R v Ryan (a pseudonym) (No.4)

[2022] NSWDC 14

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ryan (a pseudonym) (No.4) [2022] NSWDC 14
Hearing dates:	15 November 2021; 19 November 2021; 17 December 2021.
Decision date:	11 February 2022
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 5 years with a non parole period of 3 years.
Catchwords:	CRIME - SENTENCE - Reckless grievous bodily harm (DV); Not provide for child cause danger of serious injury (DV).
Legislation Cited:	Crimes Act 1900 (NSW) ss.35(2) and 43A(2)
Cases Cited:	R v George (a pseudonym) [2021] NSWDC 18; R v Ryan (a pseudonym) (No.1) [2021] NSWDC 727; R v Ryan (a pseudonym) (No.2) [2021] NSWDC 733; Bugmy v The Queen (2013) 249 CLR 571.
Category:	Sentence
Parties:	Regina (Crown) Ms Ryan (a pseudonym) (Offender)
Representation:	Ms Keay (Crown Prosecutor) Mr Dalton SC (Counsel for the offender)
File Number(s):	2019/00201825
Publication restriction:	Statutory non publication and suppression orders made of the names of the offender, child victim, co offender or of any other thing that might, directly or indirectly, identify any of them.

Judgment

1. Ms Ryan (a pseudonym), you appear today for sentence in relation to two offences.

2. First, causing grievous bodily harm and being reckless as to causing actual bodily harm to your son, Richard (a pseudonym). This involves a contravention of s35(2) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is a standard non-parole period of 4 years imprisonment.

3. Secondly, failing to provide Richard with the necessities of life, thereby causing him serious injury. This involves a contravention of s43A(2) of the Crimes Act. The maximum penalty for that offence is 5 years imprisonment. There is no standard non-parole period.

4. These proceedings – both before and after you entered pleas of guilty – have a long history. That history was set out in detail by me in a judgment on 15 November 2021 on your (unsuccessful) application that I should disqualify myself from continuing to hear these sentence proceedings (cf R v Ryan (No.1) (a pseudonym) [2021] NSWDC 727.

5. The facts surrounding your offending are as follows and (unless otherwise indicated) are based on Exhibit B (amended agreed facts on sentence).

6. On 10 May 2019, you gave birth to Richard. Your then partner, Mr George (a pseudonym), was his father.

7. At the time of Richard’s birth, you and Mr George were living in Goulburn.

8. Mr George worked at a supermarket in Goulburn between 6:00am and 9:00am.

9. On 19 June 2019, you came to that supermarket with Richard. One of Mr George’s co-workers noticed that Richard had a 1.5cm red line on his forehead. I am unable, on the evidence, to make any finding as to how that red line came to be on Richard’s forehead.

10. When Mr George finished his shift for that day he went home. He found Richard lying in his bassinette, unattended, and with a soggy nappy. You appeared to be angry – but why you were angry is not explained in Exhibit B or anywhere else in the evidence.

11. Sometime later that day, Richard was crying in his bassinette. You stood over the bassinette; and then you shook Richard from side to side, jolting him up and down; and then you hung him (upside down) from his feet. You then threw him onto a bed. Richard was just a little over 5 weeks old. How much later in the day, and whether you were still angry, is not revealed in the evidence. In fact, there is no explanation of the circumstances which led you to do this to Richard on this occasion apart from the very briefest – and incomplete – explanation that you made to the doctors in the intensive care unit on 26 June 2019 to which I shall return.

12. The rotational forces and impact to Richard’s head caused Richard substantial brain damage; and almost cost him his life.

13. After you had done these things to Richard, you left the room.

14. After Richard was injured by you in the manner I have described on 19 June 2019, he became more unsettled and he had difficulty feeding that evening.

15. Through the evening of 19 June 2019, Richard slept for longer than usual – about 7 hours – without waking. Previously, Richard had generally been waking through the night every 4 hours to be fed or changed.

16. The next day, 20 June 2019, Richard was: not feeding normally; crying more than usual; vomiting; and noted to be cold.

17. No medical intervention was sought on Richard’s behalf during the whole of that day.

18. That night he also slept longer than usual, again about 7 hours.

19. On 21 June 2019, Mr George again worked at the supermarket between 6:00am and 9:00am. When he finished work, he returned home and went to Richard’s room as Richard was crying. Richard was white and had stopped breathing. His nails and fingers were blue and floppy and there was a small amount of vomit present around his mouth. Although Exhibit B does not expressly say so, the only rational inference is that you were present somewhere in those premises.

20. Mr George administered CPR using the resuscitation guide in the blue book and Richard started breathing again. At about 10:33am, you called an ambulance which arrived at 10:57am. During the call for that ambulance, the operator could hear Richard crying.

21. When the ambulance arrived, the paramedic conducted an assessment and noted that Richard’s radial pulse was strong, his breathing appeared normal and his pupils were reacting. Nevertheless, the paramedic suggested that Richard should be taken to the hospital for check up to be safe.

22. Neither you nor Mr George told the paramedic that CPR had been performed on Richard, although one of you informed the triage nurse of that fact when the ambulance arrived at Goulburn Hospital. However, no history of trauma was given by either you or Mr George to the paramedic or the hospital.

23. Upon arrival at Goulburn Hospital, Richard had an intravenous line inserted and blood tests were taken. He was reviewed at about 2:56pm and his blood tests were found to be within normal limits. Both you and Mr George told the doctors that you wanted to take Richard home. As further tests were pending, you and Mr George were strongly advised that Richard would need to stay overnight – in fact, the doctors told you that they would need to report the matter to Family and Community Services if you did take Richard home. The hospital agreed to let you and Mr George stay overnight at the hospital, which is what you did.

24. Richard was discharged from hospital at about 11:00am on 22 June 2019. When he was taken home, he was given a bottle and put to bed; however, he was unsettled and, at approximately 12:00pm to 1:00pm, Richard began crying hysterically, he had developed “short gasps” and was jerking his head to the right.

25. During the afternoon, Mr George sent a video of Richard’s behaviour to his mother. The video was taken at 3:25pm and showed Richard’s whole body moving together with a subtle movement of his head to the right. Mr George’s mother told him to take Richard immediately back to the hospital. Although Exhibit B does not expressly say so, the only rational inference is that Mr George’s mother’s advice was known to you at or about the time it was given.

26. However, Richard was not taken back to hospital either immediately or at any time that day. At approximately 8:00pm to 9:00pm, Richard tolerated a normal feed. But at 1:00am (on 23 June 2019), he woke and vomited. He was crying and appeared to be in discomfort and continued to vomit. Richard continued to have jerking movements in his left arm and leg. Even then, he was not taken to the hospital.

27. Later in the morning of 23 June 2019, you and Mr George arranged to see a general practitioner at midday. At that appointment, the doctor noted rapid eye movement and twitching to the left side of Richard’s face. That doctor gave you the same advice which Mr George’s mother had given, namely, to take Richard directly to the emergency department at the hospital.

28. But again, you and Mr George did not act on the advice you had been given – at least, not immediately. Rather, Richard was taken home from the general practitioner’s surgery and Richard’s condition continued to deteriorate.

29. Richard was returned to Goulburn Hospital for his second admission at 1:12pm on 23 June 2019. The hospital was informed that Richard hadn’t fed since 10:00pm the night before. But still no history of trauma was provided by you (or Mr George) to the treating staff.

30. On this admission, Richard was noted to be pale and cool to touch with dark circles under his eyes which were twitching and deviating to the right.

31. Shortly after his second admission to the hospital, Richard commenced seizure activity. A CT brain scan was taken which showed bilateral subdural haematomas with the right side larger than the left. He also had a midline shift of 2mm which is a sign of mass effect from bleeding.

32. Richard was then transferred by helicopter to the Sydney Children’s Hospital at Randwick.

33. At approximately 5:15pm on 23 June 2019, Richard’s injuries were reported by the Joint Child Protection Response Team to New South Wales Police and an investigation was begun.

34. On 24 June 2019, Richard underwent his first operation. It was for decompression due to significant pressure around his brain. The doctors had to convert to an emergency craniectomy together with subdural haemorrhage drainage – a massive blood transfusion protocol was required. Richard nearly died on that operating table.

35. After that first operation, a further CT scan showed an enlarged right subdural haematoma and an increased midline shift of 4mm with other signs of raised pressure in the brain. An EEG also revealed multifocal continuous seizure activity which was difficult to control. This required titration of up to 5 different anti-epileptic agents.

36. The next day (25 June 2019), at about 1:00pm, Mr George disclosed to one of the doctors that you had admitted to “accidentally bumping Richard’s head a few weeks ago”. If such an incident and such an admission had occurred, it was clearly not the incident which took place on 19 June 2019.

37. The next day (26 June 2019), Mr George’s father spoke to him and you. He told you and Mr George to think whether there was anything you hadn’t told the doctors. Later that day, at about 9:00pm, Mr George rang his father and told him that you had said that you had accidentally shaken Richard in the cot. Unsurprisingly, Mr George’s father said that that information should be told to the doctors.

38. Later that evening, you and Mr George met with doctors in the intensive care unit. You told them that, on 19 June 2019, when you were alone with Richard, you couldn’t settle him and that you “shook him for no longer than 5 minutes”.

39. On 27 June 2019, the neurology team at the Sydney Children’s Hospital had a meeting concerning Richard. In that meeting, it was agreed that the brain swelling was more extensive than what would be expected from a subdural haemorrhage and, therefore, could also be related to a direct trauma. The overall consensus during the meeting was that the most likely diagnosis was shaken baby syndrome – or direct trauma – plus the subsequent effects of pressure. No other medical causes were felt likely to be relevant.

40. Shortly after that meeting, you met with the child protection team in the intensive care unit. The doctors explained the findings of retinal haemorrhages and suggested that they could be caused by a jerking back and forth movement.

41. The next day, 28 June 2019, the police obtained a warrant and lawfully recorded a conversation between you and Mr George concerning Richard’s injuries and the test results. A purported transcript of that conversation was set out in paragraph 41 of Exhibit B. During the sentence hearing, however, I listened to the actual recording of that conversation (ultimately Exhibit C). It was clear that the initial transcript was erroneous and, consequently, a further transcript was produced (MFI-2). One of the aspects of Exhibit C that is worth recording is that, in that admittedly short extract of that secretly recorded conversation, I did not get the impression of one participant overbearing the other, but rather, the clear impression which I have was that each of you were putting your heads together – or, as it was described by Professor Woods in his oral evidence, “… a conspiratorial type conversation” (cf T30:1, 17 December 2021) or “colluding” (cf T37:44). But having listened to Exhibit C more than once, unlike Professor Woods, I did not get the impression that the conversation “… was being more led by [Mr George]” (cf T30:20, 17 December 2021).

42. Both you and Mr George participated in recorded interviews with police. Your interview was conducted on 28 June 2019 – and you were arrested on that day.

43. It is unnecessary for me to deal in detail with the content of your record of interview except to note that it could not be said that you were fully frank with the interviewing officers, especially when you gave a demonstration of gently shaking Richard – on that particular topic, you were untruthful.

44. Similarly, it is not necessary to refer in much detail to Mr George’s interview. One matter, however, that does need to be specifically referred to is that, according to Mr George in that interview, the incident which occurred on 19 June 2019 was not an isolated incident (see subparagraphs 44(i) and (j) of Exhibit B). There was no objection taken to the inclusion of those subparagraphs and, accordingly, I am satisfied, beyond reasonable doubt, that the matters covered in those subparagraphs were, more or less, accurate. Whilst you are not to be punished today for other acts of violence inflicted by you on Richard, it cannot be said (and has not been submitted by Mr Dalton SC on your behalf) that what occurred on 19 June 2019 was an isolated incident.

45. Richard is still undergoing treatment. As at 10 October 2019, the state of Richard’s injuries were as follows:

1. Richard was still on two different anti-seizure medications but had not had any seizures since his discharge from hospital;

2. he had a helmet fitted for head deformity which he was wearing 18 hours a day;

3. he was attending physiotherapy and occupational therapy fortnightly;

4. he had improved movement on his left side but was still stiffer to his right; and

5. he had spontaneous movement on his left upper limb. His left hand was mostly fisted and he was to be fitted with a thumb loop to reduce this.

46. As at 10 September 2020, Richard’s treating neurosurgeon stated that: his left side paralysis had improved; he was able to bear weight quite well and has reasonable function of his left hand; he had a permanent injury to his visual field with loss of left side visual field; and he required ongoing physiotherapy.

47. It is the opinion of Dr Garside, the specialist paediatrician from the Child Protection Unit at the Sydney Children’s Hospital, and it is not in dispute, that:

1. at 6 weeks of age, Richard suffered an extensive brain injury resulting in bilateral subdural haematomas (i.e. blood around the brain), injury to the brain tissue, and bleeding at the back of the eyes. These injuries were not birth related or secondary to any underlying medical condition. Richard’s brain injury was the result of trauma. The types of forces that cause these injuries are generated by the forceful movement of the head on the neck and can be the result of violent shaking of an infant;

2. by the time Richard had surgery on 23 June 2019, he had an evolving brain injury; his brain was swelling and under considerable pressure. When he was operated on, Richard’s brain herniated out of the tight covering of the brain;

3. Richard required further surgery on 21 July 2019 and 22 August 2019;

4. without emergency treatment and neurosurgery, it is unlikely Richard would have survived;

5. symptoms of brain injury in an infant include drowsiness, altered levels of consciousness, poor feeding, lethargy, floppiness, irritability, vomiting, seizures or altered breathing including stopping breathing;

6. symptoms of Richard’s evolving brain injury were present from the evening of 19 June 2019;

7. Richard was likely to have been injured before the evening of 19 June 2019. The incident described by Mr George, where you shook Richard and picked him up by the feet and then threw him on 19 June 2019, could (and I am satisfied, beyond reasonable doubt, did) account for the acceleration/deceleration injuries which led to his subdural and retinal haemorrhage;

8. a vigorous shaking of Richard, where his head is moving about his neck and there is an impact to his head, could (and I am satisfied, beyond reasonable doubt, did) account for Richard’s injuries; and

9. the gentle shaking demonstrated by you in your interview with police is unlikely to have caused the injuries suffered by Richard. In fact, I am satisfied, beyond reasonable doubt, that that demonstration was a deliberately inaccurate and untrue reproduction of what you did to Richard on 19 June 2019.

48. These are the facts referrable to the (first) Count of causing grievous bodily harm, and being reckless as to causing actual bodily harm, to Richard.

49. Insofar as the second Count is concerned (failing to provide the necessities of life, thereby causing a danger of serious injury or death), after you injured your baby on 19 June 2019, you failed to provide him with timely and appropriate medical attention. During the period when Richard was given medical attention, you failed to inform medical practitioners that Richard had, in fact, suffered head trauma.

50. I am satisfied, beyond reasonable doubt, that if you had informed medical practitioners that Richard had suffered trauma on 19 June 2019 when he was first admitted to hospital on 21 June 2019, testing, such as a CT scan, could have detected Richard’s evolving brain injury which could have led to a better outcome for him. The failure by you to obtain timely and appropriate medical attention caused Richard a risk of death or serious injury.

51. It is necessary for me to make a finding as to the objective seriousness of each of the offences, for offences of their kind.

52. By having regard to the matters I have already referred to, in my opinion, each offence is above the mid-range.

53. You did not give evidence in the sentence hearing. Rather, your subjective circumstances were put before the Court through a series of expert reports which became Exhibit 1 – together with the supplementary oral evidence of one of the authors of those reports, Professor Woods (a forensic psychologist). I pause to observe that in Mr Dalton’s additional written submissions, dated 23 December 2021, a submission was made that the Crown required Professor Woods for cross-examination as a result of “prompting” by the Court (cf [9] of those submissions). That is a word which contains implicit criticism. In this context, I refer to, and incorporate by reference, my judgment of 19 November 2021 dealing with the Crown’s adjournment application: see R v Ryan (a pseudonym) (No.2) [2021] NSWDC 733.

54. Included in Exhibit 1 is a report from Dr Black (a consultant psychiatrist) dated 11 November 2019. The report was prepared in support of an application by you for NDIS services. The report noted that you first consulted Dr Black on 5 July 2019 – approximately one week after your arrest. The report makes no reference to your arrest, or the charges, or to the circumstances which led to those charges.

55. Also included in Exhibit 1 are two reports prepared by Ms Humphreys (a psychologist) dated 20 and 21 August 2019. Dr Black referred you to Ms Humphreys. In the first of her reports, under the heading “Reason for referral”, Ms Humphreys wrote:

“[Ms Ryan] was referred by her Psychiatrist, Dr Katherine Black, for an autism assessment and possible confirmation of a diagnosis.

This assessment is to provide information and guidance to access treatment. [Ms Ryan] and her mother have expressed that [Ms Ryan] needs ongoing professional help in the areas of social skills, communication and adaptive functioning. These difficulties are causing issues with making and maintaining friendships, increasing social isolation and inhibiting employment. [Ms Ryan] has never sought treatment previously for these issues.”

56. The only reference in the reports of Ms Humphreys to the charges which had been brought against you almost two months previously is in the first of those reports (at page 1):

“[Ms Ryan] reports she has no friends, and broke up with her boyfriend approximately a month ago following both being charged with a serious offence.”

57. I found it somewhat surprising that neither Dr Black nor Ms Humphreys took any history from you of the charges or the circumstances underpinning them. I mention this only for completeness. I do not draw any adverse inference against you in connection with these omissions.

58. In her first report, Ms Humphreys set out the circumstances of your childhood, including the difficult relationship of your parents. However, it was not submitted on your behalf that that childhood was dysfunctional in the sense that that expression was used by the High Court in Bugmy.

59. No expert material in answer to Exhibit 1 was advanced by the Crown. Rather, the Crown relies upon aspects of the oral evidence of Professor Woods.

60. However, based on Exhibit 1 and the oral evidence of Professor Woods, I am satisfied, on the balance of probabilities, that, at the time of the offending (and now), you suffered (and suffer) from:

1. autism spectrum disorder;

2. a mild intellectual disability;

3. a persistent depressive disorder; and

4. other specified personality disorders.

61. I am also satisfied, on the balance of probabilities, that you were and are a vulnerable young woman because of your combined neurodevelopmental and mental disorders, low emotional age, and limited adaptive functioning. I am also satisfied, on the balance of probabilities, that, because of those considerations, being a young mother would have been very challenging for you. In this regard, there is no evidence as to what support you may or may have not had from your mother, grandparents, or anyone else in the community apart from Mr George.

62. I did, however, find it noteworthy that when you were assessed by Professor Woods, there was no discussion by you with him about the offences and the circumstances in which they came about – even though he tried, on numerous occasions, to engage with you on those issues. Your reluctance, or inability, to engage to any degree with Professor Woods is in contrast to:

1. your willingness to tell the doctors on 26 June 2019 that you had shaken Richard for “no longer than 5 minutes” on 19 June 2019 when he wouldn’t settle; and

2. your willingness to give a version of events (albeit an untruthful one) to police when you were interviewed by them on 28 June 2019.

63. No satisfactory explanation has been given as to why you did not engage with Professor Woods on this topic.

64. These considerations considerably lessen the weight to be given to Professor Woods’ opinion as to any causal connection between your mental health issues and your offending; rather, they reinforce my previously expressed preliminary view that Professor Woods’ opinion as to causation was speculation.

65. In the result, I am not satisfied, on the balance of probabilities, that there was a causal connection between your offending and the various conditions to which I just referred.

66. However, because of those conditions, your moral culpability is reduced (but not significantly); and the full application of general deterrence (which is the primary sentencing consideration in connection with offences against children) is also reduced (but not significantly).

67. In this regard, I repeat what I said when I sentenced Mr George:

“The abuse of children – whether psychological or physical, and whether sexual or non-sexual – is abhorrent, and the Courts must impose stern sentences to protect children from such abuse – especially where that abuse is inflicted by their parents and in their own homes” (see R v George (a pseudonym) [2021] NSWDC 18 at [78]).

68. Specific deterrence, a need to protect the community, and a need to encourage your rehabilitation are, however, fully engaged.

69. You have no prior offences, but that factor – which, in appropriate circumstances, entitles an offender to leniency – is of less (but nevertheless still some) relevance for offences against children.

70. You entered late pleas of guilty – 24 days before a trial date set down for 1 March 2021. Prima facie, you are entitled to a 10 per cent discount for each of the pleas. The Crown has submitted, however, that the Court could reduce that percentage because of the manner in which the sentence proceedings were conducted, specifically in connection with a limited contested facts hearing. Although there is some force in that submission, there is also force in the submissions made on your behalf by Mr Dalton as to how the limited contested facts issue was resolved. In the result, I shall not further reduce the value of the plea discount.

71. You have not expressed remorse for your offending. In this context, I am not satisfied, on the balance of probabilities, that your pleas were a product of genuine remorse. However, this absence of remorse is, on the balance of probabilities, likely to be a result of your significant mental health issues.

72. Remorse is an important aspect in assessing an offender’s prospects for rehabilitation.

73. Given an absence of genuine and insightful remorse, and given the contents of Exhibit 1, I regard your prospects for rehabilitation as being guarded.

74. No sentence other than a sentence of full-time imprisonment is appropriate for either of the offences.

75. You were refused bail for 2 days following your arrest; and your subsequent bail was revoked by me on 17 December 2021. Therefore, the sentence will be backdated to commence on 14 December 2021.

76. Because: (a) of your mental health issues; (b) you will spend your term of imprisonment in protective custody (a matter expressly conceded by the Crown); and (c) you will need support and assistance upon your release, I shall make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.

77. I shall impose an aggregate sentence. In relation to that aggregate sentence: the 10 per cent discount will be applied to the indicative sentences underpinning that aggregate sentence.

78. In relation to the first Count, except for your plea of guilty, the indicative sentence would have been imprisonment for 4 years 6 months. After the discount, the indicative sentence is 4 years and the indicative non-parole period is 2 years 5 months.

79. In relation to Count 2, except for your plea of guilty, the indicative sentence would have been imprisonment for 3 years. After the discount, the indicative sentence is 2 years 8 months.

80. Ms Ryan, for the offences of causing grievous bodily harm to Richard and failing to provide him with the necessities of life, thereby causing him serious injury, I sentence you to an aggregate term of imprisonment of 5 years.

81. I fix a non-parole period of 3 years to date from 14 December 2021 and which will expire on 13 December 2024.

82. I fix a balance of 2 years to date from 14 December 2024 and which will expire on 13 December 2026.

Amendments

15 February 2022 - Paragraph [53] line 5 - (revised) removed.

Paragraph [53] line 6 - the following added after the word "application" - "see R v Ryan (a pseudonym) (No.2) [2021] NSWDC 733".

Decision last updated: 15 February 2022