R v Olsen

[2005] NSWCCA 243

CITATION:	R v Olsen [2005] NSWCCA 243
HEARING DATE(S):	12/07/2005
JUDGMENT DATE:	14 July 2005
JUDGMENT OF:	Studdert J at 1; Kirby J at 2; Howie J at 3
DECISION:	Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS:	Criminal Law - Sentence - s 21A(d) - whether error in taking into account the criminal record - whether sentence for injuries not attributable to the acts of the applicant
LEGISLATION CITED:	Crimes Act 1900 - ss 33, 59 Crimes (Sentencing Procedure) Act 1999 - s 21A
CASES CITED:	R v Blair [2005] NSWCCA 78 Veen v The Queen (No. 2) (1998) 164 CLR 465 R v Shankley [2003] NSWCCA 253
PARTIES:	Regina v Shane Barry Olsen
FILE NUMBER(S):	CCA 2004/2829
COUNSEL:	J. Girdham - Crown H. Dhanji - Applicant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/1289
LOWER COURT JUDICIAL OFFICER:	O'Reilly DCJ

2004/2829

STUDDERT J
KIRBY J
HOWIE J

THURSDAY 14 JULY 2005

Regina v Shane Barry OLSEN

Judgment

1 STUDDERT J: I agree with Howie J.

2 KIRBY J: I agree with Howie J.

3 HOWIE J: The applicant was convicted after trial by jury of one count of maliciously inflict grievous bodily harm with intent contrary to s 33 of the Crimes Act. This is an offence that carries a maximum penalty of imprisonment for 25 years. He also pleaded guilty to a charge of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act. The maximum penalty prescribed for this offence is imprisonment for 5 years.

4 On 18 December 2003 Judge O’Reilly (the Judge) sentenced the applicant to imprisonment for 9 years for the s 33 offence and specified a non-parole period of 5½ years. In respect of the s 59 offence he sentenced the applicant to imprisonment for 18 months. The sentences were to date from 5 July 2002. Although the Judge directed that the applicant be released to parole on 4 January 2008, he had no power to make that order, as the sentence exceeded 3 years imprisonment. However that is the date upon which the applicant will be eligible for release to parole.

5 The applicant seeks leave to appeal against the sentence imposed for the s 33 offence. There are two grounds of appeal relied upon being:

1. The sentencing judge erred by taking the applicant’s criminal record into account as an aggravating feature.

2. The sentencing judge erred in sentencing the applicant on the basis of harm for which the applicant was not responsible.

6 The two offences occurred on 4 July 2002. The victim of the s 33 offence was the son of the applicant’s de facto partner. He was aged 3½ years at the date of the offence. The injuries amounting to grievous bodily harm were inflicted on the child when his mother left him in the applicant’s care in order to visit another child, a baby born prematurely and who was being cared for in hospital. On returning to the house, the mother found the child, who was plainly injured, on a lounge near the applicant. The applicant said that the child had fallen over the vacuum cleaner and hit his mouth on the television set. The mother wanted to take the child to hospital but the applicant opposed that course because the child might be removed by welfare agencies.

7 However, the mother took the child with her out of the house to seek medical assistance for him. The applicant followed her down the driveway and pushed her to the ground. A struggle ensued over the child during which the applicant poked the mother in the eye and pulled out some of her hair. This assault gave rise to the s 59 offence. The applicant succeeded in wresting the child off the mother and returned with him to the house. She stayed with the child until the next morning. When the applicant was asleep the mother seized the opportunity to seek help from a neighbour and then a friend. Police were contacted and the child taken to hospital for treatment.

8 The child was examined and was found to have 57 areas of injuries. In particular he had suffered intra-retinal haemorrhages and flexion extension injuries to the neck indicating that he had been severely shaken. The child was also suffering from dehydration. The injuries inflicted indicated that there had been a large number of forcible impacts with the child’s body. He had bite marks to the right and left thighs and the impression of an adult hand mark on his left cheek. There were, however, no bone fractures suffered by the child. He required re-hydration for two days and remained in hospital for a period of two weeks.

9 The applicant has always maintained that he was not responsible for the child’s injuries and had given a number of explanations for how the injuries were occasioned to the child. The Judge was entitled to find, as he did and in accordance with the jury’s verdict, that the child was uninjured when left by his mother in the applicant’s care and that all the injuries were inflicted upon the child by the applicant during the period before the mother’s return.

10 He was also entitled to find, as he did, that the applicant had shown no remorse for the injuries inflicted upon the child. This was not only because of his plea of not guilty and his numerous assertions after his arrest that the child’s injuries were accidental, but also because of his conduct in trying to prevent the mother from obtaining help for the child even to the extent of assaulting her when she attempted to do so.

11 The applicant was aged 29 years at the time of the offence. He has a criminal record dating from 1990 when he was dealt with an offence of assault occasioning actual bodily harm in the Children’s Court. During 1992 he appeared before the Local Court for four further offences of this kind and ultimately was sentenced to imprisonment for 6 months. In 1994 he failed to appear on offences of assault and assault police and was ultimately sentenced to imprisonment for those offences and an offence of assault occasioning actual bodily harm in 1995. Again he was sentenced to imprisonment for a period of 6 months. In 1997 he was sentenced to a fixed term of 12 months imprisonment for an offence of assault occasioning actual bodily harm. Later that year he appeared for the first time in the District Court and was sentenced to imprisonment for dishonesty offences including stealing from the person and break, enter and steal. In 1999 he was sentenced to imprisonment for offences including assaulting a police officer in the execution of his duty and inflicting actual bodily harm. In 2000 he was sentenced to imprisonment for 18 months for maliciously inflicting grievous bodily harm. On 28 June 2002, that is a month before the present offences, he was convicted in his absence for common assault and a warrant issued for his arrest.

12 The Judge referred to the applicant’s criminal record as being extensive and in the context of observing that there were a number of aggravating features present. These included the fact that the applicant was on bail at the time of the offence in respect of the offence of assault committed against the child’s mother and that was the subject of the June 2002 conviction. The first ground of appeal is that his Honour erred in treating the record as an “aggravating feature”. It was submitted that in the context his Honour must have meant an “aggravating feature of the offences”. Reliance is placed upon decisions of this Court that have stressed that the proper basis upon which a criminal record is relevant in sentencing is where it suggests that more weight should be given to factors such as retribution, deterrence and community protection: see for example R v Blair [2005] NSWCCA 78.

13 In the present case the error, if one were made, is a highly technical one. But I am not convinced that his Honour should be taken as meaning that he regarded the record as an aggravating feature of the offences and that is not what he said. After referring to the details of the record, the Judge commented that it seemed that the applicant had “not learned much from the previous ten years or so”. His Honour clearly was referring to the fact that the applicant’s record and gaol sentences for acts of violence had not deterred him from acting violently to the child or the mother. That was, with respect, a fair and pertinent comment to make. The record was in my view clearly an “aggravating factor to be taken into in determining the appropriate sentence” for the offences within the terms of s 21A in the manner in which a criminal record can be used at common law and as expressed in Veen v The Queen (No 2) (1998) 164 CLR 465. The record showed that the applicant “had manifested in the commission of the instant offence[s] a continuing attitude of disobedience to the law”: Veen (No 2) at 477.

14 However, Mr Dhanji argued further that, even if the Judge was entitled to take into account the fact that the applicant’s record was an aggravating factor in the determination of the sentence in the Veen (No 2) sense, the Judge erred by taking it into account twice, once legitimately and once in error. After referring to the record and making the comment about the applicant’s failure to learn from it that I have quoted above, the Judge immediately went on:

Looking at the provisions of s 21A of the Crimes Sentencing Procedure Act (sic) I note the relevance of his previous convictions.

The Judge then considered a number of aggravating features derived from s 21A(2), such as the fact that there was gratuitous cruelty and that the injuries were substantial.

15 The argument is that his Honour was at this time taking into account the record once again but in order, on this occasion, to aggravate the offence. In support of this contention Mr Dhanji relied upon the fact that the sentencing remarks were made before this Court had pointed out that under s 21A(2)(d) a criminal record did not aggravate the offence and was not an aggravating feature except where the principle in Veen (No 2) applied. Therefore, so the argument ran, his Honour was liable to have made the error identified in those cases.

16 But it was made clear by this Court in R v Shankley [2003] NSWCCA 253, well before the applicant was sentenced, that the relevance of a criminal record in the sentencing of an offender was not to make the offence more serious. I do not understand why it should be assumed that the Judge would have fallen into an error that some other judges may have fallen into in respect of s 21A(2)(d) where there is nothing to suggest that he did. In my opinion the second time the Judge referred to the applicant’s record was only to indicate that he had already dealt with it. The fact that he noted its relevance did not mean that he was taking it into account again as an aggravating feature of the offence. He was merely indicating, when he came to deal with the matters set out in 21A(2), its relevance; that is in the way that he had already used it.

17 In any event there were so many aggravating features present that it is hardly likely that were any one of them to be discounted that it would have made any significant difference to the exercise of his Honour’s discretion. For example, the fact that the applicant was on bail for an offence of violence against the child’s mother itself indicated that both personal and general deterrence were significant matters to be reflected in the sentence imposed for the protection of the community. Further, his Honour correctly found that the offence involved gratuitous cruelty, that the victim was vulnerable and was under the applicant’s trust, and that the offence included a series of criminal acts.

18 There was little in the psychological assessment of the applicant that assisted him. Although he had for a lengthy period used amphetamine and heroin, he maintained that he had undertaken a methadone course in 2001 and since that time he had only used amphetamine on one occasion and heroin not at all. He explained to the psychologist that his offences of violence occurred when he was intoxicated by alcohol or drugs.

19 He told the officer preparing the Pre-sentence Report that at the time of the offences he had been consuming amphetamine and other substances. However, the officer thought that the applicant recognised that he had a long-term problem with drug abuse and associated violence. But of course he would not accept that he had inflicted injuries upon the child.

20 The psychologist thought that the applicant had “limited capacity to gain insight with regard to many areas of his functioning” and that he had “limited resources to cope with stressful situations and that in such situations his controls would be likely to be inadequate”. However, he thought that the applicant had some insight in to the fact that his ability to control himself was reduced by the effects of alcohol and drugs and he had undertaken a course in anger management as well as drug and alcohol abuse.

21 The Judge found that there were special circumstances based upon the fact that the sentence was to be a long one, that the applicant was on protection and “that there seems to be some glimmer of hope that he might have seen the error of his ways so that he will need extended parole supervision”.

22 I have dealt with the first ground of appeal. The second ground arises from what his Honour said about the effect of the offence upon the victim and was based upon material in a victim impact statement. His Honour said:

I have looked at a victim impact statement. It was put together by [the mother] and a lot of the material in it is strictly not admissible, it relates to difficulties with other children and so on. I suppose the significance of it is and it is dated 8 December 2003 that after this lapse of time of about 18 months he is still under care in the sense that he has consultations at the Children’s Hospital at Westmead, some speech therapy was necessary. He has been seen by Dr Susan Marks, as I mentioned and also by Dr Sally Brown a children’s psychiatrist.

23 The complaint made by the applicant is that neither the need for speech therapy nor the need to see a child psychiatrist arose from the injuries suffered at the hands of the applicant. The Crown in fact eschewed reliance upon speech therapy as part of the grievous bodily harm suffered by the child. The report had such little relevance that it should not have been placed before the court in the form that it was. However, the Crown prosecutor submitted:

………, the material is placed before you to indicate that ongoing tests are occurring in relation to this child and one would expect that to occur. We don’t go so far as to say for example the speech impediment has arisen from this incident but the fact that this child needs to be checked following the injuries is something that we would say would be expected and is part of the impact that has occurred not only to the child but also to [the mother] as this process is undergone.

24 Any continuing impact of the offences upon the child and the mother was not relied upon by the Crown other than that the child’s health still needed to be monitored and this no doubt had an effect on the child and the mother. This was not a significant part of the Crown case nor was it a significant aspect of determining the sentence to be imposed. True it is that his Honour was in error in referring to speech therapy and psychiatric assistance for the child. But those two matters were mentioned by the Judge as examples of the fact the child was still under supervision of the hospital some 18 months after the offence. The error in referring to these two matters as being part of the consequences of the offending was in my view insignificant in that it is clear otherwise from his remarks that the Judge was sentencing the applicant on the basis that the grievous bodily harm arose from the injuries suffered at the time of the assaults and not on the basis of injuries existing at the time of sentence. The victim impact statement was not intended to be used, and was not used by the Judge, as supplementing the injuries upon which the Crown relied at the trial.

25 The sentence was a heavy one and fell within the upper range of sentences imposed for this offence. The statistics reveal that only 21 of 172 offenders sentenced for this offence received a higher sentence. Presumably those sentences included cases where the injuries were permanent. But it does not necessary follow that the penalty for the present offence was an inappropriately severe one given the aggravating features that applied to the sentencing of the applicant. His conduct in inflicting such serious injuries upon a very young and defenceless child under his care and protection was such that a very substantial sentence was warranted. The applicant’s attempts to prevent the mother from seeking assistance for the child required that sentence to be a very severe one indeed. The fact that he used force against the mother in those circumstances required a very significant sentence to be imposed upon the applicant for the offence of assault against the mother.

26 No Crown appeal has been brought in respect of the sentence imposed for the s 59 offence. In my view a sentence of 12 months to be served completely concurrently with the sentence imposed for the s 33 offence was insufficient to reflect the seriousness of that offence and its aggravation of the offence involving the infliction of grievous bodily harm. I doubt that the seriousness of the offence committed against the child comprehended the seriousness of the assault upon the mother in the circumstances of this particular case. If I had come to the view that the sentence for the s 33 offence was manifestly excessive, I would in re-sentencing the applicant have made that sentence fully cumulative upon the sentence for the s 59 offence.

27 However, I am prepared to determine the application on the basis that the applicant’s attempts to prevent the mother seeking medical assistance for the child are part of the culpability of the applicant in committing the s 33 offence and can be comprehended by the criminality involved in that offence, particularly as it resulted in the dehydration of the child that was part of the grievous bodily harm relied upon by the Crown. In those circumstances it is my opinion that the sentence of 9 years, although at the top of the range, was, given the aggravating features relevant to the determination of the sentence, an appropriate one. I should add that the non-parole period was the very least that could have been imposed given the seriousness of the offences and the need for both personal and general deterrence.

28 I propose that the application for leave be granted but that the appeal be dismissed.

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