R v Livesey (a pseudonym) - [2023] NSWDC 4

District Court

New South Wales

Medium Neutral Citation: R v Livesey (a pseudonym) [2023] NSWDC 4
Hearing dates: 14 November 2022
Decision date: 10 February 2023
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 10 years with a non-parole period of 7 years and 6 months

Catchwords:
CRIME - SENTENCE - assault occasioning actual bodily harm - cause grievous bodily harm to person with intent

Legislation Cited:
Crimes Act 1900 (NSW), s 59(1), s 33(1)(b)

Category: Sentence
Parties:
Rex (Crown)
Mr Livesey (a pseudonym) (offender)
Representation:
Ms Prowse (Crown Prosecutor)
Mr Steward (Counsel for the offender)

File Number(s): 2020/00251479
Publication restriction: Statutory non publication and suppression orders made of the names of the offender, co-accused, and child victim, or of any other thing that might, directly or indirectly, identify any of them.

Mr Livesey, on 1 September 2020, you were arrested and charged with acts of physical violence against the young son (Victor, a pseudonym) of a woman with whom you were having an extra-marital affair (Ms Ngo – a pseudonym).
You were committed by the Local Court for trial in relation to five charges on 29 September 2021.
You first appeared before this Court on 29 October 2021 at which time you and Ms Ngo were arraigned on indictment 4.7 which contained seven Counts: Counts 1 to 6 inclusive related to both you and that co-accused; Count 7 related only to the co-accused.
Upon your arraignment on that occasion, you pleaded not guilty to all six Counts and a trial date was fixed for 29 August 2022.
The proceedings against you were listed for mention before another Judge on 15 August 2022 at which time you were re-arraigned on indictment 4.7. You then entered pleas of guilty to Counts 4 and 5; Counts 2 and 3 were to be placed on a Form 1 referrable to Count 5; Count 6 (being an alternative Count to Count 5) became otiose; and the Director of Public Prosecutions directed no further proceedings in relation to Count 1.
I pause to observe that the trial in relation to your co-accused (Ms Ngo) was listed for hearing on 16 January 2023 but was no billed shortly before that date.
These sentence proceedings concerning you were listed for hearing before me on 14 November 2022. Because convictions apparently had not been entered following your pleas on 15 August 2022, I rearraigned you on indictment 4.7. You again pleaded guilty to Counts 4 and 5 – and I directed that convictions be entered. On that occasion, you formally consented to Counts 2 and 3 being taken into account in relation to the sentence for Count 5; and you acknowledged your guilt in relation to those two matters. Having read the agreed facts on sentence, I certified the relevant Form 1.
At the conclusion of the sentence hearing on 14 November 2022, I reserved my decision and adjourned the proceedings to today for the imposition of sentence.
You are, therefore, appearing today for sentence in relation to the following two principal offences.
First, the offence of assault occasioning actual bodily harm. This involves a contravention of s59(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 5 years imprisonment. There is no standard non-parole period. This was Count 4.
Secondly, the offence of causing grievous bodily harm with the intention of causing grievous bodily harm. This involves a contravention of s33(1)(b) of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment. There is standard non-parole period of 7 years imprisonment. This was count 5.
As I have indicated, you have asked the Court to take into account, in connection with Count 5, two matters on a Form 1 which I have certified, each of which is a matter of assault occasioning actual bodily harm. These were Counts 2 and 3.
The facts surrounding your offending (with one exception) were agreed and are contained in a document entitled “Final Facts” (which is at Tab 3 of Exhibit B). The exception to which I have just referred related to a contested fact in connection with Count 4. During the sentencing hearing which was conducted on 14 November 2022, I held that the Crown had not established, beyond reasonable doubt, the contested fact for which it contended. I indicated I would state my reasons for coming to that conclusion in the delivery of these remarks on sentence. I shall return to that topic later.
Recast by me as to style but not substance, the agreed facts are as follows.
In June 2018, you married your wife when you were 18 and a half years old.
As at March 2020 (by which time you were 20 years old), you were having an extra-marital affair with Ms Ngo, the mother of Victor. Ms Ngo was 31 years old; and Victor was one month short of his fifth birthday.
During the course of your affair with Ms Ngo, you continued to live with your wife and her family; but you frequently visited Ms Ngo’s home.
Notwithstanding that you did not live permanently or full-time at the house of Victor or his mother, Victor, as at March 2020, would refer to you by a Vietnamese word which meant “dad”.
In mid-March 2020, Ms Ngo rented out one of the spare bedrooms in her house in the Sydney suburb of Cabramatta to Ms Nguyen.
Around 4 April 2020, at about 10:00pm, Ms Nguyen was in her bedroom when she heard a loud noise. It was you shouting at Victor, “Stop crying” – and Victor was crying. Ms Nguyen opened her bedroom door and saw you in the living room holding an object which looked like a broom handle. Victor and his mother were nearby. You were shouting at Ms Ngo, “You don’t know how to discipline him. Let me do it”. Ms Nguyen went back inside her room and shut the door.
After that door was closed, Ms Nguyen heard the sound of “something” being hit about 5 or 6 times. Victor then screamed (in Vietnamese), “Please don’t hit. Please don’t hit. Mum, please save me”. This went on for about one hour (my emphasis) during which time you were shouting, “Do you apologise?” When Victor did not reply, there were further sounds of hitting and Victor calling out, “Help me mum, save me mum”.
Eventually you left the house and Victor was told by his mother to go to bed.
Between that date in early April 2020 and 18 April 2020, Ms Nguyen heard similar incidents occur about 7 or 8 times. They were always at night. Ms Nguyen would hear: you screaming at Victor; the sound of something being hit; and Victor crying. However, at no time did Ms Nguyen observe any injuries to Victor; nor did she try and discuss these issues with Ms Ngo.
These various incidents are not the subject of any charge. They are relevant to these proceedings, however, to show that the events the subject of charges were not isolated events; and they are also relevant to assessing your prospects of rehabilitation.
At about 10:00pm on 18 April 2020, Ms Nguyen heard another incident involving you and Victor. She heard you shout (in Vietnamese) at Victor: “How dare you throw paper at my face. You apologise now”.
Victor did not “apologise”, but (like the little boy that he was) he was laughing and running around.
Ms Nguyen then heard you hitting Victor. (It is to be noted that, in the earlier incidents to which I have referred, although there were references to the “sounds of hitting”, the Crown does not say that it is able to satisfy me, beyond reasonable doubt, that what was being hit was Victor - as opposed to a bed, a wall, or some other object). But, even if he weren't being hit, his words reveal his terror and distress.
As Ms Nguyen heard you hitting Victor, she also heard Victor crying out, “Mum help me, mum save me”.
This incident went on for about one hour (my emphasis again). Ms Nguyen made sound recordings of this incident, but they were not placed in evidence in the sentence hearing.
Subsequent photographs on Ms Ngo’s phone and accessed by police showed the following injuries caused to Victor by you as a result of this criminal misconduct: one photograph showed redness to the left side of Victor’s face; and four photographs showed redness on the left side of his face, the right side of his neck, his left thigh and right buttock.
It is this incident on 18 April 2020 which is Count 2 (and one of the matters on the Form 1 to be taken into account with Count 5). Because of the nature of that matter, it will result in a meaningful increase in the sentence for Count 5.
About 3 months later, on or about 31 July 2020, you dropped Victor off at his paternal grandmother’s house. That lady, and Victor’s birth father, saw that Victor had bruises on his thigh. When they asked him about those bruises, Victor said you had done it.
The next day, Victor’s grandmother returned him to his mother’s house. The grandmother questioned Ms Ngo about the bruises and repeated the allegation that you were responsible for them. Ms Ngo said that she did not believe her son; and that the bruises were caused when Victor fell off his bike.
Ms Ngo seemed agitated by the allegations being made by Victor’s grandmother. Up until this time, Victor regularly stayed with his birth father and paternal grandmother each Friday afternoon; and he would be returned to his mother on the following afternoon. However, after Victor’s paternal grandmother raised those bruises with Ms Ngo, Victor was no longer allowed to see his birth father or paternal grandmother.
It is the bruising observed by the paternal grandmother in late July 2020 which is Count 3 (and the second matter on the Form 1 to be taken into account with Count 5). Because of the nature of that matter, it will result in a meaningful increase in the sentence of Count 5.
At some point (or points) between 2:40pm on 18 August 2020 and 10:22pm on 21 August 2020, you (again) assaulted Victor. As a result of that assault, according to the Final Facts document in Exhibit B, you caused bruising down the left side of Victor’s face, scratches on his face, chin and chest, and a bruised / swollen bottom lip. A more informative description of those injuries is set out in the second [71] on page 26 of Dr Wong’s report, the provenance of which I refer to at [53] below (I note that there are some editorial (only) irregularities in Dr Wong’s report insofar as paragraph numbering is concerned: for example, there are two paragraphs numbered 71 on page 26 and another paragraph numbered 71 on page 27):

“71…
…
B. Single image of [Victor], taken front on, showing [Victor] kneeling on a bed. He is wearing a long sleeve [shirt] and pants. He appears distressed. He has physical injuries (bruises and abrasions to his left face including from left temple, to left cheek, and down to left side of chin. His left lower lip appears bruised and swollen. Several abrasions can also be seen on his neck, under his chin on both sides, and near the collarbones. His arms are crossed in front of [his] chest and it appears that he may have been using his right arm to assist with holding up his left arm. The back of his left hand appears somewhat red and swollen. According to police, this image was recovered from mother’s mobile phone. Date of image was reported to be 21/08/2020.
…”

It is these injuries to Victor which constitute the principal offence being Count 4.

The written descriptions of those injuries do not, however, adequately convey the true nature of the offending done by you to that vulnerable and defenceless child. The injuries were, however, recorded by Ms Ngo – why she did so is not revealed in the material presently before me. That video (Exhibit D) was played during the sentence hearing. It was very distressing to watch and listen to it.
By 28 August 2020, Ms Nguyen had moved out of the premises and Ms Ngo had a new housemate, Mr Tran.
At some point (or points) between 22 August and 28 August 2020, you assaulted Victor using your hands, arms and a broom handle – and you did so with the intention of causing grievous bodily harm to that vulnerable and defenceless child.
At about 8:30pm on 28 August 2020, Mr Tran and his friend returned to the house. They went into the Mr Tran’s room and started to watch a movie. From that room, they heard sounds coming from Ms Ngo’s bedroom – and those sounds were consistent with you hitting and screaming at Victor.
Ms Ngo: telephoned Victor’s birth father; told him you were assaulting Victor; and asked him to ring the police – which he did.
At about 9:45pm, the police arrived at Ms Ngo’s premises. They rang the doorbell and ordered you to open the door. You refused. The police then threatened to kick the door in. You still refused to open it. In the meantime, other officers went to the rear of the premises where they gained access through the backdoor.
You were then arrested for assaulting Victor.
The police found Ms Ngo in the bathroom. She was holding Victor in her arms. Victor was visibly bruised and cut. His eyes were open, but he appeared semi-conscious.
The police examined Ms Ngo’s bedroom. There was a mattress on the floor of that room – and the sheet on that mattress was covered in splintered wood from an item such as wooden broomstick. The Final Facts document in Exhibit B contains a photograph (Photograph 2) which shows the splintered wood found in that room. That photograph is chilling. Through your counsel’s written submissions, you have expressly admitted that the injuries in Count 5 involved the use of that broomstick.
The police found Victor’s blood on the sheet on the mattress, on the walls of the room, and on the floor. A blanket with Victor’s blood was found in the laundry. A top sheet and pillowcases also with blood on them were found in an outside bin.
During a forensic procedure, your right hand was found to be bruised; and both of your hands had marks “consistent with offensive injuries”.
On 29 August 2020, Victor was taken by ambulance to Liverpool Hospital. He was noted to be withdrawn, lying in a foetal position, mumbling and making incomprehensible sounds.
Multiple extensive bruises, abrasions and contusions were noted throughout his body on arrival at that hospital.
Because of blood loss from his injuries, Victor required an urgent blood transfusion.
After initial stabilisation, Victor was transferred to the Children’s Hospital at Westmead Paediatric Intensive Care Unit for specialist management.
Victor was discharged from that unit two months later on 29 October 2020. The Final Facts document contained, amongst other things, the following:

“42. On 29 August 2020, [Victor] was found to have serious and significant head injuries some of which constitute grievous bodily harm. The injuries included (my emphasis):

Acute (i.e., no more than 7-10 days earlier) traumatic brain injury consisting of injury to the cerebellum and cerebral hemispheres, widespread subdural haematomas, and cortical contusions. The injuries caused neurological deficits including dysarthria (inability to produce clear speech sounds), involuntary shaking movements, inability to hold or pick up objects, inability to stand or walk, and an inability to sit up unassisted. The predominant cause of the brain injuries is very likely rotational, acceleration-deceleration head injury (i.e., shaking with a degree of force well in excess of that expected in day-to-day activities);

Subgaleal haematoma (bleeding between the skin and the skull bone) to right forehead, likely caused by either direct blunt force trauma to the site or hair pulling that tore the blood vessels;

4cms x 4cms soft tissue swelling to the left forehead, likely caused by blunt force trauma;

Injuries to both eyes, specifically retinal haemorrhages likely caused by the aforementioned rotational acceleration-deceleration head injury, and commotio retinae (retinal oedema) likely caused by blunt force trauma to the eye;

Acute fractures of the 9^th and 10^th ribs, likely the result of either direct blunt force trauma to the body or compression of the trunk;

Acute fracture of the spinal vertebral column at S4 (lower sacrum), likely the result of direct impact or forceful downward pressure (axial loading);

Acute fracture of the left ulna (i.e., “night-stick fracture” to the mid-forearm), likely the result … of blunt force trauma caused when the victim was holding up his arm to protect himself (discussed above in paras 27-28);

Multiple skin and soft tissue injuries at different stages of healing in the form of:

Bruising, abrasions, and lacerations including extensive bruising to the left hip / buttock (causing subcutaneous fat stranding), likely caused by severe blunt force trauma to that area, and various linear bruises likely caused by blunt force trauma with an implement; and

Burns including a burn to the buttock, likely caused by a hair dryer, although some of the chest burns may be friction burns caused by dragging.

43. Police located cigarette lighters and a gas tin in the bedroom, cigarette butts throughout the house, a pole with a burnt end outside the house, and a hair dryer in the bathroom drawer. The burn on the victim’s buttocks was consistent with this hair dryer.
44. There was no underlying medical conditions that would explain the victim’s presentation. The injuries to the victim were caused by inflictive abusive trauma including blunt force trauma.
45. It is possible that all the internal injuries were sustained in the hours prior to the arrival of the ambulance (emphasis in the original).”

During his stay at Westmead, Victor was mostly under the care of Dr Grace Wong who has provided the Court with a 54 page expert’s certificate prepared on 14 April 2021. The length of the certificate is an indication of the scope and seriousness of the multiple traumatic injuries you inflicted on Victor. However, I have noted that not all of those injuries were inflicted in the period covered by Counts 4 and 5 on the indictment.
In the circumstances of this case, it is appropriate – and in my opinion necessary – to set out in full Dr Wong’s opinion (which commences at page 27 of the Expert Certificate), which was tendered in the Crown case without objection, limitation, qualification or challenge. By having regard to the circumstances in which the report was tendered, and the nature and purpose of the context evidence, the only rational inference is that the injuries to Victor in the expert’s report, which go beyond that which is contained in [42] to [45] of the Final Facts document, were also inflicted on him by you. Whilst you are not to be punished for uncharged acts, that additional material is relevant to show that the offences on the indictment were not isolated (and hence help inform an assessment of your moral, if not criminal, culpability) as well as going to issues of remorse and prospects of rehabilitation. Furthermore, it would be quite unrealistic, in trying to comprehend the terror and distress undoubtedly sustained by Victor in the immediate circumstances of Count 5, to ignore what he had previously been subjected to by you. The relevant parts of the report are as follows:

“…
Severe traumatic brain & spinal injury
71. [Victor's] brain injury involved:

Injury to the cerebellum

Extensive bleeding (subdural and subarachnoid) around the cerebellum

Parenchymal injury to the cerebellum

Injury to the cerebral hemispheres

Bleeding (subdural) around the cerebral hemispheres

Cerebral cortical contusions

Subgaleal haematoma over the anterior right front skull

Evidence of blunt force trauma to forehead (bruising and soft tissue swelling)

Extra-axial bleeding (either subdural or extradural) to the spine

Injury to the cerebellum

73. The cerebellum is a major structure of the brain, located at the back of the skull…. It is responsible for co-ordinating voluntary movements, as well as … motor skills (sic) such as balance, co-ordination and posture.
...
74. [Victor] had significant damage to his cerebellum in the form of bleeding in and around the cerebellum, as well as swelling of the cerebellum parenchyma. This resulted in [Victor] having significant neurological deficits including problems with posture, co-ordination, and balance. It also resulted in [Victor] having dysarthria (inability to produce clear speech due to lack of control over muscles involved in speaking), and also involved involuntary shaking movements of the body and limbs, a hallmark of cerebellum injury.

75. [Victor’s] most recent MRI showed volume loss of the cerebellum. When brains cells are irreversibly damaged, brain cells and their connections atrophy (i.e. these cell (sic) die and become liquified) which then results in volume loss (i.e. shrinkage) of the brain. Brain matter volume loss is a permanent and irreversible process. In [Victor’s] case, the volume loss of the cerebellum is indicative of some degree of permanent damage to this part of the brain secondary to traumatic brain injury.
Injury to the cerebral hemispheres
73. Apart from trauma to the cerebellum area, [Victor] also had injury to the cerebral hemispheres…. [Victor] had bleeding (in the form of subdural haemorrhages or subdural haematomas…) over and around both cerebral hemispheres, as well as cerebral contusions, which are bruises of the brain matter…
…
Subdural haematomas...
74.The brain is covered by three layers of meninges (membranes) – the outermost dura mater which is closest to the skull bone, the arachnoid mater underneath, and the innermost pia mater which is closest to the brain surface….
...
75. Blood vessels (called “bridging veins”) traverse across these membranes to drain venous blood away from the brain. Normally the dura mater and the arachnoid mater are tightly adherent together; however when bleeding occurs in between these membranes, the blood cleaves the dura mater and arachnoid mater apart, resulting in bleeding inside the “subdural space” and forming a “subdural haematoma”….
76. The dura mater has two main reflections (infoldings) which separate the inside of the skull into three compartments – the left hemisphere, the right hemisphere, and the posterior fossa (which houses the cerebellum and brainstem)…. Any bleeding within the subdural space of one compartment will remain within that compartment; subdural haemorrhages do not migrate from one compartment into another. The two cerebral hemispheres are “supratentorial” and the posterior fossa is “infratentorial” – this indicates their position in relation to tentorium cerebelli….
...
77. The [subdural haematomas] seen in [Victor] were widespread in their distribution, involving all three compartments of the brain (and therefore both supra- and infra- tentorial in distribution). Within the cerebral hemispheres, the bleeding was present not only along both left and right cerebral convexities, but also along the interhemispheric fissure (i.e. in between the left and right hemispheres) and over the tentorium cerebelli (i.e. below both hemispheres).
78. This pattern of [subdural haematomas] distribution is strongly characteristic of injury caused by high force rotational head trauma, where repetitive acceleration-deceleration forces are applied to the head, e.g. when a child is forcefully shaken with the head unrestrained. In an acceleration-deceleration injury there is differential movement of the brain relative to the skull, leading to rupture/tearing of the blood vessels within the meninges, particularly the subdural vessels which traverse across the subdural space. The torn subdural vessels result in bleeding within the subdural space, thereby producing the [subdural haematomas]. The pattern of distribution of [Victor’s] [subdural haematomas] raises significant concerns that a forceful repetitive acceleration-deceleration head injury (also called a “rotational” head injury) was the major contributing cause, with or without additional blunt force trauma to the head.
Cerebral contusions
79. Apart from subdural bleeding, [Victor] was also found to have contusions of the cerebral cortex in the frontal and parietal regions (near the vertex, i.e. top of the head). A cerebral contusion is a “bruise” of the brain tissue.
80. Cerebral contusions are common in the setting of a significant head injury, and are often caused by a blow to the head. They can occur directly under the site of impact from blunt force trauma to the head. They can also occur indirectly when a blow to the head causes movement of brain inside the skull, which results in the brain colliding with sharp ridges on the inner surface of the skull or a fold in the dura mater, the brain’s tough outer covering.
81. In [Victor’s] case, the location of the contusions at the parafalcine region near the top of head may have been caused either by (a) a direct blow to the top of the head, or (b) an indirect mechanism as described above, with the top of the brain colliding with the tough dura mater at the parafalcine region (which is located at the top of the head, along the midline).
Subgaleal haematoma
82. [Victor] had a subgaleal haematoma to his anterior right frontal skull. A subgaleal haematoma is bleeding between the skin and skull bones and is generally caused by direct blunt force trauma at the site of injury. Subgaleal haematomas can also be caused by hair-pulling which causes traumatic tearing of the blood vessels between the skin and skull bones.
Bruising and swelling along forehead.
83. [Victor] had multiple bruises along his forehead, and including one which was associated with a large area of fluctuant soft tissue swelling (4cm by 4cm) over the left forehead. These bruises and swelling are indicative of multiple blunt force trauma to the head.
Spina extra-axial bleeding
84. [Victor] was also found on MRI spine to have evidence of extra-axial bleeding along the spine. Based on the MRI findings, it was not possible to definitively ascertain exactly which meningeal layer this extra-axial blood was located, however it is believed that this blood was likely subdural (beneath the dura mater), rather than epidural (above the dura mater) in location.
85. This extra-axial bleeding in the spine, which was most likely subdural blood, may have been caused by:

Tracking of subdural bleeding from the posterior fossa (i.e. around the cerebellum) down the spine;

Direct trauma to the spine, e.g. hyperflexion/hyperextension injury, such as from a (sic) when a child is forcefully shaken causing excessive “bending” of the spine;

Some combination of the above, i.e. direct trauma to the spine from hyperflexion/extension which causes the spinal subdural space to “open up” allowing blood from the posterior fossa to track down.

86. Spinal subdural/epidural bleeding, when seen in combination with intracranial [subdural haematomas], raises significant concerns for inflicted abusive head trauma (caused by repetitive acceleration-deceleration) as the primary mechanism, as spinal subdural/epidural bleeding is rarely seen in cases of accidental head injury.
Exclusion of medical causes for the intracranial bleeding
87. Subdural haemorrhages can very occasionally be seen in association with certain medical conditions, however [Victor] did not have any underlying medical conditions to otherwise explain his subdural haemorrhages. In [Victor’s] case, his subdural haemorrhages were a consequence of traumatic brain injury.
Overall mechanism of [Victor’s] traumatic brain injury
88. [Victor’s] traumatic head injury is indicative of significant inflicted forces applied to the head. Given the widespread distribution of [Victor’s] subdural haemorrhages and his relative young age, it is likely that the traumatic head injuries were caused by high force rotational head trauma, and likely with additional direct blunt force trauma to the head.
89. [Victor’s] head trauma is not in keeping with an accidental head injury, such as an uncomplicated fall from a height. In the absence of any history of major trauma (e.g. a severe motor vehicle accident) to otherwise explain this presentation, [Victor’s] head injury is the result of inflicted abusive head trauma.
Timing of [Victor’s] head injury
90. It is not possible to provide an accurate timing of when the head injury occurred based on radiological appearance. However, the appearance of the intracranial bleeding seen on CT is in keeping with the head injury being acute (i.e. a recent injury of less than 7-10 days duration), and not in keeping with a subacute or chronic injury (subacute being several weeks’ duration and chronic being weeks to months).
91. In general, children who have experienced a significant traumatic head injury are immediately and obviously neurologically impaired from the moment of injury. Available history suggests that [Victor] was unwell for 3 days prior to his presentation, with “high fevers, lethargy and being unable to walk”. No information is available to further clarify [Victor’s] neurological status at the time (e.g. his level of consciousness, whether his inability to walk was due to a neurological or some other cause), therefore it remains unclear whether these symptoms described were that of an intercurrent illness (e.g. a viral infection) or whether they were symptoms of a underlying traumatic head injury having occurred prior to these 3 days.
92. Given that [Victor] also had skin injuries that were in keeping with both new and healing injuries (see section below on “skin injuries”), it must be considered that his head injuries could have been inflicted on more than one occasion, in the days prior to his presentation.
Impact and prognosis of [Victor’s] head injury
...
94. In brief, [Victor] suffered the following neurological impairments as a consequent of his head injury:

Significant truncal ataxia (lack of balance in the trunk of the body)

Dysarthria (inability to produce clear speech) with slow, laboured speech and articulation difficulties

Loss of mobility (could no longer stand or walk, and was wheelchair dependent)

Fine motor difficulties (could not perform everyday fine motor tasks, e.g. pick up or transfer objects with his hands, hold a pen, feed himself)

Cognitive difficulties, such as impulsivity, difficulties with motor planning, becoming easily mentally fatigued

95. Since discharge, [Victor] has made good improvements through his rehabilitation program. Currently he is able to walk with assistance with a less supportive walking frame and pelvis-belt. He is able to achieve some pencil tasks with modified equipment such as a weighted pencil. He has progressed to speaking in 3 – 4 word phrases in English. He still requires moderate assistance with dressing, bathing, and eating. He is starting to be able to plan and sequence simple activities, and engage in meaningful activities for approx 30 minutes before tiring.
Skin and soft tissue injuries
96. [Victor] had multiple (too numerous to count; but at least 120 separately identifiable lesions) skin and soft tissue injuries throughout his body. These injuries were severe and extensive. The skin injuries involved a variety of injury mechanisms, including burns, bruises, abrasions, lacerations, as well as linear lesions around the neck and bruising around the waist
97. The burns appeared to have been caused by multiple implements, including the possible use of (a) a multi-pronged object causing parallel linear burns; (b) a cigarette lighter (or something similar) causing round circular burns and a patterned T-shaped burn on the right thigh; and (c) a hairdryer causing a circular burn with a “5-spokes” pattern. Some of these burns (e.g. the pink ones seen on the chest) may also have resulted from friction burns (i.e. caused by dragging [Victor] along a rough surface).
98. The abrasions and lacerations seen on [Victor] were caused by direct blunt force trauma, likely involving being struck by implements. Many of the abrasions showed characteristic linear parallel lines in pairs (i.e. “tram-tracking” pattern) which is indicative of being forcefully struck/whipped by a stick or stick-like (linear) implement.
99. The bruises seen on [Victor] were extensive and multiple. Of note:

A number of these bruises, being linear and grouped in multiples, were in keeping with being repeatedly struck by a stick (or stick-like) implement.

A number of bruises shared a similar characteristic “imprint” pattern – these were ovoid/rectangular in overall shape, with a central clearing (which was also ovoid/rectangular-shaped), with overall size approx.. 4 – 5cm long and approx.. 2 - 3cm high. These bruises were highly likely caused by blunt force trauma from an implement with a similar shape and size.

[Victor] also had a number of bruises in keeping with fingertip bruising and grab marks.

100. A number of [Victor’s] skin injuries involved brown pigmentation, where the skin has acquired a deep brown colour, in contrast to normal paler areas of skin. This is a form of post-inflammatory hyperpigmentation, where the skin becomes hyperpigmented (i.e. darker) temporarily after the skin has healed following the initial injury. It is commonly seen following burn injuries, but can also occur following other forms of wounds such as abrasions, lacerations and bruising. It is common in people with darker skin, such as people of Asian or African descent. In [Victor’s] case, a number of these brown lesions have a “linear” patterned appearance. This pattern is due to the hyperpigmentation occurring in line with the natural contours of the skin. Hyperpigmentation can be also seen following inflammation of the skin, e.g. inflammatory eczema, however, in [Victor’s] case, the pattern and distribution of his hyperpigmentation is not in keeping with an eczematous process and is almost certainly a result of healing wounds, mostly likely from inflicted burns.
101. Apart from externally visible skin injuries, [Victor’s] CT demonstrated presence of “subcutaneous fat stranding” over the left hip, both buttocks and both hips, in keeping with extensive, severe, recent blunt force trauma to the soft tissues of these areas.
Timing of skin injuries
102. The burns seen on [Victor] showed evidence of varying stages of healing, and are therefore likely to be of different ages (i.e. both old and new) and caused on different occasions.
103. Similarly, the abrasions and lacerations seen on [Victor] also showed evidence of varying stages of healing, from new wounds which were associated with fresh bleeding and ooze (therefore very recent), to areas of well-healed mature scars that were likely to have been of at least many weeks duration.
104. It is not possible to accurately date bruises based on their colour or appearance. Therefore it is not possible to age the bruises seen on [Victor] or to give an estimate timeframe as to when the bruises were sustained. However, a number of [Victor’s] bruises (e.g. those around the buttocks and hip) were associated with abrasions and lacerations containing fresh blood and ooze. This appearance may suggest that these bruises directly underneath the acute abrasions/lacerations were likely to be recent.
Cause of [Victor’s] skin injuries
105.[Victor] had no medical conditions to explain any of his skin or soft tissue injuries, including no underlying bleeding disorder.
106. The pattern, distribution, severity and the overall number of skin injuries and soft tissue injuries seen in [Victor] is not at all in keeping with accidental trauma and is most certainly caused by inflicted abusive injury involving multiple mechanisms.
107. Given large number of skin injuries, their severity and extensiveness, the injuries were definitely caused by inflicted abusive trauma. These injuries are not at all in keeping with accidental injury.
Fractures
108. [Victor] had multiple fractures including:

Transverse fracture of the mid-shaft of left ulna

Fracture of the 9^th and 10^th ribs on the right side, posterolateral in location

Fracture of the vertebral body of S4 (lower sacral spine)

109. The left ulna fracture was likely caused by direct blunt force trauma to the left forearm, and may have been a defensive injury (i.e. [Victor] holding his left arm up to protect himself from being hit). The left ulna fracture is likely to have caused immediate pain and swelling. It is highly likely that [Victor] would have been reluctant or unable to use his left arm following this injury.
110. The two posterior rib fractures would have been caused by one of two mechanisms:

Forceful antero-posterior chest compression (i.e. squeezing both front and back) of the rib cage, resulting in the leverage of the posterior rib over the transverse process of the spine, which causes the rib to fracture in this location. This type of injury is commonly seen where a child has been picked up, held by the rib cage and the chest forcefully squeezed;

Direct blunt force trauma applied to the back of the lower chest on the right side.

111. These rib fractures would have caused immediate pain and distress following injury.
112. The fracture of the vertebral body of S4 was likely caused by either:

A direct blow to the lower sacral spine; or

Axial loading to the spine (e.g. slamming the child’s buttocks vertically onto a hard surface with force).

113. These vertebral fractures would also have caused immediate pain and distress.
114. Although it is not possible to accurately date these fractures based on radiological appearance, the lack of any signs of bone healing (e.g. callus formation or periosteal reaction) on the initial radiological imaging at presentation strongly suggests that these fractures were acute (i.e. recent), and sustained a time close to the time of presentation, i.e. within days to a week of presentation, as opposed to several weeks prior.
Eye Injuries
115. [Victor] had retinal haemorrhages in both eyes, which were mainly found around the posterior pole. Retinal haemorrhages have a known association with traumatic head injury, particularly in cases involving high force rotational head trauma. The exact mechanism of traumatic retinal haemorrhages in such context is not known, however are believed to occur as a result of vitreous traction which causes mechanical rupture of the retinal blood vessels.
116. [Victor] was not found to have any other medical cause for this retinal haemorrhages. [Victor’s] retinal haemorrhages are highly likely caused by the same traumatic event as that which caused his traumatic head injury.
117. [Victor] was also found by the Ophthalmologist to have “commotio retinae” in both eyes. Commotio retinae is retinal oedema (i.e. injury to the retina causing swelling) caused by blunt closed globe injury (i.e. blunt force trauma to eyeball). Commotio retinae may be asymptomatic or cause impaired vision. [Victor’s] commotio retina had largely resolved after 6 weeks; however a recent eye review with Dr Martin on 10/12/20 reported that there were still some residual retinal changes and concerns regarding his vision, which will require follow up again in February 2021.
Emotional and psychological trauma
118. [Victor] displayed significant post-traumatic symptoms during his admission. He was very withdrawn and scared throughout most of his inpatient stay. He was too frightened to interact with clinicians at the hospital, and as a result new nurses and clinical staff had to be gradually introduced to him throughout his hospital stay. He was particularly frightened of male staff. He had significant dissociative behaviours and anxiety which required an emotional support plan.
119. Although [Victor] has demonstrated good improvements in his symptoms since the engagement of his family [father and paternal grandmother] at the hospital, it is anticipated that he will require specialist trauma counselling on an ongoing basis.
Lack of medical care
120. As already discussed it is likely that [Victor] had been physically assaulted on multiple occasions prior to his eventual presentation to Liverpool Hospital on 28/08/2020.
121. Based on available history, [Victor] was also unwell for 3 days with inability to walk, lethargy and fevers prior to 28/08/2020 but was not taken for medical attention during this time. It is possible that [Victor] had physical injuries that were unattended to and untreated during this period, and for which prompt early medical care may have improved his overall prognosis. This lack of medical attention is highly concerning for medical neglect.
122. Furthermore, a photograph of [Victor], taken on 21/08/2020 suggests that he already had multiple skin injuries on various parts of his body, as well as the possibility of an injured left arm for which no medical attention was sought. This is also highly concerning for medical neglect.

Overall Conclusion
123. [Victor] presented with multiple significant traumatic injuries including severe traumatic brain injury, extensive bruises, abrasions, and burns to the skin, soft tissue injuries, acute fracture of the left forearm, acute fractures of the right 9^th and 10^th ribs, acute fracture of the lumbosacral spine, as well as bilateral retinal haemorrhages and commotio retinae caused by blunt ocular trauma.
124. [Victor’s] traumatic brain injury is almost certainly caused by inflicted abusive head trauma and is likely to have involved a combination of high force rotational head trauma (e.g. being forcefully shake) as well as blunt force trauma to the head.
125. [Victor’s] other injuries indicate severe inflicted abusive trauma, likely occurring on multiple occasions and via multiple mechanisms, including deliberately inflicted burns, blunt force trauma involving objects and implements resulting in bruising, abrasions and lacerations, as well as bruising caused by forceful grabbing and fingertip bruising.
...
127. [Victor’s] traumatic head injury is considered serious and severe and is likely to result in long-term neurological disability. His overall presentation is in keeping with severe inflicted abusive trauma as well as severe emotional and psychological trauma.”

It is with the background of this expert opinion that [42] to [45] in the Final Facts document is to be understood.
I earlier mentioned that the facts surrounding your offending (with one exception) were agreed.
The exception relates to the left ulna fracture.
There is no dispute that it was you who caused that fracture to Victor. The dispute is whether the Crown has proved beyond reasonable doubt that it was occasioned by the events captured by Count 4 – if not, it is agreed that it is captured by Count 5. If it were captured by Count 4, it would significantly increase the seriousness of that offence.
As I indicated during the sentence hearing, the evidence from which the Court was asked to find that the only rational inference was that the fracture occurred before the trip to Oberon (on 22 August 2020) (and therefore referable to Count 4) was very slender and inconclusive; and did not meet the high standard in a criminal case. The evidentiary position might have been different if the video (Exhibit D), rather than one still from that video, had been shown to Dr Wong. I am, therefore, not satisfied, beyond reasonable doubt, that the fracture to Victor’s left ulna was caused by the events captured by Count 4.
By reason of your plea to Count 5, the unqualified tender of Dr Wong’s expert certificate, and the consistency of the summary of the injuries to Victor in the Final Facts document with that certificate, I am satisfied, beyond reasonable doubt, that:

the severe traumatic brain and spinal injuries to Victor were caused by you in the period covered by Count 5;

all of the abrasions, lacerations and bruises seen on Victor were caused by you but, on the evidence, it is not possible for me to determine, beyond reasonable doubt, what proportion were inflicted in the period covered by Count 5 – but undoubtedly a significant number of them were;

the fractures, including the left ulna fracture, to Victor were caused by you in the period covered by Count 5;

the eye injuries to Victor were caused by you in the period covered by Count 5; and

the overwhelming preponderance of the emotional and psychological trauma occasioned to Victor was occasioned by you but, on the evidence, it is not possible for me to determine, beyond reasonable doubt: what proportion of that trauma was occasioned in the period covered exclusively by Count 5; how much was accumulated by previous traumas caused by you (including but not limited to Count 4); or how much (if any) was caused by the conduct of Victor’s mother in not protecting him from you.

An updated report as to Victor’s condition was prepared on 16 March 2022 by Dr Botman of the Brain Injury Clinic at the Children’s Hospital at Westmead. This report is opaquely referred to in [47] of the Final Facts document which states that Victor “… has made fantastic progress and was expected to make further progress”. The complete report is to be found at Tab 3 of the “Defence Bundle” (Exhibit 1). Reference to that complete report will reveal that the expression “fantastic progress” has to be read in context. The report (relevantly) actually states at page 3:

“1. Despite generalised ataxia [which I understand to be poor muscle control that causes clumsy voluntary movements. It may cause difficulty with walking and balance, hand coordination, speech and swallowing, and eye movements] affecting his gross motor skills, fine motor skills, and speech and swallowing skills, [Victor] has made fantastic progress and he is expected to make further progress with input on a weekly basis of a team of multidisciplinary therapists” (my emphasis).

The earlier part of Dr Botman’s report reveals that the “team of multidisciplinary therapists” currently includes physiotherapists, occupational therapists, and speech and language therapists. In addition, trauma counselling is required but Dr Botman was uncertain as to whether that form of therapy had yet commenced.
In addition to these two expert reports, the Victim Impact Statement prepared by Victor’s father (also admitted into evidence without objection or limitation) succinctly sets out many of Victor’s current confronting and substantial life difficulties.
It is necessary for the Court to make a finding of the objective seriousness of each of the two principal offences for offences of their kind. In this regard, in my opinion Count 4 is a mid-range offence and Count 5 is above the mid-range and into the upper range.
Each of these two principal offences is additionally aggravated because: they occurred in Victor’s home; Victor was vulnerable because of his young age; and you grossly abused your position of trust.
Count 5 is further additionally aggravated because of the use of a weapon. In this regard, I am satisfied that the only rational inference in the circumstances (which include the admission made by your counsel to which I have already referred and the extracts from the sentencing assessment report and the report of Mr Green to which I refer below) is that: the splintered wood depicted in photos 1 and 2 in the Final Facts document had been a broom handle; and that broom handle had splintered or shattered as direct result of the violence you inflicted on Victor in the offending which is Count 5.
Insofar as the two Form 1 matters are concerned, as I have already said, they will result in a meaningful increase in the penalty for Count 5.
You did not give sworn evidence in the sentencing hearing conducted on 14 November 2022. Rather, your further additional subjective circumstances were placed before the Court through: (a) a sentencing assessment report (which is part of Exhibit B); and (b) the various documents which make up Exhibit 1 (and which includes, amongst other things, an expert report from a psychiatrist (Dr Allnut), a psychologist (Mr Green) and a “Letter of Remorse” from you).
There are specific aspects of these documents which need to be noted or referred to at this stage.
The first thing to note is that the sentencing assessment report and the reports of the two experts were tendered without objection.
The second thing to note is that none of the authors of those documents were required for cross-examination.
I have made these two notations because, as I shall soon reveal, there were inconsistencies, omissions, and ambiguities in the documents. These considerations will be taken into account when I consider whether you have discharged the onus of proof which falls on you of satisfying me, on the balance of probabilities, of any fact relied on in mitigation of your offending.
I shall first turn to the sentencing assessment report – and particularly note the following:

“Attitudes

[Mr Livesey] appeared to minimise his offending behaviour and demonstrated no remorse or emotions when discussing the offences.

He was more concerned with how the offences made him feel about himself and attempted to justify his actions claiming his father punished him with a broomstick when he was a child. Upon further discussion about this, he agreed that his father did not abuse him to the point that he drew blood and did not demonstrate any insight into why he would commit these violent offences.

He appeared to place blame on the child, claiming that the child was misbehaving and naughty.

His answers appeared recited, Court motivated and ingenuine.

He was contradictory in regards to his drug use, initially claiming he did not use, then claiming, next interview, that he did. Upon contact with [his] wife, she verified that he does not use [Methylamphetamine]. [Mr Livesey] may possibly be creating a drug addiction to justify his offending behaviour, it is unknown at this stage.

Substance use

[Mr Livesey] reported that he was using Methylamphetamine on a daily basis and claims that it caused anger issues and distorted thoughts.

Although in the first interview [Mr Livesey] did not disclose he had been using Methylamphetamine when asked and it appeared he was using his drug use as a justification for his poor behaviour. [Mr Livesey’s] wife verified that he did not use illicit substances and he continues to maintain to her that he does not use drugs.

It is unknown at this stage if [Mr Livesey] is creating a drug addiction as a justification for his behaviour but regardless of this he was willing to engage in drug counselling to address drug issues.

…
Responsivity
Insight into impact of offending

[Mr Livesey] demonstrated no insight into the impact of his offending behaviour.

He often discussed how he now feels about himself after committing those offences and only after he was challenged did he discuss the impact on the child.

His responses appeared recited, ingenuine and lacked emotion”.

I shall now briefly turn to some aspects of the report of Dr Allnut.
First, Dr Allnut recorded that, although you had started using amphetamines at 17 years of age, you had “… not taken methylamphetamines at the material time of any of the offences / alleged offences.”
Secondly, Dr Allnut did not take “… a detailed account of the actus reus related to the offending / alleged offending as it appears that there are issues regarding the fact sheet that may need clarification” (page 3). In my opinion, this is a somewhat surprising omission and diminishes the weight to be given to his report.
Thirdly, to the extent that Dr Allnut did refer to the nature and quality of your offending, he (merely) noted that you:

“smacked [Victor]”;

“smacked [Victor] on the buttocks”; and

“shook [Victor]”.

These anodyne descriptions go no way to accurately describe the ferocious, sadistic and prolonged brutality that you inflicted on this vulnerable child. It further diminishes the weight that can be given to Dr Allnut’s ultimate conclusions.
Fourthly, I note that Dr Allnut initially recorded that you “… felt “horrible”” and that you regretted everyday what you had done to that little boy. Later in his report, he recorded that you “… voiced remorse for [your] actions”. This second comment comes immediately after the following: “He has now come under verbal and racist slurs and has now been identified as an offender against children”.
The first expression of remorse contained in Dr Allnut’s report is not consistent with the contents of the sentencing assessment report and was not the subject of sworn evidence.
I certainly do not give any weight to either of the second-hand expressions of remorse to Dr Allnut if they were intended to mean remorse for your offending, as opposed to being sorry for the situation in which you found yourself in custody and the reaction to you of your fellow inmates.
I shall now turn to the report of the psychologist, Mr Green.
In his report, Mr Green recorded that you had been using “ice” for nearly three years “when [you] committed these offences” (cf [70] of his report). He went on to say that, when you were using “ice”, “… [you] would become actively angry very easily at what might have been a very small provocation”. If this were intended to be suggested by Mr Green that you were under the influence of “ice” at the time you committed the offences, it is, of course, not consistent with what you told Dr Allnut.
Under the heading “History of the offence”, you told Mr Green that you “… believed that [you were] disciplining the child. [You] stated that [you] had struck the child and at times had used the broomstick and struck it forcibly on the floor or wall near the child, so as to scare him, to get the child to do what [you] wanted. [You] admitted having hit the child. [You] said [you] did not hit the child with [your] full force”.
Later in the report, Mr Green recorded that you said you “… may have struck [Victor] with the broomstick but said [you] had hit the broomstick against the wall and floor, causing the broomstick to break” (my emphasis). This is not consistent with the admission made by your counsel to which I have earlier referred.
The history that you have given to Mr Green is consistent with the minimising of your criminality which was noted in the sentencing assessment report. I do not accept, on the balance of probabilities, the exculpatory aspects of that history - and not least because you did not give sworn evidence to that effect.
In your “Letter of Remorse”, you said: “I accept that I deserve to be severely punished”.
Notwithstanding the serious concerns to which I have just referred, I am satisfied of the following facts in mitigation on the balance of probabilities.
You are now almost 23 years of age.
You were 20 years of age at the time of your offending.
You were born in Ho Chi Minh City in Vietnam and both of your parents still live in Vietnam.
It may be accepted that some form of corporal punishment was a frequent form of discipline in your parents’ household. I do not accept, however, on the balance of probabilities, that that discipline was a causal factor in the brutal attacks you inflicted on Victor.
In late 2013 (when you were 13), your parents made what must have been the difficult decision to send you to Australia to stay with relatives in Melbourne so that you could obtain a better education and opportunities of life to that which you might have otherwise faced in Vietnam.
You arrived in Australia in September 2013 and went to live with your aunt (your mother’s half-sister) in Melbourne.
Not long after you went to live with your aunt, she began to sexually abuse you – and this continued until 2016 when your parents discovered what was being done to you. Your parents then arranged for you to move to Sydney where you completed your education.
I accept, on the balance of probabilities, that the trauma which you experienced as a result of this sexual abuse was a major factor in your subsequent use of illegal drugs. But I do not accept, on the balance of probabilities, that there was any causal connection between that sexual abuse, your consequential psychological injuries, your use of illegal drugs and the brutal attacks you inflicted on Victor.
Your substance abuse disorder appears to be in remission whilst you have been in custody – and without easy access to illicit drugs.
You have no meaningful work history or educational qualifications.
You have no significant prior criminal history.
In the circumstances I have described, I am not satisfied, on the balance of probabilities, that you are genuinely remorseful for your offending.
On balance, I regard your prospects for rehabilitation as being guarded.
Considerations of general deterrence and specific deterrence and the protection of the community are fully engaged.
No sentence for either sequence 4 or 5 other than full-time imprisonment is appropriate and the contrary was not submitted on your behalf by your experienced counsel.
You have been in custody since you were arrested on 28 August 2020 solely referrable to these offences and, accordingly, the term of imprisonment that I shall shortly impose will be backdated to that date.
I intend imposing an aggregate sentence. It is necessary for me to state the individual indicative sentences underpinning that ultimate aggregate sentence. In this context, I note that you entered a late plea of guilty and are entitled to a discount of 10 per cent for that late plea. The discount will be applied to the relevant indicative sentences.
In relation to sequence 4, except for your plea of guilty and the discount of 10 percent, the indicative sentence would have been imprisonment for 2 years 8 months; however, after that discount, the indicative term of imprisonment is 2 years 4 months.
In relation to sequence 5 and taking into account the two matters on the Form 1, except for your plea of guilty, the indicative term of imprisonment would have been imprisonment for 10 years; after the discount, the indicative sentence is imprisonment for 9 years.
In fixing the aggregate sentence, I have taken totality into account.
Mr Livesey, in relation to sequences 4 and 5, I sentence you to an aggregate term of imprisonment of 10 years.
I decline to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period, notwithstanding your age, and notwithstanding that this is your first time in prison. The non-parole period I shall set will be sufficient for rehabilitation purposes.
I therefore fix a non-parole period of 7 years 6 months to date from 28 August 2020 and which will expire on 27 February 2028.
I fix balance of 2 years 6 months to date from 28 February 2028 and which will expire on 27 August 2030.

Decision last updated: 10 February 2023

Medium Neutral Citation:	R v Livesey (a pseudonym) [2023] NSWDC 4
Hearing dates:	14 November 2022
Decision date:	10 February 2023
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 10 years with a non-parole period of 7 years and 6 months
Catchwords:	CRIME - SENTENCE - assault occasioning actual bodily harm - cause grievous bodily harm to person with intent
Legislation Cited:	Crimes Act 1900 (NSW), s 59(1), s 33(1)(b)
Category:	Sentence
Parties:	Rex (Crown) Mr Livesey (a pseudonym) (offender)
Representation:	Ms Prowse (Crown Prosecutor) Mr Steward (Counsel for the offender)
File Number(s):	2020/00251479
Publication restriction:	Statutory non publication and suppression orders made of the names of the offender, co-accused, and child victim, or of any other thing that might, directly or indirectly, identify any of them.