R v BJ - [2017] NSWDC 234

District Court

New South Wales

Medium Neutral Citation: R v BJ [2017] NSWDC 234
Hearing dates: 24, 26 and 27 April 2017
Date of orders: 05 June 2017
Decision date: 05 June 2017
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
The offender is sentenced to full-time imprisonment. I set a non-parole period of 4 years and a head sentence of 6 years.

Catchwords: CRIMINAL LAW – sentence – recklessly cause grievous bodily harm – six-month-old child victim – burn injury – disputed facts hearing – nominated increase to penalty by reference to Form 1 offence
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Blackwell v The Queen [2011] NSWCCA 93
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Engert (1995) 84 A Crim R 67
R v Fernando (1992) 76 A Crim R 58
Kennedy v R [2010] NSWCCA 260
R v Lolesio [2014] NSWCCA 219
R v Nolan [2017] NSWCCA 91
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Category: Sentence
Parties: The Crown
BJ
Representation:
Counsel:
Mr P Doyle – The Offender
Ms M Knowles – The Crown
Solicitors:
Director of Public Prosecutions – The Crown
Doyle Legal – The Offender

File Number(s): 2013/00357505
Publication restriction: There is to be no publication of the name of the victim, nor identification by name of members of his family.

SENTENCE

HIS HONOUR: This matter concerned offences in which the victim was a child. These Remarks have been edited to exclude the name of the infant; the name of the offender who was his father; the name of the child’s mother; and of his grandparents.
The offender BJ has pleaded guilty to one count on indictment of recklessly causing grievous bodily harm to his six-month-old baby son on 11 October 2013. A second count which was originally on the indictment was placed on a Form 1 and I have been asked to take that offence into account in passing sentence with respect to the reckless causing of grievous bodily harm.
The charge of recklessly causing grievous bodily harm constitutes an offence that is contrary to the provisions of s 35(2) of the Crimes Act 1900 and carries a maximum penalty of ten years imprisonment.
The second charge which is now on the Form 1 arises as a consequence of the primary charge, by virtue of the offender being a person having parental responsibility for the infant child and thereafter, recklessly and without reasonable excuse, having failed to provide the necessities of life, in particular medical care, following the causing of the grievous bodily harm the subject of count 1, as a consequence of which a danger of serious injury resulted.

THE OFFENCE AND ITS CONSEQUENCES

The offence in respect of which the offender stands to be sentenced arose in circumstances where he and his then partner (the child’s mother) had become parents of a son who was born in April 2013.
On Friday 11 October 2013 the offender's partner was at work as a waitress. She had been dropped to work by the offender at about 7am. Ordinarily the baby was cared for by (the child’s mother), or when she worked part‑time shifts the infant would be cared for by one or other of the infant’s grandmothers. Normally, at that time, the offender worked fulltime as a mechanic for Mercedes Benz at Rushcutters Bay, Sydney. That particular Friday the offender had the day off work and it had originally been his intention to go away for the weekend to attend the Bathurst car races which were to be held on Sunday 13 October 2013.
In the course of the morning, whilst at home with his father at some time between about 7am and 9am, the six-month-old infant sustained third-degree full-thickness burns to his chest. There were also other areas of the child's body which received less intense burning including his face, around his mouth, his right arm and underarm, his penis and his scrotum, including the underneath of his scrotum, and the top of his thighs.
The actual cause of these burns is in dispute and has been the subject of a contested facts hearing over several days before me, following the entering of the plea of guilty. I will make reference to and make findings regarding the competing explanations which have been provided as to the cause of the burns later in these Remarks. Whatever the actual cause of what had happened to the infant child whilst he was at home with his father prior to 9am, obvious redness and blisters appeared on the skin of the baby's chest. This noticeable appearance led the offender to send a number of text messages and a photograph of the baby’s chest to his partner's mobile phone whilst she was at work.
The offender informed the baby's mother that the child had had his nappy on and “then” he was naked. He advised her that the child had just had a bath. In the text messages which he sent, he variously told her that the baby was out of control and, in another message, asked where he could find Panadol. He sent a text stating: "I think I know why he has not been right, I think it is because of the new rug." Another SMS said: "He has stopped crying now and just looking at me, I think he cries so much he is tired, looks like a burn."
A photograph of the baby showing the redness to his chest was forwarded by the offender to his partner (the child’s mother). She later stated that the offender had described the redness as a "rash". Although the SMS text messages were subsequently deleted from both the offender's mobile phone and also from his partner's phone, a copy of the photograph which was sent was included in the Crown tender bundle behind tab C.
In evidence before me the offender agreed that in addition to the child's chest being red as a result of having been burnt, it had come up in blisters and in the photograph which he took and sent to his partner, there appeared to be skin peeling. He agreed that the baby had in fact been out of control and crying and in sufficient distress for him to want to find some Panadol. At about 9am the offender attended the home of his partner’s parents, (Mr and Mrs H). It would appear that the offender had gone to his partner's parents' home in order to borrow a lawnmower.
Mrs H came out to the motor vehicle and opened the car door. The account which I now recite comes from Mrs H's assertions which to some extent are different from the account given by the offender. Mrs H said that she saw the baby strapped into a car seat and screaming. The offender said to her: "I had him on the mat with no clothes on and he has come up in some blisters." The offender pulled down the front of the child's shirt and Mrs H observed that the top of the baby's chest was red and the skin was already peeling. The offender indicated that it was also "coming up on the side of his face." The offender said that he was taking the baby to the doctor. Whilst the offender went and obtained the lawnmower, the child continued to scream despite Mrs H's attempts to calm him down.
In endeavouring to construct a timeline with a degree of accuracy, I have found that the evidence is somewhat vague as to what occurred over the next two hours. The offender indicated that he thought he had stayed at Mrs H's place for only ten or 15 minutes. He agreed that he took the lawnmower back to his own place but could not recall whether he had done any of the chores that he had to do around the house before taking the child to a general practitioner.
At some time around about 11.30am the offender took the infant child to a medical centre in Queen Street, Campbelltown. At approximately 11.40am the child was seen by a general practitioner, Dr Mirza. Dr Mirza was not the child's regular doctor and had not seen him before. The extent of the examination carried out by Dr Mirza of the infant was anticipated to be an area of dispute between the Crown and the offender on the disputed facts hearing. This was because, in circumstances which I will detail shortly, the offender had subsequently made various assertions about the examination carried out by Dr Mirza which were completely at odds with the report from the doctor himself. Accordingly Dr Mirza was called by the Crown to give evidence on the disputed facts hearing.
Dr Mirza gave clear and unambiguous evidence that the child had been presented by his father, that is the offender, at around 11.40am for specific examination of a rash on his face. The doctor recorded that the offender had indicated that he thought it might be related to the use of a teething rusk. The doctor's notes further recorded that he was advised that there was no rash anywhere else on the child's body and no cough or runny nose. The child was at all times kept held in his father's arms and remained fully clothed. The doctor carried out an examination of the child's eardrums and nasal passages as well as his throat. He took the child's temperature via his ears and listened to his chest by means of a stethoscope applied externally to the child's clothing. At no stage was the doctor given any history which caused him to make an examination of the child's chest area and he did not do so.
The vesicular maculopapular area on the child's face had the appearance of either eczema or perioral dermatitis and accordingly, the doctor prescribed Hydrocortisone cream and provided a prescription for such ointment. The offender was advised to bring the child back for a follow-up check-up in one to two days or earlier if the child was getting worse or if there were any other concerns. The consultation was a short consultation. In the course of his evidence before me, the offender indicated that he had taken the child to the general practitioner because he was concerned about him, having earlier sent photographs of the child's red chest to his partner (the child’s mother) and having had the conversation with his partner’s mother, Mrs H, during which she had made observations about the child's chest. It is difficult to understand why he completely neglected to tell the doctor about the redness and blistering on the baby's chest or to show that to the doctor.
In the course of his oral testimony during the sentence proceedings, the offender asserted that the doctor had lifted up the child's shirt at the back in order to listen to his breathing with the stethoscope. This is at odds with numerous accounts previously given by the offender in which he repeatedly claimed that Dr Mirza had actually examined the child's chest, that is, at the front. Indeed, those previous assertions and the inability to agree on the facts regarding that examination was, as I have indicated, one of the bases on which the disputed facts hearing was embarked upon and with respect to which Dr Mirza was called to give oral evidence by the Crown.
However in his evidence before me, the offender agreed that he did not lift the front of the shirt to show the doctor the redness on the child's chest at all. To the extent that there is a clear contradiction between the account given by the general practitioner and the account given by the offender in evidence with respect to lifting up the child's shirt for the stethoscope to be applied to the back, I reject the evidence of the offender and I am satisfied that the account given by the doctor is accurate.
Whilst the text messages between the offender and his partner were subsequently deleted and hence not available, it would appear that the child's mother must have expressed some concern at the appearance of the baby in the photographs which had been sent to her. The offender took a photograph of himself holding the baby whilst in the waiting room at the medical centre and sent that to his partner, presumably to prove the fact that he had actually taken the child to the doctor. That photograph was tendered on the disputed facts hearing and became exhibit F. After leaving the doctor's surgery it would appear that the offender filled the prescription for Hydrocortisone cream which had been provided by Dr Mirza. The offender informed his partner later that day that Dr Mirza had looked at the child's face and also at the child's chest and that the doctor had determined it was an allergic reaction requiring the application of cream.
The offender collected his partner from her work at about 2.30pm and they then returned home. At that time the child’s mother saw that the baby's chest was covered in blisters. She said that she was horrified at the apparent seriousness of the injuries to the child's chest. The offender told her: "The doctor said it looks worse than it actually is", and that the doctor had also said: "Don’t freak out". It suffices to observe that in cross‑examination Dr Mirza said that not only had he not seen the injuries to the child's chest but he denied saying any words to the effect of those attributed to him by the offender. I accept the evidence of Dr Mirza in this regard. I have no doubt that he did not examine the child's chest; neither did he say the words attributed to him by the offender.
Notwithstanding the reaction by the offender’s partner when she said she saw the injuries to her child, neither she nor the offender took the baby back to a medical practitioner at any stage over the ensuing weekend. According to subsequent accounts by both the offender and his partner, the child was described as: "a bit irritated" on the Friday evening but "not too bad". They both claimed subsequently to have bathed the child and to have continued to apply cream over the weekend. The child’s mother gave an account of giving the baby some Nurofen. It was claimed that he continued to feed as usual.
On Saturday 12 October, the offender and his partner, together with the baby, went to his partner’s parents’ home for a barbeque. The child was wearing a nappy and no shirt. Mr and Mrs H subsequently reported that their grandchild seemed very unsettled and crying. Mr H said that the child:

“Was not happy and he looked like he was in pain. (The child’s) chest was red, his skin was peeling and it was black in areas, it looked really bad. It looked like a burn.”
Mrs H said,
“(The child) was not himself, he was far from it, (his) chest, stomach and groin looked burnt, it was yellow in colour. His skin was dry and it shrivelled up on his stomach and chest. (The child) had blisters on each side of this lips, which I did not see on Friday when I saw him. The tops of his thighs were also red and looked like a graze.”

Whilst at Mr and Mrs H’s home the offender tried to feed the child, but the baby would not eat. Both the offender and his partner said that the baby had not been sleeping. Mr H, who was also a First Aid officer with St Johns Ambulance, told the offender that he needed to take the child to hospital. The offender said to Mr H: "I have it under control, he will be all right". He further said: "I'll take him home and put some cream on him and he should be all right". The child subsequently slept and when he awoke the sheet was stuck to his skin. The child was distressed.
During the course of the weekend of 12 and 13 October 2013, the offender also spoke to his own mother and he told her that the child had a rash and some little blisters. He advised his mother that a doctor had said it was an allergic reaction. On Sunday 13 October, the offender and his partner, together with the child, again called into her parents’ home. Mr H told them, "Mirza is an idiot, he needs to either go to the hospital or to our GP". (The child’s mother) responded to her father: "Yes dad, yes". The offender and his partner then left her parents’ home.
The offender and his partner did not attend the Bathurst car races as they had originally intended. On Monday 14 October 2013, the offender did not attend his work. On that day the offender's mother, Mrs N, called at the offender and his partner's home. The child was dressed only in a nappy. He had a scab over his stomach and chest. Parts of the scab were dry and peeling off. He also had patches of scab on his legs and under his right arm.
Mrs N thought that it looked like a burn. She subsequently said, that the injuries to the child smelt. She asked the offender: "What the fucking hell have you done to him? What have you done to him? Have you dropped coffee on him?". The offender replied: "No, no it's just a rash from the carpet burn". According to Mrs N the baby was distressed and crying. The grandmother, Mrs N, was afraid to pick him up at that stage and she advised the offender and his partner to take the baby to the hospital. The offender said: "It's all right mum, the doctor said bring him back in a couple of days".
The offender and his partner left the house to go and obtain some milk formula for the child. Mrs N stayed with her grandson. For the 20 minutes or so that the offender and his partner were absent, the child continued to scream. Mrs N took a photograph of the child's chest and later provided it to police. That photograph became exhibit E.
On Monday afternoon (the child’s mother) said that she decided to take him to see a doctor. She made an appointment for 2pm on Tuesday 15 October. I note in passing that the offender asserted in his evidence before me that he made the appointment. I do not think that much turns on that. The simple fact of the matter is that it was not until 2pm on Tuesday 15 October that the parents of this baby took him back to a doctor. They attended, together with their infant son, at the Rosemeadow Medical Centre at about 2pm on the Tuesday.
They saw a Dr Le who was told by the offender that the child had a rash on his chest, that the skin of the child had become red on Friday and that it became blistered within about half an hour. Dr Le enquired as to why the chest had become red and asked: "It looks to me like a burn, how did it happen?". The offender told the doctor that he had put the child on a rug and that may have caused the damage. Dr Le immediately referred the child to Campbelltown Hospital for an opinion and management. The offender and his partner together with the child, then attended Campbelltown Hospital. The hospital notes record: "Burns to anterior torso and genitalia, total body surface area 8? Secondary to friction". The principal diagnosis was: "Burns".
The child was placed on intravenous antibiotics for sepsis, he was admitted to the hospital and overnight he suffered from a high temperature and a high heart rate. His parents remained at the hospital. The following day on the morning of Wednesday 16 October 2013, the offender and his partner left the hospital for a period of time. Ms H subsequently advised that they had left so that the offender could obtain a medical certificate for his employment. Later that day, 16 October, the child was transferred to Westmead Children's Hospital. He continued on intravenous antibiotics and he clinically improved over the following 48 to 72 hours. His wound swab results showed a "healthy growth of bacteria". He continued on intravenous antibiotics.
The child, some days later, underwent surgery on his chest, abdomen and pelvis at Westmead Children's Hospital. The child initially underwent debridement of his wounds, during which an extensive layer of necrotic tissue was removed. Pus was observed underneath this tissue and deep full thickness dermal burns were noted. The burns to his face, upper right thigh and his scrotum region did not require surgery. The child lost a significant amount of blood during the surgical procedure and post-operatively he was noted to be at a high risk of sepsis as a consequence of the findings during the surgical procedure. Something less than 10% of his body surface area was subject to excision or debriding and the graft area exceeded 10% of the body surface area.
On 23 October 2013, the child underwent further surgery for skin grafting. Each thigh was used as a donor site. The grafts ultimately related to approximately 12% of the total body surface area. He remained in hospital for a total of 20 days. He was eventually released on 4 November 2013 into the care of his paternal grandmother, Mrs N. Various photographs taken during his period of time in hospital were tendered before me.

An Assessment Report carried out at Westmead Children's Hospital, by Dr Marks from the Child Protection Unit jointly with Ms Carolyn Knight, a social worker and Dr Irene Chuah, Registrar, concluded that the burn injuries did not have the appearance or distribution of a friction burn in the fashion that had been suggested to the hospital by the offender. The mechanism of the burn was said to be difficult to determine given the appearance some four days after the injuries had been sustained. The initial photograph produced by the parents of the child, which I deduce was the photograph sent by the offender to (the child’s mother), was opined to be consistent with the appearance of a scald burn, that is a burn from hot liquid.
Dr Marks expressed the opinion that the overall appearance of the burn to the chest, which showed clearly demarcated injuries which were relatively linear and relatively symmetrical on either side, might raise concern for an immersion mechanism for the impression of the burn rather than a splash mechanism. The Assessment Report concluded that the history provided did not adequately explain the burn injuries. The report expressed concern that the features of possible immersion injuries, "were suspicious for inflicted injury in the absence of an adequate history".
The delay in seeking appropriate medical care had led to significant infection. Following the child's discharge from hospital he was required to wear a pressure garment and he required daily administration of cream and long-term treatment with the Burns Clinic of the Children's Hospital.

EXPLANATIONS PROVIDED WITH RESPECT TO THE INJURIES

As I have outlined above, the offender made suggestions to his partner on the morning that the injuries were apparently sustained because of a new rug and the reaction or rash looked like a burn. Later that morning he told his partner's mother, Mrs H, that the apparent burns and blisters had arisen as a result of the child being on a mat with no clothes on. As I have detailed above, when he saw Dr Mirza later that morning he only showed the child's face to the doctor and indicated he thought it was an allergic reaction or rash, possibly from a teething rusk.
Over the course of the weekend of 12 and 13 October, the offender variously lied to both his partner and to her parents in suggesting that Dr Mirza had in fact examined the child's chest and had prescribed cream for a rash in light of such an examination. The doctor had allegedly indicated that the chest was nothing more than an allergic reaction. When the child was taken to see the second general practitioner Dr Le on Tuesday 15 October, the assertion that the child had been put on a rug and that there had been some sort of reaction to being on the rug was maintained.
Following the admission of the child to hospital, the offender and Ms H were spoken to many times by medical staff and police. The initial account given on their attendance at Campbelltown Hospital repeated the false account which had been previously and persistently maintained regarding a reaction to the baby being left on the carpet. A detailed account was taken from both the offender and Ms H at the Children's Hospital Child Protection Unit on 16 October 2015. The offender and his partner had declined to be interviewed individually. They provided an extensive version of what was said to have occurred, including the detailed description of the child being placed naked on a rug.
The account given was consistent with either a form of carpet burn, and/or an allergic reaction to material described as “similar to tinsel” in the carpet. The Child Protection Unit members formed the view that the account given was not consistent with the injuries that were being observed on the child. Whilst the infant was later undergoing surgery, Ms H provided a further account which is set out in full in the Agreed Facts tendered on the sentence proceedings, or at least in what was put forward as proposed Agreed Facts with portions which were “in dispute” indicated. This account was not in one of the portions in dispute. She described her shock when she actually saw the state of the child when she came home from work on the Friday afternoon, and generally sought to explain why neither of them had taken the child for a second opinion or back to a doctor over the following weekend.
The offender was further interviewed in a recorded interview by police during the time that the child was undergoing surgery. He again gave a detailed account of the events of the morning on which the injuries were sustained. He maintained an assertion that he only observed the injuries after leaving the child for a prolonged period of time playing on the carpet. He gave a false account of having shown the injuries to the child's chest to Dr Mirza. He continued to recount the description of an allergic reaction. In answer to further questions he asserted that Dr Mirza had opined that it was a “friction burn” or “carpet burn”. He described having followed the doctor's instructions of applying cream three times a day and gave a detailed explanation of the blisters having burst over the following days and the offender's belief that all that needed to be done was to keep the wound clean. He asserted that the child was still sleeping and eating properly and not missing any feeds.
On 28 October 2013, (the child’s mother) was again interviewed. She admitted on that occasion that she had destroyed the photographs and text messages which she had received from the offender. Some of those had been shown to hospital staff earlier and a copy of the photograph which became exhibit A before me was subsequently obtained from the offender's phone. Ms H was advised by the hospital staff and, in particular, by members of the Child Protection Unit that Dr Mirza had been spoken to and that he had stated that the offender had not alerted him to the marks on the child's chest at all. Ms H started crying and said: "I'm not surprised".
The Agreed Facts reveal that Ms H then agreed to participate in a pretext telephone call with the offender which was recorded pursuant to a lawful intercept listening device. In that conversation she informed her partner that Dr Mirza had been spoken to and that he was asserting that the offender had not shown the child's chest to the doctor during the examination. The offender maintained that he did show Dr Mirza the child's chest and that he did not know why Dr Mirza was lying. Ms H told the offender that the doctors at the Children's Hospital thought that it was a hot water burn or similar. The offender denied having had the child near hot water.
On 29 October 2013, the offender participated in yet a further interview. He again gave a detailed account of having left the child alone, naked on a rug. He gave an account of having taken the child to see Mrs H, and he claimed that the child had played happily with Mrs H on that occasion. I should observe in passing that, this is in marked contradistinction to the account provided by Mrs H herself which I have set out above, and which I accept is a truthful account by her. The offender maintained in this interview that Dr Mirza had indeed sighted the injuries to the child's chest and legs but nonetheless had determined the child was only suffering from a rash.
The Agreed Facts then set out the details of another interview with (the child’s mother). Relevantly in that interview, she described the fact that when she returned from work on the day that the child sustained the injuries, the lawn mowing had not been done and neither had most of the household chores which had apparently been left for the offender. With reference to the text messages which she had received from the offender asking for Panadol, she had presumed that it was required for teething. She told the interviewer that she had not seen Panadol in the house since the date of the offence. She described that after she had returned home and over the weekend, she had: "Never seen a burn that bad".
The Agreed Facts then set out a summary of a further interview with the offender, this time on 27 November 2013. With respect to the assertion that Dr Mirza claimed to have not seen the chest during the physical examination, the offender asserted that Dr Mirza was lying as, of course, he had said to his partner in the pretext phone call. He claimed that he had provided an account to Dr Mirza of the child lying on the rug at the time that he had noticed that something was wrong. The offender asserted that the child had not been in pain or crying over the weekend but he did agree that others had recommended that he should take the child to hospital. He was not able to provide an explanation as to why he did not do so. He told the interviewing police that he had done senior first aid training. He said that he had given the child Panadol but believed that he had done so prior to putting him on the rug.
In the disputed facts hearing before me, the offender gave evidence. In his evidence before me he described his personal background and upbringing. With one qualification, namely the assertion that he was said to have attempted suicide at the age of 16, he confirmed the accuracy and truthfulness of what was contained in a consulting psychologist's report prepared by Mr Raymond Hudd, to which I will make reference shortly.
The offender described having observed domestic violence between his parents when he was a child and there having been a degree of physical violence between him and his father. I note that his parents separated when he was in Year 8 or 9 at High School and he would have then been aged approximately 13. He indicated that following a problem with his driver's licence, he no longer worked at Mercedes Benz Rushcutters Bay and that he was now employed at Jax Tyres at Campbelltown. He said that he has contact with the victim, who is now four years of age, once every two months under supervision at Family and Community Services at Campbelltown.
The relationship with (the child’s mother) had come to an end and the offender now resides with his grandmother in Appin. The victim resides fulltime with the offender's mother who also lives in Appin. On the occasions that his mother works, the offender's grandmother looks after the child, although this is said to only take place on occasions when the offender is not physically present in the house. He described that he was 21 years of age, some two months before his 22nd birthday, on the occasion that his son suffered the injuries the subject of these proceedings.
Whilst there is reference in the Pre-Sentence Report to the cause of the child's injuries being something that the police “did not know about”, the offender gave in evidence before me, so far as I am able to ascertain for the first time, a different account as to the mechanism of the injury than that which he had previously and repeatedly maintained. In his evidence on oath before me, he described as follows: "At one point I bathed him and afterwards after getting out, dried him and then we went and sat down in the lounge room in front of the heater". He described a gas heater which can be seen in photographs included in the Crown tender bundle which was a Rinnai gas heater.
The offender maintained that the heater was on, notwithstanding that it was 11 October. He claimed that he held the child in front of the heater to warm up, and he described their respective physical positioning. He said that they were in that position for a little over five minutes. Other than the child feeling warm and his father noticing that he was "a bit red" when he dressed him shortly afterwards, the child had not been distressed nor had the child exhibited any discomfort of any kind and he had not cried.
He claimed that the reason that he did not tell his partner what in fact had happened, was that she had previously threatened to leave him and take the child. He claimed that from reports that he heard from his mother, the pressure suit worn by the child when he was discharged from hospital was not worn for very long after that time. He claimed that the child had made pretty much a full recovery and he said: "He's fine now". For reasons which will become clear, that evidence does not sit comfortably with the unchallenged evidence of Professor Peter Maitz, an expert Professor in Burns to whom I will make specific reference shortly.
In cross-examination the offender agreed that in the recorded interview with police on 16 October 2013, he had told the police that although there was a heater in the house it was not on, on that particular day, because, "It was very hot". A Bureau of Meteorology extract relating to 11 October 2013 was tendered. That extract indicated an early morning low temperature of between 14.2 degrees Celsius at about 6am and 19.2 degrees Celsius at 9am, rising to a maximum of over 25 degrees at 2pm. That temperature range does not preclude the possibility that a gas heater was put on for some purpose around about possibly 8am when the temperature was 17 degrees, notwithstanding a degree of reservation that I hold in that respect. The offender said in his evidence that he had not been honest with the police when he told them that the heater had not been on because it was very hot. He said that he was now telling the truth.
In the course of cross-examination by the learned Crown Prosecutor he was unable to proffer any explanation as to how the underside of his child's scrotum would have been burnt by radiant heat if the child was in the position that he had described. He said that the child was not distressed, was not crying and indeed there was nothing at all to indicate that there was anything wrong with him during the period of about five minutes during which the child was, according to the objective evidence, receiving third-degree burns. He denied the possibility of any mishap with a bottle which may have been heated or any other basis upon which hot liquid might have been spilt onto the child's chest. In the course of his evidence he ultimately conceded that the text messages which he had sent to his partner regarding the child being out of control and crying would have accurately reflected the state of the child at that time, as contrasted with his assertions in his oral testimony.
With respect to the state of his relationship with (the child’s mother) as at the date of the injuries being sustained, he initially claimed that the relationship was fine and that what happened with the child was a major cause of the subsequent breakup and separation. However, later in his evidence he said that there had in fact been “trouble” in the relationship for some time prior to this incident and that in the past, that is the past prior to the date with which we are concerned, (the child’s mother) had made threats of taking their child and leaving the relationship. He maintained his denial that there was any possibility of hot water having been poured onto the child for any reason.
He said the relationship with (the child’s mother) had been quite rocky, for quite a while, “fighting” all the time and not getting along. He further asserted that there was no way that hot liquid could have been spilt on the infant.
Against that explanation of the causation of the injuries, the Crown relied firstly on a number of reports previously obtained from medical practitioners and also called oral testimony from Dr Mirza, the GP who had seen the child on the one occasion; from Dr Suzanne Marks of the Child Protection Unit at Westmead Children's Hospital; and from Professor Peter Maitz, a professor of Burns Injury.
Dr Suzanne Marks was a staff specialist in the Child Protection Unit at the Westmead Children's Hospital. She first became involved when the Burns social worker at the hospital referred the victim to the Child Protection Unit on 16 October 2013 following his admission to Westmead Hospital. The referral to the Child Protection Unit had occurred in circumstances where the explanation of a carpet or friction burn did not appear to the medical practitioners to adequately explain the burns which were observable on the child. Dr Mirza was contacted by the Child Protection Unit and, as I have previously indicated, it was ascertained from him that he had not been shown the abdomen or chest of the child and had only seen the child's face. This was of course, directly contrary to the assertions being maintained at the Hospital at that time by the offender and his partner (although, of course, I note that his partner’s knowledge was simply based on what the offender had told her).
The infant was found to be suffering from substantial infection on his chest area and his wound swab results showed quite a heavy growth of a "methicillin-sensitive staphylococcus aureus". He was placed on intravenous antibiotics. On 23 October a skin graft operation to the chest and abdominal burn site was carried out. The donor sites were the legs of the child. In addition to these described injuries, Dr Marks's report indicated that x-rays taken prior to injury revealed two posterior rib fractures. These fractures were on adjacent ribs and Dr Marks opined in the report tendered before me:

“A significant amount of force would be required to cause these rib fractures and they would not be expected to result from a normal activity or handling. The rib fractures would have been painful when they occurred.”

In the opinion of Dr Marks: "Posterior rib fractures have a high correlation with inflicted injury". The rib fractures appeared to be more than ten days old, but they could not be dated precisely. The child's mother, when interviewed, postulated a fall from a couch some weeks earlier as being the possible cause. Dr Marks was of the view that a fall from a couch as described: "Would not be expected to cause posterior rib fractures".
These rib injuries form no part of the charge with respect to which the offender has pleaded guilty and falls to be sentenced. Accordingly, they are not to be taken into account in any fashion as aggravating the culpability or criminality of the present offender. They were included in the medical report tendered before me on the sentence proceedings and I refer to them purely on the question of considering the ongoing position of the child following the receipt of the injuries with which I am concerned, namely the reckless inflicting of grievous bodily harm resulting in burns.
The present position of the child is somewhat unusual in that I have been informed that his natural mother herself has lost custody of her child and now has only limited access which I am told is once per month. I am completely unaware as to the reason for the child having been removed from his mother's care and can only surmise as to the possibility of it having anything to do with the fractured ribs. I do note that the possibility that the child was still in pain from fractured ribs might provide an explanation for the report by the offender on the day in question of the baby being out of control and crying.
I should note in passing that it may well be that the failure of both parents to take the child for medical treatment to his clearly seriously burned chest between Friday 11 October and Tuesday 15 October 2013, might have also contributed to the ultimate disposition of his future care and custody.
Going back to the report of Dr Marks, she was ultimately of the view with respect to the burns that there were difficulties in understanding the mechanism of their cause. With respect to the burn to the chest she had thought, as expressed in the report, that the overall appearance raised concern for "an immersion mechanism for the burn to the body rather than a splash mechanism". With respect to the lesions to either side of the child's mouth, she thought that the appearance of those burns "were difficult to understand as either an immersion burn or a splash burn and raised questions whether contact with a hot object could have caused them". She thought that they were similar in appearance to the burn injuries to the arm and thigh. She ultimately came to the view that,

“The precise mechanism(s) for the burn injuries was difficult to understand based on their overall appearance. The history provided did not adequately explain them. The features of immersion injury were suspicious for inflicted injury in the absence of an adequate history.”

At all events, Dr Marks was ultimately of the opinion that there was a lack of appropriate initial care for the burns and there was subsequent significant delay in seeking medical care for the burn when it became infected. The child when presented to hospital was systemically unwell. There were concerns about the appearance and smell of the burn the day before the child had been taken to hospital. In addition to the two healing posterior rib fractures that I have made reference to above, there were two other areas of unexplained bone injuries seen on a bone scan. Dr Marks came to the opinion that: "[the victim’s] overall presentation was highly suspicious for inflicted injury, his presentation also indicated significant neglect of his basic medical needs.”
The Crown also called Professor Peter Maitz, a highly qualified specialist Plastic and Reconstructive surgeon and a Professor of Burns Injury. He was initially retained to provide a report and then called to give expert evidence with respect to the injuries sustained by the child. Professor Maitz in his original retainer provided an expert opinion with respect to the original version of events provided by the offender, namely that it was a friction burn sustained by the child whilst on a rug. Professor Maitz readily concluded that the burn injuries which were depicted in the photographs provided to him did not match the mechanism asserted and that some areas depicted clearly showed injuries outside any possible interface with a rug.
He was of the firm view that “the extent of the depicted injuries is such that a friction injury is simply not possible".
Professor Maitz subsequently provided a further report in which he expressed the opinion that the burn wounds depicted in the photograph provided to him were consistent with a scald burn. In his opinion the burn injury was likely due to hot liquid from a large cup or kettle being poured over the child whilst laying in a cot or similar. The Professor was called to give oral testimony on the disputed facts hearing after the offender had given his new account in evidence, of the child having been held in front of a gas heater.
The Professor did not think that the burns which were observed on the child were caused by radiant heat. He explained that the nature of a radiant heat burn was much like when somebody went to the beach and was sunburned. It was not a localised area, it would be the entire exposed area. Unless the parts of the body that did not show any injury had been completely covered whilst the radiant heat was being received, the injuries, in his opinion, were inconsistent with that being the cause. With respect to the burns on the nasolabial folds to the face, the Professor observed that if it was a radiation burn you would have had a burn on the tip of the nose which was the highly prominent and most likely burnt area on the face. In his opinion it was almost impossible to have a burn on the face in the fashion which was described as the cause, without having a burn on the tip of the nose.
In addition to being provided with photographs Professor Maitz had access to the medical records of Westmead Children's Hospital and to the notes of the surgeons who had operated on the baby. He described the burn to the chest as being a full-thickness third-degree burn to the anterior surface of the child's torso, in other words to the chest and stomach region. He expressed the following opinion:

“Burns surgeons when it comes to children, are extremely conservative because once you start operating on these children they will have scars forever, for the rest of their lives. If you can heal the wound without an operation, you will do anything that you can so they wait. It is very different, they wait as long as they can. If they have to, which means it is a full-thickness burn they did not have another choice. So considering that this was a full-thickness burn to the child's anterior torso, there would definitely be a lesser extent of burn injury to the child and to anybody in the vicinity.”

By that answer, Professor Maitz was both illustrating the extent of the burn and its consequences and also further illustrating his opinion that it was not caused by radiant heat as there would have been a lesser degree of burning to other portions of the body and also to the person allegedly holding the child. Professor Maitz described in detail the increased damage to the skin as a consequence of the failure to apply any first aid in the first three hours following the burn having been sustained. He expressed an opinion that the skin graft would result in pain, disfigurement and as he described it, a lot of psychological sequelae.
Professor Maitz expressed a firm rejection of the mechanism of the cause of the injury which had been given by the offender in his evidence before me and he ultimately came to the conclusion, postulating a rhetorical question of trying to imagine how the injury could have occurred, that in his view it was most likely that liquid was poured "however, I don't know, and then ran down which is why it becomes a little narrower". I understood the reference to “however”, meaning however it was in fact poured. The Professor was of the opinion that the lesser burn injury to the scrotum including its underside, was as a result of hot liquid pooling between the legs of the child.
With respect to the localised burn on the right leg and the lesser burn to the face area, Professor Maitz was of the view, unlike Dr Marks, that it was consistent with a splash of hot liquid. He clearly was of the view that there was one causative mechanism which may have splashed rather than, as hypothesised by Dr Marks, the possibility of there being a separate cause of the burn to the face in particular.
Professor Maitz had the same opinion with respect to the portion of the right armpit which had sustained a burn. He was of the opinion that the liquid would had to have been very hot and to be consistent with the sort of temperature of having been boiled in a kettle. With respect to the explanation given by the offender in evidence before me, the Professor's ultimate position was that in his opinion it was not possible that the burns could have occurred as a result of radiation from the heat or a gas heater with the child being held in the way described. The doctor was ultimately of the view that laser surgery would be likely to be required in the future and his estimation was that it would require at least three general anaesthetics in order to carry out the appropriate procedures. That evidence was not challenged.

RESOLUTION OF DISPUTED FACTS

The task of fact-finding in circumstances where there are no agreed facts as to the mechanism of the injuries sustained by the child, requires consideration of a number of conflicting accounts which have been given and a consideration of the objective circumstances which are established as well as the opinions of the specialists who have provided reports, and who have been called to give evidence in the proceedings. I remind myself that, facts in aggravation of the offence are required to be established beyond reasonable doubt by the Crown whilst facts which are relied upon by the offender in mitigation of the criminality of the offence are required to be established by him on the balance of probabilities (see The Queen v Olbrich [1999] HCA 54; 199 CLR 270).
In light of the plea of guilty to recklessly inflicting grievous bodily harm, it might be considered by some that to deliberately hold a child in front of a hot gas heater for long enough to cause third-degree burns to the child's chest could be viewed as having a higher degree of culpability than a possible misjudgement of the possibility of occasioning grievous bodily harm caused by the pouring of a hot liquid onto the chest of a child for some reason. However it is viewed, I have come to the conclusion that the account given in evidence before me by the offender, with regard to the mechanism of the injury having been sustained by his son in front of a gas heater, should be categorically rejected. His presentation and demeanour in giving evidence before me of itself, raised considerable concerns about the veracity of his account.
He manifestly lied on the day that the injuries were sustained by his child to his partner, initially in the SMS messages which he sent and subsequently when he saw her in person. He lied to his partner's mother when she raised concerns about the appearance of the burns to the child's chest and in addition to lying to Dr Mirza took particular steps to prevent the child being fully examined by the doctor.
Thereafter he lied about the circumstances of that attendance upon the doctor and about what areas had been physically examined by the doctor. He also lied about assertions and an expression of opinion, which he falsely attributed to Dr Mirza. He sought to allay his partner's considerable shock and concern upon seeing the injuries by telling her that Dr Mirza had asserted that it looked worse than it actually was and to not freak out. He maintained the lie about what Dr Mirza had seen and said to Mr and Mrs H and to his own mother and he continued to not take the child for further medical treatment, notwithstanding being told by Dr Mirza to bring the child back within one to two days.
He continued to blame Dr Mirza in his conversations with the extended family and on eventual referral to Campbelltown Hospital and then to Westmead Children's Hospital he persistently repeated the lie about the injury being a rash or carpet burn. The lie about the examination carried out by Dr Mirza, as I have detailed above, was similarly maintained including in the pretext phone call with his partner. It is significant that in the proceedings before me that the false assertions by the offender were abandoned. It was not put to Dr Mirza in cross-examination that he had in fact examined the chest. Counsel for the offender, Mr Doyle, no doubt on instructions, did not seek to challenge the doctor's explanation as to what part of the child he had in fact examined. In addition to these expressed reasons for considerable reservation about the new and completely different account given in evidence before me, the opinion evidence of Professor Maitz totally rebuts the account given by the offender. In combination with the objective evidence and buttressed to some degree by the evidence of Dr Marks, I unequivocally accept the expert evidence of Professor Peter Maitz.
I am satisfied beyond reasonable doubt that the injuries sustained by the victim were occasioned by the pouring of a very hot liquid to his chest area. I am similarly satisfied that the lesions to his face, his right armpit, and to his thigh are consistent with a splashing of the scalding liquid and that the injury to his lower abdomen to the anterior and also the underneath of his scrotum, as well as his penis, are consistent with hot liquid running down the torso of the child and pooling at the base of however he was sitting or being held. I am unable to come to any adequate or satisfactory understanding of why such a hot liquid would have been poured onto the child.
I remind myself that the charge to which the offender has pleaded guilty does not include any intention to inflict grievous bodily harm. The charge to which he has pleaded guilty is recklessly inflicting grievous bodily harm. The concept of recklessness with respect to the mechanism of injury which I find established must therefore incorporate a failure to consider the likely or possible outcome of the pouring of hot liquid on to the child, whatever may have been the reason for it being poured in the first place. The concept of recklessness, in accordance with Blackwell v The Queen [2011] NSWCCA 93, with respect to the mechanism causing the injury, must incorporate a realisation by the offender that it was possible that grievous bodily harm, that is, really serious injury, would be inflicted on the child and yet he went ahead and acted in the manner which I find that he did.

SUBJECTIVE FACTORS

I turn now to the subjective features of the offender's case. A Pre‑Sentence Report was prepared for the assistance of the Court by the Community Corrections Officer at Campbelltown dated 20 April 2017. It described the family and social circumstances of the offender at present as residing with his grandmother in the Appin area. He had been residing with his grandmother for approximately one week at the time of the preparation of the Report. The offender's grandmother verified that on occasion she is responsible for caring for the victim of the offence her great-grandson (the victim) in her own home. This is apparently the arrangement on occasions that the child's now principal carer, namely the offender's mother, herself works and on occasion leaves the child with her own mother. The Report noted that,

“Although being aware that (the offender) is prohibited from having unsupervised contact with the victim by way of an apprehended violence order, she has reported that by co-residing with her, (the offender) would have a support network of other relatives whom (sic) live in the local area".

The author of the Report noted that,

“Whilst it appears that this change of residence is viewed as a form of stability for (the offender) it appears that some of his immediate family members have seemingly minimised the offender's involvement in the current offences and the seriousness of his current position".

The offender was reported as having completed Year 12 at school and having then transitioned into a TAFE course which gained him his present status as a qualified mechanic. He had been reported as consistently employed and his current employer confirmed that he had been working as a mechanic for them since August 2016. He was assessed by the author of that Report as having a low risk of re-offending. The Community Corrections Officer assessed the offender in her Report as presenting "as guarded and emotionally distant during the preparation of the Report, appearing to have no insight into his current circumstances".
She described:

“The offender's apparent unwillingness to consider any factors that could have contributed to the offences in addition to how his actions caused significant injury to the victim, suggests a lack of responsibility and remorse by (him). While the offender's family appear to provide a supportive environment to him, it is unclear how influential they are in providing positive role modelling for (him)".

That assessment by the author of the Report is consistent with the presentation of the offender in evidence before me. As I have indicated earlier in these Remarks, I am satisfied that he was untruthful in the account which he gave in evidence as to the mechanism of the cause of the injuries sustained by his infant child. He persistently and consistently lied to his partner and to all members of his extended family, to the nursing staff and medical staff at the Children's Hospital, to the police and to officers of the Child Protection Unit who variously spoke with him and interviewed him. He then gave the account which I have found to be completely false in evidence before me.
He is not to be punished more severely because he has chosen to lie. He does, however, thereby lose any benefit of genuine remorse or contrition. He entered into a disputed facts hearing whereby much of the expert medical evidence which would have been called in a trial by the Crown was required to be called on the sentence hearing and cross-examined and he then gave evidence which, as I have said, I have found to be false. This substantially diminishes the utilitarian value of his plea.
A psychological report by the consulting psychologist Mr Raymond Hudd dated 20 April 2017 was tendered on behalf of the offender. With one qualification to which I have already alluded, the contents of the report were confirmed to be true by the offender when he gave evidence before me. The one area of correction was the proposition, described in the psychological report, that the offender had attempted to commit suicide when he was 16. The offender said that he had never attempted to commit suicide and that any suicidal thoughts that he may have had have only arisen since the present offence. It remains unclear as to what the psychologist was told that led him to incorporate such references and attribute them to the offender being 16. I will, however, ignore the reference to attempted suicide in the report.
The psychological report set out the personal history of the offender. He is now 25 years of age and he grew up with his family in Appin. He was the eldest of four children and has good relationships with all of his siblings. His parents separated when he was in Year 8 or 9. He had attended Primary School at Appin Public School and then High School to Year 12 at John Therry High School. He won an apprenticeship as an automotive mechanic with Mercedes Benz. He described having been a good student up to Year 10 but to have put no effort into his school work after that stage as he: "Just could not be bothered anymore".
He had been in a relationship for three and a half years with (the child’s mother). The relationship had started when he was 20 although they had known each other since school, and the child victim was born into that relationship. Apparently half-way through the relationship, and according to the psychological report, his partner started staying away overnight and in due course the offender found out that she had been cheating on him. I note that the offence occurred in October 2013 shortly before he turned 22 years of age. Whether there was any connection between the circumstances of the present offence and difficulties in the relationship was explored only lightly in the course of his evidence. The psychological report also refers to constant domestic violence within his parents’ home for about a year and a half before the offender's parents separated. The offender described his father being verbally and psychologically abusive to him.
At 16 years of age he had joined the Appin Volunteer Bush Fire Brigade, and was active in that organisation for some three years. He described various fatalities and other traumatic incidents which he witnessed in the course of that time in the Rural Fire Service. He described a motor accident fatality near Appin which he attended at 16 years of age in which he saw the driver of one of the vehicles impaled on the steering column. It was the first time he had ever seen a deceased person. The offender described to the psychologist a sense of numbness at what he had witnessed. The psychologist recounted that in the course of describing the domestic violence and the incident involving the deceased person being impaled on the steering column, there was: "A quality of clear disassociation in his presentation".
The offender described to the psychologist a further two fatalities as well as several other major motor vehicle accidents and also bush fires and house fires which he attended. He had declined an offer of counselling while he was still in the Rural Fire Service. The offender described to the consulting psychologist the suicide of a close friend when he, the offender, was still a teenager. He told the psychologist that he did not feel much when told of that tragedy and viewed it as: "Just another fatality". The offender told the consulting psychologist that he does not use drugs and only occasionally has a social drink. For some time he has attended church regularly and most recently attends the Potter's House Christian Church as well as the Catholic Church. At times he has attended Hillsong Church.

The psychologist's observations of the offender included that his mood appeared to be depressed and at times he appeared to be disassociating. His demeanour and many of his responses were viewed as stoic, and at times, "trance-like". He appeared to have frequent mood fluctuation, suffered insomnia and disruptive sleep, nightmares, flash-backs, loss of interest in many things, a disinterest in food and a perception of a foreshortened future. A series of tests pursuant to the Trauma Symptom Inventory were administered. He had elevated scores for anxiety arousal and significantly elevated scores for depression and anger/irritability. He had an elevated score on the tension reduction behaviour scale, which is a scale used to measure an individual’s tendency to externalise distress through suicide ideality, aggression, inappropriate sexual behaviour, self-mutilation and activities intended to forestall the feelings of abandonment and loneliness. An elevated score on this scale is said to be often associated with a diagnosis of borderline personality disorder.
Mr Hudd analysed the various elevated scores. Some of his findings included a profile consistent with de-personalisation, de-realisation and cognitive disengagement. Other aspects that the psychologist indicated included difficulty understanding or expressing feelings and an inability to predict the person's own reactions and behaviour in certain circumstances of stress. It is, according to the psychologist's report, not uncommon for such people to feel overwhelmed by stress. Other features which were identified reflected an individual's attempts to avoid extreme internal, often post-traumatic, distress.
An elevation on one of the scales tested was suggestive of reducing contact with painful features. Other elevated scales indicated externalising the internal distress. Elevation on the particular scales in combination suggested that a person might behave in a dissociated state. The psychologist ultimately concluded that the offender's symptoms were consistent with chronic complex post-traumatic stress disorder and also a persistent depressive disorder.
In examining a link between his diagnosis and the offending behaviour the consultant psychologist referred to features in the response of children who had been exposed to domestic violence. Having been exposed to domestic violence may result in a complex array of emotions and behaviours. The behavioural responses can include acting-out behaviour, amongst other features. Children exposed to domestic violence might also use violence to express themselves and display increased aggression towards others. They also become self-injuring. Where young people have experienced a number of traumas the effect may be cumulative, making them more vulnerable to stress reaction.
In the opinion of Mr Hudd, at the time of what he described as "the alleged offence", the offender was suffering from post-traumatic stress disorder and was also depressed. He was of the view that the offender was suffering from an impairment of judgment:

“The area of impaired judgment greatly affects the ability to effectively and accurately perceive a situation and then to make the appropriate decisions about a particular situation immediately".

The psychologist also expressed the opinion that it would be not unreasonable for the offender, given the history given to the psychologist, for the offender to hold a fear that he could be seen as an abuser similar to what he himself had experienced from his father. The psychologist thought it was reasonable that one of the reasons he did not assist the doctor in providing accurate information about the child and his injuries, "was his confusion about what information the doctor required and the fear of losing his son".
Mr Hudd ultimately expressed the opinion that the offender required ongoing psychological counselling to assist him to resolve the severity of the symptoms which had been described. He proposed to act as a supervising practitioner for such period as determined by the Court and to inform the Court of any non-compliance. He believed that it was unlikely the offender would receive what he considered to be the appropriate treatment that was required to overcome these psychological issues and thus change his behaviour in the event of him being incarcerated. I should note, in passing, that the proposition that there was confusion about what information the general practitioner required, in the circumstances of the attendance upon Dr Mirza, is not something which sits comfortably with my impression of what took place.
In giving appropriate consideration to the opinions of the consulting psychologist, and to his description of the domestic violence to which the offender was apparently exposed in his teenage years, having been in Years 8 and 9 at school at the time, I am cognisant of the principles articulated by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. The plurality, French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ, said, at [37] in reference to the principles set out by Wood J in R v Fernando (1992) 76 A Crim R 58:

“An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence, in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence.”

In this respect, Simpson J in Kennedy v R [2010] NSWCCA 260 has correctly explained the significance of the statements in Fernando. Her Honour said,

“Properly understood Fernando is a decision not about sentencing Aboriginals but about the recognition in sentencing decisions of social disadvantage that frequently, no matter what the ethnicity of the offender, precedes the commission of crime.”

The High Court in Bugmy went on to observe at [44]:

“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

The difficulty adverted to by the plurality in Bugmy was further reinforced by the observations of Gageler J in Bugmy at [56]:

“Consistently with the statement of sentencing principle by Brennan J in Neil v The Queen [1982] HCA 55; 149 CLR 305 at 326, the weight to be afforded to the effects of social deprivation in an offender's youth and background, is in each case for individual assessment.”

The balancing exercise adverted to by Gageler J between competing aspects of the sentencing process had also been specifically adverted to by Gleeson CJ in Engert (1995) 84 A Crim R 67 at 68.
The psychological conditions identified by Mr Raymond Hudd and their relationship to the commission of the present offence, must necessarily be tempered to some degree by the fact that there is no evidence as to the factual basis upon which Mr Hudd was instructed regarding the commission of the offence. It is likely that he understood the mechanism of the cause of the injury to have been the child being left naked on a rug, although it is to be observed that he does not identify what action or actions by the offender he was contemplating with regard to the connection between the actions and the mental state of the offender.
In all of the circumstances I am not of the view that this material warrants any substantial reduction in criminal culpability, particularly when balanced against the need for personal deterrence and general deterrence underlying the need for the protection of members of the community who are intrinsically and inherently vulnerable, such as a six-month-old child.
In addition to the offender's own evidence, oral testimony was called from his mother which verified the circumstances of the family breakup. His mother, who is now the primary carer of the child, gave evidence and produced some photographs which were relied upon in support of the proposition that the child has essentially made a full recovery and now has a healthy and loving relationship with his father.
An overtone of the offender's mother's evidence appeared to me to be suggestive of some blame being placed on (the child’s mother) for the state of affairs regarding the victim and there was an undercurrent of suggestion both in evidence and in discussion with the Bar table, regarding the nature of the mother's relationship with her child. Such considerations play no part in my determination of the offender's culpability for the offence in respect of which he has pleaded guilty and also that which is included in the Form 1. In addition to the subjective material to which I have referred, a reference was tendered from the Pastor of the Potter's House Christian Centre at Campbelltown indicating the involvement of the offender with that Church since January 2017.
There has been some delay in this matter being brought to final conclusion and I should make reference to that. The offender was originally charged with the principal offence and also that on the Form 1 on 27 November 2013. That charge was by way of service of a future court attendance notice. He came before the Campbelltown Local Court and in due course it was indicated the matter was to be defended and whilst waiving the right to a committal he was ultimately committed for trial to this Court on 21 May 2014. The matter came before the Court for arraignment in June 2014 and the trial was given at that stage a two-week estimate.
In due course it was fixed for trial in June 2015. At that time the matter was not able to proceed after being adjourned over a number of days due to the unavailability of judges here at Parramatta at that time. It was stood over for further mention to fix a new trial date. In April 2016 when the matter came before Parramatta District Court for trial, it was adjourned as a consequence of representations which had apparently been made on behalf of the accused to the New South Wales DPP. I have been advised by Mr Doyle that there was also, again, a lack of available courts at Parramatta. As a consequence of those representations not being able to be dealt with urgently, and, as I am informed, the lack of a court, the trial date was vacated. In May 2016 a further trial date was fixed for February 2017.
In February 2017 it was indicated, presumably as a consequence of the representations made the year before, that there was the possibility of the matter becoming a plea. The original Count 2 on the indictment was placed on the Form 1 and as a consequence a plea of guilty was entered to Count 1. That occurred on 28 February 2017 and a Pe‑Sentence Report was directed to be obtained.
The matter ultimately came before me for sentence on 24 April 2017 with the Pre-Sentence Report having been obtained, and the sentence proceedings took place on 24, 26 and 27 April on which occasion I reserved. It is to be regretted that delay, to an extent brought about by an apparent lack of resources at this Court complex, has resulted ultimately in the matter falling to be determined some four years, or approaching four years, after the commission of the offence.
With respect to the Form 1 offence of failing to provide appropriate medical care, in the sense of not taking the child to the doctor, I note the decision of Spigelman CJ who delivered the judgment of the Court comprising of the Chief Judge at Common Law, Wood J, Groves, Sully and James JJ agreeing, in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146. The sentencing court, in this instance myself, is sentencing only for the principal offence. It is not part of my task to determine an appropriate sentence for the offence listed on the Form 1. However, the appropriate penalty in respect of principal offence is increased by giving greater weight to the need for personal deterrence and to the community’s entitlement to exact retribution for a serious offence.
In relation to mitigating factors upon which the offender is entitled to rely and which I must, of course, take into account, I do note that he has in the circumstances that I have outlined, entered a plea of guilty. It cannot be said that that was at the first opportunity or at the earliest opportunity, and for the reasons that I have expressed earlier the utilitarian value of that plea is diminished to some degree. In my view, whilst taking into account the plea of guilty, that would entitle him to a reduction of in the order of 10% of an otherwise appropriate sentence.
In relation to mitigating factors set out in the Crimes (Sentencing Procedure) Act, I note, self-evidently, that the offence was not part of a planned or organised criminal activity. The offender does not have a relevant record of previous convictions, although I do note that he has a number of matters touching upon his compliance, or more to the point non-compliance, with the regulatory and specified requirements of driving a motor vehicle. He is previously in general terms a person of good character notwithstanding the matters of driving whilst disqualified and similar ilk. He has been assessed as unlikely to re-offend although that is a matter in respect of which, given the contents of the psychological report, one would hold a degree of reservation depending upon his ultimate prospects of rehabilitation which overlap with the potentiality of re-offending. It is clear that at some stage he is going to need to attend to the psychological aspects addressed in that Report which seem to me to equate not only with disassociation but perhaps a lack of appropriate empathy.
The question of remorse, I have already indicated in the course of my Remarks, has been tempered by the findings which I have made regarding his expressions of explanation for what he says occurred. I concur with the views in the Pre-Sentence Report and do not believe that he has appropriately accepted responsibility for his actions, nor has he acknowledged the extent of the injury, loss and damage caused by his actions. The glossing of the state of the child's health and present position and prospects for the future by both the offender and his mother, are quite at odds with the opinion expressed by Professor Maitz. In relation to aggravating features it is clear that the offence, obviously, was in the presence of a child under 18 years of age and in the home of the victim. The offender was clearly in a position of both trust and authority in the sense that he was the child's father. The victim was clearly vulnerable because he was a six-month-old baby.
With respect to statistics and comparatives, nothing has been provided to me. I have looked at cases that might have in principle some observations that might be of assistance, and it is to be observed that individual cases clearly turn on their own facts. I have perused R v Lolesio [2014] NSWCCA 219, and also the recent and very different case of R v Nolan [2017] NSWCCA 91. It is clear that the circumstances of the complete vulnerability of a victim who, in the case of Lolesio was a six-week-old baby, and in the present case, of course, a six-month-old baby; the position of trust occupied by a father; what was described in Lolesio as the enormous physical disparity in size and strength (which is so self-evident as to not even require articulation in my view); are factors which are highly relevant to an appropriate disposition of the proceedings. The threshold has manifestly been crossed and it had been put to me by Mr Doyle, on behalf of the offender, that an appropriate outcome might be attained by consideration of either a suspended sentence or an Intensive Corrections Order. That would require a finding of the length of an appropriate term of imprisonment that would open the gateway to a consideration of those factors (i.e. 2 years or less). In my view that would be an inappropriate disposition of the matter.
I find that the offender falls within what I would describe as the mid to high range, that is, the upper end of the mid-range of objective seriousness. I take into account the maximum penalty and as I say, I have taken into account the Form 1 in the way in which the authorities require it to be taken into account. I should, perhaps controversially but I trust not, make this observation. That the circumstances of the failure to take the child for appropriate medical care, in the context as I have dealt with in detail, of actually taking the child to a doctor but then deliberately withholding the information and causing a situation where the doctor did not have the opportunity to look at the child's chest on the Friday and then doing nothing about taking the child to a medical practitioner until the following Tuesday, has an effect in increasing the gravity of the outcome of the primary offence for which I am sentenced.
In my view, these factors would increase an appropriate head sentence for the principal offence by twelve months. In identifying that increase I am conscious of the reserve which has been discussed about whether it is really appropriate for a sentencing judge to attempt to quantify the effect of a Form 1 offence: see Abbas v R (2013) 231 A Crim R 413 at [14]. However, I am conscious of the observations of the plurality in Markarian v The Queen (2005) 228 CLR 357 in which Gleeson CJ, Gummow, Hayne and Callinan JJ, said:

“It may be useful and certainly not erroneous, for a sentencing court to make clear the extent to which the penalty for the principal offence has been increased on account of further offences to which an offender has admitted guilt".

In that case, the offences on the Form 1 and the increase to the penalty had been specifically identified by the learned sentencing judge. I should make it clear, as a matter of principle, that I am not imposing a separate penalty for the Form 1 offence, but I am increasing the penalty for the principal offence. In the present matter the offence on the Form 1 might be properly viewed as the sequelae of the principal offence and the ultimate serious injury itself, which was aggravated accordingly. In my opinion an appropriate head sentence in the present matter is six years and a minimum term of imprisonment that is required will be a period of four years. Just stand up please. I sentence you to serve a non‑parole period of four years which will commence today and expire on 4 June 2021. There will be an additional term of two years from that date which will expire on 4 June 2023.

There are no further orders, Madam Crown?

KNOWLES: It's of no consequence that there was only one day spent in custody I think.

HIS HONOUR: In that event, for what it is worth, I shall back-date, take the one day in custody into account and the dates will be adjusted accordingly.

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Decision last updated: 30 August 2017

Medium Neutral Citation:	R v BJ [2017] NSWDC 234
Hearing dates:	24, 26 and 27 April 2017
Date of orders:	05 June 2017
Decision date:	05 June 2017
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	The offender is sentenced to full-time imprisonment. I set a non-parole period of 4 years and a head sentence of 6 years.
Catchwords:	CRIMINAL LAW – sentence – recklessly cause grievous bodily harm – six-month-old child victim – burn injury – disputed facts hearing – nominated increase to penalty by reference to Form 1 offence
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 Blackwell v The Queen [2011] NSWCCA 93 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Engert (1995) 84 A Crim R 67 R v Fernando (1992) 76 A Crim R 58 Kennedy v R [2010] NSWCCA 260 R v Lolesio [2014] NSWCCA 219 R v Nolan [2017] NSWCCA 91 The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Category:	Sentence
Parties:	The Crown BJ
Representation:	Counsel: Mr P Doyle – The Offender Ms M Knowles – The Crown Solicitors: Director of Public Prosecutions – The Crown Doyle Legal – The Offender
File Number(s):	2013/00357505
Publication restriction:	There is to be no publication of the name of the victim, nor identification by name of members of his family.