R v Hemsworth

[2021] NSWDC 638

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hemsworth [2021] NSWDC 638

Hearing dates:

27 August 2021

Date of orders:

10 September 2021

Decision date:

10 September 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Aggregate sentence imposed one of 18 years and 6 months imprisonment with a non-parole period of 13 years and 10 months

Catchwords:

CRIME — Violent offences — Cause grievous bodily harm with intent

CRIME — Parental responsibility — Failure to provide necessities of life

CRIME — Public justice offences — Do an act with intent to pervert course of justice

Legislation Cited:

Crimes Act 1900 (NSW), ss 33(1)(b), 43A(2), 319,

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25F

Cases Cited:

R v Nolan [2017] NSWCCA 91

Nasrallah v The Queen [2015] NSWCCA 188

DPP v De La Rosa [2010] NSWCCA 194

Bugmy v The Queen [2013] HCA 37

Category:

Sentence

Parties:

Brendan Ray Hemsworth (Offender)
Director of Public Prosecutions (Crown)

Representation:

Counsel:
Mr Davies (Offender)
Ms O’Meagher (Crown)

File Number(s):

2019/00153458

Publication restriction:

Non-publication order in relation to victim’s name

SENTENCE

Introduction

1. The offender stood trial by a jury in relation to an indictment containing four counts, the particulars of which I will shortly explain. The offender was convicted by the jury of count 1 and count 3. Count 2 was an alternative to count 1 so no verdict was taken on that count. The offender pleaded guilty to count 4 on the indictment at the commencement of the trial before the jury, having indicated a plea of guilty to that count in the Local Court. Count 1 contained an offence that between 8 March 2019 and 13 March 2019 at Iluka the offender caused grievous bodily harm to SH with intent to cause her grievous bodily harm. That is an offence under s 33(1)(b) of the Crimes Act 1900 and has a maximum penalty of 25 years’ imprisonment and there is an applicable standard non‑parole period of seven years.

2. Count 3 contained an offence that between 8 March and 13 March 2019 at Iluka the offender, being a person having parental responsibility for SH, intentionally and without reasonable excuse failed to provide SH with the necessities of life, namely, medical care and attention, and the result of that failure caused a danger of death to SH. That is an offence under s 43A(2) of the Crimes Act and has a maximum penalty of five years’ imprisonment and there is no applicable standard non‑parole period. Count 4 contained an offence that between 8 March and 23 May 2019 at Iluka the offender created and maintained a false alibi with the intention of avoiding prosecution in relation to the injuries inflicted upon SH, thereby intending to pervert the course of justice. That is an offence under s 319 of the Crimes Act and has a maximum penalty of 14 years’ imprisonment and there is no applicable standard non‑parole period.

The Facts

3. Turning then to the facts. These being essentially sentence proceedings after trial, I am required to find facts consistent with the jury’s verdicts. To the extent that I find facts adverse to the offender, I must be able to find those facts beyond reasonable doubt. The jury’s verdicts on counts 1 and 3 reflect an acceptance of the Crown’s generally circumstantial case on those counts and a rejection of the evidence the offender gave at the trial.

4. The victim of counts 1 and 3, SH, was born on 28 March 2017 and was a little under two years of age as at the time of those offences. The offender as at the time of the offences was in a relationship with SH’s mother, Ms O, and the father of SH’s sister, R, who was born on 10 November 2014. The offender is not the biological father of SH, but as at the date of the offences was effectively the victim’s stepfather.

5. At the time of the offences Ms O, the offender, R, and SH were staying at the premises at 3/99 Charles Street, Iluka. Ms O was pregnant at that time. On the afternoon of Saturday 9 March 2019, the offender and Ms O and the children went fishing. It was dark when they returned to the premises at Iluka. Ms O, after arriving home, went into the kitchen to cook and the offender was in the living room with R. SH had crawled upstairs to her bedroom. Some time later the offender came into the kitchen and said to Ms O that she needed to go upstairs to check on SH. Ms O ran up the internal stairs and went into the bedroom where SH was. SH was on the bed and appeared to Ms O to be “very stiff”.

6. The offender then came into the room. Ms O also found SH to be shaking, crying and her eyes were rolling. Ms O told the offender to call an ambulance and the offender said, “No, if the ambulance comes then the police will be involved and I don’t want to go to gaol.” Ms O said to the offender, “You deserve to go to gaol.” Ms O also asked the offender what he had done to SH and he responded that he had kicked her. Ms O pressed the offender to call an ambulance and to take SH to hospital but the offender said no and that if the police came he would blame Ms O for the injuries to SH. The only phone that was available in the premises was the mobile phone of the offender and he would not provide it to Ms O.

7. At some point that evening the offender said to Ms O, “You don’t want to go to gaol.” That evening Ms O observed SH to have bruises on her back, both towards the upper part and the lower part. During the night Ms O checked on SH but saw no change in her condition and SH could not drink water, something she could previously do. Around 9am on the following morning, Ms O saw that SH’s chest was swollen and her left eye was closed and her face was swollen. SH could not eat or drink at that point and could not talk and made no response when Ms O spoke to her. The child was unable to sit up in bed.

8. Ms O again raised with the offender the need to take SH to hospital and he again refused, referring to the fact that he did not want to go to gaol. The door to the premises was locked and Ms O was unable to leave. SH received no medical treatment on the Sunday or during the course of the day on the Monday. On the evening of Monday 11 March 2019 the offender had a number of conversations with his friend, Michael Harrison, about SH. He also sent Mr Harrison a number of text messages, including a photo of SH which showed her swollen face. Mr Harrison at the trial was not able to be particularly certain about the number of conversations he had with the offender at that point, or the content of them.

9. In one of those conversations he did recall the offender had told him that SH had been unconscious for “a few days”; that he asked the offender what had happened and the offender had said he had “snapped”; and had panicked about the police. Mr Harrison at one point said to the offender that SH would have to be taken to hospital, and the offender asked him to come and help him, which Mr Harrison did. Mr Harrison then attended the Iluka premises and made observations of SH. He observed that her face and chest were swollen and told the offender that they had to take SH to hospital. The offender at some point that night before leaving to take SH to the hospital said, “Well, we’ll have to get her ready to go to the hospital and we will have to get our story straight about what happened.”

10. The offender said to Mr Harrison something like, “Maybe she fell on some rocks while we were fishing.” Mr Harrison said to the offender words to the effect of, “That’s crazy because she’d have cuts all over her,” and went on to say, “or maybe she fell down the stairs.” The offender agreed that that was the explanation as to SH’s injuries that they would provide when they took SH to hospital. SH was then taken by car to Maclean Hospital by the offender, Ms O and Mr Harrison. There was a discussion between them while still in the car park but after they had arrived at Maclean Hospital to the effect that they would tell the hospital staff that SH had fallen down stairs.

11. SH was first examined at Maclean Hospital by Nurse Mouat in the early hours of 12 March 2019. The nurse observed unusual swelling around the victim’s neck and left face, that she was not responding at all, and appeared to be “floppy”. The child’s heart rate was found to be high and her breathing was abnormal. The offender told Nurse Mouat that the victim had fallen downstairs two days earlier while he had been out fishing and that his partner, Ms O, had been present when the child fell. While at Maclean Hospital Nurse Mouat promptly arranged for SH to be examined by Dr Causer, who was the doctor on duty that morning.

12. The offender also told Dr Causer that SH had fallen down stairs two days earlier while he had been out fishing. The doctor observed that SH was unconscious and not responding, had quite a swollen neck and facial areas and was of the opinion she needed to be transferred to what he termed a ‘tertiary hospital’ given the limited resources at Maclean Hospital. Upon examination Dr Causer found that SH’s breathing was laboured, her circulation was poor and, after X-rays were performed, SH was found to have a pneumothorax on the right-hand side and air caught in the right-hand side of the soft tissue in her neck. The doctor considered that the child’s injuries were consistent with blunt force trauma.

13. Dr Causer arranged for SH to be lifted by helicopter to the Queensland Children’s Hospital. The offender and Ms O did not fly with her in the helicopter but subsequently made their own way there by car. Mr Harrison travelled to Queensland Children’s Hospital in his own car. Mr Harrison and the offender had a conversation in the car park before entering Queensland Children’s Hospital in which the offender told Mr Harrison to tell anybody who asked, including the police, that they had been fishing together when SH had suffered her injuries.

14. At about 4.30pm on Tuesday 12 March 2019 the offender and Ms O attended the Queensland Children’s Hospital, Brisbane, where they were spoken to by Dr Julie Beak, a paediatrician, in relation to the circumstances surrounding the injuries caused to SH. The doctor was told the following: SH had fallen down a flight of stairs at a holiday unit on the evening of 9 March 2019; the offender and his friend, Mr Harrison, were out fishing at the time and were not present in the unit when the fall occurred; Ms O was cooking dinner at the time of the fall in the kitchen of the unit; the offender and Mr Harrison checked on SH when they got home from fishing and she was asleep; the offender saw that SH’s eye was slightly swollen; the following day, Sunday 10 March 2019, SH woke up about 8 or 9am; SH drank milk from a bottle that she was able to hold and walked around the room for maybe an hour or so playing with her sister; SH lay in bed for the remainder of Sunday 10 March 2019 and had some water to drink.

15. Dr Beak was further told that SH slept through the night of Sunday 10 March 2019, that the offender thought about taking SH to a doctor if she was not better by Monday 11 March 2019; that on the morning of Monday 11 March 2019 SH was awake but did not want to get up and she appeared to be looking at people; that SH was not talking but “whinged” for a while; that SH drank only water, half a bottle twice; that on the evening of Monday 11 March 2019 the offender noticed SH’s chest to be swollen and checked on her every 30 minutes; that the offender rang Mr Harrison who told the offender to see the doctor if SH’s condition got worse; that around midnight the offender rolled SH over and saw that her face was swollen and that she “looked like World War III”; that SH seemed peaceful and she made some gargling noises; that Mr Harrison drove from Coraki to Iluka and drove the offender, Ms O, SH and R to Maclean Hospital; and that about 2am on Tuesday 12 March 2019 SH was presented at Maclean District Hospital where she was subsequently treated.

16. The Crown case was that a false account was provided to Dr Beak as to the circumstances concerning how SH suffered her injuries and came to be at the hospital. The jury, by its verdicts, essentially accepted the Crown case on those issues. I will return later to my findings as to the nature of SH’s injuries as found by Dr Beak’s examination of her. At about 9.43am on 13 March 2019 police attended 3/99 Charles Street, Iluka to conduct further inquiries. No person was present and, pursuant to a crime scene warrant, the premises were examined and nothing forensically was found which supported any suggestion the victim had fallen down the stairs.

17. On 14 March 2019 a warrant for the interception of the offender’s phone was obtained and a number of text messages and conversations involving the offender were intercepted and placed before the jury. I do not propose to refer to all of them but I will mention some. Between 14 March and 13 May 2019, during a number of the intercepted conversations, the offender informed other persons that he and Mr Harrison were “out fishing” when SH fell down the stairs and Ms O was the only adult present. On 16 March 2019 in a conversation between the offender and Mr Harrison, the offender said, “It took two days” for SH to “pass out”.

18. On 20 March 2019, the police spoke with Mr Harrison about the injuries to SH and he refused to provide a statement. During April 2019, the offender, in conversations with other persons, indicated he was suspicious that Mr Harrison was providing information to the police and referred to Mr Harrison as a “dog”. At 8.08am on 18 April 2019 the offender sent a text message to Mr Harrison which said, “Fuck you for turning against me.” Mr Harrison, responding to that message at 8.31 that day, said:

“I don’t hate you. I just cannot forgive you. There are some things that I think are evil and weigh heavy on my conscience, things that give me nightmares and starts to affect my health. I’m sorry but that is just the way it is.”

19. At 9.51am on 18 April 2019, the offender sent a text message to Mr Harrison which said, “I don’t mind if you talk to cops if you think it will help you. I’m happy to go to gaol, man. I can’t feel much worse than I do right now.” Later that day at 10.42am the offender sent Mr Harrison a text message saying, “Sink my ship and you are coming down with me, dog.” On 16 May 2019, the investigating detective told the offender that Mr Harrison had provided a statement to police and offered the offender and Ms O a formal interview. No detail of the content of Mr Harrison’s statement was provided to the offender. The offender and Ms O were offered a record of interview, as I say, by the police and the offender agreed to be interviewed on 21 May 2019.

20. At the conclusion of the conversation on 16 May 2019 with the investigating officer, a conversation between the offender and Ms O was recorded on a listening device. In that conversation the offender said, “I told him everything. He knows what happened. The only thing we can do is say we told our friend she had a fall and he said this is the story you have got to tell and he told us to lie.” In the same conversation the offender says:

“He’s a fucking dog. All we can say to them, baby, is  Michael, he said, ‘Listen, don’t fucking tell that you were home. You tell them you were fishing with me,’ and the rest of the shit he said. It’s his word versus the two of us. She fell when I was home, baby, or I was fishing by myself. That’s fucked, man.”

21. Later in the same conversation the offender said, “We’re going to get charged next week. Baby, I don’t know what to do. We are fucked.”

22. The offender was arrested in Queensland on 21 May 2019 and was extradited to New South Wales the following day. At trial the offender gave evidence. In summary, the offender told the jury he did not know how SH’s injuries were caused, that he had taken a lot of drugs on the Saturday and Sunday and essentially had no memory of what had occurred, apart from having gone fishing alone on the Saturday. The offender also gave evidence that on the Monday Ms O had told him that SH had fallen down stairs at the Iluka property. Because of his intoxicated state he did not realise the extent of SH’s injuries and that, when he did on the Monday evening, he elicited help from Mr Harrison and, with Ms O, took SH to the Maclean Hospital for treatment. He told the jury that he essentially had no memory of what he said to the nurse at Maclean Hospital, to Dr Causer or to Dr Beak. The jury, given its verdicts, rejected the offender’s account which, in my opinion, given the whole of the evidence that was before the jury, was a completely implausible and false account.

Nature of the injuries caused to SH

23. I turn now to the nature of the injuries that the offender caused to SH. Dr Beak’s evidence as to the nature of the injuries she found when she examined SH was essentially unchallenged at the trial. Those injuries included the following: very significant subdural haematomas, being bleeding between the layers of the brain; a large collection of blood in the subdural layer of the brain; there was a small focus of acute subarachnoid blood in the left frontal lobe of the brain. The doctor found extensive cerebral oedema, being swelling in the brain, in particular in the top half, pneumomediastinum, being what the doctor described as an air leak, in the gap between the heart and the lungs which resulted in pressure being placed on the trachea, the heart, the lungs and the oesophagus.

24. The doctor also found extensive subcutaneous emphysema, which occurs where there is air that has leaked into the skin, causing swelling in the chest wall, neck and face. The doctor also found bilateral pneumothoraxes, which the doctor explained as being air leaking between the lung and the chest wall, which was compromising SH’s breathing and causing the lungs to collapse. SH also had a tear in the lung, along with anaemia caused by significant internal blood loss, bruising to the upper arm, central spine process, buttock, the top outside of the right ear known as the pinna, and lower lip. SH also had suffered extensive retinal haemorrhages within the back part of the eye, a spinal subdural haematoma. There was also an extensive intracranial and intrathoracic injury and SH had suffered a number of seizures due to the brain injury she had suffered.

25. A bone scan revealed activity said to be suspicious of recent bone injury to the left tibia, right tibia, the left tenth and eleventh ribs and the left frontal part of the skull, however, no fractures were detected. Significant medical interventions were required to treat SH’s injuries and, but for the medical interventions, SH would have died. SH suffered a severe widespread hypoxic ischemic brain injury as a result of the loss of the supply of oxygen and blood to the brain. The evidence from Dr Beak as to the precise mechanism which caused SH’s injuries was not specific. She specifically expressed the opinion that the injuries were not consistent with a fall down stairs. The jury’s verdict reflects an acceptance of that opinion by Dr Beak.

26. Dr Beak’s evidence satisfies me beyond reasonable doubt that SH’s injuries were the result of significant acceleration/deceleration forces combined with angular rotation consistent with the amount of force involved in a high‑speed motor vehicle accident or falling a significant height, such as one storey or at least 10 feet. The injuries are also consistent with the force involved if the child had been kicked by a horse. The evidence does not permit me to say if the head injuries were sustained with or without impact to the head. While Dr Beak gave evidence that one cause of retinal haemorrhages is violent shaking, I am not able to find beyond reasonable doubt that is how that injury occurred, although it seems highly likely that was a part of the mechanism which caused SH’s injuries.

27. I accept beyond reasonable doubt Dr Beak’s evidence that SH’s hypoxic ischemic injury is likely to have worsened during the period between when her injuries were inflicted until she received medical treatment. That finding is consistent with the jury’s verdict in relation to count 3. The evidence, however, does not permit me to make any finding as to what degree the injury worsened as a consequence of the failure to seek prompt medical attention for SH. I accept beyond reasonable doubt the unchallenged evidence of Dr Copeland as to the long-term disabilities that SH has suffered as a consequence of her injuries. The ongoing impacts of her injuries which are expected to be permanent include severe impairment of both arms and legs and her trunk, resulting in SH having very stiff movements.SH has no ability to hold her head up, cannot roll, cannot stand or walk, has no functional use of her hands and is blind. SH has epilepsy as a consequence of her brain injury. She has no awareness of continence and is fed via a gastronomy tube surgically placed directly to her stomach. SH essentially has no way to communicate but has been observed to become quiet when she hears a familiar voice and upset when uncomfortable. As SH cannot communicate, her cognitive functioning cannot be measured. SH requires assistance from an adult for all day to day tasks. The victim regularly sees a number of therapists to address her needs. However, she is not expected to significantly improve her functional movement.

23. SH is at an increased risk of further medical complications due to the severity of her brain injury and resulting disability. The evidence supports a finding beyond reasonable doubt that SH has an increased risk of an early death as a consequence of the injuries she received. The evidence from Ms O, which I accept, was to the effect that, in essence, SH, prior to her injuries, was a normal, healthy child. As a consequence of the injuries she suffered that day at the hands of the offender, SH, in my opinion, has no quality of life at all. A powerful and moving Victim Impact Statement was read on behalf of the victim’s family and I have had regard to that on sentence.

Objective seriousness

29. Turning then to my assessment of the objective seriousness of the offences. All offences under s 33(1)(b) of the Crimes Act are serious offences because of the intention required in order to commit the offence. An intention to cause grievous bodily harm is an intention which can make out the offence of murder. The offence contained in count 1, in my opinion, is a particularly serious example of such an offence for the following reasons. The victim was a very young vulnerable child and the offender was standing in the position of her father. There was clearly a relationship of trust between them and the offence amounts to a breach of that trust, and the offence occurred within the victim’s home where she was entitled to feel safe.

30. There was an enormous difference in age and size between the victim and the offender. The level of force used to inflict the injuries to the child was very considerable. The attack on the child was unprovoked. The level of injury inflicted here was very severe and involved the infliction of a severe brain injury to the child. She has been left with no quality of life. While I cannot say to what extent her injuries deteriorated prior to finally being taken to hospital, there can be no doubt that the injuries inflicted upon her were very extensive and severe. I am not able to find precisely how the offender inflicted the injuries to the victim. It seems highly likely, given his comment to Ms O and the injuries, that it involved, in part, the kicking of her. The findings of Dr Beak also suggested it is highly likely that he shook the child violently but I cannot make that finding beyond reasonable doubt.

31. The comment that he had “snapped” to Mr Harrison suggests that he had lost control of himself and I cannot find that there was any significant planning involved in the commission of the grievous bodily harm offence.

32. The Crown submitted that the objective seriousness of count 1 was within the upper end of the range but not worst case. Counsel for the offender submitted the offence was above midrange but not at the upper end of the range. In my opinion, the objective seriousness of the offence in count 1 falls within the high range of objective seriousness but is not within the worst case category.

33. In relation to count 1, I consider that the following aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act are present: the offence was committed in the victim’s home; the offence involved a grave risk of death; the offence involved an abuse of the position of trust; and the victim was vulnerable because of her very young age. I have had regard to each of those factors in my assessment of the objective seriousness of the offence to avoid double counting.

34. In relation to the objective seriousness of the offence in count 3, the offender failed to obtain medical treatment for the young child victim for approximately two days. It would have been obvious to the offender that the child needed immediate medical assistance. The motivation for not taking the child to receive medical treatment was that he was concerned that his offending against her would have been discovered and reported to the authorities and ultimately he would be placed into custody. He prevented the child’s mother from taking steps to contact an ambulance by not permitting her to have access to his mobile phone and he effectively prevented her from leaving the premises. I am not able to say to what degree the child’s condition deteriorated as a consequence of the delay in taking her to hospital but I accept that it did to some degree. The Crown submitted this offence fell objectively within the upper end of the range of objective seriousness. Counsel for the offender submitted it fell below that level. I assess the objective seriousness of the offence in count 3 as well above the midrange of objective seriousness but falling a little below the high end of the range.

35. The Crown submitted that the following aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act were present in relation to count 3: the offence was committed in the victim’s home - I accept that factor is present but have considered it in my assessment of objective seriousness to avoid double counting, although it is a somewhat unusual application of that factor given the nature of the offence; the injury caused by the offence was substantial - given I cannot say to what extent the injuries increased because of the delay in obtaining medical treatment, and an element of the offence is that the failure caused a danger of death to SH, I do not consider that aggravating factor is established beyond reasonable doubt under s 21A.

36. Similarly, I do not accept the Crown’s submission that the offence in count 3 involved the aggravating factor that the offence involved a grave risk of death to SH. I consider also that the factors in s 21A of breach of trust and the vulnerability of the victim are inherent in the offence and, therefore, not present here.

37. In relation to the assessment of the objective seriousness of the offence in count 4, the offender was the creator of the false alibi and he was to be the beneficiary of it. He persuaded both Ms O and Mr Harrison to join in the false alibi for a period of time, suggesting some planning and thought in the offence, and the false alibi was repeated numerous times by the offender. The course of justice was perverted, however, for a limited period of time. I assess the objective serious of that offence as towards the bottom end of the midrange of objective seriousness.

The offender’s subjective case

38. Turning then to the offender’s subjective case, the offender is a 41 year old male. He has a limited criminal history and he has never before served a term of imprisonment. In terms of previous offences of violence, his criminal history includes offences of intimidation of a police officer, common assault in a domestic setting and damage property. His record does not disentitle him to some leniency here. There was some evidence in the trial from Ms O that he had, in the past, engaged in domestic violence towards her and the intercepted recordings suggest that he exercised aggressive control over her. Even accepting that evidence, which I do, it concerned a very limited period in the offender’s life and does not result in a finding that he is a person of general bad character.

Documentary material

39. In terms of documentary material, I have before me: a Sentencing Assessment Report dated 5 August 2021, a report by Dr Adam Martin, forensic psychiatrist, dated 10 August 2021, a background statement of the offender dated 25 August 2021, a statement from his mother dated 25 August 2021, and a letter of attendance from the CONNECT resilience program at Mid North Coast Correctional Centre certifying that he attended eight out of ten sessions of the program.

Family background

40. In terms of the offender’s family background, he was born in Coonamble and raised by his parents. He has a younger brother, a younger sister and an older brother. The offender described his father in the documentary material that is before me as a heavy drinker as well as physically and verbally abusive.

41. The offender described receiving “mixed messages” about violence from his father, saying that if he lost a fight at school his father would beat him up, but if he won a fight his father would hurt him for having fought. The offender stated that at age 15 his father asked him to fight him and subsequently the offender beat up his father “quite badly”. As a result of this his parents asked him to leave home. His mother’s statement provided some support for the fact that the offender received beatings when he was young at the hands of his father. The offender has had no recent contact with his father or brothers but remains in contact with his mother and sister, who have indicated to the author of the Sentencing Assessment Report their ongoing support of him. He currently has six children in total to four different mothers.

Education and employment history

42. Turning to the offender’s education and employment history, the offender told the psychiatrist he left school after year 10, at which time he was working two jobs and “partied really hard”. The offender described working in the opal trade since his teenage years though has apparently dissipated the money earned on drug use and travel. According to his background statement, the offender described various other employments through the years, such as jackerooing, an apprenticeship as a baker and working on a railway.

Substance use

43. Turning then to the offender’s substance use, the offender described drinking heavily in the past and drank alcohol and smoked cannabis from the age of 16. The offender stated, however, that he has not consumed alcohol for 12 years.

Psychological/psychiatric history

44. The offender described dependent use of prescribed opiates, such as codeine, oxycodone and morphine, though he denied heroin as well as intravenous drug use. The offender described his ongoing use of hallucinogens, such as cannabis, LSD and DMT, prior to being incarcerated. The offender described most of his problems as having been related to drug use. He denied use of illicit substances in gaol. The author of the Sentencing assessment report noted the offender had reported taking LSD at the time of the offence and he attributed his inability to recall events to the effects of the drug. His account at trial that he was very considerably affected by illicit substances at the time of the offending was not supported by Ms O or by any other evidence. His account was clearly rejected by the jury.

45. As I said when outlining my findings of fact, I consider that the offender’s evidence concerning the events on the day the injuries to SH were inflicted and his assertion he could not remember what occurred when SH was finally taken for medical treatment because of illicit drug use to be implausible and false. I am not satisfied that any issues he may have had with illicit drugs had anything to do with the commission of the offences. Even if they did, that is not a mitigating factor on sentence.

Response to supervision if relevant

46. Turning then to the offender’s psychological history, the offender told the psychiatrist that he was medicated with dexamphetamine for ADHD as a teenager, saying that he had violent outbursts and used to fight all the time at school. He said that he was prescribed this medication for about two years.

47. He stated that he had seen various clinicians around this time but has not had regular counselling since his adolescence. The offender expressed to the psychiatrist self-harming ideation in the past, which had led to overnight mental health unit admissions on a couple of occasions, allegedly prompted by arguments and relationship breakups. The offender further described being anxious and depressed following a partner moving to Queensland with his sons. The timeline of these events is unclear on the evidence. The offender told the psychiatrist that he had emotional problems, such as violent outbursts, as a result of his abusive father. According to the Sentencing Assessment Report, however, the offender acknowledged that he had a tendency towards aggression only when he was younger and asserted that he has been wrongly depicted in the proceedings as “aggressive and controlling”.

48. The offender initially denied having any current issues with aggression or the use of violence. However, he conceded eventually that he would benefit from education to assist him in controlling himself in stressful situations. The psychiatrist opined that the offender can be diagnosed with persistent depressive disorder characterised by low-grade depressive and anxious symptoms, as well as substance use disorder, although this is apparently in remission in custody.

49. I do not consider that any of the mental health issues referred to in the subject material here attract the principles in DPP v De La Rosa [2010] NSWCCA 194 such as to significantly mitigate the sentence. There is no real suggestion in the material that his mental health was in some way causative of the offending.

Attitude to the offence

50. The offender’s attitude to the offence is concerning. The offender maintains his innocence which is, of course, his right but demonstrates that there is no remorse. According to the psychiatric report and the Sentencing Assessment Report, the offender denies responsibility for the offending. Instead, he blames Ms O, the victim’s mother, for the injuries that occurred and goes so far as to say that he has been the “victim” of the legal system and of Ms O. When questioned about previous contact with the law, the offender is recorded in the reports as minimising these and attributed blame to his partner or other parties.

51. According to the Sentencing Assessment Report, the offender’s primary concern was initially for himself and the consequences he has suffered. He has almost no insight into the impact of his offending, although he was able to articulate, after multiple interviews, that the victim’s life is ruined. It is clear that the offender accepts no responsible for the very serious offending he has committed against a young, vulnerable, innocent child. According to the Sentencing Assessment Report the offender has been assessed as a medium risk of reoffending.

52. While I accept the evidence of a somewhat difficult family upbringing, I do not consider that it was to such a degree that there is a reduction of moral culpability for the offending, consistent with the principles in Bugmy v The Queen [2013] HCA 37. In coming to that conclusion, I have had regard to the discussion of those principles by the majority judges in the recent decision in Nasrallah v The Queen [2015] NSWCCA 188.

The future and risk of re-offending

53. The offender pleaded guilty to the pervert the course of justice offence, count 4, upon arraignment and had indicated a plea of guilty to that offence when the proceedings were still in the Local Court. There was not a significant utilitarian value to that plea as all of the evidence in support of that count was still required to be called before the jury and there was some dispute on the evidence as to the scope of the false alibi. In the circumstances here, I propose to allow him a 15% discount of his sentence on that count for the utilitarian value of his plea to count 4 and have had specific regard to s 25F of the Crimes (Sentencing Procedure) Act.

54. As I mentioned earlier, there is no remorse shown here. It is always difficult to predict prospects of rehabilitation. The offender has a limited prior record and I note the Sentencing Assessment Report assessment that he is a medium risk of reoffending.

55. The offender has some family support and a history of gainful employment. He will serve a very considerable period of time by way of an aggregate non‑parole period before being able to return to the community. On balance, I consider that there are reasonable prospects for rehabilitation. Here I am sentencing a man in early middle age. He does not have any significant mental health issues, in my view, and has reasonable prospects of rehabilitation. As I say, he will serve a substantial sentence and there will be a substantial period of parole which will facilitate his rehabilitation and reintegration into the community. I am not persuaded in these circumstances I should make a finding of special circumstances when fixing the non‑parole period (see R v Nolan [2017] NSWCCA 91 at [95]).

Imposition of sentence

56. The offender has been in custody since his arrest and the sentence will be backdated to 21 May 2019 to reflect the period of pre‑sentence custody. I note that while in custody the offender has been the subject of offences committed by other inmates upon him, including demand money with menaces. It was submitted that he is likely to spend much of his time in strict protection and I should have regard to that when imposing sentence. I have no evidence before me, however, as to what are the likely conditions of imprisonment of the offender should he opt to continue to remain in protection and how those conditions differ from that of an ordinary prisoner.

57. I am sentencing the offender during a re‑emergence of the COVID-19 pandemic. It is well known that the disease has entered the prison population. Indeed, the judge alone trial I was doing last week had to be adjourned because an inmate, who was the accused in that trial, had tested positive for COVID-19. The current public health orders mean that there are no in-person visits in the prisons it would seem. Anyone being sentenced at this time would have a heightened sense of anxiety, as it is reasonable to assume that any prison would have a limited ability to control an outbreak of the disease within its walls. I am unaware of the level of vaccination within the gaol system. I have had some regard to those matters in determining the appropriate sentence.

58. I will utilise the aggregate sentencing provisions when imposing sentence. If I had not done so, my approach to accumulation would have been a modest degree of accumulation of each sentence. Each offence arises out of, in essence, the one incident but focuses on different conduct by the offender. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim and the community, and rehabilitation of the offender.

59. Violent offences again young vulnerable children resulting in very severe injuries are abhorrent to all right-thinking members of our community. Here, effectively, a little girl’s future has been taken from her and her family. The failure to seek prompt medical treatment for the child was extremely callous. Offenders who commit such offences against young vulnerable children must receive very significant sentences in order to deter the offender concerned and others from such truly wicked conduct. Offences involving perversion of the course of justice are always serious as they have the capacity to undermine the justice system and the integrity of the courts.

60. I have considered the cases to which I was referred by the parties. No two cases are ever the same and sentencing remains a task of instinctive synthesis, considering often conflicting concepts in accordance with accepted legal principles. The maximum penalty in relation to the offence in count 1 and the standard non‑parole period have been taken into account as a legislative guidepost. I will firstly record the indicative sentences and, in respect of count 1, the indicative non‑parole period. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.

61. The sentences, Mr Hemsworth, you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence, which is the sentence and non‑parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole. If I did not formally convict the offender of counts 1, 3 and 4 upon delivery of the jury’s verdicts, I do so now.

56. The indicative sentence for count 1 is 16 years’ imprisonment with an indicative non‑parole period of 12 years. The indicative sentence on count 3 is three and a half years’ imprisonment. The indicative sentence on count 4 is three years’ imprisonment. I impose an aggregate sentence of 18 and a half years’ imprisonment with a non‑parole period of 13 years and ten months. The sentence commences on 21 May 2019 and expires on 20 November 2037. The non‑parole period expires on 20 March 2033. The earliest date you are eligible to be released to parole is the date of the expiry of the non‑parole period, which is 20 March 2033.

57. Whether you are, in fact, released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

Orders

1. The offender is convicted of counts 1, 3, and 4 of which he was found guilty by a jury after trial

2. Impose an aggregate sentence of 18 and 6 months’ imprisonment with a non‑parole period of 13 years and 10 months. The sentence commences on 21 May 2019 and expires on 20 November 2037. The non‑parole period expires on 20 March 2033.

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Amendments

01 December 2021 - Amended typographical error in [1]

02 December 2021 - Removed further identifiers of victim to protect identity

Decision last updated: 02 December 2021