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 punishment he took the victim to the bathroom and put her in the shower recess. He turned on the water. He then left the bathroom without first ensuring the water was at a safe temperature. Eventually the water became very hot and the victim screamed. The offender went to the bathroom, took her out of the shower and removed her to the bedroom. He noted she was in shock. He put moisturiser and cold towels on her after she was burnt.

6 After the victim was burnt Ms Jones went next door to the home of their neighbour seeking bandages for the burns. The neighbour gave her a first aid box, which contained bandages. She returned to the home and applied crepe bandages to the victim. The offender was present when this occurred. The following day the victim’s condition worsened and her eyes began to swell.

7 At 2.30pm on Tuesday 21 June 2005 an ambulance was called by Ms Jones to attend at the Berkeley home. The offender was at the home at this time. Ambulance staff attended and inspected the swelling to the victim’s eyes. She was then taken by ambulance to Wollongong Hospital together with Ms Jones. Ambulance staff had not been alerted to any other injuries.

8 The victim was admitted to Wollongong Hospital emergency department at 3.17pm on 21 June 2005. On examination Dr Cox discovered significant burns to her chest and right shoulder, which had been covered with dirty crepe bandages. She was immediately taken to the paediatric area in the emergency department for closer examination.

9 Dr Cox noted that both eyes were swollen which was later determined to be the invariable result of a burn injury. The victim also had significant burns of variable thickness. These extended to her right neck, right shoulder, right upper arm and also the right chest. She also had scalds to her scalp which were superficial to partial thickness. The doctor also noted multiple linea bruising over her back, buttocks and legs. This bruising was assessed as being consistent with being hit with a kettle cord by Ms Jones some days prior.

10 The victim had to receive intravenous morphine just to remove the bandages from her burns and for appropriate management and dressing for her injuries. She underwent continuous treatment for her injuries in hospital and was released on 30 June 2005.

11 Dr Hugh Martin of Westmead Children’s Hospital reviewed the injuries through photographs of the victim and provided a report on 14 July 2005. That full report forms part of exhibit A.

12 On 21 June 2005 DOCS received a notification from Wollongong Hospital in relation to the victim presenting via ambulance to the emergency department. DOCS subsequently conducted interviews with the victim. After these interviews DOCS assumed care of the victim whilst she was being treated in Wollongong Hospital.

13 On 23 June 2005 the victim came under the care of the Minister. She was placed in foster care where she remains. On 22 June 2005 police were notified by DOCS of her admission to Wollongong Hospital. The Wollongong JIRT office then commenced an investigation.

14 On 28 April 2006 the offender was arrested at his residence in Berkeley and taken to Port Kembla Police Station where he was electronically interviewed. He declined to comment. He was later charged, along with Ms Jones.

15 Police arranged for a licensed plumber to test the temperature of the hot water in the shower at the home in Berkeley in the presence of the offender. The water temperature was measured at 70.1 degrees Celsius. It was noted that the hot water system was turned up to the maximum setting.

16 It was on 28 June 2005 that police interviewed the victim and in the course of that interview amongst other things she said “Rob hurted me in the shower on my back”.

17 As indicated in the facts Dr Hugh Martin reviewed the victim’s injuries via a number of photographs - thirteen photographs taken on 21 June 2005 and twenty-four photographs taken on 24 June 2005. Dr Martin is a specialist general paediatric surgeon/paediatric burn surgeon. He stated that the duration of exposure is difficult to estimate as it is related to the temperature of the fluid. He stated if the hot water was between 60 and 70 degrees Centigrade then exposure for one or two seconds would be sufficient to cause a burn.

18 He indicated that in respect to the photographs he was supplied with it was not possible to accurately assess the depth of the injury. However he stated as follows:

“I’ve 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 as follows:

“She does have some residual injuries to her skin, she has scaring 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 scaring and hypo pigmented lesions are permanent.”

20 The Crown submitted that an aggravating feature was the abuse of trust or authority - section 21A(2)(k), and that the victim was vulnerable - 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 the 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. As in the case of the co-offender, Jones, I agree with that submission.

22 The Crown also submitted as an aggravating factor that the offender was on conditional liberty at the time - section 21A(2)(j). Documentation provided to me indicated that on 10 March 2005 the offender was released on a section 9 bond to be of good behaviour for a period of twelve months. This is the only matter on the offender’s record and the order was made in respect of a charge of contravening apprehended domestic violence order (which I was informed was in respect of the previous partner), however no facts were placed before me. Consequently, given the gravity of the matters that I am here dealing with I believe it would be inappropriate to elevate the significance of the section 9 bond as it was given in the circumstances of contravening an apprehended violence order to an aggravating factor under section 21A(2)(j).

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

“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 protective 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 the sentence is the only way in which young children can be protected.”

24 I now turn to subjective matters on behalf of the offender. Ms Jan Duncan, Probation and Parole Officer, has provided a report which is dated 1 August 2006 (now exhibit C). That report indicates that the offender is twenty-seven years of age. He is the younger of two children of his parent’s marriage and he describes his childhood as stable and happy. He still has the support of both parents and a sister.

25 The offender has two children, six and five years of age from a former long term defacto relationship. He had primary custody of those children until he was charged with the present offences when the children were returned to the care of their mother who was receiving support from DOCS. Ms Duncan commented that DOCS staff reported that due to the offender being verbally aggressive and smacking the older children while on supervised access visits, contact with those children is now limited to telephone calls.

26 The offender and Ms Jones also have a five month old son who was taken into the care of DOCS shortly after birth. Ms Duncan advised that DOCS staff reported that the offender has consistently refused to participate in activities designed to improve his parenting abilities, namely anger management, relationship counselling and urinalysis to demonstrate his stated reduction in cannabis use.

27 The offender indicated to Ms Duncan that he used amphetamine regularly for four years from the age of twenty before he decided that the side effects of this use (anger, negative peers and cost) were onerous and he ceased the habit. He stated a willingness to address his cannabis use via group work and/or counselling.

28 Since leaving school at age sixteen the offender has been employed spasmodically, usually in unskilled labouring positions. His primary source of income is unemployment benefit although it seems he works two days a fortnight mowing lawns.

29 Dr Lennings, psychiatrist in his report dated 17 July 2006 (exhibit 1) stated as follows:

“Mr Cockburn presents as a young man who is clearly not coping with the distress that he is experiencing. He is reporting symptoms of depression and secondary to that some anxiety for approximately the last year. His underlying personality appears to have been quite strongly affected by his early childhood history suggestive of attention deficit and hyperactivity disorder. He remains an impulsive and thoughtless young man who clearly had been something of a sensation seeker and risk taker across his life span but who has always had some capacity to avoid engagement in serious anti social behaviour. He denies any criminal associates and appears to have been a person, who whilst experimented with drugs was able to avoid becoming immersed in substance abuse sub-culture. He reports an orientation to employment but his impulsivity and poor conceptual thinking has meant that he has had difficulty in retaining employment.”

30 The offender is entitled to have his 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. Also see R v Sharma (2002) 54 NSWLR 300.

31 The co-offender Jones entered pleas before the Magistrate and therefore at the earliest opportunity and received a discount of about twenty-five percent. In respect of the offender’s plea entered on 29 May 2006 the written submissions on behalf of the Crown contains the following:

“Whilst the plea of guilty was not entered at the committal stage the plea was entered before the matter was listed for trial. It is conceded therefore that for practical purposes the timing of the plea was at a time close to the earliest opportunity. It is conceded that the utilitarian value of the plea is high given the numerous expert medical witnesses that would have been needed to have been called to give evidence at trial. Further the plea of guilty should take account of the fact that the only witness to the infliction of the injury was a very young child who was not a competent witness.”

32 In the light of those concessions I am persuaded that this offender should also receive a discount of about twenty five percent to reflect the utility of that plea: R v Thomson and Houlten (2000) 49 NSWLR 383.

33 Although I have been referred to judicial sentencing statistics I have had regard to the difficulty of using sentencing statistics in cases of child abuse as noted by Latham J in R v Smith [2005] NSWCCA 286 at para 56 where her Honour said this:

“Comparison with sentences imposed in other circumstances for quiet different offences against children of varying ages are of limited use. Given the very low number 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.”

34 I agree with that observation.

35 Given the factual circumstances of the present case and given that the first count carries a maximum penalty of seven years imprisonment and the second count five years imprisonment I asked the offender’s legal representative in the course of the sentence proceedings whether he viewed one offence as being objectively more serious than the other. Mr Lagopodis expressed the view at the time that the section 43A(2) offence could be regarded as the more serious.

36 The Crown has accepted that recklessness was the basis for the offender’s liability for the section 35(1)(b) offence, that is maliciously inflicting grievous bodily harm.

37 In my view the placing of that young child in the shower and turning the hot water demonstrated a high degree of recklessness. Shortly before the child was placed in the shower the co-offender Jones intentionally inflicted actual bodily harm on the child with an electric kettle cord. So although they are different offences, when looking at the appropriate penalty I see no real difference in the criminality of this offender when compared to that of his co-offender Jones.

38 Whilst the reckless placing of this child in the shower and turning on the hot water is serious indeed I am clearly of the view that the failure to provide this three year old with the 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.

39 I have already referred to remarks of Ireland J in R v Pitcher. The ongoing criminality in respect of the section 43A(2) offence requires, in my view, that there be at least some accumulation in the sentences. See Pearce v The Queen (1998) 194 CLR 610.

40 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.

41 I find special circumstances and these include the absence of any relevant criminal convictions despite his continuous drug abuse including the daily use of cannabis since fifteen years of age. The Probation and Parole report indicated that the complexity of the offender’s behaviour and attitude would warrant intensive individual counselling. It envisaged future intervention in respect of anger management, drug use and psychological issues. 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.

42 Robert Bruce Cockburn, in respect of count 1 you are convicted and I sentence you to a fixed term of imprisonment for six months to date from today being 19 October 2006. In respect of count 2 you are convicted and I sentence you to a non-parole period of nine months. That is to date from 19 January 2007 and to expire on 18 October 2007. 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 and effectively a non-parole period of twelve months, although as I have stated the non-parole period of nine months will date from 19 January 2007 and expire on 18 October 2007.

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