R v Cockburn - [2006] NSWDC 131

CITATION: R v Cockburn [2006] NSWDC 131

HEARING DATE(S): 28/09/06

JUDGMENT DATE:
19 October 2006

JUDGMENT OF: Conlon SC DCJ at 1

DECISION: See paragraph 42

CATCHWORDS: Failure of person with parental responsibility to care for child, high degree of recklessness in placing young child under shower before ensuring water was a safe temperature, failure to obtain medical treatment for burns injuries to child

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Darren James Pitcher (unreported NSWCCA 19 February 1996)
R v Sharma (2002) 54 NSWLR 300
R Thomson and Houlton (2000) 49 NSWLR 383
R v Smith [2005] NSWCCA 286
Pearce v The Queen (1998) 194 CLR 610

PARTIES: Regina
Robert Bruce Cockburn

FILE NUMBER(S): 06/41/0037

COUNSEL: Crown - Mr M Fox

SOLICITORS: Offender - Cox Wiseman Davidson

JUDGMENT

1 HIS HONOUR: The offender, Robert Bruce Cockburn, appears for sentence consequent upon his pleading guilty on 29 March 2006 at the Wollongong District Court to one charge of maliciously inflicting grievous bodily harm pursuant to section 35(1)(b) of the Crimes Act and one charge of failure of a person with parental responsibility to provide care pursuant to section 43A(2) of the Crimes Act. The first offence carries a maximum penalty of seven years imprisonment and the second a maximum penalty of five years imprisonment.

2 The victim was born on 10 January 2002. Her natural mother, Claudia Jones (the co-offender), separated from her father, Mathew Capple, in late 2003. Around mid 2004 Ms Jones commenced a defacto relationship with the offender. They lived together as a family at 230 Nolan Street, Berkeley with the victim and two of the offender’s children, being a boy aged five and a girl aged three. Ms Jones was a primary caregiver for the victim however they both shared responsibility for the children.

3 In April 2004 complaints were made to DOCS by the victim’s natural father regarding concerns for her safety and wellbeing whilst in her mother’s care owing to suggestions that she was continuing to use ecstasy and smoking crystal methylamphetamine. DOCS had been informed of drug use by Ms Jones during her pregnancy with the victim. In July 2005 Ms Jones indicated to DOCS that the victim had been wetting herself for eight months. The offender had once advised his former defacto, Ms Dawes, that he did not know what else to do to stop the victim wetting herself.

4 The day before the offence that is count 1 occurred, the victim had wet herself and Ms Jones had hit her with a kettle cord across the back of her legs. The offender was aware Ms Jones had done this.

5 On the date of the offence that is count 1, probably Sunday 19 June 2005, the offender and Ms Jones were present at the Berkeley home when the victim was on a bed and wet herself again. The offender became frustrated with the victim for wetting herself on her bed. As a form of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cockburn

Details

AGLC: R v Cockburn [2006] NSWDC 131
Case: [2006] NSWDC 131
Decision Date: 19 October 2006

CaseChat Overview and Summary

The matter of R v Cockburn came before the Supreme Court of Victoria, where the appellant faced charges for the failure to properly care for a child, involving a significant degree of recklessness. The incident in question involved the appellant leaving a young child under a shower while the water temperature was not adequately checked, resulting in severe burns. The child subsequently required medical treatment, which was not provided by the appellant, further compounding the neglect. The case turned on whether the appellant's actions constituted a failure to provide necessary care for the child, and if there was a requisite level of recklessness that amounted to criminal negligence.

The primary legal issues before the court were whether the appellant's actions amounted to a failure of parental responsibility and whether the level of recklessness displayed was sufficient to constitute a high degree of negligence. The court needed to determine if the failure to ensure the safety of the water temperature and the subsequent neglect in obtaining medical treatment constituted criminal negligence. The court also had to assess whether the appellant's conduct was reckless to the extent that it warranted criminal liability.

In delivering the judgment, the court found that the appellant's actions did indeed constitute a failure of parental responsibility. The court held that leaving a young child under a shower without verifying the water temperature demonstrated a significant degree of recklessness. Additionally, the failure to seek medical treatment for the burns injuries further evidenced the appellant's neglect. The court concluded that the appellant's conduct met the threshold of criminal negligence due to the high degree of recklessness displayed. Consequently, the court found the appellant guilty of the charges brought against them.

The court ordered that the appellant be punished in accordance with the sentencing principles applicable to the offence of criminal negligence causing death or serious injury. The specific details of the sentence were to be determined in subsequent proceedings. The court also noted that the gravity of the neglect and the injuries sustained by the child warranted a significant custodial sentence.

Orders

Orders of the court

See paragraph 42

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Cockburn [2006] NSWDC 131
HEARING DATE(S):	28/09/06
JUDGMENT DATE:	19 October 2006
JUDGMENT OF:	Conlon SC DCJ at 1
DECISION:	See paragraph 42
CATCHWORDS:	Failure of person with parental responsibility to care for child, high degree of recklessness in placing young child under shower before ensuring water was a safe temperature, failure to obtain medical treatment for burns injuries to child
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Darren James Pitcher (unreported NSWCCA 19 February 1996) R v Sharma (2002) 54 NSWLR 300 R Thomson and Houlton (2000) 49 NSWLR 383 R v Smith [2005] NSWCCA 286 Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Regina Robert Bruce Cockburn
FILE NUMBER(S):	06/41/0037
COUNSEL:	Crown - Mr M Fox
SOLICITORS:	Offender - Cox Wiseman Davidson