R v Galffy - [2009] SASC 261

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GALFFY
[2009] SASC 261
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Kelly)
1 September 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Application by Director of Public Prosecutions for permission to appeal against sentence – respondent pleaded guilty to aggravated recklessly causing serious harm by kicking his three year old son – sentenced to two years, five months and three weeks imprisonment with 18 months non-parole, suspended – consideration of circumstances in which appeal Court should grant leave to the Crown to appeal against sentence – whether Judge erred in suspending term of imprisonment – whether gravity of offence and considerations of general and personal deterrence called for immediate term of imprisonment – respondent had previously received suspended sentences – consideration of respondent's steps toward rehabilitation.
Permission to appeal refused (by Doyle CJ and Bleby J, Kelly J dissenting).
Criminal Law Consolidation Act 1935 (SA) s 14, s 21, s 23; Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
R v Osenkowski (1982) 30 SASR 212; Elliott v Harris (No 2) (1976) 13 SASR 516; WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147, discussed.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Partridge (2008) 102 SASR 233; R v McInerney (1986) 42 SASR 111, considered.

R v GALFFY
[2009] SASC 261
Court of Criminal Appeal: Doyle CJ, Bleby and Kelly JJ

DOYLE CJ: I have had the benefit of considering the reasons of Bleby J and Kelly J.
I would grant permission to appeal against the sentence imposed by the District Court. It is reasonably arguable that the Judge has erred. The circumstances of the case are such that the sentence warrants consideration by the Full Court.
If permission to appeal is granted, it is then necessary to decide whether the Judge has erred, and whether the case is one that calls for intervention on an appeal against sentence by the Director of Public Prosecutions, consistent with the decisions holding that this Court should interfere only in limited circumstances, and not simply because an error has been made.
This is a difficult case. Bleby J has identified the circumstances that support the approach taken by the District Court Judge. Of particular significance, in my opinion, is the circumstance that as a result of the intervention by Families SA, substantial progress has been made in bringing about a change and rehabilitation on the part of Mr Galffy. There is good reason to think that rehabilitation will be achieved, and that the family can be kept together. Importantly, there is good reason to believe that that can occur consistently with the interests and safety of the child who is the victim of the offence in question. Imprisonment will undo the good work that has been done. However, I emphasise that all factors relevant to sentencing need to be considered, including the need for deterrence.
Kelly J has identified the serious aspects of the offending conduct. I agree with much of what she says. I share her concern about Mr Galffy’s other offences, and agree that the fact that he has had previous suspended sentences called for careful consideration, as did Mr Galffy’s attempts to conceal his role in the injury that he caused to his child.
In the end I have come to the conclusion that the appeal should be dismissed. Substantial progress has been made in rehabilitating Mr Galffy. There are good grounds for thinking that the family can be kept together, without putting the welfare and safety of the victim at risk. It is now about three years since the offending conduct, and about four months since the District Court Judge released Mr Galffy with a suspended sentence. To make an order now that would require Mr Galffy to serve the sentence of imprisonment will undo what has been achieved, and in all the circumstances I am persuaded that this is one of those cases in which the Court should not interfere on an appeal by the Director, even though I agree that the sentence is too lenient.
For those reasons, I would order that permission to appeal be granted but that the appeal be dismissed. Having explained my approach, it is appropriate that I should join in the order proposed by Bleby J, that permission to appeal be refused, to achieve a result supported by a majority of the Court.
BLEBY J.
Introduction
Child abuse is not only a blight on society, it may be a very serious crime. At its worst it requires substantial punishment. Sentencing policies also require protection of the victims. It is not surprising that prosecuting authorities, as a matter of policy, would want to ensure that what are perceived as “soft” sentences should be corrected as being in the public interest and for the protection of the weak and vulnerable. However, as in all areas of sentencing, no one glove fits all. Sometimes, when all the circumstances are properly considered, the interests of the victim, and ultimately the interests of the community, require a merciful approach. I consider that this is one such case.
These considerations arise on an application by the Director of Public Prosecutions (the DPP) for permission to appeal against the sentence imposed by a judge of the District Court on the respondent. The respondent had pleaded guilty to the offence of aggravated recklessly causing serious harm contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) (“the CLC Act”). The Judge imposed a sentence of imprisonment of two years five months and three weeks. He fixed a non-parole period of 18 months. The sentence was suspended upon the respondent entering into a bond to be of good behaviour for a period of three years. Conditions of the bond included that the respondent obey the lawful directions of his community corrections officer as to attendance and participation in anger management and therapeutic intervention programs, that he only reside at the place of residence of the victim with prior permission of the community corrections officer and that he forthwith remove himself therefrom upon being directed by that officer to do so.
The DPP sought permission to appeal on two grounds. The first was that the sentencing Judge erred in the exercise of his discretion to suspend the sentence. The second was that both the head sentence and the non-parole period were manifestly inadequate. At the hearing of the appeal the Director abandoned the second ground. The only remaining question was therefore the suspension of the sentence.
The facts
On 25 October 2006 the respondent was living with his wife and two children in the family home. Early in the evening the respondent’s wife had gone shopping for some food. During her absence of about 15 minutes there was a knock on the front door. The respondent’s 3^1/2 year old son, Kodi, was curious to find out who was there. He was pushed away several times by the respondent who feared that there might be unwelcome strangers at the door. Although there was some confusion as to precisely what happened, it now seems reasonably clear, and the sentencing Judge found, that on the last occasion the respondent kicked Kodi with substantial force. Although it was not immediately apparent, the child suffered a lacerated liver and fluid in the abdomen. His injuries were, for a time, life-threatening.
When the respondent’s wife returned she noticed that Kodi was pale and had tears running down his face. His condition deteriorated and he lapsed into unconsciousness. Both parents then took him to the nearest hospital from whence he was removed to the Women’s and Children’s Hospital for emergency treatment.
The respondent initially told his wife that Kodi had fallen over. He told the treating doctor that he had pushed Kodi, causing him to fall to the ground. He later suggested that Kodi must have fallen on some sharp object. In short, the respondent was less than forthcoming about precisely what had happened. It was only some time after his arraignment and before sentencing submissions were made that the respondent came to acknowledge his full responsibility for the incident. It will be necessary to return to that aspect later in these reasons.
The sentencing Judge found that the objective circumstances of the offence suggested that the respondent “unjustifiably overreacted to a very minor situation which exhibits an appreciable lack of self-control”. The incident did not form part of a protracted course of conduct. It was an isolated incident, brief in nature and not sustained. It was not premeditated, having arisen from a reactive and sudden loss of self-control. The prosecution did not allege a history of abuse.
The DPP’s appeal
The Director submitted that there were six elements which, when combined, required that there be an immediate custodial penalty. Those six elements were:
1The nature of the offence itself;
2The features that surrounded its commission;
3The conduct of the respondent after its commission;
4The seriousness of the offence as evidenced by the penalty imposed by Parliament;
5The need for sentences which unequivocally include significant elements of personal and general deterrence; and
6The clear responsibility of the Court to protect the most vulnerable people in the community.
The Director did not rely on the respondent’s previous convictions. In my opinion, he was correct in doing so. The respondent had never had an immediate custodial sentence of imprisonment. He had had three suspended sentences of five months, four months and four months imposed in May 1997, January 2007 and April 2008, respectively, the latter two sentences having been imposed after this offence. Each of those sentences followed convictions for offences of dishonesty. They were not entirely irrelevant, but did not have the same influence on the sentence in this case as they would have if this were an offence of dishonesty and if the sentences had all preceded this offence.
What is significant, however, is that, at the time of committing this offence, the respondent had no previous convictions for assault and no convictions relating to family violence or relating to the care of his children. There was no suggestion that this offence was part of an admitted or proven course of conduct. His most recent suspended sentence in April 2008 did include conviction on two counts of common assault committed before this offence. Two shop security guards had attempted to detain him over suspected shoplifting. He was pushed back onto his wife, knocking her over, when the respondent, in his own words, “lost it”. He “kind of blacked out at the time and when I came to the guy was lying on the floor”. The respondent did not lose consciousness but had no recollection of his actions for a discrete period of time during the event. As will be seen, that offending and this offence had some common features and explanation.
I have already described the circumstances relevant to the first two elements of the Director’s argument. There is no doubt that the injury inflicted by the respondent was very serious and, for a time, life-threatening. Without more, the actual assault and its sequelae would normally call for an immediate custodial penalty. However, there were other mitigating factors which I have described, and there were also other facts relevant to sentencing concerning the personal circumstances of the respondent. It will be necessary to refer to them in some greater detail later in these reasons.
It is well established that leave to appeal against sentence by the DPP should only be granted in rare and exceptional cases. It must be shown that there has been error of principle on the part of the sentencing judge, a failure to maintain adequate standards of sentencing, that there is a need to correct a sentence so manifestly inadequate as to amount to an error of principle, or that the sentence is such as to undermine public confidence in the administration of justice or as to shock the public conscience.[1]
[1] R v Osenkowski (1982) 30 SASR 212, 213; Everett v The Queen (1994) 181 CLR 295, 299-300; R v Nemer [2003] SASC 375, [23]-[24], (2003) 87 SASR 168, 172.
King CJ also relevantly noted in R v Osenkowski:[2]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.
[2] (1982) 30 SASR 212, 212-213.
In my opinion the DPP quite properly abandoned the second ground of appeal. By doing so he accepted that the sentence imposed was not of the description which would justify granting leave to appeal on the application of the DPP. The only remaining attack related to the exercise of the sentencing Judge’s discretion to suspend the sentence. The relative length of the sentencing Judge’s remarks on the topic indicated that that was the Judge’s main issue of concern. The only reasons for suspending the sentence related to the circumstances of the offending to which I have already referred and to reasons personal to the respondent and his immediate family. Those factors were summarised by the sentencing Judge as follows:
The most difficult question is whether ‘good reasons’[3] exist to suspend the sentence. There are a number of considerations apart from the above matters which come into play here. The first is that this was not part of a protracted course of conduct. It was not premeditated. It arose from a reactive and sudden loss of self-control. There is no history of abuse. This offence was triggered by unexpected and subliminal forces springing from an otherwise insignificant event.
Secondly, you have the support of your wife and family. They wish for you to return home. The wider family is also supportive of you.
Thirdly, you are in good employ and imprisonment would end that. You are the sole breadwinner as your wife is the full-time carer of your two children. If you lost your job they would be forced to look for other means of financial support. You also have two children from an earlier relationship to support, with whom you retain reasonably good relations.
Another consideration is that without your income it appears there would be no way of meeting the mortgage payments on the family home, so the house would either have to be sold or foreclosed. The consequences of your actions have resulted in considerable financial burdens to you already. With the lessons and courses that you have taken you have learnt to manage your self-control for a relatively extended period of about two and a half years, so it now appears that you are less likely to repeat this kind of behaviour again.
Finally, the fact that you were gaoled for seven days must have served as a short, sharp deterrent lesson which I expect that you would never wish to repeat.
[3] Criminal Law (Sentencing) Act 1988 (SA), s 38(1).
The DPP therefore had to establish that the exercise of the sentencing Judge’s discretion to suspend the sentence fell into one of the circumstances in which leave to appeal will be given. I cannot conclude that the exercise of that discretion in this case meets any of those necessary criteria.
The respondent’s post-incident conduct
I turn to consider the third element relied on by the DPP, namely the conduct of the respondent after the commission of the offence. The Director argued that the suspension of the sentence amounted to a failure to maintain proper sentencing standards in relation to the seriousness of the offence. I have already mentioned the relevant circumstances. Some of them were favourable to the respondent.
In support of his submission the Director sought to argue that the respondent’s failure to summon medical help when it was apparent that Kodi was in great distress and his failure immediately to acknowledge what he had done and to suggest other possible causes for his injury was an aggravating factor which caused rapid and obvious deterioration in Kodi’s condition. The DPP sought to portray this as a deliberate and calculated attempt by the respondent to avoid responsibility for his crime.
However, the fact of the matter is that the Director did not proceed with possible charges of criminal neglect under s 14 of the CLC Act in relation to the respondent’s conduct after the offence. One must put that conduct in its proper context of possible shock and shame brought about by the realisation by the respondent after the event of the unexpected seriousness of what had occurred, an element of disbelief that it could have occurred and his search for an explanation.
The respondent’s counsel, in the course of sentencing submissions, tendered, without objection from the DPP, the report of a psychologist, Mr Broomhall. The contents of the report were not challenged. Among other things Mr Broomhall said:
[A] significant factor in Mr Galffy’s presentation was his lack of recall for the traumatic events of his childhood. It is not unusual for children (or adults) to dissociate during and/or after a traumatic event involving fear of injury or death. It appeared that during and/or after Mr Galffy was subjected to violence at the hands of his father he dissociated as a self-protection mechanism. This sub-conscious ability of the brain allows individuals to block unwanted emotions (such as terror) during the traumatic event and blocks recall of the event/s to protect from unwanted flashbacks and distressing recall. Mr Galffy became quite upset when pressed for detail of his treatment by his father in childhood. This indicated that he knew the traumatic memories were there and could access some of them but was too scared to access these memories for fear of being emotionally overwhelmed or losing control.
He observed that this dissociative amnesia resulted in the mixture of inability to recall traumatic events from his childhood combined with an unwillingness to recall those events. He continued:
The relevance of this to Mr Galffy’s current situation was that in blocking or being unable to recall traumatic events from being assaulted by his father in childhood left him vulnerable – despite his best intentions – to making the same mistakes with his children. Thus while I believed he genuinely loved and cared for his children and wanted to be a good father, he was not fully aware of the nature or extent of his unexpressed anger toward his own father. This lack of awareness meant he lacked insight into and strategies to manage his anger and it emerges in times of stress, causing him to react in a manner which is stronger than the situation would warrant.
It appeared that there may have been an element of dissociation which occurred during intense anger outbursts by Mr Galffy. He disclosed that on more than one occasion he had ‘lost it’ and ‘come to’ (sometimes described as ‘the red mist’ – individuals become so intensely angry that normal cognitive processes of behaviour control mediated by the frontal lobes, as well as memory systems are disrupted during an intense period of anger or violence). He denied that this was the case in relation to the current charges, although I was not totally convinced of this. In my opinion it was possible that Mr Galffy became intensely angry very quickly which for a very short period decreased his ability to moderate his reaction; as a result he struck out at his son with more force than he had intended. When he regained control and realised what he had done Mr Galffy would have been overwhelmed by shame and guilt. At the time and subsequently he used the techniques for managing these intense emotions as he had in the past; blocking and denial. I believe Mr Galffy used this technique to protect his sense of self from the awful reality that he had behaved in a manner which contradicted his intentions. [Emphasis added].

The respondent’s earlier assaults on the shop security guards bore a similar explanation.
None of that detracts from the seriousness of what did occur or from the causation of Kodi’s serious injuries. However, one must be careful to ensure that circumstances of aggravation based on post-event conduct, particularly as to intention and recklessness, are clearly established. In my opinion, they were not. The conclusion might have been quite different if this was part of a course of similar offending or if subsequent events indicated an ongoing disregard for the welfare of the respondent’s children. However, that is not the case.
The relevance of deterrence
I will refer to the Director’s fourth element when dealing with the fifth. The DPP, in arguing the appeal, stressed the objective seriousness of the offending and the need for general deterrence in sentencing for offences of this nature. It was submitted that the need for general and personal deterrence required that the term of imprisonment imposed should be served immediately, notwithstanding mitigating personal circumstances relating to the respondent. It was said that the objective seriousness of the offending and the need for both general and personal deterrence were of such a nature as to outweigh considerations in favour of suspending the sentence, and that this constituted an error of principle, notwithstanding those mitigating personal circumstances. It was further submitted that allowing the sentence to stand would undermine public confidence in the administration of justice.
The effectiveness of a suspended sentence was referred to in the oft-quoted remarks of Bray CJ, with whom Bright and Zelling JJ agreed, in Elliott v Harris (No 2):[4]
So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.
That observation has been acted on in many cases since. It was endorsed by the Full Court most recently in WorkCover Corporation of South Australia v Musolino.[5] It is true that the Full Court in that case made the observation that a suspended sentence is a more lenient penalty, but that must be read in the context of the circumstances of that case. It was a case of 82 offences of obtaining or aiding and abetting the obtaining of payments by dishonest means contrary to s 120 of the Workers Rehabilitation and Compensation Act 1986 (SA). When speaking of the observations of Bray CJ in Elliott v Harris (No 2) Duggan J, with whom White and Kelly JJ agreed, said:[6]
There can be no doubt about the appropriateness of the remarks made by Bray CJ. His Honour was there commenting on the erroneous statement by a magistrate who had said:
I agree with the view currently prevailing in England that a suspended sentence is really no punishment at all.
However, the judge in the present case went on to say that the suspension of a term of imprisonment will in no way detract from the capacity of the sentence to reflect the principle of general deterrence.
If that statement does no more than express the view that there is an element of general deterrence in a suspended sentence it is in accordance with the observations by Bray CJ in the above passage. However, that is not to say that a suspended sentence has the same deterrent effect as an unsuspended term.
It must be acknowledged that a suspended sentence is a significantly more lenient penalty than an immediate term of imprisonment. The deterrent effect is reduced by suspending the sentence although not eradicated entirely. A relevant matter when considering suspension in a case such as the present is to determine whether the requirements of deterrence are of such a nature as to outweigh considerations in favour of suspending the sentence. [Emphasis added; footnote omitted]
[4] (1976) 13 SASR 516, 527.
[5] [2007] SASC 249, (2007) 100 SASR 147.
[6] Ibid [71]-[74], 160.
When speaking of the deterrent effect of a suspended sentence being reduced by suspension of the sentence, the Court was directing its remarks principally to general deterrence in the context of difficult to detect offences of fraud on social security schemes.
The offence charged in this case was a breach of s 23(3) of the CLC Act which provides:
(3)A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 19 years.
Section 21 of the Act defines “recklessly” for the purposes of s 23 in the following terms:
"recklessly"—a person is reckless in causing harm or serious harm to another if the person—
(a) is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and
(b) engages in the conduct despite the risk and without adequate justification;
The respondent was not charged with an offence under s 23(1) which requires proof of causing serious harm to another, intending to cause serious harm. The maximum penalty for an offence against that subsection is 20 years imprisonment for a basic offence and 25 years imprisonment for an aggravated offence.
I do not wish to underestimate the need for general deterrence in respect of an offence under s 23(3), but general deterrence must assume less significance in the case of recklessness than in the case of an intended offence. The differing penalties reflect that. In the case of recklessness the question of personal deterrence assumes a relatively greater role. It deals with conduct which may not be premeditated but which is merely reckless in the sense defined in s 21.
In developing his argument that deterrence demanded an immediate custodial sentence, the Director asserted that the sentence imposed “has absolutely no impact on deterrence either personal or general” in circumstances where it should play a greater than normal role. He criticised the sentencing Judge for not mentioning in his sentencing remarks the issue of general deterrence, which he asserted was “one of the vital features which must be addressed in a case such as this”.
I do not accept that a suspended sentence has no impact on deterrence either personal or general. It may have less impact on general deterrence than an immediate custodial sentence, but it is still a sentence which may have to be served. It has substantial impact on personal deterrence for that very reason.
I also disagree that, in a case such as this, general deterrence should play a greater than normal role. For reasons which I have explained, by virtue of this offence being one of recklessness rather than intention, what was of greater but not exclusive significance in sentencing for this offence were considerations of personal deterrence from acting recklessly. In most cases of severe child abuse where there is a continuing pattern of such abuse, both personal and general deterrence will be paramount considerations. General deterrence will be of lesser consideration in a single instance.
Finally, the sentencing Judge did address deterrence generally. He said:
Cases of child abuse causing serious harm require strong deterrent penalties. Such penalties usually attract a significant component of personal deterrence because of the risk of further harm resulting from any exposure to situations of stress. The need for personal deterrence is more pronounced in your case, due to the underlying problems identified above.
By referring to “strong deterrent penalties” he was obviously referring to both general and personal deterrence. The emphasis, however, in this case, he said, was to be on personal deterrence. In my opinion the sentencing Judge was justified in saying so and in giving appropriate emphasis to that aspect.
Protection of the weak and vulnerable
I turn to the Director’s final point, namely the Court’s responsibility to protect the most vulnerable people in the community. After the arrest of the respondent he remained in custody for a period of seven days before being released on bail. Kodi and his sister were placed in alternative care by the Department for Families and Communities (Families SA). When the respondent was released on bail, his bail conditions precluded him from living with his family, and access to his children was to be under Families SA supervision.
On 19 January 2007 Families SA was granted a twelve month care and protection order in respect of the two children. During that period Families SA supervised a series of intensive programs and assessments involving all members of the family. The children were restored to their mother, but the respondent continued to be precluded from living in the family home. The programs included various parenting support programs and anger management programs in which the respondent was a willing participant, and from which it was apparent that he was receiving substantial benefit – a benefit which he was among the first to acknowledge. Limited supervised access to Kodi was resumed.
By January 2008 it was recognised that the respondent had made progress, and Families SA was granted a second care and protection order for a further period of nine months. The respondent continued to have greater access to the children, now supervised by his mother and his wife.
It was the intention of Families SA to begin a family reunification process, but the respondent’s bail conditions prevented that, and Families SA, because of that, were unable to progress the reunification further. Their report indicated, however, that they believed that successful reunification was possible if the respondent continued to work on managing his anger and changing his parenting style. They noted that the respondent had been co-operative and had engaged in services as required, although there was further anger management to be undertaken. They noted that “changes in behaviour generally require sustained effort and ongoing support to consolidate the changes”.
That report was supported by the independent report of Mr Broomhall, the psychologist, dated 22 February 2009. His final recommendations included the following:
It was my opinion that Mr Galffy’s prospects of rehabilitation were very positive. He presented as very motivated to change his behaviour, control his anger outbursts, become a more effective parent and a better father. His motivation to change had been reinforced by a willingness to take responsibility for his actions; which was not easy for him given the seriousness of some of his past behaviour. This was illustrated in the change in his report of the incident from 2006 to the present; there were indications of a reluctant acceptance of his uncontrolled anger. Prior to the incident involving his son in 2006 Mr Galffy had poor parenting techniques which amounted to yelling and physical punishment. Through the courses, intervention and strategies learned to date (mostly in the past 18 months) Mr Galffy has learned effective parenting strategies which he understood and seemed to practice. He seemed genuinely relieved and proud to be able to see strategies such as time out and rewards with his children. One of the counsellors (Mr Dowling) observed that Mr Galffy had become more open and aware of his behaviour.
These changes in both attitude and practical skills significantly reduced Mr Galffy’s risk of similar re-offending. …
Mr Galffy would benefit from a tailored therapeutic program undertaken 1:1 with an appropriately trained psychologist with a focus on two main areas. First, a psychotherapeutic approach aimed at discussing the traumatic memories of his childhood related to his treatment by his father. This will be an emotionally intense, difficult process for Mr Galffy. The purpose in this process would be for him to gain insight into his own emotional response to this treatment, release some of this emotion in a safe therapeutic environment and then to identify potential situations which present a risk for him becoming angry in the present.
The second approach recommended would be more practical skills based, using a cognitive behavioural (CBT) approach. This would teach skills in recognising early physiological signs of anger build up, identifying potential risk situations and building a management plan and behavioural skills for managing physiological manifestations of anger (time out, breathing, progressive muscle relation). …
Mr Galffy has been working toward reunification with his family and has made good progress over the past 18 months. He has been in the community, working full-time and supporting the family financially. If he can access and undertake the recommendations above this would in my opinion significantly reduce his risk of similar reoffending. Ideally and for best outcome, the therapeutic program recommended would be undertaken while he was still living in the community, working and in contact with family at the current arranged levels. Successful completion of the therapeutic recommendations would in my opinion reduce his risk to the level which would safely allow him to move back into the family home.
At the time of his sentencing the respondent had supervised access to the children daily between the hours of 7.00am and 11.00pm, but he was unable, because of his bail conditions, to reside in the matrimonial home. He spent as much time as he was able at the home to be with his family.
Based on the extensive reports before the sentencing Judge, the Judge made the findings set forth earlier in these reasons and on which he acted in suspending the sentence. Those findings and the following summary were an accurate reflection of the reports:
The family has been assisted by an extensive and thorough program initiated by Families SA. This involved a family intervention plan, supervised, structured and extended access arrangements, attendance at a fatherhood support program, therapy, anger management and a violence intervention program, to mention the more important of them.
During the course of this, Families SA recognised that you have made progress and it was their intention to work to reunification. This plan could not be implemented due to the onerous bail conditions. They reported also that you were cooperative and engaged in these endeavours, but noted that changes in behaviour ‘generally requires sustained effort and ongoing support to consolidate the changes’.
It was clear that the intended program of rehabilitation was not complete. Its best chance of success was for his sustained effort and ongoing support to consolidate the beneficial changes which had occurred. To some extent the ability to make progress was frustrated by his bail conditions, any relaxation of which was apparently opposed. This was a case where actual rehabilitation had occurred, even though the process had not been able to be completed. It was a process of rebuilding the family relationship with evidently positive results and with the substantial support of the respondent’s family. That rebuilding included the rebuilding of the respondent’s parenting skills, again with positive results.
The Director submitted, and it may be accepted, that incarceration will always have an effect on the subject’s family. He submitted that that should not be regarded as a special consideration in this case. However, in this case incarceration would run the risk of undoing the valuable work which has been performed by Families SA and those supporting the respondent in the various programs in which he is voluntarily engaged. These programs would inevitably cease. The sustained effort and ongoing support, so necessary for successful rehabilitation and in which he has been a voluntary participant, would no longer be available.
There would be a revictimisation, in a different but telling way, of the original victim of this offence and a risk of undoing the bonds of affection and trust which, with the use of extensive State resources, have been substantially rebuilt between the respondent and his family and particularly his son. Not only would incarceration put the welfare of the whole family at risk through the inevitable loss of financial support from the respondent, the likely loss of the family home and the substantial period of separation, it would undermine the intensive, extensive and so far successful efforts of Families SA and others to restore a well functioning, efficient and devoted family unit.
This is one of those cases where suspension of the sentence is more likely than anything else to fulfil the last element relied on by the DPP. I can think of no better way of protecting the long term welfare of the victim of this offence and his sister than putting in place effective means of restoring a healthy wholesome family relationship.
The Judge recognised that that could be fulfilled by placing adequate mechanisms in place to ensure that there would be compliance with necessary ongoing programs, while providing for the respondent’s immediate removal from the family if there were any sign of recurring abuse. Those mechanisms were appropriately put in place by the conditions of the bond, the acceptance of which by the respondent was a condition of his release. The suspended sentence provides a powerful incentive to ensure that that process is completed.
Conclusion
In all these circumstances it was within the sentencing Judge’s discretion to take the merciful and constructive course that he did. The suspension of the sentence in the rather unusual circumstances did not amount to an error justifying interference by this Court on an appeal by the DPP.
I would dismiss the application for leave to appeal by the DPP.
KELLY J:
Introduction
The Director of Public Prosecutions has applied for permission to appeal against a sentence imposed in the District Court on 22 April 2009.
On 29 January 2008 the respondent pleaded guilty to the offence of aggravated recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is a term of imprisonment of nineteen years.
The respondent was sentenced to a term of imprisonment of two years, five months and three weeks. The Judge fixed a non-parole period of eighteen months and suspended the sentence on the respondent agreeing to enter into a bond to be of good behaviour for a period of three years.
The Director sought permission to appeal on the grounds that the head sentence and non-parole period are manifestly inadequate and that the sentencing Judge erred in the exercise of his discretion to suspend the sentence. At the hearing the Director abandoned the first ground.
Background
The offence was committed on the evening of 25 October 2006. The victim, a three-year-old child, is the son of the respondent and was in the sole care of the respondent on the evening when this offence occurred. The respondent’s wife left the house briefly and it was during her absence of approximately fifteen minutes that the offence occurred. There was a knock on the front door and the three-year-old victim went to the door curious to find out who was there. He was pushed away by the respondent and subsequently kicked by the respondent with sufficient force to cause a very serious injury to the child’s liver. The injury was potentially life threatening.
The child was admitted to the high dependency ward of the Women’s and Children’s Hospital the same evening as CT scans revealed an acute liver laceration with widespread bleeding throughout the abdomen. A significant drop in the child’s haemoglobin levels was attributed to recent blood loss prior to the child’s admission to hospital. At the time of admission it was reported that the child was vomiting, had abdominal pain, was unable to stand, was pale, his hands were cold and his blood pressure was low. The child’s mother reported that upon her return to the house that evening the child was in such a serious condition that he was lapsing in and out of consciousness as she changed his nappy. The child remained in the hospital for over a week while doctors monitored internal bleeding in order to minimise any further blood loss.

The respondent was first arraigned on a more serious offence in the District Court on 26 March 2007. Subsequently the Director filed a fresh Information charging the offence of aggravated recklessly causing serious harm to which the respondent pleaded guilty on 29 January 2008. However on that date the matter was listed for a further directions hearing as the appellant and respondent were unable to agree on the facts which were to form the basis of the plea. The respondent initially proffered an explanation for the injury caused to his son that he had pushed his son who became airborne and fell on a plastic hammer which he was carrying. Not surprisingly the Director refused to accept that factual basis and the matter was therefore listed for a two day disputed fact hearing in April 2008. Thereafter the matter appears to have been adjourned on numerous occasions and for numerous reasons. The respondent instructed new lawyers. Then the matter was adjourned several times while the respondent’s solicitors awaited further expert medical reports in relation to the cause of the injury to the child. Finally on 21 October 2008 the respondent’s counsel indicated that there would no longer be any need for a disputed fact hearing and the matter could proceed by way of submissions. It appears from the transcript of the proceedings in court that neither of the parties saw any pressing need to deal with the matter expeditiously as, notwithstanding the intimation on 21 October 2008, there were a further six hearings in the District Court before the sentencing Judge finally heard submissions and disposed of the matter on 22 April 2009.
Discussion
The basis on which prosecution appeals should be brought were summarised by King CJ in R v Osenkowski (1982) 30 SASR 212 at [213] in an often cited passage:
The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
In this case the Director contended that the objective seriousness of the offending and the need for general and personal deterrence called for an immediate term of imprisonment notwithstanding the mitigating personal circumstances of the respondent.
Having abandoned the complaint that the head sentence and the non-parole period were both manifestly inadequate the Director’s contention on appeal was that the suspension of the sentence resulted in a failure to maintain an adequate sentencing standard and therefore amounted to an error of principle.
The offence to which the respondent ultimately pleaded guilty was the offence of aggravated recklessly causing serious harm contrary to s 23(3) of the Criminal Law Consolidation Act 1935. By virtue of the fact that the offence was aggravated the maximum penalty prescribed for the offence was imprisonment for nineteen years. By pleading guilty to the offence in that form the respondent therefore acknowledged that he was aware at the time of causing the injury that there was a substantial risk that his actions could result in serious harm to the child. In fact his actions did result in serious harm to the child.
The fact that the Parliament has prescribed a maximum penalty of nineteen years imprisonment for this offence is the starting point for consideration of the adequacy of the sentence imposed in this case. As this Court observed in R v Partridge (2008) 102 SASR 233 offences of this nature against young children who are helpless, extremely vulnerable and totally dependent upon others are particularly serious. This Court has a responsibility to act to protect the weak and vulnerable. The respondent’s offending is of a class where general deterrence must play a significant part in sentencing.
The circumstances surrounding the commission of this offence were particularly serious. The victim was in the respondent’s sole care at the time. The respondent was less than forthcoming with doctors at the Women’s and Children’s Hospital as to how the injuries to his son were caused. He gave different accounts to both his wife and medical personnel at the hospital. As the Judge noted, he was less than forthcoming for quite an appreciable amount of time and it was not until October 2008 when the disputed facts hearing was abandoned that the respondent accepted full responsibility for the kick to the child which had caused the injury.
The Judge had before him a number of psychological reports concerning the respondent and his family. The contents of some of these reports were concerning, for they revealed that there had been repeated notifications to the child protection authorities about the welfare of the victim and his other siblings in the years preceding the date of this offending in October 2006. There were also statements from witnesses who resided near to the respondent and his family who observed the respondent’s interaction with the victim and his siblings from time to time. The statements of Mr Gardam and Ms Polyak were of particular concern. In light of this material it is not surprising that one of the doctors, a paediatrician at the Women’s and Children’s Hospital who examined the child concluded that the extensive history of reported injuries to the child and his siblings clearly indicated intervention was required to ensure their future safety and protection.
It would seem in the light of those reports and that material that Families SA had a duty to intervene and work with this family in the interests of the future safety of the victim and the other siblings. It is plain from those reports that the respondent has had a long standing anger management problem. More recent reports, in particular the report of from Mr Broomhall, were cautious but optimistic concerning the respondent’s prospects of rehabilitation.
The sentencing Judge obviously had those reports in mind when he acknowledged that the need for personal deterrence in the respondent’s case was due to the underlying problems which had been identified. The respondent was not a first offender. Although the trial Judge did not refer to them, the respondent had in fact previously had the benefit of three suspended sentences. In 1997 he was convicted of eleven dishonesty offences in relation to social security payments in respect of which he was convicted and sentenced to five months imprisonment which was suspended upon the respondent entering into a bond to be of good behaviour for eighteen months. There were a number of other offences committed by the respondent between 1998 and 2005 in respect of which the respondent was convicted and either fined or placed on a good behaviour bond. On 18 January 2007 he was convicted in the Elizabeth Magistrates Court of seven dishonesty offences for which he was sentenced to four months imprisonment which was suspended upon him agreeing to enter into a bond to be of good behaviour for fifteen months. Those seven dishonesty offences were committed between October 2005 and June 2006.
On 9 April 2008, less than three weeks before he was sentenced for the current offence, he was sentenced for one offence of dishonesty and two offences of assault to four months imprisonment suspended on a bond to be of good behaviour for two years. Those offences were committed on 23 July 2006. Therefore, the latter offences were all committed prior to the date of the current matter however the convictions were not recorded until after the commission of the current offence.
The only reference by the Judge to these matters was when he said:
You have no significant prior convictions of relevance, except for a rather foolish incident in July 2006 involving a different order of events and engaging quite different mechanisms. You spent seven days in custody and I am sure that the clanging of the prison gate still rings in your ears.
In fact the two assaults to which the Judge was referring were upon two security guards who were apparently trying to restrain the respondent from making off without payment of goods in a store.
The relevance of offences committed prior to sentence for the offence under consideration was explained by the Full Court in The Queen v McInerney (1986) 42 SASR 111 by King CJ at page 113:
They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner's record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record. (citation omitted)
As Cox J pointed out in the same case at page 124:
So far as subsequent offences are concerned, they cannot justify the court in imposing a higher sentence than the instant offence intrinsically merits, but they might well lead the court to conclude that any leniency to the defendant would be misplaced.
At the very least, these offences and the circumstances in which they were committed, required the Judge to give very serious consideration to the issue of whether a further suspended sentence would operate as an effective deterrent for the respondent. The Judge seems barely to have touched on the significance of the fact that the respondent at the date of sentencing had already received the benefit of three suspended sentences.
The considerations which seem to have persuaded the Judge that a suspended sentence was appropriate seem to be the fact that the offence did not form part of a course of conduct, that the respondent had family support, and that the incarceration of the respondent would end his employment resulting in the associated financial and other burdens upon his wife and children. Whilst these are all relevant factors, it might be observed that the conviction and imprisonment of most offenders almost inevitably results in a loss of employment and hardship to offenders’ families.
Since the drafting of these reasons I have had the opportunity to read in draft the reasons of Bleby J. There are two matters about which I wish to comment.
I cannot agree that the Director’s decision to abandon the second ground of appeal was necessarily appropriate. There are offences, and this was one of them, where the deterrent purposes of punishment must take priority over the mitigating circumstances.
It is hardly necessary to reiterate that the respondent stood in a position of trust with this child and as such his primary duty was to protect the child. Having seriously injured the child in circumstances which themselves constituted a gross breach of that trust the respondent did nothing. Faced with a child who was obviously sluggish and in such a serious condition that by the time his wife got home the child was vomiting and lapsing into and out of consciousness, the respondent did nothing. In fact he dissembled first to his partner and then to the medical authorities at the hospital. Neither do I agree that these did not constitute aggravating circumstances. In my view they were aggravating circumstances of a very serious kind. It was left to the child’s mother to ensure that the child obtained the necessary urgent medical treatment. It would take another almost two years before the respondent accepted full responsibility that it was his actions which caused such serious injury to the child.
I do not consider that the contents of the report obtained by the respondent’s lawyers on 22 February 2009 from a psychologist named Mr Broomhall provide any support for the suggestion that the respondent’s post offending conduct should be viewed in any other light. It is not surprising that the prosecution did not object to the reception of that report. It was never suggested by the respondent that he was unable to recall the events which occurred on the night of 25 October 2006. As the Director pointed out both in sentencing submissions before the Judge and again in this Court this was not a case of the respondent claiming to have no memory of what he did. Moreover his lies to various people over an extended period of time were a very telling indicator that the respondent was well aware of what he had done. It is not surprising in these circumstances that the Judge did not mention any so called state of dissociative amnesia.
In my respectful view the decision to suspend what was a far too lenient sentence in the first place has caused the exercise of the sentencing discretion to miscarry. The effect of suspending the sentence of imprisonment is so disproportionate to the intrinsic seriousness of this crime that I consider this Court should intervene. It is one of those exceptional cases where the sentence as a whole is so inadequate as to shock the public conscience.
This Court has a responsibility to send a message that those members of the community who perpetrate unprovoked acts of violence on defenceless and vulnerable children thereby causing them serious injury, can, in the ordinary course expect to go straight to gaol.
For these reasons I would grant permission to the Director to appeal, I would allow the appeal and revoke the order of the sentencing Judge suspending the term of imprisonment.