R v Lolesio
[2014] NSWCCA 219
•17 October 2014
Court of Criminal Appeal
New South Wales
Case Title: Regina v Lolesio Medium Neutral Citation: [2014] NSWCCA 219 Hearing Date(s): 25/07/2014 Decision Date: 17 October 2014 Jurisdiction: Criminal Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Garling J at [3]Decision: (a) Appeal allowed;
(b) Quash the sentences on Counts 1 and 2 imposed on the respondent in the District Court on 20 December 2013;
(c) On Count 1, being the offence of causing grievous bodily harm with intent to cause grievous bodily harm between 21 June 2011 and 16 July 2011, impose a term of imprisonment consisting of a non-parole period of 3 years commencing on 16 September 2013, with a balance of term of 2 years;
(d) On Count 2, for the offence of causing grievous bodily harm with intent to cause grievous bodily harm between 14 July 2011 and 23 July 2011, impose a term of imprisonment consisting of a non-parole period of 3 years and 6 months, with a balance of term of 3 years. The sentence on this count is to commence on 16 March 2014;
(e) The date upon which the respondent will be first eligible to be released on parole is 15 September 2017.
Catchwords: CRIMINAL LAW - appeal - sentence - Crown appeal - two offences - Crimes Act 1900; s 33(1)(b) - causing grievous bodily harm with intent to cause grievous bodily harm - victim was respondent's infant daughter - multiple injuries inflicted in both offences - aggregate sentence - head sentence of 4 years - non-parole period of 2 years - CRIMINAL LAW - appeal - sentence - whether the sentencing judge erred in reducing the respondent's moral culpability on the basis of a factual finding that was not reasonably open to him on the evidence - sentencing judge made remarks about victim being a noisy and difficult baby - remarks about victims behaviour being challenging - remarks about recognising that a parent is capable of lashing out in frustration when dealing with a crying baby - whether those findings of facts were open on the evidence - sentencing judge regarded to influence of the victim's crying and the respondent's reaction as relevant in the assessment of the subjective features of the offending - lessening moral culpability - erroneous - CRIMINAL LAW - appeal - sentence - whether the sentencing judge erred in finding that the objective seriousness of the offences fell well below the middle of the range - assessment not usually susceptible of interference on appeal - too much emphasis on nature of injuries - lack of consideration for other circumstances - erroneous - CRIMINAL LAW - appeal - sentence - whether the sentencing judge failed to disclose any adequate reasons as to how he came to impose an aggregate sentence - Crimes (Sentencing Procedure) Act 1999; s 53A - whether sentencing judge failed to specify on what basis the aggregate sentence was structured and how he came to that view - CRIMINAL LAW - appeal - sentence - whether the sentence is manifestly inadequate - very serious offences - vulnerable victim - offender in position of trust - wholly inadequate sentence - CRIMINAL LAW - appeal - sentence - resentencing - special circumstances - count one - 3 years non-parole and 2 year balance term - count two - 4 years non-parole and 3 years balance term - accumulation of one year Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912Cases Cited: Green v The Queen, Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Mulato v Regina [2006] NSWCCA 282
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v Koloamatangi [2011] NSWCCA 288
R v Nykolyn [2012] NSWCCA 219
SHR v R [2014] NSWCCA 94Category: Principal judgment Parties: The Crown
Anthony Lolesio (Respondent)Representation - Counsel: Counsel:
N Williams (Crown)
K Averre (Respondent)- Solicitors: Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Respondent)File Number(s): 2012/256026 Decision Under Appeal - Court / Tribunal: District Court - Before: Blackmore DCJ - Date of Decision: 20 December 2013 - Court File Number(s): 2012/256026
JUDGMENT
HOEBEN CJ at CL: I agree with Garling J.
McCALLUM J: I agree with Garling J.
GARLING J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912, against a sentence imposed upon the respondent, Mr Anthony Lolesio in the District Court at Sydney on 20 December 2013.
On 17 September 2013, a jury found Mr Lolesio guilty of two offences of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900. Each of these offences carries a maximum term of imprisonment of 25 years and a standard non-parole period of 7 years.
On 20 December 2013, Blackmore DCJ sentenced Mr Lolesio to an aggregate sentence of imprisonment consisting of a non-parole period of 2 years commencing on 16 September 2013, and expiring on 15 September 2015, and a balance of term of 2 years expiring on 15 September 2017.
Because his Honour imposed an aggregate sentence, he specified that the indicative sentence for each of the offences was a non-parole period of 18 months.
On 30 January 2014, the Crown appealed. As ultimately formulated, the Crown relied upon the following grounds:
(1) His Honour failed to disclose any, or any adequate, reasons as to how he came to impose the aggregate sentence imposed pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act 1999, in that he failed to specify how, and on what basis, the aggregate sentence was structured and how he came to the view as to the overall length of sentence.
(1a) His Honour reduced the respondent's moral culpability on the basis of a factual finding that was not reasonably open to him on the evidence.
(1b) His Honour erred in finding that the objective seriousness of the offences "falls well below the middle of the range of objective seriousness" leading to the imposition of a sentence that is manifestly inadequate.
(2) The sentence is manifestly inadequate.
The Indictment
The indictment presented to the Court at trial contained six charges. There were two underlying events giving rise to the charges in the Indictment. One occurred on 14 July 2011, the second occurred on 21 July 2011. In respect of each of those events, there were three charges in the indictment, each expressed to be in the alternative.
The complexity of the Indictment does not need to be examined for the purposes of this appeal, because the jury returned a verdict of guilty with respect to the most serious of the three alternative offences charged for each event.
There is no appeal against these convictions by the respondent. The only appeal before the Court is that by the Crown with respect to the sentence imposed.
Facts
In his Remarks on Sentence, Blackmore DCJ recorded the facts. They are largely not in dispute on this appeal, and it is convenient to set out the facts here by reference to what his Honour found.
Mr Lolesio was born in June 1991. He was married to Chloe, who was a few months younger than Mr Lolesio. By 2010, their marriage had produced one child.
In April 2011, Mr Lolesio became angry when he found that he had been "ripped off" by an individual who was indebted to him and who was declining to pay the monies owed. These feelings of frustration and anger were ongoing and strong. At the time, he was not in regular employment which led to financial stress. This financial stress also contributed to his unresolved feelings of anger.
These feelings remained unresolved at the time he and his wife became parents for the second time, when their child, referred to as "A", who was the victim in respect of the offences, was born on 31 May 2011.
First Offence - 14 July 2011
With respect to the first of the two offences, when A was aged about six weeks, on the morning of 14 July 2011, she had been put down to sleep by her mother, who had then gone out. A was left under the care of the respondent.
During the course of the day, the respondent took out his anger over his financial woes and his frustrations generally on his six week old baby. He inflicted injuries to her lower limbs, involving on the right side, fractures to the ankle, the foot and the first and second metatarsals, and on the left side, fractures to the left foot and the first metatarsal. As well, the injuries involved associated bruising and swelling. The right ankle fractures involved metaphyseal fractures to the tibia and fibula.
These injuries were inflicted by the respondent on his baby at a time when no-one else was in the house. Having inflicted the injuries, Mr Lolesio did not take any steps to have the baby taken to a hospital, or to have her examined by a medical practitioner. He did not disclose what he had done to his wife.
On the following day, because of concerns over her crying, the respondent's wife, Chloe, took the baby to St George Hospital. The fractures were not detected at the Hospital, and the baby was discharged home.
According to the expert evidence before the Court during the trial, the lower limb fractures must have been inflicted by one of two methods: first, by pulling and twisting of the lower limbs which caused a shearing at the end of the bone involving a significant level of force; or secondly, by the respondent flailing the baby in a really forceful way. The metatarsal fractures to the left and right foot must have been caused either by a crushing injury which crushed the bones, or by holding the baby's feet and bending them in hyperflexion, up and down.
Second Offence - 21 July 2011
On the Thursday, following the baby's release from hospital, Chloe, went out on the afternoon of 21 July 2011, again leaving A in the care of the respondent. She arrived home between 5.30 and 6.00pm and observed that A was distressed. The respondent claimed to his wife that the baby had fallen out of her bassinet.
On the following day, Chloe noticed that A's fingers were heavily swollen and lumpy. She called an ambulance. The baby was taken initially to St George Hospital, but was then transferred to the Sydney Children's Hospital.
On this second occasion, it appears that the respondent had again taken out his frustration and anger on the baby. He inflicted the following injuries: metaphyseal fracture injuries to both right and left forearms and wrists, additional right and left foot metatarsal fractures, being the third and fourth metatarsals on the right foot and the fifth metatarsal on the left foot. As well, the respondent fractured four of his baby's ribs, being the third, fourth, fifth and sixth ribs, and inflicted a blow which resulted in a left side acute subdural haematoma.
According to the expert evidence, in order to inflict the rib fractures, a lot of forceful squeezing would be required. In respect of the haematoma, the expert evidence was that the injury was a rotational injury caused by significant or severe movements which were quite forceful, and which were repetitive rotational movements. In short, the respondent had severely shaken his baby causing the subdural haematoma.
The sentencing Judge found, consistently with the verdict of the jury, that the injuries inflicted on the baby were, on both occasions, deliberately inflicted, and inflicted with the intention of causing grievous bodily harm. The injuries themselves constituted grievous bodily harm.
His Honour went on to say this:
"The offences are all aggravated by the fact that the offender abused his position of trust and that the victim was a vulnerable person, given her age. In terms of assessing the objective seriousness of the offences it is particularly relevant to have regard to the age of the child, at the time of the injury the baby was some six weeks old, consequently she was entirely defenceless.
The offender I find, out of frustration and anger, took out that anger on the baby, given the age of the baby and the mechanism of the injury described by Dr Tzioumi in each case the offender must have realised that serious injury would have been caused to the child."
His Honour was satisfied that whilst there was no ongoing injury to the bones, but the baby's bones did not heal correctly. In respect of the subdural haematoma, his Honour noted that the expert evidence during the trial was that it was too early to say what would result from an injury of that kind in the longer term.
Although the sentencing Judge did not specifically refer to it, the undisputed evidence was that at the time he inflicted the injuries, the respondent weighed 170kg. His baby weighed 4.6kg.
Remarks on Sentence
His Honour, the sentencing Judge, recited the details of the facts and the injuries to which I have referred above. He concluded that the objective seriousness of the offences fell well below the middle of the range of objective seriousness. His Honour said this:
"This is obviously a difficult case but looking at the facts as objectively as I can the injuries are not as serious as some that have been seen in other cases. The manner in which the injuries were caused was quite cruel but fortunately the offender did not go further and cause permanent injury.
In my view the objective seriousness of the offences falls well below the middle of the range of objective seriousness, a standard non-parole period does not need to be applied in these cases, a standard non-parole period remains as one of the guideposts to the sort of penalty that should be applied."
His Honour went on to review the subjective case for the respondent. He noted the respondent's age, and observed that the respondent and his wife had married when they were both quite young and started having children almost immediately. He noted that both had little by way of life experience when they commenced having a family.
His Honour accepted the opinion of Dr Greenberg, a psychiatrist, that the respondent was in the upper levels of mild mental retardation. He rejected the evidence of Professor Hayes, a psychologist, that the respondent had an extremely low level of intellectual functioning.
His Honour noted that the respondent had attended school until Year 8, was bullied, and had in the past attempted on one occasion to commit suicide.
His Honour called attention to the respondent's past criminal history - the most significant of which was an offence committed whilst he was a juvenile. His Honour declined to regard this as an aggravating factor, but concluded that he was unable to find that his behaviour on the occasions the subject of the charges was "... necessarily out of character".
His Honour then made the following observations about the baby, which were the subject of specific challenge by the Crown (Ground 1A). He said:
"[A], unlike their first child, was apparently quite a noisy and somewhat difficult baby. Such behaviour in a child is challenging even for mature and experienced parents which certainly the offender was not. It has to be recognised that a parent is capable of lashing out in frustration when dealing with a crying baby."
His Honour went on to find that the respondent did not have consistent and satisfying employment, which meant that he was at home with his children, a factor which added to his general frustration and anger.
His Honour was persuaded that, at the time of these offences, the respondent was under pressure of various kinds. He said this:
"Whilst I accept that these offences were caused by a build-up in frustration, it must also be recognised the way in which the injuries were caused was quite deliberate."
He went on to assess the respondent's subjective case in this way:
"In my view there is evidence that allows me to find that the offender is not a bad person. He is essentially a good man who, by reason of his upbringing and his inherent intellectual functioning and the pressures on him as a father with a growing family at a time when he had no consistent work, became angry and frustrated and did something which was very, very wrong."
His Honour thought that there were good prospects for rehabilitation provided that there was significant intervention when the respondent was released on parole.
Sentence
His Honour determined to impose an aggregate sentence. He said this:
"I will impose an aggregate sentence in relation to each of the offences of assault occasioning grievous bodily harm with intent to cause grievous bodily harm there will be a non-parole period of one year and six months imprisonment and a total term of three years imprisonment. Those sentences will be partially concurrent."
His Honour then went on to impose an aggregate sentence consisting of a non-parole period of 2 years imprisonment commencing on 16 September 2013, and expiring on 15 September 2015, and a balance of term of 2 years expiring on 15 September 2017.
The aggregate sentence involves, notionally, a degree of accumulation between the two indicative sentences. However, that accumulation is different in length, depending upon whether one has regard to the nonparole period, or the balance of term.
The Crown's appeal identifies in Grounds 1a and 1b, two specific errors in the sentencing remarks. It will be convenient to consider these two grounds first. It will be convenient to consider the other two grounds (1 and 2) later.
Ground 1a - Erroneous Factual Finding Leading to a Reduction of Moral Culpability
It is convenient to deal with this Ground first. When considering the factors relevant to the sentence, and in particular the subjective features relating to the respondent, the sentencing Judge made the remarks about A being apparently a noisy and somewhat difficult baby. I have set out those remarks in [33] above.
The Crown submitted that this finding directly related to the conclusion reached by the sentencing Judge shortly after, where he included the behaviour of the baby as being one of the factors "...working together at the time that he injured the victim".
The sentencing Judge went on to say that in carrying out his exercise, it was necessary to understand the pressures "that were working on the offender at the time".
The Crown submits that, if relevant, these remarks could only be addressed to an assessment of the moral culpability of the respondent. The Crown submits that the factual finding, namely that the baby was a noisy and somewhat difficult baby, and such behaviour would be challenging for a mature and experienced parent, and further that it had to be recognised that a parent was capable of lashing out in frustration when dealing with a crying baby, simply did not arise on the evidence before the sentencing Judge.
In the course of the trial, the respondent himself did not give evidence. No witness gave evidence of the behaviour of the baby at or immediately prior to the occasions when she was assaulted. The only evidence that was before the sentencing Judge as to A's behaviour at each of the times before she was injured, came from the respondent himself, and is only to be found in the fourth electronically recorded interview which was given on 16 August 2012.
In each of the four interviews with respect to the first assault, the respondent denied that he was in any way responsible for that offence. He, therefore, gave no version of events which included any crying or other behaviour on the part of the baby at, or immediately prior, to the time of that offence.
In the fourth interview on 16 August 2012, the respondent admitted for the first time that he was responsible for the injuries which formed the basis of the second offence. He told the interviewing police officer that he was feeling frustrated and angry because of his inability to obtain the repayment of money. He said that he was missing his family because he was living far away from them, and although he was living with his wife's aunt's family who were happy, he felt frustrated because he did not have his family around. He said in that context "I just ... I lost control of myself and just shook my baby instead."
He was asked to tell the police officer what had happened and he said:
"I picked her up out of her bed. I was kissin' her, tellin' her it's, everything's gonna to be alright, daddy's gonna to get some money for us, and ... then I dunno, for some reason, I just lost control of my hands. I just, I, I let anger take over me at that point and then I just grabbed my baby and just shook her." (sic)
He was asked if the baby was crying before he picked her up. He said "No, she was, she was, she was quiet".
This account of events which formed part of the evidence at trial does not provide the basis for the challenged finding.
There was some rather general evidence in the trial that the baby cried quite a lot, and was a "...continuously crying type of baby". There was also some general evidence that she was often quite unsettled, and because she often cried, that could be annoying. None of this evidence related directly to the circumstances at, or prior to, the time when the offences occurred.
Those comments were made by various of the witnesses at the trial and it was open to his Honour to accept them. However, the Crown submits that it was not open to his Honour conclude that those features were present at, or immediately prior to, the commission of each of the two offences, and that thereby they had a causal relationship with the offender's conduct such as to reduce his moral culpability.
Counsel for the respondent submitted that the approach of the Crown to identifying the evidentiary basis for the express conclusion of the sentencing Judge was erroneous because it was unduly narrow.
Counsel for the respondent pointed to the totality of the evidence which had been given. He relied, in particular, upon the evidence from Scott Gregory (husband of the aunt of the respondent's wife) with whom the offender and his wife and children were living, to the effect that:
(a)A cried quite a lot;
(b)she might be described as a noisy baby;
(c)the offender would often look exhausted;
(d)the offender was flustered;
(e)A had a "good set of lungs" on her;
(f)sometimes he [Mr Gregory] wanted to run out of the house screaming because A was noisy;
Chloe's mother, Tania Hetaraka, gave evidence that when she visited shortly after the birth, A was crying a lot and was quite unsettled for most of the time whilst she was there. She visited up until about two weeks prior to these offences. The respondent's wife, Chloe, gave evidence that the baby was a "screamer" and was "annoying, a continuously crying type of baby" which didn't bother her because of her past experiences with other babies.
Counsel for the respondent submitted that the sentencing Judge was entitled to disregard the version of events which the respondent had given in his electronically recorded interview, and to infer from this evidence that given the young age of the respondent and the fact that this was only his second child, the elder child being born about 12 months earlier, the probabilities were that in truth the baby was crying at the time shortly prior to these assaults. Accordingly, he submitted this finding was open to his Honour.
In my opinion, error has been demonstrated. In the context in which the remarks were made by the sentencing Judge, it is clear that he regarded the influence of the baby's crying and the respondent's reaction to it "lashing out in frustration" as being relevant in the assessment of the subjective features of the respondent's offending. The Crown, in my view, is correct to submit that the sentencing Judge regarded this finding as lessening the respondent's moral culpability for the offence that occurred. His Honour's specific reference to the capacity of a parent to lash out in frustration "when dealing with a crying baby", is a direct finding of fact that this is what occurred in these circumstances.
This was an erroneous finding. The evidence did not permit that finding to be made. The respondent denied that there was any crying immediately prior to the offence, and the general indications and descriptions of the baby's conduct given by the other witnesses in their evidence, were so non-specific as to time and place and so unrelated to the events in question, that it was not open to the sentencing Judge to conclude that there was a causal relationship between the conduct of the respondent and any crying on the part of the baby.
I am persuaded that error has been shown here, and I would uphold this ground of appeal.
Ground 1b - Error in Finding Objective Seriousness
It is convenient to commence the consideration of the Grounds of Appeal with this ground.
An assessment of the objective seriousness of an offence, that is to say, the extent of the objective criminality involved, is one which is carried out without reference to matters personal to the particular offending, but is determined by reference to the nature of the offending: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [27].
This Court has emphasised that the assessment by the sentencing Judge of the objective seriousness of an offence is a matter which is usually not susceptible of interference on appeal. In Mulato v R [2006] NSWCCA 282 at [37], Spigelman CJ, with whom Simpson J agreed, said:
"37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised."
Simpson J said at [46] this:
"46 The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
However, consistently with the observations of Simpson J, Basten JA said in R v Koloamatangi [2011] NSWCCA 288 at [51]:
"51 ... Nevertheless, the appellate court retains a statutory responsibility under s 5D or s 6(3) of the Criminal Appeal Act to intervene in circumstances where, upon an application of the correct principles, error is established: R v KB [2011] NSWCCA 190 at [53] ... ."
The Crown submitted that the assessment that the offences fell well below the middle range of objective seriousness was not reasonably open to the sentencing Judge. Thus, it submitted error was established.
The Crown pointed to the following factors as being relevant to that assessment, and which did not, on their face, appear adequately to have been taken into account by the sentencing Judge: the fact that the victim was only six or seven weeks old, and was complete vulnerable without any means of communication other than crying; the disparity in weight between the respondent at 170kg and the victim at about 4.6kg was remarkable; the respondent held a position of trust with respect to his newborn daughter, which he abandoned; and that the respondent's motivation for hurting his child was related to his own anger, stress and a sense of frustration arising from extraneous issues.
In addition, the Crown pointed to the injuries and described them as severe. The Crown noted that the baby suffered at least 15 different fractures. Of particular importance, the Crown noted that the injuries to the baby's ribs must have involved great force. This submission was based upon the expert evidence of Dr Tzoumi.
In combination, the Crown submitted that the assessment by the sentencing Judge was erroneous and that objectively he ought to have found that the offence was very serious.
The respondent submitted that it was necessary to keep in mind that the assessment of the objective seriousness of the offending is traditionally regarded by this Court as being one for the sentencing Judge, and one in respect of which this Court is reluctant to intervene. The respondent called in aid authorities of this Court, to which I have made reference at [63]-[65] above.
As well, the respondent submitted that the Remarks on Sentence were thorough and careful, and that it could not be said that his Honour had failed to have regard adequately to all of the factors which were relevant in the particular case. In particular, the respondent pointed to the fact that the trial Judge, immediately prior to making his assessment of the objective seriousness of the offences, had noted that the manner in which the injuries were caused was quite cruel, and that such a statement by the trial Judge addressed many of the factors pointed to by the Crown in its submissions in this Court.
Counsel for the respondent also pointed to the fact that the assessment of objective seriousness relates to the particular offence for which the respondent was convicted, namely, causing grievous bodily harm with intent to cause that harm. Putting it differently, counsel for the respondent submitted that whilst the offence was a serious one, within the many factual examples of offences against the same provision, the sentencing Judge was right to regard this offence as falling well below the middle of the range of objective seriousness.
Notwithstanding the caution that this Court must exercise when considering a ground of appeal such as this, I am well persuaded that the assessment of objective seriousness of this offence by the sentencing Judge was erroneous.
The passage relating to the assessment to which I have earlier made reference in [28], appears to me to indicate that the sentencing Judge placed altogether too much emphasis on the fact that the injuries were not as serious as some seen in other cases, and that there was no permanent injury caused, with the result that little, if any, weight has been given to all of the other relevant circumstances.
Whilst the seriousness of the injuries caused is one element which has to be considered in an assessment of the objective seriousness of an offence, it is not the only feature. In this case, the features which required careful assessment were:
(a)the complete vulnerability of the victim as a six week old baby;
(b)the position of trust which the respondent occupied as the father of the victim;
(c)the enormous physical disparity in size and strength between the respondent and the victim;
(d)the deliberateness of the conduct which was wholly unrelated to anything which the baby had done, and the intention with which the conduct was engaged in, namely, an intention to cause grievous bodily harm;
(e)the cruelty of the manner in which the injuries were caused, and the force and violence necessarily perpetrated by the respondent on the baby;
(f)the seriousness of the physical injuries actually perpetrated, even making due allowance for the fact that, on the probabilities, there has been no permanent injury.
Each of these features was present in each offence. By the time of the second offence, it must have been obvious to the respondent that his conduct on the first occasion had led to injury, sufficiently serious for the baby to have been taken to hospital and to have been admitted overnight with obvious signs of injury. Although the detail of what had occurred was not then obvious, that the baby had been injured and was in pain, was clear.
At the hospital on the first occasion, the baby's feet were swollen and she had purplish bruising around her big toes. As well, she was brought to hospital because of her crying and the inability of her mother to settle her.
The respondent had witnessed all of these things before he undertook the second assault on the baby. In my view, in considering the second offence, his previous experience of what had occurred when he assaulted the baby a few days earlier, is undoubtedly an aggravating factor in the objective seriousness of the second assault.
In my view, an assessment of the objective criminality involved in each of these offences would be in the middle range of objective criminality and objective seriousness. The second offence was more serious than the first.
Accordingly, I conclude that the sentencing Judge was in error in making an assessment of this feature, and as its obvious from his remarks, that his assessment related directly to the sentence which he imposed.
I would uphold this Ground.
Ground 1 - Aggregate Sentence
The Crown submitted that the indicative sentences, here 1 year and 6 months non-parole, with a total sentence of 3 years for each offence, notwithstanding that on any view the second offence was more serious than the first, reveal error in the aggregate sentence ultimately reached.
The Crown submitted that the sentencing Judge paid little more than lip service to the requirements of s 53A of the Crimes (Sentencing Procedure) Act 1999.
The respondent submitted that it was open to the sentencing Judge to indicate that the sentences which he imposed were the same for each of the offences, and that no error of any relevant kind had been demonstrated.
The remarks of the sentencing Judge on this issue are short. He said:
"I will impose an aggregate sentence in relation to each of the offences of assault occasioning grievous bodily harm with intent to cause grievous bodily harm, there will be a non-parole period of one year and six months imprisonment and a total term of three years imprisonment. Those sentences will be partially concurrent."
Section 53A, with which his Honour was obliged to comply when imposing an aggregate sentence, is in the following form:
"53A Aggregate sentences of imprisonment
(1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.
(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following:
(a) the fact that an aggregate sentence is being imposed,
(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.....
(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section."
In R v Nykolyn [2012] NSWCCA 219 at [56], R A Hulme J (with whom Hall J agreed), discussed the importance of proper compliance with s 53A(2)(b). At [56] he said:
"56. McClellan CJ at CL has referred ... to the provisions of s 53A, including the requirement in s 53A(2)(b) that a court must indicate to the offender, and make a record of, the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. In an apparent attempt to give effect to this requirement, the sentencing judge in this case said:
'I am imposing an aggregate sentence. In my opinion each of these four offences is of similar seriousness and each would warrant, taking into account the discount for early plea, a sentence of four years imprisonment. There would have to be a degree of accumulation.' "
In dealing with a similar basis for an appeal, Fullerton J (with whom Basten JA and Davies J agreed), said in SHR v R [2014] NSWCCA 94 at [40] this:
"40 Whilst the announcement of an indicative sentence is not itself amenable to appeal on grounds of manifest excess or severity (see Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [227]), s 53A does not relieve the sentencing judge of the obligation to assess the criminality for the separate offending inherent in the individual counts. It follows that if there is patent error in the appointment of an indicative sentence that may reveal error in the aggregate sentence ultimately imposed (see R v Brown [2012] NSWCCA 199 at [17]). Subject to the situation where error in the specification of an indicative sentence is patent (for example where it exceeds the maximum sentence or where the sentence approximates a worst case where the facts do not support that finding), a challenge to the sentence does not involve scrutinising the indicative sentences for error, but whether the aggregate sentence is sustainable. In PD v R [2012] NSWCCA 242, Beech-Jones J observed at [44] (with Basten JA and Hall J agreeing), that for this Court to intervene the applicant must demonstrate that any error in the specification of an indicative sentence (which would necessarily include breach of the obligation to indicate individual sentences in compliance with s 53A(2)(b)) is material to the outcome."
With respect, I entirely agree with what Fullerton J has written.
What it is ultimately necessary for this Court to consider is whether error has been shown in the aggregate sentence. I have earlier indicated my views with respect to two specific errors underlying the sentence which was imposed. Ground 4, which complains that the sentence was manifestly inadequate, will be a convenient vehicle, in this case, to consider whether there was error demonstrated in the aggregate sentence.
His Honour, the sentencing Judge, did not, in imposing the aggregate sentence which he did, comply with the provisions of s 53A in the way mandated. Whether this is determinative of the appeal can be considered conveniently in the next ground of appeal.
Ground of Appeal 4 - Manifest Inadequacy
The Crown submitted that the sentence ultimately imposed was manifestly inadequate. It was submitted that it was apparent from this manifestly inadequate sentence that too much weight had been given to the subjective circumstances of the respondent, and in the result the sentence did not reflect the objective criminality of the offending, or else pay proper attention to the principles of sentencing: s 3A Crimes (Sentencing Procedure) Act 1999.
The Crown draws attention in its submissions to the particular need for general deterrence in cases of the kind here, and to the statutory guideposts of the maximum penalty of 25 years, and the standard non-parole period of 7 years, as indicating that the sentence was manifestly inadequate.
The respondent points to the fact that the injuries, although apparently serious, have in fact resulted in no on-going disability. The respondent accepted that the matters were objectively serious, but that the injuries were properly at the lower end of the scale.
The respondent submitted that there was a particularly strong subjective case, and that although the sentence may be regarded as lenient, it was not in all of the circumstances, outside the appropriate range.
Ultimately, the respondent submitted that even if the Court were to form the view that the sentence was unduly lenient, the Court would not uphold the appeal in the exercise of its residual discretion.
Because I have been satisfied with respect to Grounds 1a and 1b that specific error has been shown, on one view it is unnecessary to consider this ground at all.
However, since the primary purpose of a Crown appeal is to lay down principles for the governance and guidance of courts engaged in the exercise of imposing the sentence, it is important in this case to express a view about the sentence which was imposed, assuming that no error had been shown in the facts and circumstances found by the sentencing Judge.
Even if I were satisfied that no error had been shown and, as indicated earlier, I am so satisfied, then I would have found that this sentence was manifestly inadequate.
The offences of which the respondent was found guilty are very serious. Not only do they involve the infliction of grievous bodily harm, but also that conduct was accompanied by an intention to inflict grievous bodily harm. The maximum sentence, 25 years, and the standard non-parole period, 7 years, are guidelines to which a sentencing Judge is obliged to have regard. They of course, do not dictate the sentence that is to be imposed. The length of the maximum sentence and of the standard non-parole period themselves demonstrate the seriousness with which the legislature regards these sentences.
Even if the sentencing Judge was correct to find that this offending was at the lower end of the scale, it is simply not adequate to have imposed an aggregate sentence of 2 years imprisonment. There were two offences. The second offence more serious than the first. Both offences carried a specific intent to cause grievous bodily harm to a most vulnerable victim, and from a person in a position of trust.
On the sentencing Judge's view of the facts and circumstances, the sentence that was imposed was wholly inadequate and manifestly so.
Even if I had not been persuaded to find error, I would have found that the sentences were manifestly inadequate.
Residual Discretion
Where error has been shown, on an appeal under s 5D of the Criminal Appeal Act 1912, by the Crown, this Court may "... in its discretion vary the sentence and impose such sentence as to the said court may seem proper".
As well, there exists a residual discretion to decline to interfere with a sentence, even though a sentence is erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462.
In considering the exercise of the Court's residual discretion, the respondent relied upon two affidavits, one of 15 July 2014 affirmed by him, and of 16 July 2014 affirmed by his solicitor.
Those affidavits show that, since being taken into custody, the respondent has undertaken appropriate courses with respect to drug and alcohol consumption, and appropriate courses with respect to parenting skills. His conditions of imprisonment are such that, having regard to his classification, he has been allowed to work in the laundry which is outside the jail but within the grounds of the John Moroney Correctional Complex, and he lives in the Honour House, which is also outside the jail, but nevertheless within the correctional complex.
The respondent is hopeful that upon becoming entitled to work release, he can obtain work with his former employer at the Target warehouse at Blacktown. The respondent informs the Court that he has regular visits from his wife, family and friends.
The affidavit of the solicitor annexes various reports and notes from the file of the Corrective Services Department. Those annexed notes attest to the fact that the respondent has been employed largely since he arrived at the John Moroney Complex, and has displayed a willingness to work and is working well.
The notes also indicate that when assessed on 22 May 2014, with respect to future prospects of parole, the process and expectations, he responded genuinely positively to what was involved. The staff member of the Windsor Community Corrections Team recorded the respondent appeared to be genuinely remorseful about his offending, that he did not attempt to minimise his actions, but found it hard to explain why he reacted the way he did.
It can be readily accepted, since neither of these affidavits were challenged, that the prospects of the respondent being successfully rehabilitated are good, and that the Court may conclude that there is little likelihood of re-offending.
However, I do not think this is a matter in which the Court could possibly exercise its residual discretion. The sentences did not reflect the seriousness of the offending and, notwithstanding the subjective matters, which are relied upon, a failure of this Court to correct the sentence would simply result in a term of imprisonment which was wholly inadequate.
I am not persuaded to dismiss the Crown appeal on this basis. Rather, I am of the view that it is necessary to vary the sentence that was imposed, and to impose a sentence that would be proper.
Re-sentencing
The objective circumstances of the offence have already been addressed. I accept that the injuries inflicted upon his baby, A, did not give rise to permanent or lasting injuries and disabilities. Nevertheless, as has been identified in [75] above, there were features of the objective seriousness which required careful assessment.
As I conclude, a proper assessment of the objective criminality involved in each of these offences meant that they fell generally in the mid-range of objective criminality and objective seriousness.
There was a reasonably persuasive subjective case. The respondent is a young man.
The report of Professor Greenberg dated 15 November 2013, was before the sentencing Judge. From that report, it appears that the respondent, other than having a history of hypertension and a recent onset of diabetes, had a largely unremarkable past medical history.
He reported that he began to drink alcohol at the age of 12, and by the time he reached 16, and up until he turned 20, he was drinking up to five to ten bottles of beer each day. From time to time he had had alcoholic blackouts, and engaged in early morning drinking.
He began smoking cannabis at the age of 11 years, and had become a heavy user by the age of 16. He told Professor Greenberg that he had ceased alcohol and drug use in 2011.
He was brought up in a family where he was the fourth of five siblings. He reported to Professor Greenberg that he had difficulty with literacy, having been regarded as slow at learning whilst at school and had attended special class throughout his schooling career. He told Professor Greenberg that his wife had recently helped him with his reading skills.
Professor Greenberg expressed this opinion:
"... Mr Lolesio may be functioning in the upper levels of mild mental retardation range, or of borderline intellectual functioning."
He apparently had symptoms of post-traumatic stress disorder as a consequence of sexual abuse at the age of seven.
By the time that he was convicted, Mr Lolesio and his wife Chloe had three children, and she was well advanced in her fourth pregnancy. That child has since been born. Since the offence in question, and prior to entering custody, Mr Lolesio had turned to religion, and embraced Christianity and obtained gainful full-time employment.
About two years prior to the offences in question, Mr Lolesio had been convicted of an offence of assault occasioning actual bodily harm in the company of others for which he had been given a bond for 12 months. He was at that stage a juvenile, and was subject to the supervision of the juvenile justice system. There do not seem to have been any difficulties with his complying with the bond.
This suggests that it would be appropriate to ensure that the respondent has the benefit of a lengthier period in the community under supervision than would otherwise be the case in accordance with the statute.
I am satisfied that the Court ought make a finding of special circumstances. The respondent is young. This was his first significant offence. His prospects of rehabilitation and not offending will be significantly advanced by an ample period of supervision in the community, and he has a large, young family to care for upon his release.
Notwithstanding the subjective case advanced for the respondent, any sentence imposed must act as a general deterrent. It must also reflect the objective seriousness of the offending.
In respect of Count 1 on the Indictment, taking into account all of the relevant matters, I would impose a sentence of 3 years non-parole, plus a 2 year balance of term being 5 years in total. That sentence should commence on 16 September 2013, when the respondent first entered into custody.
In respect of Count 2 on the Indictment, which I regard as a more serious offence, I would impose a term of imprisonment of 3 years and 6 months non-parole period, plus a balance of term of 3 years, making a total of 6 years and 6 months.
To reflect the overall criminality involved, it is necessary for there to be an accumulation between the sentences on Counts 1 and 2, and accordingly, I would commence Count 2 on 16 March 2014, thereby provided for a period of accumulation of 6 months.
The effect of these sentences is that the respondent will have a non-parole period of 4 years and a total sentence of 7 years.
I propose the following orders:
(a)Appeal allowed;
(b)Quash the sentences on Counts 1 and 2 imposed on the respondent in the District Court on 20 December 2013;
(c)On Count 1, being the offence of causing grievous bodily harm with intent to cause grievous bodily harm between 21 June 2011 and 16 July 2011, impose a term of imprisonment consisting of a non-parole period of 3 years commencing on 16 September 2013, with a balance of term of 2 years;
(d)On Count 2, for the offence of causing grievous bodily harm with intent to cause grievous bodily harm between 14 July 2011 and 23 July 2011, impose a term of imprisonment consisting of a non-parole period of 3 years and 6 months, with a balance of term of 3 years. The sentence on this count is to commence on 16 March 2014;
(e)The date upon which the respondent will be first eligible to be released on parole is 15 September 2017.
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