R v Claudia Jones

[2006] NSWDC 132

CITATION:	R v Claudia Jones [2006] NSWDC 132
HEARING DATE(S):	28/09/06
JUDGMENT DATE:	19 October 2006
JUDGMENT OF:	Conlon SC DCJ at 1
DECISION:	See para 37
CATCHWORDS:	Failure of person with parental responsibility to provide care for child, failure to obtain medical treatment for burns injuries to child
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act
CASES CITED:	R v Darren James Pitcher (unreported NSWCCA 19 Februray 1996) R v Sharma (2002) 54 NSWLR 300 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Smith [2005] NSWCCA 286 Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Regina Claudia Jones
FILE NUMBER(S):	06/41/0034
COUNSEL:	Crown - Mr M Fox Offender - Ms J Healey
SOLICITORS:	Offender - Legal Aid Commission of NSW

JUDGMENT

1 HIS HONOUR: The offender, Claudia Jones, pleaded guilty in the Wollongong Local Court on 8 February 2006 to one charge of assault occasioning actual bodily harm pursuant to section 59 of the Crimes Act and one charge of failure of a person with parental responsibility to provide care for a child pursuant to section 43A(2). On 28 September 2006 the offender maintained those pleas in this Court and now appears for sentence. Both offences carry a maximum penalty of five years imprisonment.

2 The offender is the mother of the victim. At the time, the victim was three years of age. She is now in foster care.

3 On 21 June 2005, the Department of Community Services received a call from Wollongong Hospital in relation to the victim presenting via ambulance to the emergency department. The victim was admitted with multiple injuries including head injuries, both her eyes swollen, numerous deep burns and partial thickness burns to her right shoulder, right upper arm and right chest, and multiple linear bruising over her back, buttocks and legs. The bruising was assessed as being consistent with being struck with an object. The offender was unable to explain the victim’s injuries.

4 On 22 June 2005 the Department of Community Services at Shellharbour received a further report that the victim had a conversation with a nurse in relation to her injuries. The victim stated “In the shower, Rob put the hot water on”. On this day the caseworkers interviewed the victim. The victim told them that she had wet her pants and was punished by Robert Cockburn (the co-offender), who is the offender’s defacto partner. He put her into the shower and turned on the hot water. The victim screamed and turned the shower off and fell to the floor hitting her head. She also said the offender was standing next to the bathroom door when Rob was entering the bathroom and the offender was upset saying “Don’t hit her”. The victim then said that Rob took her to the bedroom, dragging her there by her feet.

5 The offender was then interviewed by caseworkers and stated that the victim’s injuries were a result of playing with her cousins over the weekend of 17 June 2005. The offender stated the bruises to the victim’s body were a result of being whipped with sticks while she was on the ground and playing in the playhouse. The offender admitted not seeking medical attention for the victim as she “Didn’t think of it” and also she “Didn’t look at them”.

6 The offender further stated that on 20 June 2005 Mr Cockburn returned home in the morning and the victim’s eye was swollen. She stated she thought the victim may have had an allergic reaction to something. She applied ice to it but it continued to blow up. On the morning of 21 June 2005 the victim’s other eye was also swollen.

7 The caseworker then advised the offender that she had obtained a version from the victim and the offender asked what was to happen next. She was told the police would be informed. The offender became verbally abusive and aggressive towards the caseworkers and threatened them “I’ll slit your throat”. The offender then started crying and then said:

“I’ll tell you. The marks on her back are from me hitting her with a kettle cord”.

8 It was established that the victim wet her pants. Then the offender started hitting her with a kettle cord about five times. The offender was then asked about the victim’s burns to her body. The offender said:

“I don’t think he realised it was hot. He would not deliberately put her under hot water. Cold water yes, just to give her a shock, we do that sometimes. One eye became swollen on Monday and the left on Tuesday. I was scared. I don’t want her to be taken off me”.

9 The offender stated the victim is toilet trained and they have tried several ways:

“By putting her in the corner, smacked her, then smacked her with the kettle cord, put her into the cold shower, nothing works”.

10 After these interviews the Department of Community Services assumed care of the victim while she was being treated in the Wollongong Hospital. On 23 June 2005 the victim came under the care of the Minister.

11 On 22 June 2005 the Wollongong Joint Investigation Response Team received this case from the Department of Community Services’ Hotline as the injuries to the victim were established as non-accidental.

12 On 28 June 2005 police interviewed the victim who said “Rob hurted me in the shower on my back”.

13 Several statements have been obtained from treating doctors and specialist doctors in relation to the victim’s injuries. Statements have also been obtained from ambulance officers stating they were only called for medical attention to the victim for her swollen eyes and the extent of the victim’s injuries only became apparent when a doctor at the hospital became suspicious of the offender’s actions when waiting for the victim to be assessed.

14 The initial treating doctor stated that the victim was being cuddled in the lap of the offender and the victim looked scared and was quiet. Her hair was matted and dirty and she was wearing long-sleeved winter pyjamas. She noticed a redness to the right neck area and behind her right ear and down towards her collarbone. The doctor was of the opinion the injuries were not consistent with the history supplied by the offender of being bitten by something. This doctor opened the victim’s top and saw significant burns to her chest and right shoulder. She was wearing a dirty old crape bandage over them that was stuck to the weeping burns. The offender then said, “I didn’t realise how bad it was”, then mentioned the victim was burnt in the shower.

15 When the victim was being undressed, she commenced whimpering and shaking. It then became apparent that the victim had further injuries to her back and the back of her legs. She had “whip” linear contusions and abrasions to her back, buttocks and legs, particularly to her left leg. She also had a large bruise on the upper aspect of the left thigh and left side of her pubic area.

16 While the victim was being assessed by doctors the offender said, “If I find out my cousins did this, I’m going to slit their throats”. She then intimated that her cousins play rough and the victim had turned the cold water off herself. The victim had to receive intravenous morphine just to remove the bandages from her burns and for appropriate management and dressing for her injuries.

17 On 26 July 2005 the offender was arrested at her home address and taken to Port Kembla Police Station where she was electronically interviewed and declined to answer any questions. She was then charged.

18 Dr Hugh Martin, of Westmead Children’s Hospital, is a specialist general paediatric surgeon/paediatric burns surgeon. He was provided with thirteen photographs of the victim taken on 21 June 2005 and twenty-four photographs taken on 24 June 2005. He stated that the duration of exposure is difficult to estimate as it is related to the temperature of the fluid. He said that if the hot water was between 60 and 70 degrees centigrade exposure for one to two seconds would be sufficient to cause a burn. He indicated that in respect of the photographs he was supplied with it was not possible to accurately assess the depth of the injury. However, he stated:

“I have been informed by Detective Senior Constable Norris that the burn was not healed on the day I viewed the photographs, being 13 July 2005. This is a minimum of twenty-two days after the burn occurred, so the burn would be deep dermal or full thickness. Scarring will result almost certainly”.

19 Dr Terry Sands, consultant paediatrician, examined the victim on 1 August 2006. He stated:

“She does have some residual injuries to her skin. She has scarring on the right shoulder and hypo-pigmented lesions on her right arm and on the right side of her back. She has three areas on her scalp, which are erythematous, with flakiness overlying these. Certainly the scarring and hypo-pigmented lesions are permanent”.

20 The Crown has submitted that aggravating features include abuse of trust or authority- section 21A(2)(k) and vulnerable victim - section 21A(2)(l). The offender’s legal representative conceded that there was an abuse of authority but submitted that it would be duplicitous to add vulnerability of the victim in terms of her young age as a further aggravating element as it is encompassed within the head of abuse of authority in relation to the victim. I agree with that submission.

21 The Crown also submitted that the use of the electric kettle cord to strike the child across the back would constitute an aggravating feature under section 21A(2)(c) - use of weapon. Whilst I can understand and appreciate the argument, I commented at the time that a person who looses control and lashes out against a young child using a fist can cause as much damage, and sometimes more, as a person who grabs for a strap or cord and lashes out. Consequently, I decline to take that matter into consideration as an aggravating feature additional to the very serious nature of this assault occasioning actual bodily harm.

22 In considering the objective seriousness of the matter I have had regard to the comments by Ireland J in R v Darren James Pitcher (unreported NSWCCA 19 February 1996) where his Honour said:

“Young children cannot protect themselves from the acts of adults. They cannot lodge complaints about criminal behaviour perpetrated upon them. They are entirely reliant upon their parents or those in custodial situations to care for them. Here, that protected trust was abused, although the result of a momentary lapse in control. Nonetheless, the only protection which society can give to young children is the protection afforded by the courts. The courts must make clear, by their sentences, that acts of violence on young children, whether within or without a custodial situation, will not be tolerated in our society and that criminal acts of violence against young children will result in appropriately severe sentences. Deterrence, through the severity of a sentence, is the only way in which young children can be protected”.

23 I now turn to the subjective matters in respect of the offender. Ms Carmen A Wells, Probation and Parole officer, has provided a report dated 16 May 2006 (now exhibit C). That report states:

“The offender is a 21 year old woman who resides in the Wollongong region. She claims she has not had any contact with her father since aged three and her mother ceased contact with her following the offence before the Court. The youngest of three siblings, Ms Jones claims she does not have any contact with her brothers, one for the past 7 years and the other since the commission of this offence. The offender maintained that she and the latter were very close prior to the offence and described him as her ‘best friend’ during her younger years”.

Ms Jones claims she left home at age fourteen years due to her mother’s drug problem, however, described her upbringing as good, asserting that she and her brothers were well provided for.

Ms Jones has two children, one aged four years, being the victim, and the other now aged about eight months. The four year old child who is the victim of this offence, is now currently in the care of the Department of Community Services. The other child has also been in the department’s care since his birth in February 2006, after suffering cannabis and amphetamine withdrawals when born.

24 The offender left school at the commencement of year 10. Apart from working in a café for two months after leaving school there appears to be no other history of employment. She has regularly used cannabis since aged fourteen years and used amphetamines regularly for a period of twelve months at age fifteen. To the probation officer she described her current use of cannabis as a few times a week. She maintains she has never used alcohol other than on a social basis.

25 The offender indicated she had not undertaken any drug rehabilitation in the past. However, under direction from the Department of Community Services, she has contacted a local community health centre to undertake drug counselling.

26 Mr Peter Champion, psychologist, has provided a report, dated 30 May 2006 (now exhibit 1). He stated:

“Ms Jones is an intelligent (though not particularly insightful) young woman giving a history of poly-substance abuse, in more recent times producing mental state affects. There is a probable history of some mood disturbance, which has been exacerbated in the last few years by relationship problems, drug abuse/dependency, the loss of her two children and the fact of being charged. I have encouraged her to seek something more than just counselling (including anger management training) and parenting training, which are apparently soon to commence. I have encouraged her to seek a review, with a psychologist, within a view to receiving cognitive therapy type treatment and also receiving D & A (drug and alcohol) education and treatment”.

27 Since 28 June she has attended counselling sessions with Warrawong Community Health. A letter under the hand of Chris Sinadinovic dated 19 September 2006 (exhibit 3) outlines her progress in respect of that counselling.

28 The offender is entitled to have her pleas of guilty reflected in mitigation of penalty. This is done on two bases - to reflect the utilitarian benefit to the criminal justice system and to reflect contrition - section 22 Crimes (Sentencing Procedure) Act; R v Sharma (2002) 54 NSWLR 300.

29 The pleas were first entered before the magistrate in the Local Court on 8 February 2006. Consequently, it is a plea at the earliest opportunity and will receive a discount of about 25 per cent to reflect the utility of that plea of guilty - R v Thomson Houlton (2000) 49 NSWLR 383.

30 Although I have been referred to statistics, Ms Healey, of counsel for the offender, has pointed out that the difficulties of using sentencing statistics in cases of child abuse were noted by Latham J in the Court of Criminal Appeal in R v Smith [2005] NSWCCA 286 at para 56, where her Honour said:

“Comparison with sentences imposed in other circumstances for quite different offences against children of varying ages are of limited use. Given the very low numbers of offences of this nature, coming before the courts, no doubt because of the difficulties with their prosecution, it would be misleading to posit the existence of a range of sentences against which this offence should be measured”.

31 I agree with that observation.

32 Given the factual circumstances of the present case and bearing in mind that each offence carries a maximum penalty of five years imprisonment I asked counsel whether they viewed one offence as being objectively more serious than the other. Ms Healey replied that the section 43A(2) offence carried “The greater moral culpability”.

33 Whilst the intentional beating of this child with the electrical cord for wetting her pants is serious indeed I am clearly of the view that the failure to provide this three year old girl with medical attention for these horrific burns over two days shows criminality of a very high order. One does not need to be a medical practitioner to understand and appreciate the excruciating pain that this child must have been going through. I have already referred to remarks of Ireland J in R v Pitcher.

34 The ongoing criminality in respect of the section 43A(2) offence requires, in my view, at least some accumulation - see Pearce v The Queen (1998) 194 CLR 610.

35 I have taken into account the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to section 5 of the Act and, having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate.

36 I find special circumstances being the offender’s age, the absence of any prior criminal convictions and the need for supervision and ongoing counselling to assist in her rehabilitation. Accordingly, I intend to exercise my discretion to vary the statutory ratio. In doing so I have borne in mind that the non parole period I set must appropriately reflect the criminality involved.

37 Claudia Jones, in respect of count 1 you are convicted. I sentence you to a fixed term of imprisonment of six months to date from today being 19 October 2006. In respect of count 2 you are convicted. I sentence you to a non parole period of nine months to date from 19 January 2007 and to expire on 18 October 2007 and I order that you be released to parole on that day. I sentence you to an additional term of twelve months to expire on 18 October 2008. That is an effective head sentence of two years with a non parole period that will expire on 18 October 2007, that is twelve months from today.

**********