R v Best - [2001] NSWCCA 401

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Best [2001] NSWCCA 401

FILE NUMBER(S):
60503/01

HEARING DATE(S): 3 October 2001

JUDGMENT DATE: 03/10/2001

PARTIES:
Regina v Christopher Best

JUDGMENT OF: Wood CJ at CL Studdert J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/61/0019

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
L. Lamprati (Crown)
No appearance (Responent)

SOLICITORS:
S.E. O'Connor (Crown)

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act
Crimes Act
Crimes (Sentencing Procedure) Act
Children (Criminal Proceedings) Act

DECISION:
Appeal allowed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60503/01

WOOD CJ at CL
STUDDERT J
BELL J

Wednesday 3 October 2001
REGINA v CHRISTOPHER BEST
Judgment

WOOD CJ at CL: This matter has come before the Court in the absence of the respondent. Material placed before the Court, in the form of an affidavit by a solicitor employed by the Director of Public Prosecutions discloses that on 5 August 2001 the respondent was served with a notice of appeal and a letter informing him that an appeal was listed for callover before the Registrar on Monday, 27 August 2001.
The letter went on to advise that he, or his legal representative, were required to attend on that day and that if he did not have a solicitor he should apply promptly for legal aid to the Legal Aid Commission.
A copy of that letter was returned to the Director of Public Prosecutions, signed by the respondent, under the note, “Received and understood.”
On 11 September 2001 a further letter was sent to the respondent to his home address advising that the appeal of the Crown had been listed for hearing on 3 October 2001 and that he would be required to attend the hearing.
It further noted that the Legal Aid Commission had informed the Registrar that no legal aid application had been received.
The respondent was advised that if he wished to apply for legal aid he should telephone the Legal Aid Commission as soon as possible.
On 17 September 2001 a further letter was sent to him attaching particulars of trial and the Crown’s submissions in support of its appeal. The letter advised that written submissions from himself or his lawyer were due on 28 September 2001.
He was again encouraged to ensure that he immediately passed on the documents to his lawyer. He was advised, additionally, that, if he did not attend the hearing of the appeal, the Crown would apply to the court to have the appeal heard in his absence and that, depending on the outcome of the appeal, the court may ultimately issue a warrant for his arrest.
On 25 September 2001 a further letter was sent to his home confirming the date of the hearing as 3 October 2001, and again advising that if he did not attend the hearing the Crown would make an application to have the appeal heard in his absence. No submissions have been provided by the respondent and, as I have observed, he did not appear when the matter was called on for hearing today.
However, a telephone message was passed on by him to the Registrar of the Court indicating that he had no means to travel to the court from Bathurst and that he was trying to obtain a doctor’s certificate, but had been “told that he was a liar”.
In the circumstances outlined, I am satisfied that the applicant had due notice of the hearing of the appeal and that there was no excuse for his absence.
Accordingly, I take the view that it is appropriate for us to proceed to hear the appeal in his absence.
STUDDERT J: I agree.
BELL J: I agree.
WOOD CJ at CL: In those circumstances, I will ask Studdert J to deliver the reasons of the Court which are based upon the written submissions provided by the Crown.
STUDDERT J: This is a Crown appeal pursuant to s 5B of the Criminal Appeal Act. The sentences in question were imposed by his Honour Judge Goldring in the Bathurst District Court on 20 July 2001.
On 9 July 2001 the respondent entered pleas of guilty to the two counts in the indictment then presented. The first of the counts charged the respondent with the commission of an offence of maliciously inflicting grievous bodily harm, and the second of the counts charged the respondent with assault occasioning actual bodily harm. The maximum penalty provided by the Crimes Act for an offence of the nature charged under the first count is seven years imprisonment: s 35(b). The maximum penalty for an offence of the nature charged in the second count is five years imprisonment: s 59.
As well as the offences charged in the two counts, the sentencing judge was asked to take into account two additional offences listed under s 32 of the Crimes (Sentencing Procedure) Act.
The sentencing judge dealt with the respondent under Pt 3 Div 4 of the Children (Criminal Proceedings) Act 1987, and for the offence charged in the first count the judge imposed a control order pursuant to s 33(1)(g) of that statute and for the offence charged under the second count the judge imposed a further control order of twelve months. Those control orders were suspended on condition that the respondent enter into good behaviour bonds for periods of two years and twelve months respectively.
The Director of Public Prosecutions filed a notice of appeal on 1 August 2001 and that notice was served on the respondent on 5 August 2001.
No oral evidence was given in the proceedings on sentence but a number of documents were placed before his Honour, including a statement of facts. The relevant objective features of the case can be summarised fairly briefly.
The victim of the subject offences was in each case the respondent’s daughter, born of a relationship between the respondent and his sixteen year old partner. The victim was born on 20 May 2000 and sustained what the evidence established, and his Honour found, to be serious injuries. These injuries were the direct consequence of the respondent’s ill treatment the subject of the charges.
On the initiative of a community midwife the victim was admitted to Lithgow District Hospital on 17 July 2000. The respondent was interviewed by police on the following day and whilst when first interviewed he provided an innocent explanation for the baby’s injuries, claiming that they had been caused accidentally, he then gave a second interview making full admissions concerning his ill treatment of his daughter.
It will suffice for present purposes to refer only to the facts concerning the scheduled offences and the offences charged in the indictment.
The scheduled offences were committed between 25 June and 3 July 2000. The first of these offences was one of common assault. Whilst trying to settle the baby after feeding her, the respondent lost his temper and put the child on the floor, pushing her on her hip. This caused the baby to roll over and her head to move around. The respondent then picked up the baby and slapped her on the side of the face.
The second of the scheduled offences was one of assault occasioning actual bodily harm. Again, while trying to settle the baby after she was fed, the respondent lost his temper. This time he head-butted her, bruising her forehead.
The offence charged in the first count of the indictment was committed between 12 and 14 July 2000 at a time after the respondent had been alerted by the baby’s mother that the midwife previously mentioned had threatened to report the baby’s parents to DOCS. Some time after this threat, the respondent said that the baby “just wouldn’t shut up” so he shook her. He said that he “had her under the arms and I shook her in front of me. Her head didn’t jerk that much but obviously it was enough to do some damage” because afterwards the baby “seemed pretty dazed…her eyes were rolling in the back of her head.” The respondent woke the baby’s mother but no medical assistance was sought.
Then a few days later, on 17 July, the assault charged under the second count took place. According to the respondent, the baby was crying and started to kick the respondent whilst she was in his arms. The respondent said that he “lost it” and punched the infant in the side of the head with his right fist and the baby “drooped instantly”. The respondent gave the baby a bath to try to keep her awake but the baby was limp. The respondent was afraid he had caused physical damage but once again he did not seek medical assistance.
The abuse outlined, and in particular the offences charged in the indictment, caused injuries that had, and will continue to have, serious consequences. When taken to Lithgow District Hospital the victim was examined by a consultant paediatrician, Dr Hart, who noted numerous bruises to the outer corner of each eye, below the left eye, at the left corner of the mouth, on the left ear, and on the left side of the chest and back. There was swelling of the fontanella, suggestive of raised pressure inside the skull. On the following day, the victim was given an ophthalmological examination by Dr Adler. Bilateral retinal haemorrhages were detected, and a CT scan showed bleeding within the skull cavity. The infant was transferred to Westmead Children’s Hospital and an operation was performed to address this bleeding.
It was Dr Hart’s opinion, following assessment in October 2000, when he detected abnormalities in tone in the limbs, neck and trunk of the baby, that the victim would be left with significant disability affecting areas of learning, language and cognitive thinking. He saw the possibility of cerebral palsy developing, assessing that there was “a significant likelihood” of this happening in the next twelve months to two years.
Dr Tait also assessed the child and his report formed part of the evidence before the sentencing judge. This report, made after the victim had been discharged into foster care on 7 August 2000, concluded:
“The findings of large bilateral subdural haematomas, facial bruising, widespread bilateral retinal haemorrhages and multiple fractures in a 2-month-old child, in the absence of a history of severe trauma, are consistent with non-accidental injury.
This spectrum of injury is only seen as a result of child physical abuse. There is strong evidence Danielle has been the victim of several incidents of abuse. The brain injury is almost certainly the result of shaken impact syndrome and is severe. It is very likely that Danielle will have significant long-term neurological deficits as a result of these injuries. She will need close follow up to monitor her development for many years. This will be coordinated by the Brain Injury unit at New Children’s Hospital in conjunction with her local paediatrician.”
The respondent was born on 1 October 1982, so that he was seventeen years of age when the offences were committed. Hence his age compelled the sentencing judge to determine whether the respondent ought to be dealt with according to law or in accordance with Pt 3 Div 4 of the Children (Criminal Proceedings) Act: see s 18(1).
These offences were not “serious children’s indictable offences” as defined in s 3 of the statute. Had they been, then, of course, s 17 would have compelled the judge to deal with the offences “according to law”. Nevertheless, in determining how the court ought to proceed, one of the matters his Honour was required to consider was the nature of the offences and the nature of the penalties appropriate in the circumstances of the case. This court considered s 18 in R v WKR (1993) 32 NSWLR 447. Hunt CJ at CL, with whose reasons in this regard Campbell J agreed, said as to s 18:
“The Act does not identify any particular basis upon which the discretion afforded by s 18 is to be exercised in determining whether an offender is to be dealt with according to law or in accordance with Pt 3, Div 4, but the scheme of the Act as I have described it dictates that at least some of the matters to be taken into account are:
(a)the nature of the particular offence for which the offender is standing for sentence;
(b)the age and the maturity of that offender (both at the time of the offence and when standing for sentence); and
(c)the nature of the penalty which would be appropriate to the circumstances of the case in the light of those matters.
If the offence were a grave or serious one (albeit not one falling within the definition of a serious indictable offence), and if the offender standing for sentence were of such an age and maturity that he did not deserve the benefit of the special provisions in Pt 3, Div 4 when being punished for such a grave or serious offence, the judge would be more likely to determine that he should be dealt with according to law rather than in accordance with Pt 3, Div 4. Similarly, if it were appropriate that the offender standing for sentence should serve a custodial sentence in a detention centre plus a period on parole under supervision thereafter, or if he were not an appropriate person to be detained in a detention centre, or if for any other reason it were appropriate that he should serve a custodial sentence in prison rather than in a detention centre, the judge would be obliged to determine that he be dealt with according to law rather than in accordance with Pt 3, Div 4.”
His Honour was referred to WKR, although in his remarks on sentence he did not advert to the above dicta of the former Chief Judge at Common Law. The sentencing judge appears to have been very much influenced by two features:
(i)that the offences were not, according to the definition in s 3, “serious children’s indictable offences”;
(ii) what he perceived to be the immaturity of the respondent.
When consideration is given to the criteria to which the then Chief Judge at Common Law referred in WKR, the offences which the respondent committed were very serious offences because they each involved serious violence to a very young infant. To my mind it is manifest that the sentencing judge did not sufficiently heed the gravity of the respondent’s conduct when he decided to deal with the matter pursuant to Pt 3 Div 4. It is, I consider, plain that there was error in determining that this was an appropriate case for the application of Pt 3 Div 4.
The correct approach compelled by the circumstances of this case was that the respondent be dealt with according to law. In my opinion, therefore, this appeal must be allowed.
The subjective features of this case are addressed in the report of the Juvenile Justice Officer which was placed in evidence in the District Court. It is, however, unnecessary to record the subjective features exhaustively here because of the conclusion that I have reached as to the appropriate outcome of the appeal.
The options are that this Court should now proceed to sentence the respondent according to law, or remit the matter to the District Court for reconsideration by another judge of that court for sentencing according to law.
As has been recorded already, the respondent has not appeared before this Court today, nor has he been represented before this Court. It seems to me, in the circumstances, that the appropriate course for this Court to now adopt is to remit the matter to the District Court for sentencing of the respondent by another judge of the District Court according to law.
Accordingly, the formal orders I propose are the following:
1.that the appeal be allowed;
2.that the orders made concerning the respondent be quashed;
3.that the matters be remitted to the District Court for the sentencing of the respondent by another judge of the District Court according to law and that such sentencing procedure be carried out at a time and place to be appointed by that court and to be advised to the respondent.
WOOD CJ at CL: I agree.
BELL J: I also agree.
WOOD CJ at CL: The orders of the Court will be as Studdert J has pronounced.
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LAST UPDATED: 15/10/2001