R v Bird-Walton (a pseudonym)(no 2)

[2021] NSWDC 23

District Court

New South Wales

Medium Neutral Citation:

R v Bird-Walton (A pseudonym)(no 2) [2021] NSWDC 23

Hearing dates:

Trial: 23,24,25 and 28 September 2020
Judgment: 06 November 2020
Sentence hearing: 21 January 2021

Date of orders:

21 January 2021

Decision date:

21 January 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The offender is placed on an intensive correction order for a period of two years.

Catchwords:

Criminal Law – Judge alone trial – guilty verdict- sentence – intensive correction order - reckless grievous bodily harm – child victim

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:

Muldrock v The Queen (2011) 244 CLR 120

R v Bird‑Walton (A pseudonym) [2020] NSWDC 730

De Simoni v The Queen (1981) 147 CLR 383

Markarian v The Queen (2005) 228 CLR 357

R v Fangaloka [2019] NSWCCA 173

Wany v DPP [2020] NSWCA 318

Category:

Sentence

Parties:

Regina (Crown)
Accused (NBW)

Representation:

Counsel:
Mr Smith (Crown)
Mr King (Defence)

Solicitors:
Ms Coleman(Crown)
Ms Mckay (Defence)

File Number(s):

2019/00122078

Publication restriction:

non-publication order re identity of offender and the children.

Judgment

1. HIS HONOUR: On 6 November 2020 after a judge alone trial I found NBW guilty of recklessly causing grievous bodily harm to AT between 26 October 2018 and 29 October 2018 at Merungle Hill contrary to s 35(2) of the Crimes Act 1900. The maximum penalty is ten years imprisonment with a standard non parole period of four years. The maximum penalty and the standard non parole period are an important guide in the assessment of sentence. The standard non parole period is not to have determinative or even significant influence over the setting of the sentence as it relates only to the objective features of the offence and not matters personal to the offender: Muldrock v The Queen (2011) 244 CLR 120.

THE FACTS

2. Factual findings are set out in R v Bird Walton (A pseudonym) NSWDC 730. I was satisfied that there were bonding issues between AT and NBW and that on 28 October 2018 the child had vomited three times, requiring bathing and changes of clothing. I was satisfied that after the third vomit and the need to clean AT the offender was upset, frustrated and highly emotional.

3. She acted recklessly towards the child. She did not intend to cause grievous bodily harm. In a highly emotional state she realised the possibility of actual bodily harm to AT. I am unable to make a finding as to the mechanism of injury other than there was blunt force trauma to AT's skull causing the non displaced fracture.

OTHER INJURIES

4. The Crown submits that I should take into account the following injuries; conjunctival abrasions and lip laceration as the result of an extended course of conduct that led to the skull fracture. Evidence of bruising and a lip laceration were circumstantial evidence supporting the Crown case. The offender had not been charged with an offence of assault occasioning actual bodily harm. I was not satisfied beyond reasonable doubt that the corneal abrasions constituted grievous bodily harm and therefore there was no need to determine whether the offender inflicted that injury.

5. Mr King, who appears on behalf of the offender, opposed the Crown submission. He submits that the offender should be sentenced only for the infliction of the skull fracture. He submits a distinction needs to be drawn between sentencing the offender for the conduct found proven by me and uncharged conduct which may be taken into account in consideration of the seriousness of the proven conduct of the offence. There is merit to that submission.

6. Mr King relies upon the settled fundamental principle that no offender should be punished for offences for which they have not been convicted: De Simoni v The Queen (1981) 147 CLR 383 at [389] per Gibbs CJ. If Mr King is wrong about that his alternative submission is contained at para 16 of his helpful written submissions where he says:

"It is submitted that the Court should not punish the offender for the disputed injuries. Although infliction of injuries during the course of the assault which resulted in the fractured skull can be taken into account in assessing the seriousness of the offending for which the offender is found guilty it is submitted that, in any event, none of those injuries were serious. The corneal abrasions resolving within two days and the bruises resolving within a few days, as did the injury to the mucosal inner lip."

7. Essentially what Mr King is saying is that if one did take those injuries into account then they would be subsumed in relation to the penalty that is to be imposed on the count that the Court found the offender guilty of. If I am wrong about the De Simoni position I accept the submission made by Mr King that the penalty that I intend to impose in this case would override or the other injuries would be subsumed under such a penalty. It was open for the prosecution to charge the offender with assaults constituting the lip laceration and/or bruising not related to the skull fracture.

OBJECTIVE SERIOUSNESS

8. (a) The nature of the Injury

AT was a 13 month old child who received a skull fracture. The skull fracture went from one suture to the other. It was undisplaced. Although I was satisfied that the skull fracture constituted a really serious bodily injury, it must be borne in mind that a linear undisplaced fracture (which it was in this case) usually requires admission to hospital for observation and performance of CT and MRI scans, which occurred in this case. There was no underlying brain abnormality. No further treatment was required and the patient was discharged. It was the evidence of Dr Garside that if there was any pain it "would subside over a week or two" (T143.37).

(b) The circumstances in which the injury occurred

The offender was frustrated and highly emotional when the injuries were inflicted. She was not herself. She had been overawed by the situation.

(c) The manner of infliction of the injuries

The skull fracture was the result of blunt force trauma.

(d) The offence involved a breach of trust

She was the foster parent of the child, or to put it in Latin terms expressed in Mr King's submissions, she was in a position of loco parentis. The child was completely dependent upon the offender. I am unsure of the Crown argument that because she was a foster parent the need for general deterrence is greater than if she was simply a parent in loco parentis. In any event, general deterrence is an important sentencing consideration as there had been a breach of trust between mother and child.

(e) The offence took place in the home where one was entitled to safety and security

The Crown submits that the offence falls in the mid range of objective seriousness. Mr King, on behalf of the offender, submits this is not a mid range offence. I am satisfied, in taking all of the above matters into account, that the offending falls below the mid range of objective seriousness. The fracture falls at the lowest end of injuries classified as grievous bodily harm. There were no long term consequences. Surgical intervention was not required. If there was pain it was for a week or two. The undisplaced fracture resolved.

SUBJECTIVE FEATURES

9. The offender has a strong subjective case. She is 39 years of age and has never been in trouble. It is a significant matter. She is entitled to call in aid her good character. 19 references have been tendered on her behalf. They speak highly of her. She is well respected. She is an Army Reservist, gym instructor, mother and wife. She has previously served her country in the Navy. Her conduct has meant that her foster children JT and AT have been removed. It is highly unlikely she will be able to care for a foster child again. She is unable to have children herself. Absent this offence she had provided a safe, caring, warm environment to her children.

10. The police search video shows a spotless, well-kept house with an abundance of toys and games for the children. It would appear that they did not want for anything. The references describe a nurturing and loving relationship on her part to the children. She is a hardworking, well-motivated individual. She is community minded and is a volunteer with the organisation WIRES. I have been informed by Mr King, who has some experience in the military, that as a result of this conviction there may be a show cause notice which may put her position in the Army Reserve in jeopardy. This, of course, has been hanging over her head since I found her guilty of the offence, and it is but one factor to take into account.

PROSPECTS OF REHABILITATION

11. Mr Smith, who appeared on behalf of the Crown, submits that the absence of any criminal history, the circumstances in which the offending occurred, and the offender's level of support within the local community are matters that point to the offender having good prospects of rehabilitation. I am satisfied that the offender has excellent prospects of rehabilitation. She is 39 with no prior convictions. She has strong pro social supports. She is in employment and does volunteer work. I do not believe that she will be before the Court again.

SENTENCE

12. Mr King concedes that the s5 threshold has been crossed. The instinctive synthesis of sentencing requires a Judge to identify all the factors that are relevant to the sentence, discuss their significance and then make an evaluative judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 357 per McHugh J at [51].

13. The offender presents an extremely strong subjective case, however, objectively the offence is serious and a term of imprisonment is warranted. The appropriate sentence is one of two years. Section 7(1) of the Crimes (Sentencing Procedure) Act provides that:

"A court that has sentenced an offender to imprisonment in respect of one or more offences may make an intensive correction order directing that the sentence be served by way of intensive correction in the community."

14. A three step process is involved. First, the Court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate. I am so satisfied. Second, if a sentence of imprisonment is appropriate the Court determines the length of the sentence without regard to how it is to be served. In this case I have determined that an appropriate sentence is two years. The Court must then consider whether any alternative to full time imprisonment should be imposed.

15. The power to consider imposing an intensive correction order invites a further question concerning the basis upon which a court should decline to consider imposing one. Relevant to this is the need for adequate punishment, general deterrence, denunciation, or for recognising the harm done to the victim and the community.

16. When considering community safety the Court must assess whether making the order or serving the sentence by way of full time detention is more likely to address the offender's risk of reoffending. This requirement recognises that community safety is not achieved simply by incarcerating an offender, but that incarceration may have the opposite effect. The concept of community safety is linked with considerations of rehabilitation, which is more likely to occur with supervision and access to programs in the community. However, while community safety can operate in different ways in different circumstances, the purpose of s 66 is "merely to ensure that the court does not assume that full time detention is more likely to address a risk of reoffending than a community based program of supervised activity": R v Fangaloka [2019] NSWCCA 173 at [66]

17. The Court must also consider the purposes of s 3A of the Crimes (Sentencing Procedure) Act and relevant common law principles and any other matters. In R v Fangaloka the Court found that the paramount consideration whether to make an ICO is whether such an order or full time detention would be more likely to address the offender's risk of reoffending. Unless a favourable opinion is reached as to that question an ICO should not be imposed: at [63]

18. In Wany v DPP [2020] NSWCA 318 the New South Wales Court of Appeal had cause to review the appropriateness of whether an offender who had pleaded guilty to an offence of navigating a vessel to cause a grievous bodily harm (severe traumatic brain injury) should receive an ICO. McCallum JA said this at [4] - [5]:

"That an ICO is to be regarded as an alternative way of serving a sentence of imprisonment is clear from the language of the relevant provisions, ss 5, 5A and 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and see pts 2, 3 and 4A of the Crimes (Administration of Sentences) Act 1999 (NSW). In Pogson at [35] the Court of Criminal Appeal described an ICO as a form of custodial sentence, albeit one that (as the legislation then stood) may have reflected 'a significant degree of leniency': at [108]

It follows as a matter of logic that the mere fact that an offence is serious enough to warrant the imposition of a sentence of imprisonment cannot of itself preclude the making of an ICO. The introduction of the ICO provisions reflected an acknowledgment that, in some cases, serving a custodial sentence by intensive correction in the community would better serve the objects of sentencing than removing the offender from the community and keeping him or her in gaol."

19. Mr Smith, in his helpful written submissions alluded to the fact that,

"Adverse to the offender's prospects of rehabilitation is the fact that the offender continues to accept no responsibility for her actions and axiomatically lacks any insight into the offending conduct."

20. That suggests to me that it is necessary for the offender to be supervised and to undergo programs as directed by Community Corrections and receive treatment as directed by them. In my view, serving a custodial sentence by intensive correction in the community would better serve the objects of sentencing than removing the offender from the community and keeping her in gaol. The offence is a domestic violence offence: s 4, 5(1)(d) and 11 of the Crimes (Domestic and Personal Violence) Act 2007.

21. Pursuant to s 4B of the Crimes (Sentencing Procedure) Act I am satisfied that the victim of the domestic violence offence will be adequately protected with the making of an intensive correction order. I am so satisfied because the child has been removed from the care of the offender and my finding of the offender's excellent prospects for rehabilitation coupled with the conditions that I intend to impose in the intensive correction order. I am satisfied that there is sufficient information before the Court to justify the making of an intensive correction order without the need for a sentence assessment report: s 17D(1)(a) of the Crimes (Sentencing Procedure) Act.

ORDERS

22. 1. Ms BW is convicted.

2. I sentence Ms BW to a period of imprisonment of two years to be served by way of an intensive correction order commencing 21 January 2021 and expiring on 20 January 2023.

3. The intensive correction order is subject to the following conditions.

(a) The offender must not commit any offence.

(b)The offender must submit to supervision by a Community Corrections officer.

(c) The offender is to participate in a rehabilitation program or to receive treatment.

(d) The offender is to report to the Griffith Community Corrections office within seven days.

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Decision last updated: 17 February 2021