R v DG

[2024] NSWDC 194

District Court

New South Wales

Medium Neutral Citation:

R v DG [2024] NSWDC 194

Hearing dates:

29 April 2024
9 May 2024

Date of orders:

9 May 2024

Decision date:

09 May 2024

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

(1) In relation to the offence of causing grievous bodily harm to a person, you are formally convicted of that offence.

(2) You are sentenced to a term of imprisonment with a non-parole period of four years and two months, commencing on 7 November 2022, and expiring on 6 January 2027, with a balance of term of two years and four months, expiring 6 May 2029.

(3) You will be eligible for consideration for release on parole on 6 January 2027.

(4) I make an order pursuant to section 7 of the Court Suppression and Non-Publications Orders Act 2010 (NSW), that the names of the offender and the victim, or any features which may identify them, are suppressed.

(5) I make an order that DG be advised of the existence and the effect of s25C of the Crimes (High Risk Offenders) Act 2006 by her legal representatives.

Catchwords:

CRIMINAL – sentence – causing grievous bodily harm with intent; child victim; childhood depravation and reduction in moral culpability of offender; reduction of objective seriousness

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Court Suppression and Non-Publications Orders Act 2010 (NSW)

Cases Cited:

R v Lolesio [2014] NSWCCA 219

Bugmy v The Queen [2013] HCA 37

DS v R; DM v R [2022] NSWCCA 156

Lupton v R [2024] NSWCCA 26

R v MJ [2023] NSWCCA 306

Camilleri v R [2023] NSWCCA 106

R v Eaton [2023] NSWCCA 125

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (Crown)
DG (Offender)

Representation:

Counsel:
Ms E Blizard (Crown)
Ms R Khalilizadeh (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal aid NSW (Offender)

File Number(s):

2022/234569

Publication restriction:

Pursuant to section 7 of the Court Suppression and Non-Publications Orders Act 2010 (NSW), the names of the offender and the victim, or any features which may identify them, are suppressed.

JUDGMENT

1. The offender, DG, pleaded guilty on 23 November 2023 to a charge that between 23 March 2021 and 25 March 2021 at Turramurra, in the State of New South Wales, caused grievous bodily harm to the victim within the intent to cause grievous bodily harm. The victim in this case was her 10 week old biological child.

2. The charge was brought pursuant to s 33(1)(b) of the Crimes Act1900 (NSW). The maximum penalty for this offence is 25 years imprisonment with a standard non-parole period of seven years.

3. The maximum penalty and the standard non-parole period operate as legislative guideposts to represent the legislatures assessment of the seriousness of this type of offence.

Plea of guilty

4. DG pleaded guilty on 23 November 2023, that occurred while the matter was in the Local Court, and for that reason she is entitled to a reduction of 25% on the penalty that I would otherwise have imposed.

Facts

5. A detailed statement of agreed facts was provided to the Court as part of exhibit 1. It is important to understand not only the offender’s conduct in causing the injuries, I am shortly going to describe but her relationship with a critical witness in this case, the context of the offence and ultimately the prognosis with respect to the victim. For that reason, it is necessary to read out a considerable part of the statement of agreed facts.

6. The offender, DG, was born on 25 May 1993. The victim was born on 10 January 2021. DG is an Aboriginal woman who prior to the alleged offence lived largely in the Northern Territory.

7. While living in the Northern Territory she became friendly with a person by the name of Dr Sabine Boes. She met Dr Boes in about 2000, when Dr Boes was working as a general practitioner in Alice Springs. When Dr Boes returned to New South Wales, she invited the offender and a friend to come and stay with her at her home in Gosford from time to time, which they did. This became a common occurrence, with the offender visiting Dr Boes every January and Easter for several years.

8. The offender fell pregnant to her first child [redacted]. That child was given to another family, although there was never an official Court order in place regarding this arrangement. In 2015, the offender gave birth to her second child. That child was given to an extended family member.

9. In approximately June 2020, the offender contacted Dr Boes saying that she was pregnant again and asked whether Dr Boes could take the child. Dr Boes encouraged the offender to abort the pregnancy, however the offender did not wish to do so. The offender rang Dr Boes repeatedly during the course of the pregnancy asking if Dr Boes could raise the baby with her husband, Mr Topp.

10. In approximately August 2020, the offender was violently assaulted by her partner in Katherine, in the Northern Territory, and she subsequently moved to Darwin where she became homeless. Over the next few weeks, she rang Dr Boes asking for money and for food, all while she was apparently intoxicated.

11. In about January 2021, Dr Boes found out where the offender was living. She decided to take care of the baby and the offender after the baby was born. The offender agreed to come to Sydney and stay with Dr Boes and Dr Boes booked a flight for the offender and her child on 15 January 2021.

12. The victim was born at 34 weeks gestation and suffered from foetal alcohol syndrome, a cleft palate, and a cleft lip. She had a birth weight of just 1.7 kilograms. It was noted that the offender had engaged in chronic alcohol abuse throughout her pregnancy and was severely assaulted on at least three known occasions, having been kicked and punched to her stomach throughout the pregnancy.

13. Dr Boes had contacted Darwin Hospital and understood the Northern Territory’s Department of Families was considering giving the victim to another person, away from the care of the offender. The offender rang Dr Boes saying, “I don’t want to live anymore, everybody is humbugging me”.

14. The victim was released from Darwin Hospital on 25 February 2021. A foster carer had responsibility for the victim until 4 March 2021. At that point she was feeding well and gaining weight. She had a hearing test on 2 March 2021, and it was determined that she had a hearing difficulty with her left ear and another test was organised to test the right ear.

15. On 1 March 2021, Dr Boes flew to Darwin to attend a Court hearing to determine the victim’s guardianship arrangements. She visited the victim and located the offender in the early hours of the morning wondering the streets. The Court ordered that there be no further follow up with the offender and the victim on the condition that they would fly with Dr Boes to Sydney within three weeks.

16. The offender flew with the victim and Dr Boes from Darwin to Sydney during March 2021 in order to live with Dr Boes at her home in Turramurra. The house was a three-story detached residential dwelling with seven bedrooms. The home was used not only by Dr Boes and her partner, Mr Topp, but it was also used as a boarding house and other residents lived there, two of whom I will refer to shortly.

17. The offender and the victim slept in the main bedroom which had an ensuite. Dr Boes and her partner lived elsewhere within the home. After the victim and the offender began living there, Dr Boes made observations that the victim appeared to be feeding quite well. The victim was under the primary care of the offender however she was assisted in day-to-day activities by Dr Boes and Mr Topp.

18. On 15 March 2021, the offender went with Dr Boes and the victim to a local general practitioner for the victim’s six-week checkup and vaccinations. The general practitioner noted that the victim appeared healthy and well and was moving her arms and legs and head appropriately for someone of that age.

19. On approximately 20 March 2021, the offender expressed to Dr Boes and Mr Topp that she wanted to return to the Northern Territory and leave the victim in their care. Dr Boes discussed this with the offender’s uncle and various family members from the Northern Territory. On 21 March 2021, the offender signed a statutory declaration giving full guardianship of the victim to Dr Boes and Mr Topp. I give that history because it is important context for the facts which give rise to the actual offence.

20. At about 3pm on 23 March 2021, Dr Boes went to work leaving the victim at home with the offender. She returned home at about 12.30am on 24 March 2021. Upon returning home she observed the offender’s light on in her room and she knocked on the door and the offender lying on the bed, facing the victim. The victim was sleeping and there as a cloth over the right side of her head. Dr Boes asked the offender how the victim was, and the offender said that the victim was fine.

21. On 24 March 2021, Dr Boes observed the offender in the kitchen and was told that the victim was sleeping. Dr Boes left the house to attend other errands and returned at 3.30pm. At around 5pm, she went to the offender’s room. She observed the victim was sleeping in a rocker but not moving her arms. She was placed with the right-side of her head leaning on the rocker’s surface.

22. At about 7.15pm that night, Dr Boes asked the offender if she had bathed the victim and when told that she had not Dr Boes offered to assist her in performing that job. Dr Boes poured the bath and then picked up the victim and upon doing so noticed what is described in the statement of agreed facts as “a cracking feeling” to the right-side of the victim’s skull. Dr Boes noticed a blue haematoma on the victim’s right-eyelid and that the victim’s right eye was deviating to the right.

23. She called out to Mr Topp and told him that she had to go to the hospital immediately and asked the offender to pack a bag for the baby in preparation for a 24 hour stay. Dr Boes took the victim to her car and placed her in the baby seat. On the way to the hospital Dr Boes tried to contact the emergency ward at Westmead Children’s Hospital. She then decided to call an ambulance and drove to an emergency car spot at the Sydney Adventist Hospital, which was on the way from Turramurra to the Children’s Hospital.

24. An ambulance received the alert at 8.04pm and arrived eight minutes later. Dr Boes told ambulance officers, “The baby is sick and she has a head injury. I don’t know what happened. She needs to get to Westmead Hospital”. The paramedics transported the victim to Westmead Children’s Hospital and began being treated on route. The ambulance officer asked the offender what happened to the victim to which she responded she did not know. While on route the victim had episodes of apnoea in which she intermittently stopped breathing and her heart rate dropped to about 40 beats per minute. This occurred twice and, on both occasions, Dr Boes performed CPR.

25. Upon arrival at Westmead Children’s Hospital the victim was treated by doctors in emergency where she was intubated and provided with emergency treatment to stabilise her condition. Whilst in the emergency department the offender said, “I think I was having a nightmare last night and I hit the baby in the head one time whilst the baby was sleeping”.

26. The paramedic asked, “Did you have anything in your hand, like a phone or an object to hit the baby”. The offender said no, she did not have anything in her hand. She stated that the baby was crying and that she hit the baby in the head. At about 9.20pm a social worker arrived at the hospital. When she spoke to the offender the offender told her “I may have woken up from a nightmare and hit [the victim] but I don’t know. I have never done that to any of my kids before”.

27. On the night of 23 and 24 March, one of the borders who was living in the house at Turramurra had noted that having been in the room all night, he had heard the baby, that is the victim, in the offender’s room, crying quite loudly. The cries were louder than usual and more frequent than what he had noticed before. He said that the crying was so bad that night that he could hardly sleep.

28. Another border at the house that night stated that at approximately 2am he got up to go to the toilet and he heard the victim crying from the offender’s room. He went back to sleep and woke up when his alarm went off at 5.30am. He heard a huge scream from the baby followed by a continuous screech. He noted that the baby continued to cry until about 6am and that he had not heard the baby crying like that before.

29. On 31 March 2021, a specialist paediatrician from the Child Protection Unit, Dr Susan Marks, provided an interim medical report outlining the victim’s presentation. The victim was described as having multiple injuries including serious injuries to her brain with healing fractures, with the injuries being highly suspicious for having been inflicted on more than one occasion.

30. Some 12 months later, on 4 April 2022, Dr Marks prepared an expert statement which more thoroughly addressed the details of the injuries suffered by the victim. Those injuries included bilateral skull fractures and subcutaneous haemorrhages, multiple brain contusions, multiple brain lacerations caused by severe traumatic brain injury, observed in the bilateral frontal area parietal area part of the brain. There were extensive subdural haemorrhages, there were spinal haemorrhages and retinal haemorrhages, in particular to the left eye which had multiple haemorrhages extending from the central retina. There was also an injury noted to the cervical spine.

31. Dr Marks described the skull fractures as “complex”. There were fractures on more than one skull bone and there was more than one fracture to the right parietal bone. Dr Marks opined that there was no evidence of an underlying disease or infection to explain the findings and that there was no evidence of underlying brain malformation, such as cerebral vascular malformation.

32. Dr Marks opined that the victim’s injuries could have been caused by an excessively forceful impact injury to her head, with her head being unsupported or unrestrained at the time, however, the history as provided by the offender that she may have hit or punched the victim in the head that night before the victim presented to the hospital did not, in Dr Marks opinion, account for all of the victim’s head injuries.

33. In the absence of a clear history of significant trauma, Dr Marks concluded that each of the findings individually and consigned together would be explained by inflicted abusive trauma, including forceful blunt force trauma head injuries as well as a component of forceful acceleration and deceleration rotational injury.

34. With respect to the skull fractures, they could have been caused by two possible mechanisms, either blunt force trauma to the head or a forceful squeezing of the head, but it could not be determined as to what mechanism was in fact used.

35. The victim has suffered a number of other significant bony injuries that were not explained by the history provided by the offender to investigators. Some of them were found to be healing, indicating that the victim had sustained an injury on more than one occasion. There was no history provided to indicate when or how the victim sustained any of the fractures. Significant force would have been required to cause the bony injuries and they would not have occurred because the victim’s own activity or because of normal handing.

36. There were injuries recorded to the victim’s ribs, an arm, her hands, and her feet. With respect to the impact of the injuries and ongoing prognosis, Dr Marks opined that the victim’s head injuries had been life threatening. There was a delay in presentation after these injuries occurred. The main contributing factor to the victim’s overall prognosis would be the severity of her primary head injuries, however, Dr Marks stated that if the victim had been presented more promptly for medical intervention it would be expected that her prognosis would have been more favourable as medical treatment aimed and minimising and preventing secondary brain damage would have been provided sooner. A further delay in presentation to the victim could have been fatal.

37. Dr Marks outlined the victim had a severe traumatic brain injury which resulted in extensive cerebral softening. The victim has lost a significant amount of brain tissue as a consequence of the traumatic injuries described. The injuries in Dr Marks’ opinion have, and will continue to have, a significant and ongoing impact to the victim’s health and neurodevelopmental progress.

38. The victim has ongoing issues as a result of her severe traumatic brain injury, including cerebral palsy and infantile spasms. It would be expected that the victim would require regular medical reviews, therapeutic interventions, and some level of support on a long-term basis.

39. The precise extent of the contribution of the injury perpetrated by the victim and the subject of this charge to the victim’s ongoing presentation is unable to be assessed. This is because of the other contributing factors such as the presence of foetal alcohol syndrome, genetic factors and other environmental factors affecting the victim’s neurodevelopmental outcomes.

40. The offender was arrested on 9 August 2022.

41. As I say, it was necessary to set out the facts in some detail given the complexity of the issues before the Court.

Objective seriousness

42. The objective seriousness of this offence must be assessed without reference to matters personal to DG. It is to be determined wholly by reference to the nature of the offending.

43. One of the cases I was taken to during the course of the sentencing hearing was the case of R v Lolesio [2014] NSWCCA 219 which listed the matters which the Court could take into account when assessing the objective seriousness for an offence at s 33(1)(B) of the Crimes Act. Those considerations are:

1. The injuries caused, including the seriousness and permanency of them;

2. The vulnerability of the victim;

3. The position of trust which the offender occupied;

4. The physical disparity in size and strength between the offender and the victim;

5. The deliberateness of the conduct and the intention to which the conduct was engaged in, namely the intention to cause grievous bodily harm; and

6. The cruelty of the manner in which the injuries were caused and the force and violence that may have been involved in them.

44. Applying those considerations, in this instance, the injuries caused are extreme and at the time that they were detected, life threatening. There are ongoing injuries as I have outlined but as set out in the statement of agreed facts the precise extent of the contribution of the victim’s ongoing presentation as it is derived from the offence before the Court cannot be assessed because of a number of complex preexisting serious health issues which the victim had already suffered from. I will not attempt to make any assessment about this beyond simply observing that at least some of the victim’s ongoing health issues can be traced to this offender.

45. The victim was aged about 10 weeks old at the time that this occurred and therefore very vulnerable. The position of trust which the offender occupied was that of a mother and her child, clearly a relationship of significant trust. The physical disparity in size and strength between the offender and the victim is obvious. There was deliberateness in the offender’s conduct, namely an intention to cause grievous bodily harm, as demonstrated by the fact that the offender has pleaded guilty to that charge.

46. With respect to the consideration of the cruelty of the manner in which the injuries were caused, and the force and violence perpetrated by the offender on the victim, this is difficult to measure because the offender has given a number of different versions of events about exactly what happened, but all of them accept responsibility for the injuries, but my impression is that they all seek to minimise exactly what the offender did.

44. What is clear from the facts is that whatever happened to the 10 week old victim, it was intentional and it was not the result of one instance of lashing out with a fist or object to have sustained the multiple injuries described by Dr Marks. It is unclear how many times the victim was shaken or hit or whatever the cause may have been, as I say, this is unclear, but it was over a length of time and not simply one event.

45. The offender’s conduct was, in the Court’s view, a violent and unjustified assault on perhaps the most vulnerable type of person in the community. The objective seriousness of the offender’s conduct is made worse because after inflicting the injuries to the victim she did nothing to help her. But for the intervention of Dr Boes, the length of time the victim would have been left untreated will never be known. In the circumstances I determine the offence to fall above the midrange of objective seriousness.

46. I have though, considered the offender’s moral culpability in the circumstances of this case and I have found that it has reduced to a considerable degree for the reasons I will detail later, but as presently relevant because of her mental health and childhood deprivation issues which are causally related to the offending conduct because of what I regard as its spontaneous and unplanned nature.

AGGRAVATING FEATURES

50. With respect to the statutory aggravating factors as s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”)I am conscious not to take any of the features set out in that section into account where they form part of the elements of the offence or where I have already addressed them as part of the objective seriousness of the offence.

51. In this matter, the only additional feature to be taken into account is the fact that the offence occurred in the victim’s home, being a relevant aggravating feature at s 21A(2)(eb) of the CSPA.

ANTECEDENTS

52. With respect to the offender’s antecedence, the offender has a number of entries on her criminal history, both in New South Wales and the Northern Territory. She has received conditional release orders for an assault and damaging property and a contravention of an apprehended violence order. These breaches were called up and she has spent time in custody as a consequence. They are the only matters for which the offender has previously spent time in custody. There are no other offences as serious as this one, but the offender’s antecedents operate to disentitle her to the full leniency a first offender would otherwise have received.

SUBJECTIVE MATERIAL

53. With respect to subjective material, the offender did not give evidence on sentence but relied upon the following material:

1. Report from psychologist Vanessa Edwige dated 8 April 2024;

2. An affidavit from her solicitor, Emma Grant, which annexed amongst other things, the offender’s Northern Territory Hospital records, Justice Health records and a helpful chronology of matters relevant to the offender’s experience within the criminal justice system;

3. An interview conducted between the offender and her counsel, Ms Khalilizadeh, dated 4 March 2024;

4. A letter from Mr Tim Croft and Ms Tia Croft dated 11 April 2024;

5. Substantial extracts from the Bugmy bar book; and

6. Extracts from a report titled “An evaluation of the Katherine Alcohol Management Plan and Liquor Supply Plan”.

54. I have taken all of that material into account but there is some of it I wish to refer to in detail because it goes directly to the powerful subjective case, which is before the Court, and to issues of moral culpability, childhood deprivation and as a consequence, the reduction in objective seriousness.

55. Ms Edwige’s report sets out a number of critical matters which the Court takes into account. Her report was received by the Court without objection, and she was not called for cross-examination. Her report makes the following observations:

The offender is a 30 year old woman from the Northern Territory who identifies as being from the Walpiri and Gurindji people. She has lived most of her life across various cities, towns and communities in the Northern Territory. She was placed in the care of her mother’s sisters and maternal grandmother and her mother’s cousin at a fairly young age because her mother was in and out of gaol. The offender [redacted] gave birth to a child. She then met another partner when she was around 18 years of age and had a son to this partner.

56. In the context of the partner who was a father of her second child, the offender described the relationship to Ms Edwige in these terms:

“We were both drinkers. He would punch me. He did everything. I tried to run away but I couldn’t. He would bash me. Bash me when I was pregnant. I got no help from his family”.

57. Ms Edwige states there was violence perpetrated on the offender every day during the course of this relationship. The offender remained in Katherine until she was approximately 26 years of age. Ms Edwige reports being told the following by the offender:

That’s when I started to be a bad alcoholic. Lived in a town camp in Katherine. Lived there with a family member. Was drinking a lot, drinking every day. Drinking wine, spirits, anything. Started drinking in the morning, would go straight to the pub. Sometimes wouldn’t make it home and sleep in the watchhouse. Sometimes I would get a fine. Sometimes the police would get rough. They broke my front tooth. Lived a long time in the town camp.

58. While she was pregnant the offender was hit in the head with a machete by her partner and she was hospitalised for some time. In terms of her education, the offender reported that she did not go to high school as she was travelling a lot with her family. She also reported having difficulties with her eyes and some behavioural issues at school.

59. She had begun smoking marijuana at the age of 10 but she did stop smoking after her first child. She reported that she had started “huffing and sniffing” aerosol inhalant products when she was 10. She reported that she continued to do this until she was approximately 15 years of age. She reported that she started drinking alcohol after her first child and started drinking heavily at the age of 18. She reported that she was not seeing any drug or alcohol counsellors whilst in gaol. Clearly the offender has sustained a significant number of injuries related to domestic violence throughout her life.

60. She has never reported a diagnosis of a mental health disorder.

61. With respect to issues of disadvantage, Ms Edwige states:

“DG describes a childhood, adolescence and early adult that was marred by out of home care, early exposure to substance misuse, parental incarceration, [redacted], homelessness and interrupted schooling. These adverse childhood and adult experiences significantly impact on a person’s social and emotional wellbeing”.

62. There are five key areas of disadvantage identified by Ms Edwige. The first of these is the issue of drug and alcohol abuse. The offender was exposed to significant alcohol and marijuana use from a young age through one of the family members who cared for her. She reported that she was further exposed to substance abuse in the communities in which she lived in both Katherine and Darwin.

63. The second key issue of consideration in terms of childhood deprivation is that of the incarceration of the offender’s mother, which occurred frequently throughout the offender’s young life. Thirdly, there is the issue of the assaults and the fact that she [redacted] and that she has been the victim of multiple assaults according to both the medical records that have been provided to Ms Edwige and her self reporting. Fourthly, there is the issue of homelessness which she suffered from the age of 16 years of age and fifthly, a lack of education due to her family’s lifestyle.

64. All of these matters are of significant consideration. All of these matters are well recognised by the Courts as creating issues of childhood deprivation which can have a long-term negative impact on a person and each of those matters have been taken into account to the fullest extent possible by this Court. As Ms Edwige has stated:

“It is evident from DG’s childhood and history that she experienced significant adverse childhood experiences. She was exposed to significant disadvantage that significantly impacted on her social and emotional wellbeing and continues to do so”.

65. Ms Edwige also stated:

“DG presents as a woman that has experienced significant adversities throughout her life. She was exposed to significant trauma throughout her life that have had a significant impact on her social and emotional wellbeing. She has survived assaults and significant domestic violence from a young age. She continues to present with recurrent and intrusive memories of traumas experienced as a child”.

66. All of those matters, as I say, are of great significance to the Court.

67. The recorded interview conducted between the offender and Ms Khalilizadeh was received by the Court without objection. I must say, I have never seen this done before but it was an effective way of having a deeply disadvantaged person express to the Court their thoughts and feelings without the difficulty and the pressure of giving evidence in Court, although it is not on oath. The Crown did not seek to test any of the statements made by the offender with cross-examination. This is not a criticism of the Crown, it is simply an observation. In the interview, DG talks about the incredible and frequent violence she experienced over the course of her life.

68. I have also read a letter from Timothy and Tia Croft. They identify DG’s willingness to engage in rehabilitation as having been derailed because of the difficulty in accessing programs, particularly culturally appropriate programs, while she is in custody. I accept this and can only hope that once DG becomes a sentenced prisoner that that situation will stop and that she becomes engaged in whatever programs are made available to her.

MITIGATING FACTORS

69. With respect to mitigating factors, at s 21A(3) of the CSPA, I take into account the fact that DG pleaded guilty, that this was not a planned or organised criminal activity. With respect to remorse, I accept the remorse that was expressed to the Court via the evidence in the interview conducted with her counsel and also in the statement set out to Ms Edwige and have no difficulty in accepting she is fully remorseful for her actions.

70. With respect to whether DG is unlikely or likely to reoffend, and rehabilitation, I cannot reach the same relatively positive conclusion of Ms Edwige. Ms Edwige states:

DG’s prospects of rehabilitation are extremely positive. If she accesses intensive therapeutic work that focusses on skill development in the areas of self-regulation, coping skills, resilience building and self-esteem.

71. I interpret that to mean that her prospects for rehabilitation are dependent on her receiving intensive therapeutic work. In addition to receiving such therapy, the offender must also be willing to accept it and act upon it. This is her first attempt at rehabilitation it would seem. While I accept that she is making some progress in custody with the work and the courses she is undertaking, in the circumstances of her long-term and tragic history this is clearly a work in progress that is just beginning. She has taken some important steps towards rehabilitation since being in custody.

72. I will be making a finding of special circumstances in order to ensure that DG had a lengthier period than prescribed on parole to ensure her rehabilitation in the community can continue, and I will refer to that again shortly, but at the moment all I can say is that her prospects for rehabilitation are guarded.

73. Part of my reason for reaching this position is because in the interview with Ms Khalilizadeh, DG notes that while she was pregnant with the victim her family had repeatedly told her to stop drinking but she did not do so simply because she could not. Clearly self-control is going to be an important issue for her.

74. It is in everyone’s interests, not least DG, that she be successful in rehabilitating and stop the alcohol dependence which she clearly had at the time she was pregnant. As I say, I find her prospects for rehabilitation are guarded.

MORAL CULPABILITY

75. With respect to moral culpability, there are two paths to a reduction in moral culpability. One is what is commonly referred to as “Bugmy factors” by which the effects of profound childhood deprivation are to be given full weight in the exercise of the sentencing discretion, because such deprivation may leave its mark on a person throughout live and may compromise the person’s capacity to mature and learn from experience. ^[1]

    1. Bugmy v the Queen [2013] HCA 37 at [43].

76. The additional path to a reduction of moral culpability is where an offender’s mental health condition has a causal connection with the offence. In those circumstances it may affect both an assessment of moral culpability and in some rare cases objective seriousness. ^[2] However, more than a simple or indirect causal connection between the relevant subjective feature and the offending is required before objective seriousness is reduced.

    2. DS v R; DM v R [2022] NSWCCA 156 at [96].

77. The nature of the impairment, the nature and circumstances of the offence and the degree of connection between them must all be considered. In such a case, the objective seriousness of the offence might be reduced substantially because the conduct was neither planned nor premeditated.

78. The offender submitted that her social circumstances were akin to the background of deprivation and social disadvantage discussed by the High Court in Bugmy v The Queen [2013] HCA 37. It is well-established that the disadvantaged background of an offender may mitigate the sentence that would otherwise be appropriate.

79. In this instance, in addition to the interview with Ms Khalilizadeh, the offender relies on the material contained in the report of Ms Edwige, which I have gone through in some detail. I accept the history that has been outlined in that report and I accept the analysis provided by Ms Edwige that the offender’s mental health and the significant childhood deprivation that has been described has had an ongoing and negative effect on her life. In my view, this has significantly reduced her moral culpability in relation to this offence.

80. The offender was never provided with the skills necessary by her parents, or anyone else, to live a law-abiding life, having been exposed to violence and drugs from a very early age. Where profound childhood deprivation has been established there is no need to require that a causal link between that and the background and the commission of the offence be established. ^[3]

    3. Lupton v R [2024] NSWCCA 26 at [150]; R v MJ [2023] NSWCCA 306 at [132-135].

81. However, if the offender’s childhood deprivation is also to lead to a reduction in the objective gravity of an offence there does need to be such a link. ^[4]

    4. Camilleri v R [2023] NSWCCA 106; R v Eaton [2023] NSWCCA 125 at [53].

82. I consider that a causal link has been established on the evidence between the offender’s childhood deprivation and the objective criminality and her conduct. DG has been exposed, as I say, to appalling and ongoing violence of various types for almost 20 years, similarly, an exposure to alcohol and drug use. Her complex mental health presentation, distress of the unfamiliar environment of Sydney, thousands of kilometres away from her country, being - to use her term - “grog sick”, have in the courts view, all combined to create a loss of self-control which is directly responsible for the victim’s injuries.

MENTAL HEALTH

83. I must also take into account the mental health issues described by Ms Edwige. An offender’s mental health may be relevant on sentence firstly, where it contributes to the offending in a material way to reduce moral culpability, secondly, it may mean the person is an inappropriate vehicle for general deterrence, thirdly, it may mean that custody may weigh more heavily on that person and be more onerous, fourthly, it may reduce or eliminate specific deterrence, conversely, such a person may present more of a danger to the community in which case specific deterrence may increase.

84. Clearly the diagnosis put forward by Ms Edwige impacts on reducing the impact of specific deterrence in this case. Her particular issues will also make custody more onerous, and I have taken those matters into account to reduce her sentence. However, general deterrence for a matter such as this will not be reduced because of its critical nature in the instinctive synthesis, and I will return to that matter shortly.

DELAY

85. I note there was a significant period of delay between when this offence occurred and when DG was ultimately charged. I accept that she was under a state of uncertain suspense during this time as a result of the delay of almost 18 months. Even with the complexity of the injuries, and the desire of investigators to ensure that the victim’s ongoing health had stabilised to some degree before a final report was obtained by Dr Marks, it is hard to understand how a period of 18 months could be justified.

86. Where an offender experiences a delay and the uncertain suspense that necessarily follows, that is a matter that the Sentencing Court is entitled to take into account on sentence. In this instance, while there is no specific evidence of that uncertain suspense having an adverse impact on DG, I find it must be present as it would be present in any offender.

87. I am sympathetic to the offender’s submission that there may be some mitigation in sentence because of what the submissions described as “self-punishment” as an additional matter for the Court to take into account, however, this does not really seem to be a discrete area of mitigation but rather simply an expression of her remorse which I have already taken into account. I note that as a result of being in custody the offender has missed a number of important cultural events but that is not, it would seem to me, something which I can take into account by way of mitigation, but rather, unfortunately, something which is the inevitable consequence of being in custody.

Sentencing principles at s 3A Crimes (Sentencing Procedure) ACT 1999

88. I have taken into account the maximum penalty for the offence and the standard non-parole period. I have considered the factors in s 3A of the CSPA.

89. One of the purposes for which a Court may impose a sentence on an offender is to recognise the harm done to the victim, that is a consideration at s 3A(g) of the CSPA. Clearly that is a significant factor to take into account in this matter.

90. I have already referred to general deterrence. There is a clear need for general deterrence to mark the community’s abhorrence of crimes committed against a young and vulnerable child. Babies and young children cannot protect themselves from the acts of adults. They cannot verbalise complaints about the conduct they experience. They are entirely reliant on the adults around them to care for them and to protect them.

91. The Courts must make clear by their sentences that acts of violence of young children will not be tolerated and that the criminal acts of violence against young children will result in appropriately severe sentences. Whilst I have found that the appellant’s mental health and childhood deprivations reduce her moral culpability and the objective seriousness of her conduct, it does not follow that the other matters in s 3A do not still have a role to perform.

92. Notwithstanding that, while I have reduced the roles of some of those considerations within the instinctive synthesis, there is still a role for general deterrence, denunciation and the protection of the community. I should note, that in considering the appropriate sentence to be imposed, in addition to considering the cases the parties referred to me during the sentence hearing and the JIRS statistics, noting their limitations, I have also considered the schedule of cases available on the Public Defender’s Chambers website for offences of this nature.

88. Having reviewed all of that material, I agree with the observations made by the parties during the sentencing hearing, which is that what makes this case particularly unusual is not the offence itself but rather the combination of the age of the victim, the inability to determine what long-term harm the victim will face as a consequence of those particular injuries and the offender’s very strong and powerful subjective case.

Sentence commencement date

94. DG has been in custody since 4 January 2023, however she was initially placed in custody on 9 August 2022 and remained in custody until 18 November 2022 when she received bail. It was a couple of days after being released that she committed several new offences and then returned to custody.

95. If the Court was only to count the days solely referable to the offending before the Court in this matter, her sentence would commence on 21 December 2022, however taking into account the other sentences that had been served it could start slightly earlier on 23 September 2022. The Court has a discretion as to what date between those dates the sentence could start.

96. I am mindful of the need to set a sentence which is a just and appropriate measure of the criminality involved both in the previous offences for which DG has served time in custody, and this offence, and the principles of totality. On that basis, I am going to commence the sentence for this matter on 7 November 2022, halfway between those two dates, as there does need to be a discrete period of custody for the other matters.

Special circumstances

97. I am going to find special circumstances in relation to the non-parole period as I have already indicated on the basis that DG is suffering from ongoing mental conditions and alcohol abuse which need a lengthy time on parole to ensure that she can be reintegrated into the community and to maintain any programs that she may be undertaking while in custody.

98. I am going to impose a non-parole period of just under 65%.

99. I am not going to apply the standard non-parole period because of the offender’s plea of guilty and her powerful subjective case.

Threshold

100. Having considered all the possible alternatives I am satisfied that the threshold of s 5 of the CSPA has been crossed and that no penalty other than imprisonment is appropriate. Counsel for the offender did not submit to the contrary. Given the length of sentence I am going to impose, an intensive corrections order is not available, nor was it submitted that it would be.

ORDERS

101. I make the following orders:

1. In relation to the offence of causing grievous bodily harm to a person, you are formally convicted of that offence.

2. You are sentenced to a term of imprisonment with a non-parole period of four years and two months, commencing on 7 November 2022, and expiring on 6 January 2027, with a balance of term of two years and four months, expiring 6 May 2029.

3. You will be eligible for consideration for release on parole on 6 January 2027.

4. I make an order pursuant to s 7 of the Court Suppression and Non-Publications Orders Act 2010 (NSW), that the names of the offender and the victim, or any features which may identify them, are suppressed.

5. I make an order that DG be advised of the existence and the effect of s 25C of the Crimes (High Risk Offenders) Act 2006 by her legal representatives.

DG, whether you are released to parole on 6 January 2027 will be a matter for the parole authority not for the Court. Whether you are granted parole on that day will largely depend on how you behave while you’re in custody.

Endnotes

Decision last updated: 31 May 2024