02 and 12 July 2021 Crown written submissions: 29 June and 09 July 2021 Defence written submissions: undated
Date of orders:
10 September 2021
Decision date:
10 September 2021
Jurisdiction:
Criminal
Before:
Hatzistergos DCJ
Decision:
See [191] onwards
Catchwords:
CRIMINAL LAW ––– Fact finding on sentence where jury found Offender not guilty of intentionally causing grievous bodily harm and guilty of recklessly causing grievous bodily harm – Child aged between 8 and 12 weeks old at the time of the offence – Victim born with a number of congenital abnormalities – Crown asserted life-long brain injuries, retinoschisis of left eye, rib fractures, bruising and auricular haematoma to ear due to the Offender’s actions – Crown asserted the injuries were caused by shaking, forceful holding and massaging the Victim as well as blunt force trauma consistent with the Victim’s mother hearing a “thud” – Defence argued that the impact arising from the offending was less due to the Victim’s congenital abnormalities – Left sided auricular haematoma to ear not established beyond reasonable doubt
SENTENCE –– Offending found above mid-range of objective seriousness
SENTENCE –– Aggravating factors –Substantial harm- – Victim vulnerable – Offence occurred in the Victim’s home – Offender in position of trust and authority – Subjective factors –Offender’s background cannot be characterised as deprived or dysfunctional such that the principles in R v Bugmy apply –– Offender’s mental health such that the need for specific deterrence is moderated – Discount for offer to plead guilty to subject offence prior to trial – Reduction in sentence for the facilitation of the course of justice – Offender’s prospects of rehabilitation found somewhat guarded and medium risk of re-offending – COVID-19 impacts on inmates – Special circumstances found
[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.
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Details
AGLC
R v D [2021] NSWDC 483
Case
[2021] NSWDC 483
Decision Date
CaseChat Overview and Summary
In the case of R v D, the offender was found not guilty of intentionally causing grievous bodily harm but guilty of recklessly causing grievous bodily harm to a child aged between 8 and 12 weeks old. The victim was born with several congenital abnormalities, and the Crown argued that the offender's actions resulted in life-long brain injuries, retinoschisis of the left eye, rib fractures, bruising, and an auricular haematoma to the ear. The Crown's case was that the injuries were caused by shaking, forceful holding and massaging the victim, as well as blunt force trauma, after the victim's mother heard a "thud". The defence, however, contended that the impact arising from the offending was less severe due to the victim's congenital abnormalities. The court found that the left-sided auricular haematoma to the ear was not established beyond reasonable doubt.
The legal issues that the court was required to decide included the objective seriousness of the offending, the relevant aggravating and subjective factors, the offender's prospects of rehabilitation, and the effect of COVID-19 on inmates. The court found the offending to be above the mid-range of objective seriousness due to the substantial harm caused to the vulnerable victim. Aggravating factors included the vulnerability of the victim, the offence occurring in the victim's home, and the offender being in a position of trust and authority. The subjective factors considered were the offender's background, mental health, offer to plead guilty, facilitation of the course of justice, and prospects of rehabilitation. The court found the offender's prospects of rehabilitation to be somewhat guarded and assessed the risk of re-offending as medium.
The court acknowledged the impact of COVID-19 on inmates and found special circumstances to be present. The offender was sentenced accordingly, taking into account the various factors discussed above. The final orders of the court can be found in the judgment from paragraph [191] onwards.