R v D - [2021] NSWDC 483

District Court

New South Wales

Medium Neutral Citation: R v D [2021] NSWDC 483
Hearing dates: 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

Legislation Cited:
Crimes Act 1900 (NSW) ss 33, 35,
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 28, 30E, 44
Crimes (Sentencing Procedure) Regulation 2017 (NSW) r 9

Cases Cited:
Beavis v R [2018] NSWCCA 248
BJ v R [2018] NSWCCA 231
Bott v R [2012] NSWCCA 191
Bugmy v the Queen (2013) 249 CLR 571
DPP v De La Rosa [2010] NSWCCA 194
Droudis v R [2020] NSWCCA 322
Fisher v R [2021] NSWCA 91
Haoui v R [2008] NSWCCA 209
Hoskins v R [2021] NSWCCA 169
Kelly v R [2021] NSWCCA 173
Magro v Regina [2020] NSWCCA 25
Manocha v R [2019] NSWCCA 122
Merrick v R [2017] NSWCCA 264
MRW v R [2011] NSWCCA 260
Muldrock v R (2011) 244 CLR 120
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Oinonen v R [1999] NSWCCA 310
Perkins v R [2018] NSWCCA 62
R v AB [2011] NSWCCA 229
R v Cardoso (2003) 137 A Crim R 535
R v Do (No 4) [2015] NSWSC 512
R v Halloun [2014] NSWSC 1705
R v Hines (No 3) [2014] NSWSC 1273
R v Johnson [2003] NSWCCA 129
R v Johnson [2003] NSWCCA 129
R v Millwood [2012] NSWCCA 2
R v Qutami [2001] NSWCCA 353
R v Smith [2005] NSWCCA 286
R v Spinks [2021] NSWCCA 322
R v SS [2021] NSWCCA 56
R v SS [2021] NSWCCA 56
R v Tsiaras [1996] 1 VR 398
R v Youkhana [2004] NSWCCA 412
Regina v Borkowski [2009] NSWCCA 102
Rossall v R [2021] NSWCCA200
Tepania v R [2018] NSWCCA 247
Veen v The Queen (No 2) [1988] 164 CLR 465
Z v R [2015] NSWCCA 274

Category: Sentence
Parties: Regina (the Crown)
D (the Offender)
Representation:
Counsel:
Ms E Curran (the Crown)
Ms M Phelps (the Offender)
Solicitors:
Director of Public Prosecutions (the Crown)
Longton Legal (the Offender)

File Number(s): 2017/385364
Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies. The following pseudonyms will be used: A for the Victim, B for the Victim’s sister, C for the Victim’s mother and D for the Offender.

Judgment

On 20 December 2017 D (the Offender) was arrested and charged with an offence of cause grievous bodily harm with intent pursuant to section 33(1)(b) of the Crimes Act 1900 (NSW) (the 1900 Act)^[1] and an alternative offence of recklessly causing grievous bodily harm pursuant to section 35(2) of the 1900 Act.^[2] According to the amended indictment, these offences related to his son, A between 1 August 2016 and 25 August 2016, being a time when he A was aged between 8 and 12 weeks old.
1. Count 1 on indictment.
2. Count 2 on indictment.
By way of background, the matter was listed for arraignment on 31 January 2019. On that date, a trial listing of 8 October 2019 was given. Prior to this trial listing, the trial date was vacated on an application of the Defence consented to by the Crown. A future trial date of 16 March 2020 was given, however on that date, the Offender withdrew his instructions from his legal Counsel and the trial date was vacated. The matter was then listed for trial on 8 March 2021 at Parramatta District Court.
The trial commenced on 9 March 2021. On 7 April 2021, following a trial of 20 days, the Offender was found not guilty on Count 1 but guilty of Count 2 namely recklessly causing grievous bodily harm.
The matter was thereafter adjourned for sentence on 4 June 2021. Following a request by both parties, that date was vacated by Chamber Order made on 13 May 2021. The matter was then relisted for 2 July 2021 at Sydney. Although the matter proceeded on that occasion, it was unable to conclude and was adjourned part-heard to 12 July 2021.
During the sentence hearing, additional documentary evidence was furnished by both parties. The Crown tendered a sentence bundle including the Offender’s antecedents, custodial history, an expert certificate dated 7 June 2021 from Dr Grace Wong (Staff Specialist Consultant Paediatrician at the Child Protection Unit in the Children’s Hospital at Westmead (CHW) (Exhibit A). Also tendered was a report from Dr Simone Arden-Holmes (Staff Specialist Paediatric Neurologist at CHW (Exhibit B). Further email correspondence from Dr Wong dated 9 July 2021 was subsequently tendered (Exhibit C). Both Drs Wong and Arden-Holmes were required for cross- examination and gave oral evidence on 2 July 2021. The Defence tendered a letter written by the Offender to the Court dated 27 June 2021 (Exhibit 1), an undated letter of written representation to the Director of Public Prosecutions (Exhibit 2), material relating to the Offender’s brother (Exhibit 3), a report from Mr Tim Watson-Munro (consultant psychologist) dated 29 June 2021 (Exhibit 4), a GP Mental Health Care Plan for the Offender dated 22 October 2010 (Exhibit 5), Rehabilitation Service Notes relating to A dated 1, 8 22 and 29 June 2017 and 30 July 2018 (Exhibit 6) and a referral letter from Dr Viola Rizk to Centre for addiction medicine dated 7 July 2015 (Exhibit 7). Mr Watson Munro was required for cross examination and gave oral evidence on 12 July 2021.
Oral, written submissions and supplementary written submissions were furnished by both parties.^[3]
3. MFI 1 Crown written submissions, dated 29 June 2021; MFI 2 Fact finding proposed by the Crown, dated 29 June 2021; MFI 4 Crown Supplementary written submissions, dated 9 July 2021; MFI A Defence written submissions (undated); MFI B Defence supplementary written submission (undated).
Needless to say that in sentencing the Offender he must be given the full benefit of his acquittal on Count 1.

Facts

The Offender is the father of the Victim, A.
C was married to the Offender and is the mother of the Victim. B is the daughter of the Offender and B is the sister of A.
A was born in May 2016. He was born with neurological abnormalities. These included an agenesis of the corpus callosum, Ventriculomegaly (being the fluid filled spaced in the brain were enlarged), small brain parts,^[4] unusual morphology specifically of the pons with transverse narrowing of the ventral pons,^[5] long-standing atrophy with signal changes in the basal ganglia,^[6] an absent septum pellucidum,^[7] associated with large ventricles with the peri- ventricular white matter was markedly reduced particularly in the occipital lobes,^[8] abnormal hyperintense signal through the white matter which is seen more so in the parietal occipital lobes^[9] and a club foot or Talipes equinovarus.^[10] These abnormalities had been identified on antenatal screenings.
4. T 757.48-.50.
5. T 182.15-.21.
6. T 699.44-.50.
7. T 180.20-.32.
8. T 181.19-.31 and 248.30-.33.
9. T 181.41-.42.
10. T 114.4-.9.

Context evidence

There is evidence that the Offender and C had a domestically violent relationship before and after the Victim was born.
The Crown specifically disavowed that it sought to rely on the context evidence as evidence for future dangerousness.^[11] The evidence was admitted at trial for context purposes as described in my preliminary ruling judgment.^[12] No submission was advanced as to what, if any way, it should be used on sentence. In these circumstances, I accept the Defence submission to the effect that that evidence can be put to one side and need be considered no further on sentence.^[13]
11. T 70.34 (Sentence).
12. Unreported 11 March 2021.
13. MFI B p2.

Hospitalisation on 24 August 2016

On 24 August 2016, C noticed that A’s breathing was not regular and that he was not responding. She saw that his eyes were opening and closing but that he was not sleeping. C called 000. The Offender spoke to the operator while waiting for the ambulance to arrive. When ambulance officers arrived, a number of observations were made which included noticing that As’ ear was red and swollen and he had a dilated pupil. Ambulance Officer Ross Jarett also noticed that A had tonic movement (stiffness) in his arm. A’s heartrate spiked during his transportation to hospital and he required oxygen.^[14]
14. T 43.47-44-.9.
Following arrival at CHW, a CT brain scan was performed and an emergency craniotomy came to be performed to relieve the pressure on his brain.^[15]
15. T 119.17 and T 233.23-.25 and T 693.18-.21.
Following a number of meetings at around 4.20pm on 25 August 2016, C and the Offender were informed that A and B were being assumed into the care of the Minister due to concerns relating to A’s injuries.^[16]
16. T 562.30-50.

Injuries and surgery

The following is a summary of the injuries that were identified by treating doctors during the surgery and in the days afterwards:

Brain injuries

Acute on chronic subdural haemorrhage of left hemisphere with raised intracranial pressure (H)

Bleeding into the interhemispheric fissure

Midline shift and herniation of the brain.

Tearing of the Sylvian vessel and Cortical vein

Cortical contusion of the left inferior frontal lobe (bruising of the brain)

Resulting encephalomalacia (liquification) involving almost the entire left cerebral hemisphere, inferior right frontal lobe and superior right cerebellar hemisphere

Ear injury

Left sided auricular haematoma that required incision and drainage by an ear nose and throat specialist.

Eye injuries

Extensive multi-layered retinal haemorrhages of the left eye

Retinoschisis left eye– abnormal splitting of the retinal layers

Rib fractures

Rib - Left Posterior 4^th

Rib - Left Posterior 5^th

Rib - Right Posterior 6^th

Metaphyseal fractures

Bilateral proximal femora

Bilateral distal femora

Bilateral proximal tibiae

Right distal tibia

Stress fractures

Bilateral humeri

Left femoral shaft

Right tibial shaft

Bruising

Multiple patterned bruising on inner thigh and left groin area

Circular bruising over left anterior thigh and left hip

Right inner thigh

Upper back between shoulder blades

Linear bruising over the right lower leg^[17]

17. T 142.35.

Cause of injuries

At trial, C gave evidence that the Offender had shaken and massaged A after he was born. C also gave evidence that she heard a noise when the Offender was caring for the Victim a week before being taken to hospital following which she saw A crying. The specific evidence is discussed further below.

Offender’s Interviews

The Offender participated in two records of interview with Police – the first on 29 September 2016 and the second on 20 December 2017.^[18] Those interviews resulted in limited admissions as to massaging/rubbing oil as well as some shaking but otherwise denied the account given by C and responsibility for the injuries.
18. Exhibits L and M on trial.
Needless to say, the jury by its verdict rejected the Offender’s account.

Expert evidence – Mechanisms of injury

Brain/Eye

The Crown contended that the evidence of what caused the injuries to A’s brain is unanimous between the experts. It argued that the bleeding on A’s brain, the herniation and the resulting liquification were as a result of a significant head trauma or a non-accidental injury.
In relation to the brain injuries exhibited on the CT scans and during surgery, the Crown relied on the following evidence to establish that the injuries were non-accidental:

Dr Ardern Holmes stated that when studying brain injuries in children, “the specific characteristics that one sees during accidents and non-accidental injury - so drawing on studies looking at numbers of children, those children for whom there’s evidence on the whole of non-accidental injury tend to have acute-on-chronic subdural haematoma or haemorrhage, such as was seen for A with the mixed densities on the CT scan. The other things that are typical of children with non-accidental injury and which do not occur in children with accidental trauma included blood in the inter-hemispheric fissure, the contusion that was seen and also the presence of retinal haemorrhages.”^[19]

Dr Wong gave evidence that the two torn bridging vessels, “based on their location, are highly likely to have been caused by some sort of rotational injury to the head”^[20] Rotational injuries also explain the bruising underneath the frontal lobe: “And what happens - what happens classically, when there is a rotational head trauma, is as the head is moving inside the skull, the base of the brain impacts against the inside of the skull where the ridges are. And it causes bruising in some very specific locations.”^[21]
19. T 243.9.
20. T 716.43.
21. T 719.13.

The Crown also relied on Dr Wong’s evidence in relation to the eye injury. She gave evidence that retinoschisis, “is an injury that's highly associated with abusive head trauma” that “has only ever been reported in cases of severe abusive head trauma more commonly in kids that have actually died and gone to autopsy.”^[22] Dr Wong gave evidence that, “it is believed that the same forces that causes the bleeding in the brain also causes the shearing type forces at the back of the retina, which caused the blood vessels to burst, which result in retinal haemorrhages.”^[23]
22. T 720.25.
23. T 720.14.
The Defence drew attention to A’s congenital abnormalities at birth and that no brain MRA (magnetic resonance angiogram) was performed to assess the vascularity.
The Defence drew attention to C’s evidence reporting observing seizure like activity in A (rolling back eyes, one sided stiffness) and her evidence at trial that this occurred on somewhere between 1-10 occasions. C said she didn’t seek medical attention because they’d been told to expect seizures.
Dr Li, the neurosurgeon advised that there was straw-coloured fluid within the subdural space, which he thought, based on his clinical experience, was very consistent with appearance of older subdural bleeding consistent with trauma.^[24] The Defence noted that Dr Tan described subdural haemorrhage (SDH) as bleeding being acute on top of “chronic.”^[25] The Defence argued that Dr Ardern-Holmes conceded that it remained a possibility that the older bleeding on the brain was the result of seizure activity^[26] and a concession was made in terms of the potential of a seizure invoking an injury.
24. T 695.26-.696.8.
25. T 127.33-.38.
26. T 674.28.
Reference was also made to Dr Ardern-Holmes’ evidence that a sibling pulling a baby off the top of a bed could be a mechanism where a child could be injured in a fall, which could if significant, cause some bleeding on the brain.^[27] This was said to be consistent with some of the alternative scenarios described by C which are discussed below. It was argued that Dr Ardern-Holmes said that A’s un-wellness as described by C in the week preceding 24 August 2016 was very consistent with the injuries seen at A’s presentation in hospital.^[28]
27. T 674.46+.
28. T 675.
The Defence further contended that Dr Ardern-Holmes agreed that a possible explanation for the ruptures to the bridging vessels in the brain was the build-up of pressure within the brain from the layered SDH, which she said would cause a stretching across the bridging vessels that would in turn cause them to be damaged and to bleed. In other words, it would be secondary to the SDH, rather than the cause of it.^[29]
29. T 675.42-51.
The Defence acknowledged that Dr Wong did not accept that final proposition saying that it doesn’t make sense.^[30]
30. T 733.
During cross-examination at trial, Dr Wong was reminded of the head and other measurements taken by Dr Ardern-Holmes on 4 August 2016 and agreed that her reports had not taken those measurements into account. Dr Wong accepted that it “would be more correct” to say that A had a period of very poor head growth which subsequent to the traumatic head injury became much worse.^[31] On sentence, following a review comparing the development of the head circumference pre-injury, Dr Wong concluded, that whilst pre-injury the head circumference was small, its growth was still normal.^[32] However, following the injury, it resulted in the growth tracking well below such that the acquired injury rather than congenital developments were responsible for the severe impairments.^[33] The Defence referred to Dr Wong’s insistence that A developed microcephaly as a consequence of the head trauma, when clearly his brain was already abnormally small.^[34]
31. T 735.10.
32. T 20.36-.41 and T 24.9-.27.
33. Exhibit A, report of Dr Wong dated 07 June 2021 at [26] (Sentence) and T 17.25-.28 (sentence).
34. T 733-.21; T 734.27-.34.
The Defence referred to Dr Wong’s findings tendered at trial observing that it failed to record a number of other factors^[35] and Dr Wong was not impartial about the task she performed.^[36]
35. MFI A p6 (Sentence).
36. MFI B p5 (Sentence).
Furthermore, only standard bone testing was done. No nuclear medicine type tests were performed. Vasculitis, which has different origins, and symptoms was not considered nor investigated. Vasculitis can cause diffuse brain dysfunction, which was suggested on A’s EEG at birth.^[37] Further, a cerebral angiogram with dye was not conducted when A presented at CHW and that sort of test was said to be able to finally rule out congenital vascular abnormality. eg: AVM.^[38]
37. MFI A p7 (Sentence).
38. T677-.45.
The Defence in short advanced that the congenital brain abnormalities A had, explained some of the findings and consequently the injuries arising from the offending were less.
I do not accept this contention. To a large extent, it overlaps with the Defence case at trial which the jury did not accept.
I do not accept that the Defence submission accurately summarises Dr Arden-Holmes’ positon. The Defence cross-examination at trial was as to older bleeding being explained by seizure activity. Dr Arden-Holmes stated that it was “very very unlikely.”^[39] She only considered it as a possibility in terms of risk of seizure if there was a fall onto a hard floor that caused significant head injury resulting in some bleeding in the brain. She described “that it would be very unusual and unexpected that that kind of thing would occur without the baby being significantly unwell enough for the family to notice there was a problem, and to bring him to medical attention, .…so that the injury was significant enough to cause that degree of bleeding.”^[40] Whilst she acknowledged that a sibling pulling a baby off a blanket leading to a fall may be a mechanism to the injury, she stated that fall would need to be so significant that it caused bleeding resulting in the baby being very different not only irritable but maybe vomiting and not feeding well. She also observed that it seemed like there were multiple episodes as there were different layers of subdural haematoma.^[41]
39. T 674.22-.25.
40. T 674.35-.40.
41. T 675.18-.26.

Dr Arden-Holmes did not support seizure activity as the explanation of the different layers of subdural haematoma observed in A. Nor did the scenario put in cross-examination.
Even accepting that pre-injury A’s head circumference grew slowly following birth, the evidence was that following injury the positon became even worse.
Beyond that, the trauma to the brain is also not to be viewed in isolation from other injuries described below consistent with incidence of shaking A. Dr Wong’s opinion as to retinoschisis of the left eye was sought to be discounted on the basis that it ignored the possibility of genetic or congenital conditions contributing. The Defence pointed to no evidence that supported that retinoschisis in this instance arose from these circumstances. On sentence, Dr Wong specifically rejected it.^[42] Furthermore, Dr Wong gave evidence at trial that A had an eye review by an ophthalmologist at birth showed no evidence of retinoschisis.^[43]
42. T 27.31-.38 (Sentence).
43. T 768.40-769.28.
Beyond the eye, Dr Wong’s evidence in relation to the bridging vessels was clear and the scenario put to Dr Arden-Holmes on which the Defence relied did not include referencing the bruising underneath the frontal lobe which Dr Wong described as relating to very specific locations.
Whilst the Defence pointed to the absence of other testing, there was nothing that suggested that those tests would result in a different explanation for the injury.
Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the brain and eye injuries observed following A’s admission to CHW on 24 August 2016 were caused by the Offender’s actions.

Ribs

In relation to A’s rib fractures, Dr Wong gave evidence that posterior rib fractures in children, “are highly likely caused by forceful chest compression when somebody puts their hand around the ribcage and forcefully squeeze it front and back. That that type of injury was described as highly associated with forceful, abusive squeezing of the chest.” Dr Wong stated “it's very rarely seen in any other type of accident or trauma.”^[44]
44. T 726.27.
Dr Wong also gave evidence that the rib fractures were at different stages of healing and therefore “highly likely to have been sustained on two separate occasions.”^[45]

Bone Fractures

45. T 730.32.

In relation to A’s metaphyseal bone fractures, Dr Wong gave evidence that these are most often caused “when the infant is shaken and you got flailing arms and legs which causes shearing forces at the end of these long bones”^[46] but that there are a few case reports “where some infants that have very vigorous twisting or manipulation of the limb may result” in the fractures seen on A. Dr Wong could not exclude the possibility that “if massaging was done in a way that was very forceful, that manipulated the joints beyond their normal range of motion, that that might also have resulted in the fractures.”^[47]

Bruising

46. T 727.43.

47. T728.38.

Dr Wong gave the evidence about the bruising on A’s body:

“Pattern injuries in children would indicate in general impact by or against some sort of object or implement. So in this case, the overall picture would suggest blunt force trauma to that region against or by some sort of object or implement.”^[48]

“The number of bruises and their distribution would be most unusual for normal - a household accident for that to be the cause. So they were highly, highly concerning for inflicted abusive trauma.”^[49]
48. T725.41.
49. T726.19.

The Defence submitted that as a matter of common sense it is a possibility that some of the linear marks observed on A’s body upon presentation were the result of A scratching himself being what C said to Dr Holly Smith on A’s admission to CHW.
The Defence submission simply would not account for the nature and the extent of the bruising observed and I do not accept it.

Ear

The Crown contended that the tribunal of fact also accepted that the Offender caused blunt force trauma to A on an occasion a week before A was taken to hospital when C was in the shower and heard a noise that was described as something falling on the floor. That made C run out and ask the Offender “what happened.”^[50] A was crying and C described that cry as “like he was upset, crying really high, the volume was really high.”^[51] The Offender responded “Nothing happened. He’s crying for no reason.”^[52]
50. T 80.10.
51. T80.39.
52. T80.44.
The next day C noticed that A’s ear was red and swollen.^[53] The Crown asserted that it was this incident that resulted in the auricular haematoma that was observed by the first responder Ambulance Officer (Ross Jarett) and which Dr Wong described as being consistent with forceful, directed, blunt force trauma to the ear.
53. T81.9.
The Crown contended that the tribunal of fact accepted C’s evidence which along with the evidence of Dr Wong would enable the Court to be satisfied that the blunt force trauma was involved with the count. The Crown contended that the timing of the act was able to be referenced to C noticing that A’s ear was red and swollen the day after she heard the noise. It was submitted that Dr Wong expressly disavowed other suggestions that were put to her.^[54] In that regard, the Crown pointed out that with respect to the scenario of being pulled off the bed, Dr Wong opined that it would be unusual for that to occur and you would generally expect there to be damage to the skin if A knocked his ear on something on the way down.^[55]
54. T 70.32-71.10 (sentence).
55. MFI 4 at [22].
The Defence submitted that evidence of the application of blunt force trauma is very weak in that the jury had to rely on the ever changing evidence of C. In the alternative that, if the Court is satisfied that there was blunt force trauma, it could have been a trauma suffered by way of accident, in one of the scenarios variously described by C where daughter B pulled the Victim from the bed.
The Defence noted that Dr Wong made certain concessions^[56] including that she could not rule out as a possibility that the injury to the ear occurred in either of the two ways put to her involving B pulling A off the bed when C was either nearby or out of the room. The first of those scenarios was where A landed on the floor with a force greater than had he simply fallen, with a transverse velocity, or horizontal element to it.
56. T778.8-.49.
The second of those scenarios was where A knocked his ear on something on the way down, perhaps a corner of the bed or the cot, or the baby bouncer. The evidence was that the cot was abutting the bed.^[57]
57. From C’s diagram and evidence of visiting workers: Exhibit O.
Whilst the Defence accepted that the jury verdict entailed that the Offender was responsible for the injuries sufficient to make out the element of grievous bodily harm, the particular injuries the jury accepted or rejected to making out that particular element were said to be unknown.^[58]

Consideration

58. T 73.11-.14 (sentence).

In determining this matter, it is important to recount the evidence. Ambulance Officer Ross Jarett who attended on A on 24 August 2016 gave evidence of observing a swelling to A’s ear which he described as a cauliflower ear where the distortion and swelling happens between the layer in the cartilage and the skin. He stated that although this is not in his area of expertise, it seemed more likely to be recent and he had never seen it before in a child so young. He stated that he asked C about it and she told him that it was an infection in the ear and that the GP was across it and it was being treated with some ointment or something.^[59]
59. T 41.9-.49.
Dr Tan reported on the history as to the ear as provided by C on 24 August 2016 was that C first noticed it a week previous to A presenting to CHW but did not know the reason for the swelling and A did not appear to be in pain when the swelling was touched.
At a meeting on 25 August 2016 between the Child Protection Caseworkers Ms Natalie McGlynn and Ms Julie Candy an account was obtained from C as to an incident where B pulled a blanket causing A to fall off the bed. The same day, a similar account was recorded by the Offender based on information supplied to him by C. At no stage did C indicate that the account that was given by her on 25 August 2016 came from anyone but herself.
C was however cross-examined about this account. The transcript records:

Q. And did you tell Ms Kandy that last week he fell off from the bed?
A. I don't remember that.
Q. But when you were speaking to Ms Kandy, you were telling her, or doing your best to tell her things accurately, weren't you?
A. Yes.
Q. I mean, you'd asked to speak to somebody without [the Offender] there, hadn't you?
A. Yes.
Q. And so this was your opportunity to tell people things that mattered. Correct?
A. I only wanted to tell them that this is what has happened, and because they explained to me that the injuries were not something that a child would do, and that it’s – it’s – an adult would have inflicted those injuries on [A], so I just had a conversation with them saying that “This is what has happened, and maybe the massage is the reason”.
Q. So what your take home from that conversation was that you told them maybe the massage is the reason he had the injuries?
A. Yes. That [the Offender] used to massage [A].
Q. But you also told them, didn’t you, that last week, [A] fell off the bed?
A. I don’t remember that.
Q. Well, I suggest to you, firstly, that you did tell Ms Kandy that [A] fell off the bed.
A. As I said earlier, I don’t remember that.
Q. And I suggest to you that you did tell Ms Kandy that this happened after [A] had had his immunisation needles.
A. I don’t remember that.
Q. And I suggest that you did tell Ms Kandy that this happened when your husband wasn’t home.
A. I don’t remember that.
Q. And I suggest to you that you told Ms Kandy that your husband came home five or ten minutes later.
A. I don’t remember that.
Q. See, I also suggest to you that that did happen.
A. I don’t remember.
Q. I suggest to you that [A] did fall off a bed.
A. I don’t remember.
Q. So, you’re not saying it didn’t happen, you’re saying you don’t remember whether it happened?
A. I’m sorry, I’m not getting what you’re saying.
Q. Well, you say you don’t remember. I’ll just clarify, yes. Are you saying you don’t remember the event happening, him falling off the bed or are you saying you don’t remember telling them he fell off, A fell off the bed?
A. As far as I remember, I told in my interview, that [B] pulled [A’s] blanket, but he never fell down on the floor.^[60]
60. T 409.44-410.50

In further cross-examination, C stated that A never fell off the bed and B never pulled him off the bed but she did not recall what she told caseworkers.^[61]
61. T 412.34-.42.
A further account of the incident involving C was obtained by Dr Tan on 5 September 2016.^[62] This was to the effect that she found A crying on the floor and thought B might have pulled the blanket and A fell off the bed. In cross- examination, C did not recall this conversation or its details and did not recall whether she found A on the floor with half his body on the blanket and half on the floor board.^[63] C did not recall whether that was the truthful version of what occurred but stated that A did not fall off the bed.^[64]
62. T 109.33-110.18.
63. T 420.1-.31.
64. T 421.18-.34.
C was interviewed by police on 22 September 2016. In that interview, C stated that she told the Child Protection Unit and the people from Penrith Family and Community Services (FACS) that B had pulled A. She stated:

Oh, no not the cot, That was the bed actually when A was lying on the bed after having milk and she actually pulled him and he actually fell down from the bed. That is, so B was, A was actually on my bed where B was playing and I wanted to actually put A, A in the cot yeah, after feeding actually after this, A with milk.^[65]
65. Exhibit 9 Q and A 41.

When asked how long ago this was, C described that it was a week before A was taken to hospital. C described that afterwards A was crying and that she picked him up from the wooden floor gave him some milk and then he went to sleep. She did not take him to the doctor.^[66] C gave evidence that that these details were told to police because they were the words put into her mouth by the Offender who was waiting outside the interview room and told her if asked she had to be on the “same page and say this.”^[67]
66. Exhibit 9 Q and A 42-48.
67. T 412.45-413.12.
In evidence in chief, C stated that that the incident she described to police on 22 September 2016 of B pulling A from the bed did occur however A did not fall as she was right next to him and literally held him.^[68] C maintained that she had told this previously in an interview but could not identify which.^[69] She reiterated that A did not fall to the floor as far as she recalled.^[70]
68. T 293.9-.16.
69. T 421.36-.43.
70. T421.42.
Earlier, I described the evidence that C gave at trial as to the circumstances leading to the injury on A’s ear.
The evidence was that C first gave an account to this effect to Ms Vicki Laberis and Ms Heidi Stanford from FACS on 16 October 2016. Ms Stanford took notes and recorded that C told her that she asked the Offender about it and he said that he didn’t know. She asked the Offender if A fell when she was in the kitchen and heard a noise and the Offender said no. C said she then saw the Offender hold A because he was crying.^[71]
71. T 651.30-.47.
On 14 December 2018, C was again interviewed by police. In that interview, C stated that she was in the shower when she heard a noise like something falling because the floor was wooden and the Offender stated “No nothing, nothing like that happened. Like there was no noise you just heard things.” C described not seeing any marks or injuries.^[72] When clarification was sought with respect to her earlier description to FACS of being in the kitchen as opposed to the shower, C stated “I’m not sure about this one.^[73]
72. Exhibit 10 Clip 1.
73. Exhibit 10 Clip 2.
In finding the Offender not guilty of the charge under section 33(1)(b) of the 1900 Act, the jury was not satisfied that the Offender intended to cause grievous bodily harm to A.
I have borne in mind the context evidence earlier referred to as possibly explaining the changing evidence of C. However, even taking that into account, C’s evidence on this matter remained confusing. It’s possible that she did not understand some of the questions. In all the circumstances, I cannot be satisfied beyond reasonable doubt as to the mechanism of the injury involved an act of the Offender let alone that it was committed recklessly. I accept the Defence submission that the Crown has not ruled out the reasonable possibility of a mechanism that did not involve accident such as that described by C in the first account that she gave. In respect of that scenario, Dr Wong also specifically stated that she could not rule it out as a possible explanation.
I accept the Defence submission that in so determining with respect of the ear injury, this remains consistent with the jury’s finding of the Offender being found guilty in relation to count 2 based on the other injuries sustained.

Victim Impact Statement

Tendered as part of the Crown material on sentence is a Victim Impact Statement prepared by the carer of A^[74] pursuant to section 28 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act). This statement was also read to the Court. The statement details the impacts that the Offender’s conduct has had upon A’s daily life. Put simply, A requires significant assistance. He is fed and medicated through a tube. The medications seek to reduce the severity of symptoms however they also make him sleep more impacting on his other therapy. The psychological impact of this offence on A is not able to be quantified because of the extensive injuries that he has suffered. The statement points out that A will not have a normal life and his relationships have been severed and strained. End of life care and planning has been discussed with the medical team. The ongoing financial burden for future care includes: hospitalisation, surgeries, dressings, medications, investigations, aids, ongoing therapy and treatment and dietary supplements. It is apparent that A’s life, and those entrusted with his care, have been impacted in every aspect.
74. As per Regulation 9(1)(a) and (c) of the Crimes (Sentencing Procedure) Regulation 2017 (NSW).
The Court acknowledges the statement and serious impact that it describes. Whilst the Court also has other evidence before it from medical practitioners that I will come to, it is important to also hear from the person who has the day to day caring responsibilities. The statement is taken into account in the way the law provides.^[75]
75. Section 30E of the 1999 Act.

Objective seriousness

The Crown submitted that by virtue of the verdict returned, the jury accepted that the Offender recklessly caused significant extensive injuries to A by shaking the victim multiple times and massaging the victim’s limbs on an almost daily basis, over a considerable period of time.^[76]
76. MFI 1 at [7] (Sentence).
In assessing the objective gravity of the offence, the Crown submitted that the Court would have regard to the following factors:

The severity of the injuries suffered by the victim

The repeated nature and duration of the shaking involved in the assaults.

The repeated nature and duration of the massage involved in the assaults.

The breach of trust involved in the offence.

The very young age of the victim;

The physical disparity in size and strength between the Offender and A.^[77]
77. MFI 1 at [8] (Sentence).

Consistent with the jury’s finding, I am satisfied beyond reasonable doubt that the Offender’s actions caused the combination of injuries described with the exception of the ear injury. I address the matters raised by the Crown below.

Substantial Injury

The Crown submitted that the injury sustained by A was substantial being far more than would be expected from an offence of this kind thus engaging the aggravating factor in section 21A(2)(g) of the 1999 Act.
Tendered as part of the Crown material on sentence is a report by Dr Wong dated 7 June 2021 which details the extent and severity of each injury that A presented with at CHW; the effect of those injuries; her classification of the injuries based on her experience, knowledge and training and the ongoing effect of the injuries suffered by A. The injuries suffered by A are lifelong and have severe consequences.
Dr Wong opines that A’s head injury is one of the worst cases (short of fatal cases) that she has encountered in her clinical practice, in terms of clinical severity and sequalae. Dr Wong states, that following the brain injury, as a consequent to the trauma, A had minimal brain tissue left due to liquefaction. Further, A had scarcely any brain tissue remaining for the brain to grow post-injury.^[78] Dr Wong opined that A’s head injury was extremely severe.^[79]
78. Exhibit A, report of Dr Wong dated 07 June 2021 at [25] (Sentence).
79. Exhibit A, report of Dr Wong dated 07 June 2021 at [27] (Sentence).
Furthermore, Dr Wong stated:

“In my view, the severity of head injuries seen in A was likely due to a combination of factors, including the degree of force applied (likely to have been very significant), the likely possibility that traumatic forces were applied on more than one occasion, A’s young age and underlying vulnerability (having low body tone and poor neck control from his known genetic condition) at the time of his injury, and his very late presentation to hospital which further worsened the degree of secondary (i.e. hypoxic-ischaemic) brain injury from lack of prompt medical care.”^[80]

80. Exhibit A, report of Dr Wong dated 07 June 2021 at [30] (Sentence).

Dr Wong’s also stated that A’s eye injuries were one of the worst cases that she has encountered in her clinical practice and that “the finding of retinoschisis of the left eye is an independent indicator of the severity of the forces applied to the head/neck/eyes at the time of trauma.”^[81] In email correspondence to the Crown dated 9 July 2021, Dr Wong noted that A was seen at an ophthalmology clinic and in November 2020 where it was observed on examination that he was able to briefly fix and follow high contrast toys with his right eye but not with the left. Dr Wong accepted this but stated that A’s vision is significantly and permanently impaired nonetheless his ability to follow a light does not mean that his visual is not severely impaired. Dr Wong noted that most blind people still have some visual input.^[82]
81. Exhibit A, report of Dr Wong dated 07 June 2021 at [31] (Sentence).
82. Exhibit C (Sentence).
Dr Wong noted that while prior to the injury A was noted to have antigravity movement of all limbs although less on the left side he now had a complete loss of function and movement of all four limbs following his traumatic brain injury. Further, whilst he previously was able to feed from a bottle, following the injury, he lost the ability to properly co-ordinate his suck and swallow to enable safe oral feeding and is now dependent on gastronomy feeds for nutrition.
Finally, Dr Wong stated that A’s skeletal injuries were moderately severe, as were his soft tissue injuries. The prognosis for A was that he has a reduced life expectancy and requires lifelong full time care.
The ongoing effects were described as including spastic quadriplegic cerebral palsy GMFCS 5 (being the most severe category of movement impairment due to cerebral palsy), refractory epilepsy, dysphagia, risk of aspiration due to dysfunctional swallowing (resulting in a gastrostomy tube being inserted in November 2017),^[83] permanent blindness due to damage to the brain and left eye and severe intellectual disability.
83. Exhibit C (Sentence).
Dr Wong accepted that A’s neurological developmental prognosis was guarded as a result of his genetic condition. She accepted that it was impossible to predict or to prognosticate what the developmental trajectory may or may not have been.^[84] Dr Wong acknowledged that A may have some moderate difficulties or disabilities and the time cause of the injuries is consistent with what would be expected with a child having this degree of brain volume loss. Whilst acknowledging that A has stiffness in his limbs from birth, she stated that the stiffness in the hips and limbs that A now has was due to spastic quadriplegia which was very different.^[85] Prior to the injury, Dr Wong stated that there was no indication of difficulty swallowing. Nor was there indication from the history provided to Dr Arden-Holmes and the GP of seizures and not to the extent post the injury which she related to the traumatic brain injury.^[86] Dr Wong stated that it would be extremely unlikely that A would have had refractory seizures in the immediate weeks after he was born and there was no history to this end.^[87]
84. T 758.5-.9.
85. T 28.31-.43 (Sentence).
86. T 31.18-32.33 (Sentence).
87. T 34.14-.23 (Sentence).
Dr Arden-Holmes accepted that A probably would have experienced some functional difficulties/disabilities associated with the congenital structural abnormalities but it was not possible to be exact about their nature.^[88] At trial, she noted that he would be an “at risk baby in terms of neurodevelopmental outcomes, the possibility of having seizures, a lot of children in that category have a good life.^[89] Dr Arden-Holmes stated that A may have some difficulty with movement and it was also likely that he would reach motor milestones at a later stage than children the same age.^[90] She stated that she would not have predicted with certainty that A would not achieve motor milestones being the ability to walk, crawl and sit.^[91]
88. Exhibit B (Sentence).
89. T 251.1-.5.
90. T215.15.
91. T215.9-.33.
Dr Arden-Holmes stated that the underlying cause of A’s difficulties (presumed genetic) was not known. Initial testing with chromosomal microarray was normal and whole exome sequencing was to be completed results not yet available and this may provide an explanation for A’s congenital condition.^[92]
92. Exhibit B at [17] (Sentence).
However, Dr Arden Holmes reiterated what was seen in August 2016 was not expected as part of the natural evolution of the congenital brain malformation. Traumatic brain injury was known to be associated with long term functional impairments and the refractory epilepsy was severe. She opined that the occurrence of seizures in association with severe traumatic brain injury in A makes it most likely that it resulted directly from the injury. In cross- examination, she accepted that there certainly may have been some predisposition to epilepsy because of the congenital brain malformation however the major contributor was the subsequent major injuries.^[93] Dr Arden- Holmes described A’s disability as profound accepting much of the observations made by Dr Wong including reduced life expectancy and need for lifelong care.^[94]
93. T 42.28-.36.
94. Exhibit B at [32]-[45] (Sentence).
Relying principally on the evidence of Dr Arden-Holmes, the Defence submitted that the neurological outcome for babies with A’s congenital abnormalities can be highly variable and it is therefore difficult to accurately prognosticate.
Dr Ardern-Holmes gave evidence at trial that, at the time of initial assessment and when her reports were written, genetic testing had not been conducted. Genetic testing was subsequently arranged as earlier described although the results were not obtained following Dr Ardern-Holmes becoming aware of the additional family history.^[95]
95. T 678.
In order to be taken into account as ‘substantial harm’ within the meaning of section 21A(2)(g) of the 1999 Act, the harm suffered by the victim needs to be shown to be greater than that which ordinarily attaches to an offence of the kind in question: R v Youkhana [2004] NSWCCA 412 at [26].
As indicated in Haoui v R [2008] NSWCCA 209 at [162] there is no bright-line test for what constitutes grievous bodily harm, however questions of fact and degree arise referrable to the Victim.
The multiple injuries that I have found occurred to a child of tender age and they will significantly impact on his everyday life. That impact is and will be profound as the medical evidence of Dr Wong and Dr Arden-Holmes which I accept indicates. I have noted the congenital abnormalities and the inability to prognosticate with any accuracy as to how they would have progressed. I accept that those abnormalities may have made A more susceptible as Dr Arden-Holmes stated. Nevertheless, I am satisfied beyond reasonable doubt that whatever role A’s pre-existing abnormalities may have had, it is the commission of the offence of which the Offender was found guilty that caused the injuries sustained by A and the consequential impact described by both doctors. Taking all factors into account, I am satisfied that the injury was substantial within the terms of section 21A(2)(g) of the 1999 Act.

Repeated Massaging

The Crown contended that elevating the seriousness of the offence is the repeated nature and duration of the actions which caused the significant injuries to A. Evidence was led during the trial, and the Crown submits was accepted by the jury, that the Offender twisted the ankles of A outwards, stretched his legs in opposite directions and bent A’s legs from the hip. The Offender also pulled A’s arms behind his back and across his chest (Exhibit B). This massage was described to Ms Stanford from FACS as ‘very rough’ and ‘strenuous’ and the evidence at trial was that it lasted for 20 minutes every day.^[96] A was found to have numerous metaphyseal corner fractures to his legs (both upper and lower leg bones), the top of both of his hips and upper arms.
96. T 603.2.
The evidence of Dr Grace Wong, based on her specialised knowledge, training and experience, was that there were cases where very vigorous twisting or manipulation of the limbs of children has resulted in metaphyseal corner fractures. The Crown argued that the Court would accept that the Offender repeatedly, albeit recklessly, massaged the limbs of A in the way described and demonstrated by C and would conclude that these massages were very rough and strenuous.
The Defence submitted that, the Offender has been found guilty of recklessly inflicting harm in the context of medical advice encouraging the repetition of movements, repetition cannot of itself be relied upon to elevate the objective seriousness of the offending. There was evidence (in Court or recorded interviews) from both parents that massaging had been encouraged by some of the medical professionals. Dr Ardern-Holmes gave evidence that indeed she would likely have encouraged the couple to perform massage and movement of A’s limbs, which had been observed to be stiff from birth.^[97] This was particularly likely, given that there would have been potential delay in seeing a physiotherapist and there was a need to maintain range of motion around the limbs.^[98]
97. T 677.16.
98. T 677, L30+.
At trial, Dr Ardern-Holmes gave evidence that even at birth and at time of discharge, observation was made that A’s limbs were already stiff. She gave evidence that they (at the hospital) generally encourage parents to gently move the limbs of a stiff or tight baby, to make sure that range of motion around the limbs was maintained, given that there would be potentially a delay with them seeing a physiotherapist. This was to avoid the child developing increasing stiffness and then to develop “contractures”.
C’s evidence was that doctors did say that they could gently soothe A’s feet and that later in the future he might need ongoing physiotherapy. She gave evidence that they were shown how to massage A’s feet with the Offender present and this was not how the Offender did it.^[99] She stated that she watched him and told him “that’s not the way you’re supposed to do it because he was doing it very hard way.”^[100]
99. T 72.43-73.11.
100. T 73.35-.37.
The couple’s general practitioner (GP) Dr Rizk was noted to have advised Dr Tan that with respect to an appointment on 10 August 2016 C said, “Life is good”.^[101] Dr Rizk reported that the parents’ main concern for A was his club foot, as that is what was visible. She said it appeared that they didn’t fully grasp the severity of A's birth defects.^[102] Dr Ardern-Holmes also gave evidence that the couple didn’t appear to appreciate the severity of A’s condition.
101. T 115.45.
102. T 116.3-.5.
As indicted earlier, I would put aside the Offender’s accounts which the jury by its verdict did not accept. Overall, I accept the evidence of C and Dr Arden- Holmes as to what instructions were given to C and the Offender. In that context, I am prepared to accept that the massaging of the legs occurred in the context of advice given. However, the evidence indicates that on a repeated basis the Offender acted not in a gentle way as Dr Arden-Homes suggested but rather in a vigorous and forceful way to both upper and lower limbs as well as the hips resulting in the injuries described despite protests from C.

Repeated Shaking

The Crown submits that based on the evidence led at trial, and clearly accepted by the tribunal of fact, the Offender violently shook A a number of times between 1 August 2016 and 25 August 2016, foreseeing the risk of actual bodily harm but still proceeding anyway. C was said to have witnessed the Offender shake A every second day - the first time being when A was only a couple of weeks old. C described this as the Offender holding A under the arms and shaking him fast whilst asking A ‘why are you crying?’ C gave evidence that when the Offender shook A she would say, “You’re not supposed to shake him like that, because he’s just a few weeks old and he’s just a baby.”^[103] The Offender would tell her “Nothing would happen. You’re just overreacting.”^[104]
103. T276.29.
104. T276.35.
The last time that C saw the Offender shake A was the morning that A was taken to hospital – 24 August 2016. On this occasion, C gave evidence that she was in the bedroom and A had been upset all night. The Offender woke and said “give him to me, why has he been upset.” The Offender then picked A up and said “hey what’s wrong with you?” and shook him back and forth two to three times in a fast motion. Whilst this was happening A was crying.
It is the Crown’s submission that this was not a one off incident where the Offender lost control and caused the injuries to A. Rather it was repeated, persistent actions by the Offender that resulted in the catastrophic injuries to A. The unrelenting repetitiveness of the actions of the Offender were said to elevate the objective seriousness of this matter from those of a similar type.
The evidence of C was that that she did not remember exactly how often the Offender would shake A but it would usually be every second day or something like that. Whilst there is some lack of precision in this evidence, it can be accepted that there were a number of occasions that led to the injuries described when A was upset including on 24 August 2016. Accordingly, I accept the Crown’s submissions.

Home

The Crown contended the fact that the offence occurred in the Victim’s home was an aggravating factor under section 21A(2)(eb) of the 1999 Act. I am satisfied that this aggravating factor has been established.

Vulnerability

The Crown submitted that the Court would find that the Victim was especially vulnerable by reason of his age and underlying condition being an aggravating factor pursuant to section 21A(2)(l) of the 1999 Act.^[105]
105. See R v SS [2021] NSWCCA 56, per R A Hulme J at [39] and R v Smith [2005] NSWCCA 286 per Latham J at [54].
The Defence pointed out that it was necessary to view that in a context where the Offender and C chose to continue with the pregnancy notwithstanding the significant difficulties that lay ahead and their limited knowledge of dealing with the same.
I would accept the Defence contention which was consistent with the medical evidence earlier referred to. I am nonetheless satisfied that A was vulnerable by reason of his age and underlying condition. The Defence did not dispute that A was vulnerable within the terms of section 21A(2)(l) of the 1999 Act in the respect referred to.

Breach of Position of Trust and Authority

The Crown argued that the offence involves a grave breach of trust on the part of the Offender who as A’s father was also described as being in a positon of authority thus invoking the aggravating factor in section 21A(2)(k) of the 1999 Act.
I would accept that by reason of his position as the father of A, the offending involved an abuse of a position of authority. I accept that the Offender was in a position of authority in relation to A and, as the father of A, was also in a position of trust. However, I am conscious that in circumstances such as these where the separate concepts in section 21A(2)(l) of the 1999 Act arise out of the same facts (and submissions did not suggest any additional facts) caution needs to be exercised so as not to give the aggravating factor undue weight for the reasons identified in MRW v R [2011] NSWCCA 260.^[106]

Assessment

106. See also Beavis v R [2018] NSWCCA 248.

In written submissions, the Crown argued that the catastrophic injuries suffered fall “well above the most serious end of the scale”^[107] and “within the worst category of offences of this type.”^[108]
107. MFI 1 at [29] (Sentence).
108. MFI 1 at [30] (Sentence).
In the Crown’s additional written submissions, it was submitted that the offence fell well above the mid-range of objective seriousness.^[109]
109. MFI 4 at [15] (Sentence).
The Defence submitted that it fell slightly above the mid-range.^[110]
110. T 73.42 (Sentence).
Putting aside the ear injury, what occurred resulted in substantial injury to an infant child that was utterly defenceless and vulnerable with significant consequences. It was occasioned by a father who was in a position of trust as I have described. The evidence indicated that the Offender’s actions were repeated and occurred within the Victim’s home. A submission from the Defence that the offending was mitigated in that it was not planned or part of organised criminality was not elaborated on and is of little consequence.
Bearing in mind my findings, I would accept that the objective features affecting relative seriousness fall above mid-range and not just slightly so as the Defence argued. For reasons considered below I find no reduction in moral culpability in assessing objective seriousness.^[111]

Subjective Case

111. Rossall v R [2021] NSWCCA 200 per Garling J (Bathurst CJ and Rothman J agreeing); Kelly v R [2021] NSWCCA 173 at [38]-[39] per Bell P (Rothman and Bellew JJ agreeing); Fisher v R; R v Fisher [2021] NSWCCA 91 at [70] per Fullerton J.

Background

The Offender’s letter described that he is the youngest of 5 siblings being born with a twin sister who died when she was a baby.^[112] He described that his eldest brother was born with mental and physical disabilities. He also has an older sister. In the report of Mr Watson-Munro, a history was also recorded that the Offender advised that his brother’s twin sister died at age 2. Further, it was recorded that the Offender advised that his own twin sister died when she was a baby. Both sisters’ deaths arose from some form of cerebral haemorrhage.
112. Exhibit 1.
The Offender states that he was born in Fiji with his father being the sole bread winner. He described that the family did not have a lot of money and struggled. His father drank a lot of alcohol and kava and was physically abusive towards himself and his mother. He stated that he was in primary school and had to work as a shoe polish boy in order to support the family and ensure his sister could finish high school and get into University. After she finished her studies he stated that he kept supporting his family and his father eventually found a job for him in concreting. Mr Watson-Munro also recorded that the Offender stated that he left school to support the family including the medical issues referable to his disabled brother.
In 2000, the Offender stated that they moved to Australia and that he and his father found employment. Around the end of 2002, the Offender described that his father had a serious motor vehicle accident that resulted in him being hospitalised in ICU for several months. Mr Watson-Munro obtained a history of the father suffering paraplegia and being in a coma for some time. Between the accident and when the Offender’s father passed away in 2012, the Offender described paying medical and associated expenses working two jobs 7 days a week. He described that it was around this time that he began to use prohibited drugs and alcohol. After his marriage to C, he stated that there was pressure on him to financially support members of her family in Fiji.
The Offender described that three weeks before B was born his mother passed away. Whilst alive, the family home was sold and he and C were homeless until they found a place to rent in Western Sydney when C became pregnant again. Three weeks before A was born, he stated that they were evicted and thereafter lived in temporary accommodation before finding another place to rent.
The Offender described that he always struggled with poverty and homelessness throughout his life despite having a job for most of his life. He stated that he felt a significant amount of stress in his home life as a result of the precarious position he was in due to financial struggles and his abuse of drugs and alcohol.

The report of Mr Watson-Munro^[113] largely replicated the history stated by the Offender in his letter to the Court. It noted that prior to his father’s accident there were no major adjustment issues although “in the wake of this major event in his life, he became highly anxious and depressed and no doubt vulnerable to potentially adverse peer group dynamic.”^[114]
113. Exhibit 4 (Sentence).
114. Exhibit 4, p4 (Sentence).

R v Bugmy

Based on the Offender’s account, the Defence sought to argue that the Offender’s circumstances particularly his father’s kava, alcohol and violence amounted to childhood deprivation and social disadvantage such as to engage the principles enunciated in Bugmy v the Queen.^[115]
115. (2013) 249 CLR 571.
The Crown submitted that these issues do not elevate the Offender’s subjective circumstances to those identified in Bugmy. The Crown submitted that the Offender’s upbringing, whilst unfortunate, cannot be described as significantly deprived or dysfunctional and the reference to struggling with homelessness and poverty throughout his life was an untested, not supported by other evidence, and should be given little to no weight. Further, there was no connection between the Offender’s background and the commission of the subject offence.
To engage the principles in Bugmy, deprivation or dysfunction does not have to be significant or profound before it can be taken into account.^[116] Further it is unnecessary for a causal connection to the offending be established.^[117] However, it is necessary to point to material tending to establish that background^[118] and to be such that it reduces the Offender’s moral culpability.
116. Hoskins v R [2021] NSWCCA 169.
117. In Perkins v R [2018] NSWCCA 62 per White JA at [78]-[80] and Fullerton J at [31] and R v Millwood [2012] NSWCCA 2 per Simpson J at [69].
118. Bugmy at [41].
The description given in the Offender’s letter on which the Defence submission was advanced was brief and untested. I am prepared to accept that the Offender has had misfortunes in life which I bear in mind. However, I am not satisfied on the evidence presented that the Offender’s background is deprived or dysfunctional such that it reduces his moral culpability.

Criminal Antecedents

The Offender has prior criminal history for matters pertaining to illicit drugs, driving and violence. In 2007, the Offender was convicted of breaching an Apprehended Violence Order and was placed on a bond pursuant to section 9 of the 1999 Act. The bond was conditional on obeying reasonable direction for counselling, educational development and drug and alcohol rehabilitation. There is no evidence that it was breached. However, in 2009 the Offender was sentenced to 9 months imprisonment with 6 months non-parole for offences of driving whilst under the influence of alcohol/drugs and driving recklessly/furiously or in a speed/manner dangerous. In 2016, the Offender was convicted in relation to an offence of stalking/intimidating, common assault offences in respect of which he was placed on a bond under section 9 of the 1999 Act for 18 months. In respect of a further matter said to have occurred on the same day of destroy/damage property, a monetary penalty was imposed.
Relying on Veen v The Queen (No 2) [1988] 164 CLR 465 at 477-478 the Crown submitted that the criminal history of the Offender was such that retribution, deterrence and protection of society may warrant a more severe sentence noting that the Offender has a previous conviction for the personal violence offence. The Crown submitted that the principles of specific deterrence are relevant to this Offender and that it could not be said that this offence was an uncharacteristic aberration. I infer from this submission that the Crown was seeking to engage section 21A(2)(d) of the 1999 Act.
Defence accepted that the Offender cannot be afforded any leniency, however, contended that the history cannot be treated as an aggravating factor. The Defence drew attention to the fact that for approximately 4 ½ years between 2011 and 2015 the Offender did not come to the attention of law enforcement authorities until a driving matter in October 2015. Thereafter, he came to attention of police in May 2016 in respect of matters arising out of a disagreement with the landlord 8 days before the birth of A at a time that it was said to be stressful for the Offender and C.
Overall, the criminal history is limited and with the exception of this offence, the previous offences were summary in nature. I note that in cross- examination of Mr Watson-Munro the Crown put to him that the record was “hardly a troubling history.”^[119] I accept that the Offender’s antecedents do not entitle him to leniency. However, I do not consider that in the circumstances any additional emphasis needs to be placed on specific deterrence, retribution and protection of the community.
119. T 59.18-.19 (Sentence).

Mental health issues

In his report, Mr Watson-Munro described that the Offender presented with a complex clinical and developmental history characterised by longstanding symptoms of depression and anxiety and a long history of family loss. In addition, Mr Watson-Munro reported that he suffered ongoing adjustment issues referable to relocating to Australia and was in a state of deep distress concerning the nature of the allegations against him.
Mr Watson-Munro stated that the Offender acknowledged longstanding symptoms of depression, anxiety and low self-esteem. He recorded that his anxiety commenced at about the time that his family emigrated to Australia in 2000 and was further compounded when his father was involved in the accident. His father’s health and uncertain prognosis impacted on all family members and he endeavoured to cope through working two jobs and smoking cannabis as a means of self-medication. Following his parent’s passing, his brother returned to be with his sister in Fiji and he was left without immediate familial support. He has since lost his immediate family having had no contact with his wife and children since around 2017.
After conducting a Beck Depression Inventory test, Mr Watson-Munro found a depressive disorder (severe and recurring) according to DSM-5 criteria. Mr Watson-Munro found that the Offender endorsed a broad spectrum of symptoms referable to sadness, pessimism, past failure, anhedonia and guilt.
Mr Watson-Munro opined that the Offender appeared to have longstanding symptoms of depression arising from traumas in his life and his depression and anxiety have been compounded by the nature of the conviction. He opined that whilst he does not suffer from any major psychiatric disturbance, the depression is severe and recurring suggesting that he should be assessed by a medial practitioner with a view to considering appropriate psychotropic medication. He opined that he would benefit from systematic desensitisation for his anxiety, social skills training, as well as supportive and motivational psychotherapy including Dialectical Behaviour Therapy.
In oral evidence, Mr Watson-Munro stated that he had been provided with a copy of the Plaintiff’s mental health care plan dated 22 October 2010 (Exhibit 5) together with a referral from Dr Risk dated 7 March 2015 (Exhibit 7). Exhibit 5 recorded an anxiety with adjustment disorder. A K10 assessment found a score of 16. Exhibit 7 shows that Dr Risk referred the Offender to the Centre of Addiction Medicine citing inter alia major depression and substance use.
In cross-examination, Mr Watson-Munro stated that the medical material appeared to corroborate the depressive illness and significant difficulties encountered in the Offender’s family life. He accepted that depression was a fluid mental illness that can get worse, can get better and can be cured.^[120] He added that it can recur and some people go into remission and some people have reactive depression that is reactive to a life event and with the effluxion of time and/or medication and treatment the symptoms resolve and don’t come back. He added that for some individual it can recur over life referable to stresses and not coping and other life events it can be biochemical. He accepted that some life trauma can affect persons differently. Apart from self-reporting questionnaires, he stated that it is necessary to look at developmental history, substance use, alcoholism, prior treatment and hospital admissions.
120. T 61.2 (Sentence).
Mr Watson-Munro stated that he viewed the Offender’s anxiety commenced in 2000 and was further compounded by his fathers’ accident. Mr Watson-Munro noted that the K10 assessment suggested he was suffering moderate degree of depression in 2010. He stated that it was clear that the Offender was suffering from depression in the last 11 years and had serious life events. He couldn’t say categorically that the depressive disorder remained for that entire period.
After being referred to Dr Risk’s report in 2015, he added that it was consistent with his life circumstances fluctuating and whilst he could not say definitively that he was depressed in all likelihood he was. Whilst he accepted that Beck test was based on self-reporting he stated that the response were measured as were the K10 answers such that they were not suggestive of someone who is exaggerating to any great extent. He accepted that symptoms of restlessness, agitation and irritability were common experiences of inmates. He also accepted that the Offender’s self-reported depression and anxiety got worse after he was convicted and that 11 years after the GP diagnosis the depression is reoccurring and severe.
The Crown submitted that the material contained within the report must be treated with very considerable caution as it contains untested hearsay evidence of what the Offender has told Mr Watson-Munro and the Court is not bound to accept it. If accepted, the Crown submitted little weight should be afforded as it is almost five years after the offence occurred and is based entirely on self-reporting by the offender: R v Qutami [2001] NSWCCA 353 at [58].
In further submissions, the Crown contended that in neither the report of Mr Watson-Munro nor the Offender’s letter was it stated that A’s condition caused significant mental anguish. The Crown submitted that the suggestion made in the Defence submission that on 22 May 2016 8 days before the before the birth of A, was clearly a stressful time for the Offender was not supported by any tested evidence and should be rejected.
The Defence drew attention to the principles to be applied when sentencing an Offender suffering from a mental illness, intellectual handicap or other mental problem summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1, at [177]. Consistent with that case, it contended that the need for specific deterrence may be reduced, subject to the findings of Mr Watson-Munro being accepted.^[121]
121. MFI A p11 (Sentence).
The Defence submission was presumably a reference to the third principle in De La Rosa.
That principle emanates from R v Tsiaras [1996] 1 VR 398. Relevantly, the principle was explained in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [32] as follows:

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

The Defence did not specify that it was contending that the condition of the Offender “materially contributed” to the commission of the offence within the first principle in De La Rosa. The Offender had maintained that he did not commit the offence. The reference to the circumstances surrounding the offending on 22 May 2016 being a stressful time did not reference the Offender’s condition. Nor did the Defence reference anything in the report of Mr Watson-Munro or the Offender’s letter to the Court that substantiates this.
As best as I understand it, the submission was that the Offender suffers from a history of anxiety and depression and the nature and severity of the Offender’s symptoms are such that the need for specific deterrence should be moderated in that the custodial sentence may weigh more heavily.
Following cross-examination, the Crown made no specific submissions based on the evidence of Mr Watson-Munro. I accept Mr Watson-Munro’s evidence which was logical and plausible even though the initial report was based on the Offender’s self-reporting. Parts of the history were subsequently supported by the other documents referred to. In the circumstances, I am of the opinion that whilst the need for specific deterrence is not eliminated the need for it is moderated to some extent.

Prospects of Rehabilitation and Likelihood of Reoffending

The Crown noted that there is a lack of remorse and contrition on behalf of the Offender drawing attention to the Offender’s letter which indicates that it does not directly refer to the offence or the circumstances of the offence. The Crown submitted that the letter seeks to highlight the Offender’s perceived shortcomings of C. The lack of insight by the Offender into his offending were said to cause the Court great concern with respect to the likelihood that he may re-offend. Whilst it is accepted by the Offender that he is unlikely to see his children again, the Offender remains a young man and the Crown stated it is not outside the realms of possibility that he may father more children in the future.
The Crown argued that the Offender’s prospects of rehabilitation are guarded by virtue of the fact that the Offender does not accept responsibility for the offence and there is no evidence to base a finding that the Offender is unlikely to re-offend.
Whilst the Defence cited that the Offender is unlikely to re-offend and has good prospects of rehabilitation as mitigating factors, it did point to material on which such a finding could be made.
I acknowledge that the Offender has displayed limited insight into the offence. However, Mr Watson-Munro has stated that exposure to the criminal justice system has had a salutary impact in that it has caused him to wake up to the reality of the current situation. His custodial record indicates that he has only one custodial punishment being for failing to comply with work centre routine on 3 October 2020 in respect of which he received 28 days off contact visits. Mr Watson-Munro’s report indicated that he has managed to secure employment as a cleaner in the Classification Department and the Visits Centre as a sweeper at the MRRC being a position of trust. Although Mr Watson- Munro recorded that the Offender stated that he would like to see his children when he is released, his letter to the Court records that he accepts that he will likely have nothing to do with his wife and children in the future.
The criminal history comprises a number of relatively less serious matters which to an extent appear to relate to drugs and alcohol. In that respect, it appears that the Offender does have some insight into the underlying causes of that offending whilst also limiting his responsibility. There is little evidence of any treatment to date. However, the history indicates the Offender has avoided offending in the past for an extended period.
The Offender has acknowledged that he has little support structure in the community and limited formal education. Nonetheless, he has exhibited a relatively strong work history and expressed a desire to eventually move on and live a productive life. Overall, whilst I am somewhat guarded as to the prospects of rehabilitation, the Offender is not without hope and there is cause for some optimism. As best I can determine it, I would assess the likelihood risk of re-offending as medium. I would accept that his prospects overall would be enhanced by engaging in the treatment that Mr Watson-Munro has recommended.

Offer to Plead Guilty

From the bar table, the Defence informed the Court that it was its understanding that in March 2020 an offer of some description was raised by the Offender’s previous solicitors with the Crown to plead guilty to the offence for which the Offender is to be sentenced. That offer was said to have been rejected.
The Crown responded that she was involved in the matter in March 2020 and there was never any discussion between the parties about the matter being resolved and no formal offers from either party were advanced. There was some informal discussion at the Super Callover in which the Deputy Director was involved but to use Crown’s words “negotiations never went anywhere.”^[122] The Crown did draw attention to an email sent by Defence Counsel on 15 February 2021 expressed as follows:

This is a preliminary inquiry:
Would the Crown accept a plea of guilty to the alternate count in the indictment in full satisfaction of all subject proceedings against our client?
122. T 76.33 (Sentence).

Accepting the Crown clarification as to the position in March 2020, the Defence advised that following what were described as an oral offer an email and written representations were forwarded to the Director of Public Prosecutions on 5 March 2021.^[123] The Crown acknowledged receipt at 6.27pm that day. The document was titled “Representation to accept plea of guilty to alternate count in indictment – listed for trial: Tuesday 9 March 2021.”^[124]
123. T 75.36-.40 (sentence).
124. Exhibit 2(Sentence).
The trial was in fact listed to commence on 8 March 2021, having been listed for trial twice previously, including the year before.
Putting that matter aside, the letter introduced its purpose stating:

These representations are made on instruction. The accused seeks to formally offer to plead to the second count in the indictment in full satisfaction of all subject proceedings against him.

Thereafter, the letter proceeded to provide an evaluation of some of the evidence and law before adding:

Proposed summary of acts
In the event that the Crown accepts a plea of guilty to the alternate count, the accused will admit the following acts on his part:
-In an effort to make the victim laugh, holding the victim in the air by his torso, under the baby’s arm-pits, with both hands and moving him vigorously in the offender’s arms side to side,
-When the victim was crying, rocking him vigorously in the offender’s arms side to side, in an effort to put the victim to sleep
-Regularly massaging the victim, including by vigorously rotating his limbs

He will admit that these acts were not isolated, but rather occurred on a number of occasions.
The accused accepts that the following injuries were caused by these actions:
-Subdural haematoma and haemorrhaging, other than that older bleeding identified as being attributable to the trauma at birth;
-Fractures to ribs
-Shearing fractures, or “metaphyseal corner fractures” to right arm and both legs.

He would not accept responsibility for the injuries to the victim’s ear.
He accepts that by any plea of guilty to this count, he would be admitting each of the elements of the offence, including that the foresight of the possibility of actual bodily harm to the victim.

The Defence relied on the said letter to submit that a plea discount should be allowed in circumstances where the Offender was acquitted on Count 1 and convicted on Count 2 being the charge to which it offered to plead. The Defence had proposed a discount of 15-20% although that appeared to be prefaced on the basis of the earlier purported offer of March 2020.^[125]
125. T 76.13-.14 (Sentence).
To the extent that the letter referred to various admissions to be made by the Offender, the Defence submitted that these may be still found by the Court in the context of the jury’s verdict.^[126]
126. T 78.27 (Sentence).

The Defence contended that where an offer to plead has been made and is rejected by the Crown but is consistent with a jury verdict after trial, that can result in a discount even though there is no utilitarian value.^[127] This was said to be based on one of the principles of general application summarised in Regina v Borkowski [2009] NSWCCA 102 per Howie J at [32]. It was further submitted that the Offender should be sentenced as if he had pleaded guilty to recklessly causing grievous bodily harm, even though he did not plead guilty to that charge in front of the jury.^[128]
127. Oinonen v R [1999] NSWCCA 310; R v Johnson [2003] NSWCCA 129.
128. R v Cardoso (2003) 137 A Crim R 535, and Magro v Regina [2020] NSWCCA 25.
The rationale for a discount on sentence in respect of the unrealised utilitarian value of plea which is offered but not accepted was that of fairness to the Offender.^[129]
129. See Magro at [54], citing Merrick v R [2017] NSWCCA 264.
It was submitted that offers to plead may also be taken into account in respect of the issue of “special circumstances”.
The Crown contended that the Offender was not entitled to a discount in relation to the offence in respect of which he was convicted.
The Crown submitted that the offer was not accompanied by any suggested facts nor the basis upon which the Offender accepted the elements of the offence. The Crown drew attention to Defence Notice served on 4 March 2021 not indicating that the Offender would plead guilty to Count 2 and the offer set out the acts on which the Offender would admit as part of the plea although again no draft statement of agreed facts were provided to the Crown as part of the plea offer.
The Crown sought to distinguish authorities relied upon by the Defence contending that the basis on which the jury found the Offender guilty varied greatly from the culpability that the Offender was willing to accept as set out in the plea offer. It was submitted that the finding of guilty involved an acceptance of the evidence of C that the Offender repeatedly and vigorously shook A, repetitively and violently massaged A on an almost daily basis and as to an incident where the Offender was solely responsible and C heard a noise. That with medical and other evidence was said to have led to the conclusion that an injury to the ear was inflicted by blunt force trauma.
To the extent that the Offender’s offer included an acceptance of circumstances leading to the A’s injuries, it was submitted that these were mildly consistent with the version he gave police on 20 December 2017 and not consistent with Dr Wong’s evidence. In the present matter, the Crown submitted that due to the significant differences between the plea offer which it described as a diluted version of both the acts and the injuries any submission that the plea offer is entirely consistent with the outcome at trial should be rejected.

Consideration

During the course of argument, I indicated that one approach that could have been taken was for a plea to be entered followed by a contested facts hearing. I was advised that what was discussed proceeding on Count 1 with the only issue at trial being the intention of the Offender and the Offender did not wish to proceed on that basis. I infer from that statement that the Crown was not prepared to withdraw Count 1 in return for a plea on Count 2. Its proposal was not documented. It also did not respond to whether the proposed admissions were going to be contested in the event the Offender entered a plea to Count 2 and the trial only proceeded on the question of intention on Count 1. As I indicated during submissions, these matters cannot be determined on the basis of bar table recollections.
In submissions, the Crown referred to in Merrick v R.^[130] That was a case where an offer to plead guilty was made four weeks before trial to manslaughter “subject to agreed facts.” The Crown responded to the effect that it was not prepared to accept the plea in satisfaction of the indictment for murder. The primary judge had refused to allow a plea discount. The Court of Criminal Appeal dismissed the appeal referring to statements made by Bell J (with whom Giles JA and Carruthers AJ agreed) in R v Johnson [2003] NSWCCA 129 before adding:

[120] – Adopting the language of Bell J, the present case is one in which it was available to the sentencing judge to conclude that the applicant’s offer was not “fairly open to acceptance by the Crown”. That is because it was conditional upon facts to be agreed, any proposed version of which the applicant has never particularised. The only version the applicant has ever propounded, and which he still propounds in this Court, is one upon which a plea of guilty to manslaughter would have been traversed and would therefore have been rejected by the sentencing judge, if not by the Crown.
130. [2017] NSWCCA 264.

The relevant principles were more recently considered by Gleeson JA (with whom RA Hulme and Button JJ agreed) in Magro v R.^[131] In that case, the appeal centred on circumstances where an offer to plead to manslaughter was held to not fully disclose the degree of culpability intended to be acknowledged by the plea and where it was made without any agreement as to the facts of the offending. The primary judge allowed a 10% discount. Gleeson JA noted the long practice of Courts to take into account the offer of a plea of guilty which matches the crime for which the person is ultimately convicted. Although this case concerned the potential utilitarian value of an offered plea, his Honour noted the observations by Johnson J (Hoeben J agreeing) in R v AB [2011] NSWCCA 229 at [30]-[32] as follows:

[30] A person who pleads guilty to a criminal offence is, of course, entitled to dispute facts (beyond the elements of the offence) for the purpose of sentence. Where such a dispute occurs, any contested questions of fact adverse to an offender, must be established to the criminal standard of proof: O'Neil-Shaw v R [2010] NSWCCA 42. An offender is not to be penalised because he or she disputes certain facts on sentence and requires the Crown to prove those facts.
[31] The position is analogous to that of a person who goes to trial, who may not be penalised for the manner in which the defence at trial was conducted: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 666-667 [30]-[34]. However, as is made clear in Siganto v The Queen, a person who goes to trial is not entitled to mitigation for a plea of guilty.
[32] Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing.
131. [2020] NSWCCA 25.

Thereafter, Gleeson JA distinguished R v Merrick stating:

[59] – In Merrick, the offer to plead guilty to manslaughter was expressed to be conditional upon it being “subject to agreed facts”, and it was not clear from the offer whether the basis of the plea to manslaughter was an unlawful and dangerous act, provocation or excessive self-defence: Merrick at [117]. That was the context in which this Court observed that the offer to plead to manslaughter did not disclose the circumstances and degree of culpability intended to be acknowledged by the offender.
[60] – By contrast, Mr Magro’s offered plea was not made conditional upon agreement as to a statement of facts and although the offer did not propose any agreed facts, the offer indicated the particulars of criminal responsibility intended to be comprehended by the offer, namely manslaughter by reason of excessive self-defence. The offered plea, if accepted by the Crown, would have constituted an admission by Mr Magro of the essential elements of the offence of manslaughter by excessive self-defence: R v O’Neill [1979] 2 NSWLR 582 at 588, 596; O’Neil-Shaw v The Queen [2010] NSWCCA 42 at [43]. Those elements were that Mr Magro caused the death of Mr Coleman, the fact that his actions were voluntary and accompanied by a mental element of murder, and the concession that his actions were not a reasonable reaction to the threat that he faced. It would have remained for findings of fact to be made by the sentencing judge, by reference to evidence adduced by the parties at the sentencing hearing. Any dispute as to the facts on sentence would have been resolved in the manner referred to in R v AB at [30]-[32]: see above at [55].
[62] – It was open to her Honour to take the view, having observed the conduct of the trial, that had the Crown accepted the offered plea, Mr Magro would not have acknowledged the facts of the shooting as they had been established at trial, and that dispute would have been resolved adversely to him given the difference between the evidence in the Crown case and the defence at trial. In those circumstances, Mr Magro would not have been entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require, and lose, such a contested hearing: R v AB at [32].
[63] – In my view, there was no error in her Honour proceeding on the basis that Mr Magro was not entitled to the same discount for an offered plea, on potential utilitarian grounds, as a person who makes such an offer and would not have required a contested hearing on sentence had the offer been accepted, and would not have lost the contest.
[64] – However, I respectfully disagree with her Honour’s assessment that there was “no great utilitarian value” from the offered plea. That failed to take into account that, notwithstanding the likelihood that Mr Magro would not have acknowledged the facts of the shooting as they had been established at trial, there was no contest at trial about the fact that Mr Magro fired the gun, that the second shot fired by Mr Magro killed Mr Coleman and that his actions amounted to excessive self-defence. For this reason, together with the errors identified above at [57] and [58], I respectfully consider that her Honour’s assessment of the potential utilitarian value as “modest” was an error.

Although the Defence offer referred to proposed admissions that the Offender was willing to make, it is not clear from a fair reading of it that the offer was conditional on an acceptance of those admissions. The letter indicated that the Offender “accepts by any plea of guilty to this count, he would be admitting each of the elements of the offence….” If the Crown was unwilling to accept the proposed admissions then it may have been open for the plea to be accepted and the matter proceed by disputed facts hearing and to the extent that those matters were not resolved as submitted by the Defence, then a lesser utilitarian discount would follow. I would observe in any event that it is not clear in the way the Crown is said to have responded to the offer, whether it even considered the proposed admissions in light of its determination to proceed on Count 1. To the extent that the Offender indicated he would not accept responsibility for the ear injury, that matter has been determined favourably to him.
In my view, a plea discount is to be allowed consistent with its utilitarian value. Consistent with the timing of the plea and the circumstances, I would allow a discount of 10%.

Assistance In Respect of the Conduct of the Trial

The Defence argued that pursuant to section 22A of the 1999 Act, it facilitated the administration of justice significantly by agreeing to a number of lengthy and complex “Agreed Facts” being Exhibit N, O and R.^[132]
132. R v Spinks [2021] NSWCCA 322 at [75] and Droudis v R [2020] NSWCCA 322 at [76].
The Crown argued that the Agreed facts didn’t significantly reduce the length of the trial and no discount should be permitted.^[133]
133. T 71.39-.49 (Sentence).
Whilst the trial did take some time, it is apparent that the Agreed Facts (Exhibit N, O) obviated the need to produce CCTV evidence, booking records with Premier Cabs, call records and the need for a number of witnesses to be called including police, hospital staff and staff from FACS. The Agreed Facts also facilitated the shortening of other witness evidence given in the proceedings. Exhibit R obviated formal proof of a number of relevant events. In all the circumstances, I accept that some reduction should be allowed in relation to the facilitation of the course of justice.

COVID-19

The Defence submitted that COVID-19 restrictions and effects on inmates in custody may affect the degree of hardship that the prisoner endures above and beyond the usual effects of incarceration. Earlier today, the Defence highlighted the added impact of the Delta variant and circumstances at the Parklea Correctional Centre where the Offender is presently held in custody.
Whilst there is no specific evidence in this regard, I accept that the circumstances are such that the present COVID-19 pandemic is making incarceration more onerous generally particularly in terms of visitation and need for physical distancing. How long this situation will last cannot be known. Once COVID-19 has entered the correctional system, early parole may be available pursuant to section 276 of the Crimes (Administration of Sentences) Act 1999 (NSW).
Nonetheless, it is appropriate that I take this into account.^[134]
134. As per Toller v R [2021] NSWCCA 204 at [25] (Beech-Jones J as his Honour then was with Macfarlan JA and Davies J agreeing).

Special circumstances

Both parties accepted that pursuant to section 5(1) of the 1999 Act having considered all possible alternatives no penalty other than imprisonment was appropriate.
The Crown argued that the matter calls for the imposition of a significant period of full time custody and such a sentence will (if the statutory ratio is preserved) afford the Offender a period over which to readjust to life in the general community. Having regard to the nature of the criminality in this case, it is submitted that any variation of the statutory ratio would result in a sentence that would inadequately address those considerations.
The Defence urged to making a finding of “special circumstances” on the following grounds:

Mental Health issues (having never been assessed or treated by a psychologist or psychiatrist before);

Addiction issues;

Need for rehabilitation;

Corresponding need for lengthier period of supervision;

The history of the plea offer to the subject charge;

The time spent in the community pending commencement of proceedings (16 months).

The plea discount is to find reflection in the overall sentence.
In light of my acceptance of the desirability of undergoing the treatment recommended by Mr Watson-Munro, the need to address his mental health issues and the need for a longer period on parole, I am satisfied that a finding of special circumstances should be made to allow some variation to the statutory ratio in section 44 of the 1999 Act bearing in mind the period that would otherwise be provided had no variation been made.

Commencement date

The Crown accepts that any sentence imposed will date from the date of the Offender’s refusal of bail in this matter – namely 20 December 2017.
The Defence submitted that in the exercise of discretion a relevant factor is the time between the events that are the subject of the charge and the actual commencement of proceedings against the Offender-some 16 months. The Defence submitted that it would therefore be appropriate for the Court to notionally backdate the commencement of the sentence to a date before the Offender went into custody.
I propose to commence the sentence from 20 December 2017. I see no basis in principle to commence the sentence on an earlier date in the circumstances of this matter.

Sentencing

The Crown submitted that general deterrence is of primary importance where there is a lack of insight into the seriousness of the Offender’s conduct: Bott v R [2012] NSWCCA 191. Consequent to the failure to take responsibility, the Crown asserted that specific deterrence is also a significant factor.
Noting that one of the purposes in section 3A of the 1999 Act is to recognise the harm done to the Victim of the crime and the observations in Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [54] the Crown submitted that the Court would accept the statements made by A’s carer on behalf of A and would recognise the harm done to the Victim as harm done to the community.^[135]
135. R v Hines (No 3) [2014] NSWSC 1273 (Hamill J) at [77-85]; R v Do (No 4) [2015] NSWSC 512 (Davies J) and R v Halloun [2014] NSWSC 1705 (McCallum J) at [45-48].
The Crown submitted that where the offence falls well above the mid-range, the standard non-parole period will have less significance as a guidepost and more attention should be directed to the maximum penalty.^[136]
136. Z v R [2015] NSWCCA 274.
The Defence submitted that the standard non-parole period is less relevantly applicable in the present circumstances in light of the plea offer and that this provides the Court with sound reasons to move away from the standard non-parole.
The need to have regard to the standard non-parole period applies in sentencing for all Div 1A offences.^[137] Accordingly, I have regard to the guideposts provided by the maximum penalty of 10 years imprisonment and the standard non-parole period of 4 years imprisonment for a case whose objective factors affecting relative seriousness fall within the mid-range of objective seriousness.
137. Muldrock v R (2011) 244 CLR 120; (2011) 281 ALR 652; (2011) 85 ALJR 1154; (2011) 212 A Crim R 254; [2011] HCA 39 at [29] and the subsequently amended section 54B(2) of the 1999 Act.
The Offender needs to be punished, made accountable and his conduct denounced. Whilst the Offender’s sentence will be finite A will spend his entire life with the effects of severe injuries. Still, the harm to the Victim and community needs to be recognised. Without doubting the love and care he will receive, A will represent a long-term emotional, physical and financial burden upon his carer and the community. He is unlikely to have many of the experiences of life that most people take for granted. I accept that the sentence needs to provide for general deterrence according with the nature of the offence. The need for specific deterrence is somewhat moderated for the reasons indicated. The need for rehabilitation is also to be recognised through the non-parole period to be provided for. The long term protection of the community will also be enhanced in this way.
I have had regard to other cases relevant on sentence including Manocha v R [2019] NSWCCA 122; Tepania v R [2018] NSWCCA 247; BJ v R [2018] NSWCCA 231 and most recently R v SS [2021] NSWCCA 56. Each case including this one however has to be determined on the basis of its own facts and circumstances. The Defence accepted that the offending in this instance was more serious than in R v SS.
I have departed from the standard non-parole in light of my finding of objective factors affecting relative seriousness but also taking into account the plea offer and the other subjective matters earlier referred to.
Taking into account the plea of guilty and taking into account my finding of special circumstances, I would sentence the Offender as follows:

The Offender is convicted.

The Offender is sentenced to a non-parole period of 3 years and 11 months imprisonment commencing 20 December 2017 and expiring on 19 November 2021.

Thereafter, the Offender is to serve an additional term of 2 years and 4 months imprisonment from 20 November 2021 to 19 March 2024 during which he shall be eligible to be released to parole.

The Offender’s earliest possible release date is 19 November 2021.

**********

Endnotes

Decision last updated: 14 September 2021

Medium Neutral Citation:	R v D [2021] NSWDC 483
Hearing dates:	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
Legislation Cited:	Crimes Act 1900 (NSW) ss 33, 35, Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 28, 30E, 44 Crimes (Sentencing Procedure) Regulation 2017 (NSW) r 9
Cases Cited:	Beavis v R [2018] NSWCCA 248 BJ v R [2018] NSWCCA 231 Bott v R [2012] NSWCCA 191 Bugmy v the Queen (2013) 249 CLR 571 DPP v De La Rosa [2010] NSWCCA 194 Droudis v R [2020] NSWCCA 322 Fisher v R [2021] NSWCA 91 Haoui v R [2008] NSWCCA 209 Hoskins v R [2021] NSWCCA 169 Kelly v R [2021] NSWCCA 173 Magro v Regina [2020] NSWCCA 25 Manocha v R [2019] NSWCCA 122 Merrick v R [2017] NSWCCA 264 MRW v R [2011] NSWCCA 260 Muldrock v R (2011) 244 CLR 120 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 Oinonen v R [1999] NSWCCA 310 Perkins v R [2018] NSWCCA 62 R v AB [2011] NSWCCA 229 R v Cardoso (2003) 137 A Crim R 535 R v Do (No 4) [2015] NSWSC 512 R v Halloun [2014] NSWSC 1705 R v Hines (No 3) [2014] NSWSC 1273 R v Johnson [2003] NSWCCA 129 R v Johnson [2003] NSWCCA 129 R v Millwood [2012] NSWCCA 2 R v Qutami [2001] NSWCCA 353 R v Smith [2005] NSWCCA 286 R v Spinks [2021] NSWCCA 322 R v SS [2021] NSWCCA 56 R v SS [2021] NSWCCA 56 R v Tsiaras [1996] 1 VR 398 R v Youkhana [2004] NSWCCA 412 Regina v Borkowski [2009] NSWCCA 102 Rossall v R [2021] NSWCCA200 Tepania v R [2018] NSWCCA 247 Veen v The Queen (No 2) [1988] 164 CLR 465 Z v R [2015] NSWCCA 274
Category:	Sentence
Parties:	Regina (the Crown) D (the Offender)
Representation:	Counsel: Ms E Curran (the Crown) Ms M Phelps (the Offender) Solicitors: Director of Public Prosecutions (the Crown) Longton Legal (the Offender)
File Number(s):	2017/385364
Publication restriction:	Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies. The following pseudonyms will be used: A for the Victim, B for the Victim’s sister, C for the Victim’s mother and D for the Offender.