R v BWJ - [2008] NSWCCA 333

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v BWJ [2008] NSWCCA 333

FILE NUMBER(S):
2008/00011292

HEARING DATE(S):
16/12/2008

EX TEMPORE DATE:
16 December 2008

PARTIES:
Regina v BWJ

JUDGMENT OF:
Campbell JA Grove J Howie J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11292

LOWER COURT JUDICIAL OFFICER:
Puckeridge DCJ

COUNSEL:
L Wells - Crown
J Manuell - Respondent

SOLICITORS:
S Kavanagh - Crown
Sheeky Williams Solicitors - Respondent

CATCHWORDS:
Criminal Law - Proceedings for trial - Sentencing - Crown Appeal - maliciously inflict gbh upon a child by father - pleas of guilty - no alternative to full-time custody available - whether bonds manifestly inadequate - respondent re-sentenced.

LEGISLATION CITED:
Crimes Act 1900 - ss 35, 61
Crimes (Sentencing Procedure) Act 1999 - ss 10A, 35

CATEGORY:
Principal judgment

CASES CITED:
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Wall [2002] NSWCCA 42
R v Baker [2000] NSWCCA 85
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

TEXTS CITED:

DECISION:
The Crown appeal is allowed and the sentences imposed in the District Court are quashed. In lieu the following sentences should be imposed upon the respondent: (1) In respect of the first charge of maliciously inflicting grievous bodily harm the respondent is sentenced to a term of imprisonment comprising a non-parole period of 9 months and a balance of term of 9 months to date from 27 October 2008. The non-parole period expires on 26 July 2009. (2) In respect of the second charge of maliciously inflicting grievous bodily harm the respondent is sentenced to a term of imprisonment comprising a non-parole period of 6 months and a balance of term of 10 months to date from 26 April 2009. The non-parole period expires on 25 October 2009. The respondent is to be released to parole on that date. (3) In respect of the assault a sentence of 2 months to date from 27 October 2008 and that expires on 26 December 2008.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/00011292
CAMPBELL JA
GROVE J
HOWIE J
TUESDAY 16 DECEMBER 2008

R v BWJ

Judgment

Campbell JA: The Court is in a position to determine this matter and I will ask Howie J to deliver the first judgment.
HOWIE J: This is an appeal by the Crown in respect of sentences imposed in the District Court by Puckeridge DCJ (the Judge). The respondent pleaded guilty in the Local Court to two offences of maliciously inflicting grievous bodily harm contrary to s 35 of the Crimes Act 1900 and an offence of assault contrary to s 61 of that Act. The maximum penalty prescribed for a s 35 offence is imprisonment for 7 years and, for a s 61 offence, imprisonment for two years. The Judge ordered the respondent to enter into a good behaviour bond for 5 years under s 9 of the Crimes (Sentencing Procedure) Act 1999 in respect of each of the s 35 offences. In respect of the assault offence the Judge convicted the respondent but imposed no sentence in accordance with s 10A of that Act.
The sentences were imposed upon the respondent on 27 October 2008. The appeal was lodged on 4 November 2008.
The respondent was the father of the victim of each of the offences, a son born on 14 March 2007. The offences each occurred sometime between 15 May 2007 and 4 July 2007. The child had been born 9 weeks prematurely and remained in hospital in Wagga Wagga until 20 April 2007. He was then returned to the care of his parents. The respondent and his partner had another child, a son who was born when the respondent was aged 17. Two different medical practitioners saw the child on 24 April and 15 May 2007 and no abnormalities were noted.
On 4 July 2007 the mother took the child to a general practitioner because the child had been unwell and had vomited over the last few days. The doctor became immediately concerned about the health of the child and had him removed to the local hospital. Tests revealed that the child was suffering from a bilateral subdural haematoma and multiple rib fractures. The child was taken by air to the children’s hospital at Randwick the next day. Subsequent tests confirmed that the child suffered from two subdural haemorrhages of different ages and 17 fractures of the ribs. The treating doctor formed the opinion that the injuries were occasioned by squeezing the child’s chest and “significant rotational acceleration/deceleration, such as might occur with shaking”.
Both parents were interviewed. The mother denied any misconduct with the child but stated that the respondent had picked up the child roughly on one occasion. The respondent admitted that he might have been responsible because he had picked up the child roughly twice but denied shaking the child. However, conversations between the respondent and other persons were lawfully recorded by the police during which the respondent admitted shaking the child twice as well as roughly handling him. The mother was reinterviewed by police and confirmed that the respondent had admitted shaking the child. Further medical evidence confirmed that the injuries to the child occurred when he was shaken.
The two charges under s 35 related to the injuries caused on the two occasions that the child was shaken. The assault related to an occasion when the child was picked up by his leg and thrown across the shoulder of the respondent causing the child to cry. The medical evidence was that no injury had occurred on that occasion.
The respondent was born on 12 October 1987. He has no criminal record. At the time of the offence he was employed at a restaurant as an apprenticed chef and attending TAFE. There is nothing in his early upbringing of relevance except that his parents divorced when the respondent was aged 15. He told the officer preparing a pre-sentence report that at the time of the offence he had been trying to calm the baby who had been crying. He squeezed it and heard the ribs crack. He said that he did not realise that children were so fragile, although he accepted that he should have been aware of this fact because of his large extended family and his other child.
There was a report from a psychologist. The respondent told him that he used alcohol and cannabis to cope with his domestic situation and his work as an apprentice. The psychologist described the respondent as being “an unsophisticated and simplistic individual” and being somewhat emotionally immature. He thought that the respondent was not coping with his split shifts, single low wage and the demands of very young children. The respondent reported that his relationship with his partner was dysfunctional and the psychologist described it as “riddled with adolescent type conflict and a disregard for the true responsibility of parenthood”. The psychologist expressed a lack of surprise that the offences were committed given the respondent’s description “of the escalating crisis in his domestic life”. He wrote:
It is evidence that substance abuse has been a precipitator in [the respondent’s] inability to self regulate his pre-existing and minimally submerged anger. No doubt, [the respondent’s] anger has become unleashed at his son, in a misdirected manner in response to the frustration and resentment he felt toward his partner and general poor life circumstances.
There was a reference from the respondent’s employer of three years in which it was stated that over the period the respondent “had grown incalculably from a young boy to a talented matured and well respected member of our staff”. There were references from members of the public and letters from the respondent’s father, mother and sister. The latter two persons sought to put much of the blame upon the respondent’s wife and painted her as selfish and an uncaring mother. Since September 2007 the respondent had been receiving counselling for anxiety and depression and a report indicated that he was making good progress.
The respondent wrote a letter to the sentencing court in which he set out the circumstances of the offending much as he had told the psychologist. He indicated his regret for, and the feelings of guilt arising from, his actions. He had undertaken a course in parenting. He expressed the view that gaol would not do him any good and pointed out that his mother had been a chef at the gaol at Junee. The respondent gave evidence as to the accuracy of the contents of this letter, as did his father and mother. The respondent had no contact with either of his children after he separated from their mother following his arrest. The child was eventually placed into the care of the maternal grandmother.
The respondent was not suitable for a community service order or for periodic detention. In the former case the nature of the offending and the lack of an agency prepared to offer him community work disqualified him. In the latter case it was thought that, because of the nature of his offending and his mother’s former employment at Junee Correctional Institution, his safety could not be guaranteed at the detention centre.
The Judge accepted that there were aggravating features present in the offences, being that the respondent was in a position of trust and the vulnerability of the child because of his very young age. However he found mitigation in that the conduct was not premeditated, the respondent was of good character and that he had good prospects of rehabilitation. The Judge thought that rehabilitation depended upon the respondent remaining in his apprenticeship.
His Honour stated:
The charges involving a young child are serious offences, and the Crown has submitted that a custodial sentence is required to reflect the seriousness of the offence and to indicate the need for public deterrence of offences of this nature. There is no doubt that the charges are serious charges, but before imposing a sentence of imprisonment the court is required to consider whether any other sentence is available.
The Judge then referred to the inability of the respondent to perform community service or serve a sentence by periodic detention.
The Judge ultimately concluded that there was an alternative to a prison sentence by requiring the respondent to enter into two bonds under s 9.
The Crown submitted that the sentences were manifestly inadequate as a result of, what were described as, two “appealable errors”. The first was that too little weight was given to the objective seriousness of the offences, there being two separate instances of the child being shaken. The Crown stressed that this Court has on a number of occasions stated the importance of general deterrence when sentencing for offences of this nature. The Crown submits that the Judge must have given too much weight to the respondent’s subjective circumstances over the need to denounce and deter such conduct.
The second error attributed to the Judge by the Crown was that he tailored the sentence to meet the situation that there was no other alternative than full-time custody and yet this is the sentence that the offences required.
Counsel for the respondent submitted that the sentence imposed was within his Honour’s discretion and that the reality of the sentence is that by the time the sentence expired the child would be more that 6½ years of age. It was submitted that the sentence recognised the child’s interests and that of the community for a young father to encourage and assist him to care for the child and his rehabilitation in the long term.
The Court was reminded of the principles attaching to Crown’s appeals and it was submitted that the Court would not be justified in intervening in this sentence.
In my opinion the sentences imposed by the Judge were unreasonably lenient so as to be manifestly wrong. I come to this conclusion reluctantly because of the respect that ought to be paid to the exercise of discretion by a sentencing judge and the allowance for the flexibility of approach to the particular circumstances of the offence and offender: see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]. But it was not reasonably open to the Judge to conclude that the seriousness of the offending and the purposes of punishment, other than the rehabilitation of the offender, could be reflected in a non-custodial sentence of any kind let alone good behaviour bonds.
As the Judge realised, there were two aggravating factors: the respondent was in a position of trust and the vulnerability of the child. The second of those aggravating factors was very marked in this case as the child was only two months old. The injuries were not as serious as they might have been and are at the lower end of the type of injuries that amount to grievous bodily harm. It may well be the case that the child had a predisposition to subdural haemorrhaging and therefore the injuries were inflicted when they might not have been in the case of another child. But as against this, there were two injuries inflicted upon the child in two separate instances.
The Judge seemed to have relied very strongly on the psychology report as he quoted from it at length throughout his sentencing remarks. In my opinion there was nothing in that report that could possibly justify reducing the culpability of the respondent by the degree that could make a non-custodial sentence appropriate. The respondent may have been below the average range of intellectual functioning, as the psychologist found, but that was of little, if any, relevance to the respondent’s criminality in twice shaking the child in frustration with his domestic situation. It should be noted that this was the second child and it could not be the case that the respondent had no, or insufficient, understanding of the proper conduct toward a child of that very tender age. The respondent’s explanation that he did not realise how fragile a child of that age was should be rejected in light of the very young age of the child.
The psychologist expressed the view that it was not unknown for this type of behaviour to occur in young couples “with a social and emotional maturity of teenagers”. But this fact alone indicates the importance of general deterrence. Persons, however young, who take on the responsibility of parenthood should understand that they cannot abandon that responsibility just because of peevishness with their partners or frustration with the limitations imposed upon their life required by the care of infants. I find it of concern that, as if by way of justification for the respondent’s actions, the psychologist should express his lack of surprise that the respondent would assault the child given the “crisis in his domestic life”. This was simply a case where the respondent took out his frustrations on a defenceless and vulnerable child instead of protecting him from harm. Again it is significant to note that there were three separate assaults on the child charged against the respondent. Further the respondent admitted to being aware that he had fractured the child’s ribs yet did nothing about getting him assistance but rather hid that fact from his partner and the child’s grandparents.
Nor can the fact that the respondent’s conduct might have been influenced by his use of alcohol and cannabis lead to any mitigation as the psychologist seemed to think. The repetition of the offences would deprive the respondent of any mitigation that might have arisen had his normal tolerance to his frustrations been diminished by the influence of alcohol. There is rarely any mitigation arising from the use of illegal substances. In any event there is no evidence that the respondent was under the influence of any substance at the time of the assaults.
The respondent’s remorse has been somewhat limited. As I have already indicated, he did not seek any assistance to ensure the child’s welfare after he knew he had fractured his ribs. Although he admitted to some “rough handling” of the child, he never admitted shaking him to the doctors or the police when they were interviewing him. That conduct was discovered through private conversations that the police recorded. The respondent in none of the material ever refers to the fact that he shook the child. In his letter to the court he refers to the charges as “an incident”, as does his father. In the probation report the account is given of a “single incident” in which he “lost it” and he “just wanted to squeeze him (the baby) to settle him, type of love reaction”. The quotations are contained in the report and are clearly intended to reflect the actual words used by the respondent. It seems plain that the respondent does not appreciate the seriousness of his conduct as reflected in the three charges to which he pleaded guilty.
The Judge accepted that he must sentence the respondent for inflicting subdural haemorrhages as a result of shaking the child twice as well as “picking him up roughly over a period of time”. Although he apparently accepted the submission from the prosecutor that the sentence must reflect the seriousness of the offending and general deterrence, he nowhere indicates how two bonds could possibly fulfil those sentencing objectives in light of the conduct for which he was sentencing the respondent and the injuries inflicted upon the child.
Concerns about the safety of the respondent were raised in the context of the periodic detention centre and its staffing limitations. There are many custodial institutions that provide protected environments without making imprisonment more difficult for the inmate. If a gaol sentence is the only punishment that can reasonably be imposed upon an offender, it will be a very rare case indeed where that sentence can be avoided simply because of concerns for the offender’s safety. This was certainly not such a case.
Although determining the appropriate weight to give the subjective circumstances of an offender as against the objective seriousness of the criminal conduct is principally a matter for the sentencing judge, and accepting that minds might reasonably differ as to how those matters might be balanced, in the present case the Judge must have given too much weight to the former in order to derive the sentences he did. I believe he placed far too much weight on the material in the psychologist report and on the fact that there was no alternative to full-time custody available to the respondent that might be seen as some form of significant punishment. But given the seriousness of this conduct neither community service nor a sentence by way of periodic detention would have been an adequate response. The only sentence that his Honour could reasonably have imposed was full-time imprisonment.
The sentences are manifestly inadequate to a very substantial degree. They are so inadequate that in my view the Court must intervene notwithstanding the principles that apply to Crown appeals, as to which see R v Wall [2002] NSWCCA 42 at [70], and the recognition that it will be a rare case where this Court will intervene even though the Crown can point to no specific sentencing error, as to which see R v Baker [2000] NSWCCA 85. I appreciate that the respondent will be sorely disappointed that he is now to serve a sentence of imprisonment notwithstanding that the sentencing Judge gave him the benefit of the bonds. This is once more a case where an obviously inadequate sentence has been imposed in a situation where it did the respondent no favour by building up in him hopes that were bound to be dashed once the Crown appealed.
There is before the Court an affidavit by the respondent as to events that have occurred since sentencing. He is being counselled by the psychologist who wrote the report and has received from him an anger management kit. He is still in a relationship with the mother of the child but has no contact with the children. He has been attending the probation officer as required. He states that he now considers that he should have asked for help in coping from his parents or his partner’s mother.
There is nothing in my opinion that can justify this Court refusing to intervene notwithstanding that the sentence is inadequate. The subjective matters, including the respondent’s young age at the time of the offending, and the disappointment no doubt experienced by the respondent can be taken into account by the imposition of a sentence that is at the very bottom of the range that was legitimately open to the sentencing Judge. The sentence should be backdated to the date of sentence to acknowledge the fact that the respondent has been on the bonds since that date.

There should be some accumulation between the sentences imposed upon the two charges under s 35 as they were discrete and separate attacks upon the child: see Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]. The respondent pleaded guilty in the Local Court and should be given a discount of 25 per cent. There are special circumstances by reason of the need for the respondent to have a longer term of supervision and assistance than would result from the statutory relationship between the parole period and the balance of term. The overall sentence is to be one of 1 year 10 months with an overall non-parole period of 12 months and will date from 27 October 2008. This is in my opinion the very least sentence that could be imposed upon the respondent and yet not be manifestly inadequate. The respondent will be released to parole on 26 October 2009.
I propose that the Crown appeal be allowed and the sentences imposed in the District Court be quashed. In lieu the following sentences should be imposed upon the respondent:
1.In respect of the first charge of maliciously inflicting grievous bodily harm the respondent be sentenced to a term of imprisonment comprising a non-parole period of 9 months and a balance of term of 9 months to date from 27 October 2008. The non–parole period expires on 26 July 2009.
2.In respect of the second charge of maliciously inflicting grievous bodily harm the respondent be sentenced to a term of imprisonment comprising a non-parole period of 6 months and a balance of term of 10 months to date from 26 April 2009. The non–parole period expires on 25 October 2009. The respondent is to be released to parole on that date.
3.In respect of the assault a sentence of 2 months to date from 27 October 2008 and that expires on 26 December 2008.
GROVE J: I agree with Howie J.
CAMPBELL JA: I agree with Howie J.
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LAST UPDATED:
10 February 2009