJECTIVE MATTERS

54. I turn then to consider subjective factors relating to each offender. Mr AB's background and personal circumstances have been placed before the Court largely by means of the psychological report of Kris North. According to that report Mr AB was raised in a stable family environment, the youngest of three sons. He is now 32 years of age and at the time of the offences was almost 30. He has no prior criminal history. His psychologist saw no evidence of any thought disturbance or any history of significant psychological problems.

55. The psychologist reported however that Mr AB described depressive and anxiety symptoms since the offences, and the psychologist was of the view that he now has an adjustment disorder, with mixed anxiety and depressed mood. As to the offences, Mr AB told the psychologist that he could not remember much, other than the baby crying more than usual, and that Mr AB himself had gone without proper sleep for 27 hours. Mr AB also told the psychologist that he remains confused as to what happened to EF, stating that his memory was a blur and that he still asked himself whether he had done something wrong, for example, in picking up the baby too quickly.

56. This suggestion is of course inconsistent with the verdict of the jury and my own finding that Mr AB had shaken EF violently. Nonetheless he told the psychologist that he accepted his conviction for the offences. The psychologist noted that Mr AB displayed avoidant thinking and is likely to be minimising his own current symptoms as a means of coping with his legal issues. He expressed the view that the offender's symptoms are likely to escalate rapidly in a custodial environment, as he has no coping strategies and no support from his family, and he may be at risk of self-harm.

57. Mr AB provided to the Court a letter, although no sworn evidence, in which he refers to having been sleep deprived at the time of his offending, and in which he described the very serious consequences in terms of isolation from his family and child which have resulted from the events involving EF. Although there is a degree of self-focus in his letter, he does express an acceptance of the need for punishment. The Sentencing Assessment Report provided to the Court states however that Mr AB appeared to deny responsibility for his offences, and even suggested that the jury may have "rushed to a decision" due to the COVID-19 situation, which arose towards the end of the trial.

58. The author of that report concluded that Mr AB lacked any significant insight into the impact of his offending on the victim and his family. The author noted that Mr AB was assessed as a medium-low risk of reoffending, however I note that the psychologist concluded, having used the same actuarial tool, that he was low risk.

59. Ms CD's background has been placed before the Court by means of the psychological report of Mr Borkowski. The offender Ms CD did not give evidence on sentence. She is currently 30 years of age and was almost 28 at the time of her offending. Like Mr AB she comes from a stable family background, and while her parents separated when she was 11, there is no history of abuse or neglect and she continues to have good relationships with her father and sister, and with her mother with whom she now lives. She has a son GH from a previous relationship who is now formally under the care of Ms CD's mother, but now lives in the same house as the offender.

60. She and Mr AB apparently separated in September 2019 due to the circumstances that bring them both before this Court. The psychological report indicates that while Ms CD is supposed to have monthly contact with EF, this has been restricted recently due to the COVID-19 pandemic. She has no previous criminal history, and no history of psychological problems. The psychologist concluded that she is of low risk of reoffending given her generally prosocial attitudes, good work history and lack of drug or alcohol or other problems.

61. This accords with the Sentencing Assessment Report which also found her to be low risk, although I note the conclusion in that report that she showed minimal insight as to the effect of her offence on EF. I agree for the reasons stated in the Sentencing Assessment Report and the psychological report that she is a low risk of reoffending in the future.

REMORSE AND RISK OF RE-OFFENDING

62. As I have already noted, the author of the Sentencing Assessment Report expresses the conclusion that Mr AB lacks insight, and denies responsibility for the offences. It is understandable that the Community Corrections officer reached that conclusion, given some of the comments made to him by Mr AB which are inconsistent with the medical evidence and the jury verdict. As the medical evidence clearly establishes, the severe injuries suffered by EF can in no way be explained by actions such as "picking him up too quickly". In my opinion, Mr AB in his private thoughts genuinely knows that it was his actions, unintentional though they were, and committed out of frustration and inexperience, that led to these terrible consequences.

63. In my opinion it would be in his own interests and in the interests of the community that he seek psychological assistance to deal with these realities, especially if he wishes to father other children, or wishes to have any prospect of contact with EF as he grows older. While I accept that Mr AB feels real sorrow for what has happened to EF and for his forced separation from him, I am unable to find that there is any evidence of genuine remorse in relation to his role in causing his son's injuries. As to future risk I accept the findings set out in the Sentencing Assessment Report that he is medium to low risk. It seems to me that he will remain at that level of risk for this type of offence until he is prepared to acknowledge what happened and to seek counselling and psychological treatment.

64. In Ms CD's case there is again no evidence on oath. The Sentencing Assessment Report notes that she displayed minimal knowledge of the impact of her offending on her son, but that she should be regarded as low risk. I accept, given her earlier history of appropriate care of GH and EF that she is a low risk of reoffending. There is however no real evidence of remorse for the offence of which she has been found guilty.

DETERMINATION

65. In determining the sentence in each case I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, as well as the maximum penalties and, where applicable, the standard non parole period. Of course amongst those factors, although not the only one, is the importance of deterrence, particularly general deterrence of offences of this kind.

66. In Ms CD's case I am not satisfied that a period of imprisonment is the only appropriate penalty. In my view, given the lower level of seriousness of her offence, her prior good history and low risk of reoffending, a community based order is the most appropriate outcome. I note that the Crown conceded this in submissions.

67. Ms CD, I would just ask you to stand while I explain the sentence and I announce the sentence. Ms CD is convicted pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999. I impose a Community Corrections Order for a period of two years. That will be subject to the standard conditions for such an order, firstly, that you not commit any offence, secondly, that you appear before the Court at any time during the period of that order if called upon. I impose additional conditions, firstly, that you accept supervision from Community Corrections for as long as they deem necessary, secondly, that you engage in counselling or other psychological treatment as directed by Community Corrections. Ms CD, you are to report to the Community Corrections Office at Penrith within seven days. That will be done initially by telephone. Do you understand? Thank you, you can take a seat.

68. I will ask Mr AB to stand while I explain and announce the sentence. In relation to Mr AB, as was conceded by his counsel, I am satisfied that the only appropriate sentence for each offence is one of full-time imprisonment. As there are two offences it is important that I impose an appropriate sentence for each offence, but have regard to principles of totality so as to avoid the imposition of a sentence that might be otherwise described as crushing.

69. In my view there is a need for some accumulation of sentence between the two offences, as they represent two largely distinct episodes of offending. I intend to impose an aggregate sentence for the two offences. Had I not done so then the individual sentences I would have imposed are these. Mr AB, these are what are called indicative sentences, they are not the final sentence, I will announce that in a moment.

70. The indicative sentences are as follows: for the offence under s 35(2), a period of imprisonment of five years six months, with a non-parole period of three years three months; for the offence under s 43A, imprisonment for a period of two years three months. I make a finding of special circumstances for varying the ordinary ratio between non parole period and head sentence based on this being the offender's first time in custody, and the need for a lengthy period of supervision once he is released to parole.

71. I convict the offender. I impose an aggregate sentence of six years six months. I set a non-parole period of three years ten months. Each of those will date from today.

72. The head sentence therefore will expire on 7 March 2027. The non-parole period will expire on 7 July 2024. I direct that a copy of the report of psychologist Kris North be sent in Mr AB's case to Corrective Services.

73. Mr AB, you, as I have said, will be eligible for release on parole on 7 July 2024. If your conduct in custody is good, then you can expect that you will be likely released at that time.

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Amendments

05 November 2020 - Removed first name of offender AB from paragrah 68.

Decision last updated: 05 November 2020