R v N-T and C
[2013] SASC 200
•19 December 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v N-T AND C
[2013] SASC 200
Reasons for Decision of The Honourable Justice Stanley
19 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - OTHER MISCELLANEOUS OFFENCES AND MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
The accused, N-T and C, each pleaded guilty to one charge of criminal neglect contrary to s14 of the Criminal Law Consolidation Act 1935 (SA).
The accused, being persons with a duty of care to their daughter Ebony, who suffered serious harm as a result of unlawful acts, namely, assault and lack of medical attention, while they were or ought to have been aware that there was an appreciable risk that serious harm would be caused to her by the unlawful acts, failed to take steps that they could reasonably have been expected to have taken to protect her from harm, and their failure to do so was so serious that a criminal penalty is warranted. Ebony died as a result of the unlawful acts.
There was a dispute between the prosecution and the accused as to the circumstances of the offending. In particular, the dispute concerned which of the accused had assaulted Ebony causing her death.
Factual basis for sentence.
Held:
1. It is impermissible for the Court to sentence either of the accused for contravening s14 of the Criminal Law Consolidation Act 1935 (SA) on the factual basis that either or both of them inflicted the fatal injuries on Ebony. The deliberate infliction of injury resulting in death constitutes a more serious offence than criminal neglect (at [19] - [23]).
2. The prosecution has proved beyond reasonable doubt that the assaults on Ebony were committed solely by the accused N-T (at [25] - [31]).
Criminal Law Consolidation Act 1935 (SA) s 14, s 29, referred to.
R v De Simoni (1981) 147 CLR 383; R v Olbrich (1999) 199 CLR 270; R v Austin (1985) 121 LSJS 181, applied.
R v Perre (1986) 41 SASR 105; R v Nemer (2003) 87 SASR 168; R v Buzzacott (2010) 108 SASR 218; R v Lobban (2001) 80 SASR 550, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"Criminal neglect", "Burden of proof", "Adverse to the interests of the accused", "In favour of the accused"
R v N-T AND C
[2013] SASC 200Criminal
STANLEY J:
Introduction
The accused, N-T and C, are charged on Information with criminal neglect contrary to s 14 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
The particulars to the Information allege that between 22 August 2011 and 16 November 2011 at Brooklyn Park the accused, being persons with a duty of care to Ebony, who suffered serious harm as a result of unlawful acts, namely, assault and lack of medical attention, while they were or ought to have been aware that there was an appreciable risk that serious harm would be caused to her by the unlawful acts, failed to take steps that they could reasonably have been expected to have taken to protect her from harm, and their failure to do so was so serious that a criminal penalty is warranted. It is further alleged that Ebony died as a result of the unlawful acts.
On 21 October 2013 the accused C pleaded guilty to the charge. On 15 November 2013 the accused N-T pleaded guilty to the charge.
There was a dispute between the prosecution and the accused as to the circumstances of the offending. In particular, the dispute concerned who had assaulted Ebony causing her death. The accused were the parents of Ebony. Ebony died on or about 8 November 2011. At the time of her death she was four months old. She died in the home unit where she lived with the accused at Brooklyn Park.
Ebony died from blunt head trauma with multiple, bilateral skull fractures resulting in subdural haemorrhages, intraventricular haemorrhage and haemorrhage and necrosis of the underlying brain. The pathologist opined that the multiple fractures and three distinct areas of bruising suggest at least three separate blows to the head which caused the fatal injuries. The autopsy also revealed evidence of previous head injury as well as other injuries including 48 old, healing rib fractures, four recent rib fractures, a healing fracture of the right clavicle, healing fractures of the right and left humerus, a fracture of the right thumb, three fractures of the right and left toes, the previously diagnosed fracture of the left femur, bilateral retinal haemorrhages and a crusted lesion on the central back.
The accused failed to report Ebony’s death for approximately one week.
The accuseds’ pleas of guilty admitted each of the elements of the offence of contravening s 14 of the CLCA but no more. I conducted a disputed facts hearing to determine the matters in dispute so as to establish the proper basis for sentencing each of the accused in the light of their respective criminal responsibility.
Relevant legal principles
A court will sentence a convicted person on the basis of the inferences and facts established by sworn evidence or verified statements unless that material is specifically withdrawn or not relied on by the prosecution.[1] Where an offender wants to dispute facts set out in declarations or challenge the inferences naturally arising from facts contained within declarations, the offender should call evidence or make submissions on those matters. In R v Perre,[2] King CJ discussed these principles in the following terms:[3]
The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant's role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge. I reject completely the suggestion which surfaced faintly on this appeal and has been made to the Court of Criminal Appeal in other cases, that the judge is bound to act upon the interpretation or version put forward by the defence unless it is disputed by the prosecution. It is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence.
[1] R v Perre (1986) 41 SASR 105, R v Nemer [2003] SASC 375 at [40], [62] – [63], [72], (2003) 87 SASR 168 at 174, 178, 180.
[2] (1986) 41 SASR 105.
[3] (1986) 41 SASR 105 at 105 – 106.
Applying these principles, Prior J in R v Nemer[4] noted that there is an onus on the offender to give sworn evidence if he or she wishes to submit to the sentencing judge that sentence should be imposed on a different factual basis from that set out in verified statements and sworn evidence not expressly abandoned by the prosecutor. But a party only needs to call evidence on a sentencing hearing where the fact it asserts is controverted or the judge is not prepared to act on the submission or assertion without evidence. This is the position for both the prosecution and the defence.
[4] [2003] SASC 375 at [62] – [63], (2003) 87 SASR 168 at 178.
The issue of who bears the onus of proof on a disputed facts hearing was considered by Vanstone J in R v Buzzacott.[5]Citing the High Court’s judgment in R v Olbrich,[6] Vanstone J identified the critical distinction between matters which must be proved beyond reasonable doubt, by the prosecution and matters which must be proved on the balance of probabilities, by the offender. It is the prosecution that bears the onus of proving any fact by way of aggravation and the offender who bears the onus of proving any fact by way of mitigation. Circumstances which, although not mitigatory, would result in a lower sentence than might otherwise be the case, must also be proved by the offender on the balance of probabilities. This was explained in the joint judgment in Olbrich of Gleeson CJ, Gaudron, Hayne and Callinan JJ as follows:[7]
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge
“may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.”
[Footnote omitted].
[5] [2010] SASC 298, (2010) 108 SASR 218.
[6] [1999] HCA 54, (1999) 199 CLR 270.
[7] [1999] HCA 54 at [27], (1999) 199 CLR 270 at 281.
The meaning of “adverse to the interests of the accused” was explained by the Court of Criminal Appeal in R v Lobban[8] where Martin J, with whom Mullighan and Bleby JJ agreed, said:[9]
In Storey, the majority explained that a reference to facts “adverse to the interests of the accused” is not limited to circumstances which “aggravate the offence”. That expression extends to any circumstance which the judge proposes to take into account adversely to the interests of the accused in the sense that the circumstance is “likely to result in a more severe sentence than would otherwise be the case”. It follows that reference to a circumstance to be taken into account in favour of the offender is a reference to a circumstance that is likely to result in a less severe sentence than would otherwise be the case. This approach was approved in Olbrich.
[8] [2001] SASC 392, (2001) 80 SASR 550.
[9] [2001] SASC 392 at [29], (2001) 80 SASR 550 at 557.
If a sentencing judge is not satisfied to the requisite standard then the offender will be sentenced on the basis that the fact did not exist, not that the converse is true.[10]
[10] R v Olbrich [1999] HCA 54 at [24], (1999) 199 CLR 270 at 280 - 281.
The evidence
Both of the accused gave evidence. At the outset I make it clear that I find C to be a credible and reliable witness. She gave her evidence in a forthright, sincere and compelling manner. Importantly, much of what she told the Court is consistent with objective facts. I make this finding notwithstanding that C’s evidence differed significantly from the original statement she made to the police when she was arrested in November 2011. I am satisfied that the differing account she gave in that statement is factually incorrect in significant respects. I find that she made that statement in those terms because of a combination of shock at the death of her baby, fear of N-T and, paradoxically, a concern not to jeopardise the one remaining relationship in her life at that time, by telling the police the truth concerning N-T’s conduct. I reject any suggestion that C has fabricated her evidence to conform with the autopsy findings. I do so for two reasons. First, because I am satisfied that she made a statement to the police on 25 May 2012 implicating N-T without seeing a copy of the autopsy report, albeit after an occasion when the nature of Ebony’s injuries had been outlined to her by her solicitor. Secondly, because, for reasons I explain below, those injuries would only have been inflicted by her or N-T or both. If she had inflicted some or all of the injuries she did not need to wait until their nature was explained to her before making a statement that implicated N-T. I am content to rely upon her evidence for the purposes of making findings of fact.
On the other hand, I was less impressed with the evidence of N-T. I consider he tailored his account of events in a deliberate and calculated way to minimise his own culpability. Some of his evidence was incredible. His account of what occurred in the period of approximately one week following the death of Ebony is an obvious example. He said that during that period he did not discuss Ebony’s death with C at all. In fact he told the Court that until the morning that the accused went to the office of Families SA to report Ebony’s death, he and C did not speak at all during this period. He denied any discussion during this time about the cause of Ebony’s death or how C had treated or cared for her.[11] Where his evidence contradicts C, I reject his account of those events. I note however that some of his evidence was consistent with that of C. To that extent only I accept N-T’s evidence.
[11] T 133 – 135.
In addition, it was agreed that the Court should have regard to all the statements on the Court file, except the statement made to the police by C on 12 July 2013, for the purpose of making findings of fact and to provide context.
Finally, certain facts were agreed. It is not necessary for me to particularise those facts now but I will refer to some of them in the course of these reasons.
The purpose of the disputed facts hearing and the De Simoni principle
As I have indicated earlier in these reasons, the issue in the disputed facts hearing is which of the accused inflicted the fatal injuries to Ebony. I was invited to decide this issue on the basis that the infliction of the fatal injuries would constitute an aggravating circumstance in the commission of the offence to which each of the accused has pleaded guilty. On reflection, I have come to the conclusion that, not only is it unnecessary to decide this issue, it would be an error to do so. The accused have pleaded guilty to contravening s 14 of the CLCA. The purpose of the disputed facts hearing is to make findings of fact necessary for sentencing each of the accused for this offence. Section 14 provides:
14—Criminal liability for neglect where death or serious harm results from unlawful act
(1)A person (the defendant) is guilty of the offence of criminal neglect if—
(a) a child or a vulnerable adult (the victim) dies or suffers serious harm as a result of an unlawful act; and
(b) the defendant had, at the time of the act, a duty of care to the victim; and
(c) the defendant was, or ought to have been, aware that there was an appreciable risk that serious harm would be caused to the victim by the unlawful act; and
(d) the defendant failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the defendant's failure to do so was, in the circumstances, so serious that a criminal penalty is warranted.
Maximum penalty:
(a) where the victim dies—imprisonment for 15 years; or
(b) where the victim suffers serious harm—imprisonment for 5 years.
(2)If a jury considering a charge of criminal neglect against a defendant finds that—
(a) there is reasonable doubt as to the identity of the person who committed the unlawful act that caused the victim's death or serious harm; but
(b) the unlawful act can only have been the act of the defendant or some other person who, on the evidence, may have committed the unlawful act,
the jury may find the defendant guilty of the charge of criminal neglect even though of the opinion that the unlawful act may have been the act of the defendant.
(3)For the purposes of this section, the defendant has a duty of care to the victim if the defendant is a parent or guardian of the victim or has assumed responsibility for the victim's care.
(4)In this section—
act includes—-
(a) an omission; and
(b) a course of conduct;
child means a person under 16 years of age;
serious harm means—
(a)harm that endangers, or is likely to endanger, a person's life; or
(b)harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or
(c)harm that consists of, or is likely to result in, serious disfigurement;
unlawful—an act is unlawful if it—
(a) constitutes an offence; or
(b)would constitute an offence if committed by an adult of full legal capacity;
vulnerable adult means a person aged 16 years or above whose ability to protect himself or herself from an unlawful act is significantly impaired through physical or mental disability, illness or infirmity.
The elements of the offence charged in this case are:
(a)that Ebony died as a result of an unlawful act; and
(b)the unlawful act is an omission or a course of conduct that constitutes an offence; and
(c)the accused each had at the time of the unlawful act, a duty of care to Ebony; and
(d)each of the accused was, or ought to have been aware that there was an appreciable risk that harm that would endanger, or was likely to have endangered, Ebony’s life, would be caused to her by the unlawful act; and
(e)each of the accused failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect Ebony from physical harm and each of the accused’s failure to do so was, in the circumstances, so serious that a criminal penalty is warranted.
In R v De Simoni,[12] Gibbs CJ, with whom Mason and Murphy JJ agreed, stated:[13]
…the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
[12] [1981] HCA 31, (1981) 147 CLR 383.
[13] [1981] HCA 31 at [8], (1981) 147 CLR 383 at 389.
The principle in De Simoni was more recently confirmed by the High Court in R v Olbrich[14] where Gleeson CJ, Gaudron, Hayne and Callinan JJ stated:[15]
Finally, inquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation. The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged. It seems, however, that the intended purpose of the inquiries which the Court of Criminal Appeal had in mind was to determine the involvement of the respondent “in any overall scheme for importing drugs into Australia”. It is desirable to turn, in this connection, to the distinction between “couriers” and “principals” that was relied on at first instance.
[Footnotes omitted].
[14] [1999] HCA 54, (1999) 199 CLR 270.
[15] [1999] HCA 54 at [18], (1999) 199 CLR 270 at 278 – 279.
The principle was explained by King CJ in R v Austin[16] in the following terms:
It is true that in imposing sentence for a crime, a judge should take into account not only conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation.
Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation. Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged. Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims.
If a person is to be punished for conduct which is said to be criminal, generally speaking justice requires that he be charged with it and have the opportunity of defending himself. If he is not charged with it, generally speaking it should not be relied upon as a circumstance of aggravation of some other crime. This, of course, is not a hard and fast rule; everything must depend upon the particular circumstances and, as I have said, it is very much a matter of degree…
[16] (1985) 121 LSJS 181 at 183.
Applying these principles, it is impermissible for the Court to sentence either of the accused for contravening s 14 on the factual basis that either or both of them inflicted the fatal injuries. To do so would be to infringe the principle explained in De Simoni, Olbrich and Austin. The deliberate infliction of injury resulting in death constitutes a more serious offence than criminal neglect. Criminal neglect is an offence of omission not commission.
The proper application of these principles however does require the Court to identify the unlawful act or acts upon which the contravention of s 14 depends. If the unlawful act was committed by one or both of the accused, that would be a relevant circumstance of aggravation. There are two unlawful acts set out in the Information. They are the assault of Ebony and the failure to obtain medical attention for her.
I note in passing that a relevant unlawful act for the purpose of s 14 must be an “act” as defined, that constitutes an offence. Obviously an assault constitutes an offence. I am not wholly persuaded that a failure to obtain medical attention constitutes an offence. It may be that it could constitute a contravention of s 29 of the CLCA which creates the offence of endangering life or creating risk of serious harm. In any event, it is unnecessary to decide that in this case as, for reasons which follow, I am satisfied that there were assaults committed on Ebony by N-T and that both accused were aware of this. Accordingly, it is unnecessary to decide whether any failure on the part of the accused to obtain medical attention for Ebony constitutes an unlawful act for the purpose of s 14. As a result I confine my findings on the disputed facts hearing to the issue of whether either accused assaulted Ebony.
Findings
I am satisfied beyond reasonable doubt that Ebony was assaulted. I am satisfied of this by reason of the undisputed evidence from the autopsy of her injuries, by the evidence of C of assaults committed on Ebony by N-T and by N-T’s admissions that he assaulted Ebony by squeezing and shaking her, on somewhere between seven and 10 occasions over a period of maybe a month and a half.[17]
[17] T 131.
C gave birth to Ebony on 4 July 2011. By that time, the accused were living together in a home unit at Jeffrey Street, Brooklyn Park. At the time of Ebony’s birth the accused had been living at that address for over a month. They continued to reside at that address with Ebony until they reported her death to employees of Families SA on 15 November 2011. Of course, by then Ebony had been dead for approximately one week.
Shortly before C returned to the Brooklyn Park unit with Ebony following her delivery, N-T’s mother and sister came from Goulburn to visit. They stayed for about a week until N-T’s mother decided to return to Goulburn, apparently fed up with arguing with N-T and his verbal abuse of her. There is no evidence to suggest they assaulted Ebony and the autopsy evidence is that, apart from the fractured femur, none of Ebony’s injuries can be proved to have occurred before 16 October 2011.[18] Thereafter, it appears that, with two exceptions, N-T admitted no visitors into the unit prior to Ebony’s death. The exceptions concern a few visits from CAFHS nurses in the two months after Ebony’s birth and an attendance by two police officers following an incident where the baby’s clothes and furniture were thrown outside the front of the unit. N-T asserted that C did this, however I am satisfied beyond reasonable doubt that N-T was responsible for this incident. I further find that C did not separately admit anyone into the home unit. I am satisfied that during this period Ebony rarely left the home unit and only with her mother or together with both accused. The exception to this finding concerns the period when she was admitted to the Women’s and Children’s Hospital in August 2011 for treatment for a fracture to her femur. There is nothing in the evidence which supports a finding that Ebony was assaulted when she was away from the home unit at Brooklyn Park.
[18] T 261.
These findings are important because they lead to the logical conclusion that only N-T or C or both of them could have assaulted Ebony.
I find that the assaults on Ebony were committed solely by N-T. I am satisfied of this fact beyond reasonable doubt. I make this finding in reliance upon the evidence of C. I am reinforced in this finding by N-T’s admissions referred to earlier. This finding is further supported by other evidence of N-T’s aggressive, angry and violent behaviour.
The basis of my finding that N-T was solely responsible for the assaults on Ebony is C’s evidence that she did not assault or directly harm her baby,[19] and the partial corroboration of this evidence by N-T. He gave evidence that he did not observe C hurting or harming Ebony in any way.[20] However, he added the caveat that he could not know what she might have done to Ebony when he was not present. Accepting the logic of that proviso, however, I am satisfied beyond reasonable doubt that C did not assault Ebony at any time.
[19] T 233.
[20] T 114.
Further, it follows from my earlier finding that C was aware of the fact that N-T had assaulted Ebony. Obviously N-T was aware of this fact. I am satisfied that each of the accused ought to have been aware there was an appreciable risk that serious harm would be caused to Ebony as a result of the assaults on her by N-T and each of the accused failed to take steps that could reasonably be expected to have been taken in the circumstances to protect Ebony from harm. At the very latest this was the position from mid October 2011. In the case of N-T, those steps were to obtain appropriate medical attention for Ebony. In the case of C, those steps included not only obtaining appropriate medical attention for Ebony but also alerting the authorities, or someone who had an opportunity, or was in a position to notify the authorities, that Ebony was at risk of harm from N-T. These are the facts that constitute the requisite elements of the offence of contravening s 14. The finding that N-T assaulted Ebony is an aggravating circumstance of his contravention of s 14.
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