R v George (a pseudonym)

[2021] NSWDC 18

District Court

New South Wales

Medium Neutral Citation:	R v George (a pseudonym) [2021] NSWDC 18
Hearing dates:	28 September 2020, 30 October 2020, 4 December 2020, 16 February 2021
Decision date:	16 February 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Term of imprisonment of 2 years 7 months with a non parole period of 1 year 8 months.
Catchwords:	CRIME - SENTENCE - concealing a child child abuse offence - intentionally or recklessly failing to provide a child with the necessities of life.
Legislation Cited:	Crimes Act 1900 (NSW): ss316A(1) and 43A(2).
Category:	Sentence
Parties:	Regina (Crown) George (a pseudonym) (The offender)
Representation:	Ms Keay (Crown Prosecutor) Mr Skinner (Counsel for the offender)
File Number(s):	2019/00242346
Publication restriction:	Non publication order made of the name of the victim and any other information which might, directly or indirectly, identify him. Suppression order made of the name of the offender and co offender and any other information which might, directly or indirectly, identify either of them.

Judgment

1. As a preliminary matter, I note that the questions at T21:50 ff 28 September 2020 were not asked by me but by the Crown prosecutor.

2. Mr George (a pseudonym), you first appeared before the Court in Goulburn on 28 September 2020 for sentence for the principal offence of concealing a child abuse offence. This involves a contravention of s316A(1) of the Crimes Act. The maximum penalty for the offence is 5 years imprisonment. There is no standard non-parole period.

3. In relation to that principal offence, you have asked me to take into account one matter on a Form 1 which I have certified – namely, that as a person with parental responsibility for a child, you (without reasonable excuse) intentionally or recklessly failed to provide that child with the necessities of life (cf s43A(2) of the Crimes Act).

4. In summary, the principal offence is that between 12 June and 1 July 2019, you (the father of Richard (a pseudonym), who was born in May 2019, and was, therefore, about 6 weeks old at the commencement of that date range) were aware that your partner, Richard’s mother, had committed child abuse offences on Richard and you failed to bring that information to the police. These child abuse offences included: throwing the child (when one month old) “on a few occasions” onto a bed from a standing position; hitting the child on the buttocks; causing the child to hit his head on the top of the bassinette; hitting the child’s head on the corner of a wall; and violently shaking the child, whilst being held upside down by his ankles (this latter incident occurring on 19 June 2019).

5. The substance of the Form 1 matter is that between 19 June and 23 June 2019, and following one (or more) incident(s) of such child abuse, you failed to arrange for medical attention for Richard, which placed him in danger of death or serious injury. By having regard to the nature of that matter, it will result in a significant and meaningful increase in the sentence for the principal offence.

6. It was originally anticipated that the sentence hearing would proceed relatively smoothly and that you would be sentenced on the basis of a document entitled “Agreed Facts on Sentence” signed by you and dated 28 September 2020 (which was, for my present purposes, relevantly the same as another document also entitled “Agreed Facts on Sentence” which you signed on 19 May 2020, and which was filed in the Local Court at the time you were committed for sentence on 20 May 2020). However, during the course of your cross examination in the sentence hearing on 28 September 2020, there was a significant departure by you from those two sets of agreed facts – and, to an extent, the sentence hearing developed into a (partially) contested facts hearing (I pause to observe that your oral evidence seeking to explain that departure was unconvincing). The sentence hearing was adjourned to 30 October 2020.

7. On that second listing, you gave further evidence in which, amongst other things, you admitted that the evidence you gave on the previous occasion – and which involved a significant departure from two sets of previously agreed facts – was not true. You also admitted that your evidence given on the previous occasion as to the alleged physical and psychological abuse of you by Ms Ryan (a pseudonym) was exaggerated – and, therefore, also not true.

8. The proceedings were further adjourned to 4 December 2020 when (by leave) supplementary evidence was tendered in your case (Exhibit 2) and final submissions (both written and oral) were made. The imposition of sentence was stood over to today.

9. Unless otherwise indicated, subsequent references in these remarks to the “Agreed Facts on Sentence” are references to those dated 28 September 2020.

10. I am satisfied of the following facts beyond reasonable doubt.

11. Following Richard’s birth in May 2019, you, Ms Ryan and victim lived in a home unit in Avoca Street, Goulburn (I pause to observe that the Agreed Facts on Sentence state that you and Ms Ryan had no other family living in Goulburn. However, during the course of the sentencing hearing, you revealed that Ms Ryan’s mother lived in Goulburn and provided Ms Ryan with comfort and assistance following Richard’s birth. Curiously, in all that thereafter transpired in connection with your offending behaviour – and the various people with whom you and Ms Ryan sought assistance (belatedly or otherwise) - that lady apparently was not contacted.

12. As at June 2019, you worked casually at the Coles supermarket in Goulburn, and there was an arrangement between you and Ms Ryan that, even though you were required to start work at 5:00am and she was not in paid employment, you would get up and attend to the baby if he woke during the night.

13. On 19 June 2019, you were at work between 6:00am and 9:00am. Apparently Richard was unsettled during that day and Ms Ryan had some difficulty in feeding him.

14. Whilst you were at work, Ms Ryan brought Richard to the supermarket and one of your co-workers noticed that Richard had a red line, about 1.5cm in length, on his forehead.

15. More significantly, at some point during that day, Ms Ryan violently shook Richard. She did so in your presence. She held the child upside down by his ankles. She threw him from side to side. And then she threw him onto the bed. However, it is not clear to me when, during this day, that shaking occurred.

16. As I have already said, on other prior occasions, you had seen Ms Ryan smack the child on the bottom so that his head hit the bassinette; you had seen her throw the child from a standing position onto the bed; and you were aware that, on one occasion, whilst Ms Ryan was carrying the child, she had “accidently” hit his head against the corner of a wall.

17. Before 19 June 2019, Richard would generally wake every four hours to be fed or changed. However, on the evening of 19 June 2019 (and after he had been shaken), Richard slept much longer than normal, about 7 hours, without waking.

18. On 20 June 2019, Richard was not feeding normally; he was crying more than usual; he was vomiting; and he was noted by you to be cold. That night he also slept longer than usual, again about 7 hours.

19. On 21 June 2019 (a Friday), you again worked at Coles between 6:00am and 9:00am. When you finished work, you went home. When you arrived home, Richard’s bassinette (which was normally in your bedroom) was (unusually) in the spare room, which surprised you, especially as your partner was still asleep in your bed and Richard’s nappy was soiled and he was crying. You went to prepare a bottle for him. Then, when you returned to the spare room, you saw that he was white and had stopped breathing. His nails and fingers were blue and floppy, and there was a small amount of vomit present around his mouth.

20. You administered CPR and Richard started to breathe again.

21. At 10:33am, Ms Ryan called an ambulance which arrived at 10:57am. During that phone call, Richard could be heard crying in the background.

22. I pause to observe that there is no suggestion that you did not go directly home after you finished work that day at 9:00am. It is common knowledge in the Goulburn locality, and is not reasonably open to question, that it takes approximately 4 minutes to drive, and 19 minutes to walk, directly from the Coles supermarket in Goulburn to the home unit block in which you lived in Avoca Street. Assuming you walked home, you would have arrived at approximately 9:30am. Why it took approximately 1 hour for the ambulance to be called is not revealed in the evidence.

23. After the ambulance arrived, one of the paramedics assessed Richard and noted that his radial pulse was strong, his breathing appeared normal, and his pupils were reacting. Nevertheless, the paramedic suggested that Richard be taken to Goulburn Hospital for a check-up just to be safe.

24. Neither you nor Ms Ryan told that paramedic that you had performed CPR on Richard – or why. Why neither of you did that is not revealed in the evidence. However, that information was provided by one of you to the triage nurse when the ambulance arrived at Goulburn Hospital.

25. But importantly, no history of trauma was given either by you or Ms Ryan to either the paramedic or any of the hospital staff on this occasion.

26. After Richard arrived at Goulburn Hospital, an intravenous line was inserted, and blood tests were taken. He was reviewed at 2:56pm, and those blood tests were found to be within normal limits. Both you and Ms Ryan told the doctors (almost insistently) that you wanted to take Richard home. However, as further tests were pending, the medical staff strongly advised that Richard should stay in the hospital overnight. Moreover, the doctors told you both that they would report the matter to Family and Community Services if you took Richard home. The hospital agreed to let you and Ms Ryan stay at the hospital overnight, which is what you both did.

27. On Saturday, 22 June 2019, at about 11:00am, Richard was discharged from Goulburn Hospital and you and Ms Ryan took him home where he was given a bottle and put to bed. However, he was unsettled, and at about 12 noon or 1:00pm he began crying hysterically and developed what are described in the Agreed Facts on Sentence as “short gasps”. He was jerking his head to the right. But neither you nor Ms Ryan took any steps to get him any immediate medical attention.

28. At about 3:25pm on 22 June 2019, you took a video of Richard which showed his whole body moving and a subtle movement of his head to the right. You sent that video to your mother who told you to immediately take the child back to the hospital. However, you did not follow your mother’s (obviously correct) advice and you did not take that child back to the hospital. At about 8:00pm or 9:00pm, Richard tolerated a normal feed. However, at 1:00am on Sunday, 23 June 2019, he woke and vomited. He was also crying and appeared to be in discomfort. He continued to vomit. Both you and Ms Ryan noted that Richard continued to have jerking in his left arm and leg. Notwithstanding all these observations, neither you nor Ms Ryan did anything to take that child back to the hospital in the early hours of that morning.

29. At some time later in the morning (which is not precisely revealed in the Agreed Facts on Sentence), instead of going to the hospital, you and Ms Ryan took Richard to the Community midwives at Goulburn. The Community midwives gave you the same advice that your mother had given you the preceding afternoon – that is, to take Richard back to the hospital.

30. But again, you did not do that. Rather, you and Ms Ryan made an appointment to see a general practitioner at Goulburn at about midday on this Sunday, 23 June 2019. When you got to see the doctor, he noted rapid right eye movement and twitching on the left side of Richard’s head or face. He gave you the same advice that your mother had given you about 24 hours beforehand, and which the midwives had given you earlier in the morning. And that was, to take the child straight to the emergency department.

31. The Agreed Facts on Sentence state that, notwithstanding the doctor’s advice, Richard was taken home where his condition continued to deteriorate. However, in the course of your first tranche of oral evidence, you said that that paragraph, which, in substance, is in both versions of the agreed facts on sentence, was wrong and that you did take Richard directly to the hospital. But in your second tranche of oral evidence you said that you did go home – to get Richard’s blue book – an unlikely and unconvincing explanation (not least because you apparently did not need it when you saw the midwives or the general practitioner – and its contents were of little relevance).

32. In any event, according to the hospital records, Richard was eventually taken to the hospital at 1:12pm on 23 June 2019 for his second admission. Although the hospital was informed that he had not fed since 10:00pm the night before, no history of trauma was provided to the treating medical staff.

33. At this second admission, Richard was noted to be pale and cool to touch, with dark circles under his eyes - which were twitching and deviating to the right.

34. Richard commenced seizure activity soon after arriving at the Goulburn Hospital on this second occasion. A CT brain scan was taken which showed bilateral subdural haematomas, with the right side larger than the left. He also had a midline shift of 2mm, which, apparently, is a sign of mass effect from bleeding.

35. Richard was then transferred to the Children’s Sydney Hospital at Randwick by helicopter.

36. At about 5:15pm, on 23 June 2019, Richard’s injuries were reported to New South Wales Police by the Joint Child Protection Response team. An investigation was then commenced.

37. At the Sydney Children’s Hospital on 24 June 2019, Richard underwent his first operation. It was for decompression due to significant pressure around his brain. Doctors had to convert to an emergency craniectomy with subdural haemorrhage drainage. A massive blood transfusion protocol was required. Richard nearly died on the operating table.

38. After that first operation, a further CT brain scan was performed which showed an enlarged right subdural haematoma and an increased midline shift of 4mm with other signs of raised pressure in the brain. Additionally, an EEG performed on 24 June 2019 revealed multifocal continuous seizure activity which was difficult to control. This required titration of up to five different anti-epileptic agents.

39. It was not until 25 June 2019 that any disclosure was made to any medical practitioner that this 6 weeks old child had sustained trauma on or before 19 June 2019. On that day, at about 1:00pm, you disclosed to one of the doctor’s and a social worker, that Ms Ryan had told you a few weeks beforehand that she had “bumped” Richard’s head on the corner of a wall “by accident” when carrying him. But that was all your revealed. Those disclosures were clearly incomplete – and, on your part, deliberately so.

40. The next day, 26 June 2019, your father spoke to you and Ms Ryan and asked you both to think if there were anything that had happened that you hadn’t yet told the doctors. Why he thought it necessary to ask you that question is not revealed in the evidence.

41. At 9:00pm that night, you telephoned your father and told him that Ms Ryan had told you that she had “accidentally shaken” Richard in the cot. Your father told you that that information had to be conveyed to the doctors. In context, this “accidental” shaking was in addition to the “accidental” bumping of Richard’s head on the corner of a wall.

42. It is not clear to me how a person could “accidentally shake” a 6 weeks old child in a cot; and it is unclear to me how you could have believed that – if you did, in fact, believe it. In my view, you deliberately misled your father – as you, by now, had deliberately misled your mother, the midwives, the general practitioner, and the hospital staff.

43. Later that evening, you and Ms Ryan met with the intensive care doctors. Ms Ryan revealed to them, that on 19 June 2019, when she was home alone with Richard, she could not settle him and that, around lunch time, she “shook him for no longer than 5 minutes”.

44. Even at this time, neither you nor Ms Ryan revealed to the doctors that Ms Ryan had “accidentally bumped” Richard’s head on a corner wall some weeks before hand. Nor did you reveal the other instances of abuse that I have already referred to, especially the shaking on 19 June 2019.

45. On 27 June 2019, at about 1:00pm, the neurology team had a meeting. The consensus arrived at during that meeting was that the most likely diagnosis for Richard’s injury was either shaken baby syndrome or direct trauma – plus the subsequent effects of pressure. Those present at the meeting agreed that there were no other medical causes likely to be responsible for Richard’s serious injuries.

46. At about 2:00pm, on 27 June 2019, Ms Ryan met with the Child Protection team in the intensive care unit. The Agreed Facts on Sentence do not expressly state that you were present, although it seems highly unlikely that you would not have been present. The doctors explained the findings of bilateral retinal haemorrhages and suggested that they could have been caused by a jerking back and forth movement. At this point, Ms Ryan said that she had shaken Richard on 19 June 2019. However, contrary to what Ms Ryan revealed the preceding evening, on this occasion she said she had shaken Richard for no longer than 5 seconds – and that you had arrived home shortly thereafter.

47. After the Joint Child Protection Response team was engaged, Dr Garside, a specialist paediatrician engaged by the Child Protection Unit, and who practiced at the Sydney Children’s Hospital, reviewed the totality of the treatment that Richard received and other information provided by you and Ms Ryan to various medical practitioners and the police.

48. Dr Garside concluded that, at 6 weeks of age, Richard suffered an extensive brain injury resulting in bilateral subdural haematomas (i.e. blood around the brain), parenchymal injury (i.e. injury to the brain tissue), and bilateral retinal haemorrhages (i.e. bleeding at the back of the eyes).

49. These injuries were not birth related nor secondary to any underlying medical condition.

50. It was Dr Garside’s opinion, and it is not in dispute, that Richard’s brain injury was the result of trauma.

51. It was Dr Garside’s opinion, and it is not in dispute, that the types of forces that caused these injuries are generated by the forceful movement of the head on the neck, and can be the result of the violent shaking of an infant.

52. It was Dr Garside’s opinion, and it is not in dispute, that by the time Richard had surgery on 24 June 2019, he had an evolving brain injury: his brain was swelling and under considerable pressure. When he was operated on, his brain herniated (or mushroomed) out of the tight covering of the brain.

53. It was Dr Garside’s opinion, and it is not in dispute, that without emergency treatment and subsequent neurosurgery Richard was unlikely to have survived.

54. It is not in dispute that symptoms of brain injury in an infant include drowsiness, altered levels of consciousness, poor feeding, lethargy, floppiness, irritability, vomiting, seizures, or altered breathing - including the stopping of breathing. Most of these symptoms were evident before Richard was transferred to Sydney.

55. It was Dr Garside’s opinion, and it is not in dispute, that symptoms of Richard’s evolving brain injury were present from the evening of Wednesday, 19 June 2019. It was also her opinion, and it is not in dispute, that Richard is likely to have been injured before the evening of 19 June 2019.

56. It was Dr Garside’s opinion, and it is not in dispute, that a gentle shaking of the child as demonstrated by Ms Ryan in her interview with the police, is unlikely to have caused the injuries suffered by Richard.

1. Rather, it was the opinion of Dr Garside, and it is not in dispute, that the incident witnessed by you of Ms Ryan shaking Richard and picking him up by his feet on 19 June 2019 could account for the acceleration / deceleration injuries which led to his subdural and retinal haemorrhages. For the avoidance of doubt, I am satisfied beyond reasonable doubt that injuries observed by Dr Garside were caused on 19 June 2019 when Ms Ryan, in your presence, violently shook Richard whilst holding him upside down by his ankles.

2. You were interviewed by police on 1 July 2019. At no time before your interview did you reveal to anyone (especially medical professionals) the various forms of physical abuse (including, and especially, the violent shaking of Richard on 19 June 2019) which Ms Ryan had inflicted – to your knowledge – on Richard. And you only revealed the incident of 19 June 2019 late in the interview after the police informed you of the contents of a lawfully recorded conversation between you and Ms Ryan on 28 June 2019 in which you and she discussed Richard’s injuries and the test results. Your explanation in that interview as to why it was only then that you recalled the incident was patently unbelievable.

3. For an offence of its kind, the principal offence is above the mid-range.

4. You are now 24 years old.

5. Your relationship with Ms Ryan has now ended.

6. You have no prior convictions.

7. You come from a good family and were brought up in a loving and supportive household.

8. You completed the Higher School Certificate in 2014. You have been in meaningful and continuous employment since that time.

9. You have no problems with illegal drugs, alcohol or gambling.

10. During the sentence hearing, it was asserted by you that your failure to act to protect your son was a result of you being in an abusive (both physically and psychologically) relationship with Ms Ryan.

11. To support your own evidence on that topic, your father gave oral evidence and a psychological report from Mr Choat was tendered.

12. Your father gave unchallenged evidence of Ms Ryan’s domineering and dominating influence over you. I accept his evidence.

13. However, you are a witness whose evidence I regard with considerable caution. I have noted on numerous occasions during these remarks where you gave either false or unreliable evidence, or gave a false, misleading or unreliable version of events to various figures in authority to whom you were obliged to tell the truth – and the whole truth.

14. Because of that caution, and the reasons underlying it, the weight to be given to Mr Choat’s report, to the extent that it relied on your history, is reduced.

15. Furthermore, by having regard to your admissions of giving untruthful evidence and your otherwise unreliable version of events, and the tone and content of Exhibit E, I approach with considerable caution your assertions as to the extent of the psychological domination of, and / or physical injuries inflicted on, you by Ms Ryan, and that that was the reason you failed to act to protect your son. However, by having regard to your father’s evidence, and the contents of Exhibit 2, I am satisfied, on the balance of probabilities, that, on occasions (the extent to which I am not able to be confident about – but certainly not to the extent you initially asked the Court to believe), Ms Ryan did inflict some physical injuries on you; and that she exercised a degree of psychological domination over you.

16. I am satisfied beyond reasonable doubt that you put your relationship with Ms Ryan – and a need to protect her – ahead of your duty to protect your son. Your failure to protect your son involved a complete abdication and abandonment of moral responsibility for him.

17. You pleaded guilty at an early time and, ordinarily, you would have received a 25 per cent discount for the utilitarian value of that early plea. However, considering the manner in which the sentence hearing was conducted and unnecessarily protracted, I shall reduce the discount for that plea to 15 per cent.

18. I shall allow a further discount of 10 per cent for past assistance to authorities.

19. You have given an undertaking to the authorities to assist in the prosecution of Ms Ryan whose trial was due to commence on 1 March 2021 (at a special fixture at Goulburn to be presided over by Baly SC DCJ). However, on 5 February 2021, Ms Ryan pleaded guilty before her Honour (in Campbelltown) to two Counts on the relevant indictment. After Ms Ryan entered those pleas of guilty, her Honour referred Ms Ryan’s sentence proceedings to me - given that I was (then) to sentence Ms Ryan’s co-offender (i.e. you). At the time of that referral, I was informed by the parties that, although there was substantial agreement as to the relevant facts, they were still in the process of being negotiated. I was also informed that, at that stage, there was likely to be a contested facts hearing on two issues: (a) the mechanism of injury; and (b) the nature of the relationship between you and Ms Ryan.

20. Clearly, if the second contested fact issue proceeds to hearing, the Crown will need to call you to give evidence – as obviously the Crown does not accept, in Ms Ryan’s sentencing proceedings, her assertions on (relevantly) this second issue. You have provided an undertaking to give evidence at any such hearing.

21. If the second contested facts issue proceeds to hearing, I shall obviously have to take into account, in the resolution of that matter, the manner in which your sentence hearing was conducted, and especially your admissions as to giving untruthful evidence and otherwise providing unreliable versions of events. It does not necessarily follow, however, that your evidence on the second contested fact issue will ultimately be rejected. In the circumstances, I shall allow a further 10 per cent discount for the value of any future assistance.

22. The abuse of children – whether psychological or physical and whether sexual or non-sexual – is abhorrent and the Courts must impose stern sentences to protect children from such abuse – especially where that abuse is inflicted by their own parents and in their own homes.

23. Accordingly, general deterrence is fully engaged and is the principal sentencing consideration in this case.

24. Specific deterrence, whilst of reduced significance in your case, still remains an important sentencing consideration.

25. You repeatedly expressed remorse during the course of your oral evidence – often tearfully; sometimes almost hysterically. I was, however, ultimately left with the impression that the emotion displayed was, to a significant degree, deliberately exaggerated. That impression was confirmed by my viewing of that part of your interview with police in which you gave a physical demonstration of what you witnessed on 19 June 2019. This conclusion reinforces my earlier caution of your reliability as a witness.

26. Ultimately, but with some hesitation, I am satisfied, on the balance of probabilities, that you are now (belatedly) genuinely remorseful for your offending conduct.

27. On balance, your prospects of rehabilitation seem to me to be reasonable.

28. No sentence other than a term of imprisonment is appropriate for your offending conduct.

29. In relation to the principal offence, and taking into account the matter on the Form 1, before the combined discount of 35 per cent I would have sentenced you to a term of imprisonment of 4 years. After the discount, the term of imprisonment is 2 years 7 months.

30. There is no evidence, and I am not satisfied on the balance of probabilities, that the conditions of your custody will be more onerous because of the nature of your offending.

31. However, because of your age and the fact that this will be your first time in custody, I make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence.

32. I, therefore, fix a non-parole period of 1 year 8 months to date from 8 February 2021 and which will expire on 7 October 2022 (this start date has taken into account the 8 days that you were held in custody after your arrest before you were granted bail).

33. I fix a balance of 11 months to date from 8 October 2022 and which will expire on 7 September 2023.

Decision last updated: 23 February 2021