R v So
[2014] ACTSC 316
•14 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SO |
Citation: | [2014] ACTSC 316 |
Hearing Date(s): | 31 October and 14 November 2014 |
DecisionDate: | 14 November 2014 |
Before: | Murrell CJ |
Decision: | Conviction recorded. Sentenced to 13 months and two weeks’ imprisonment, suspended upon entering into a two year good behaviour order. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – early guilty plea – cause grievous bodily harm by negligent act – harm to infant – suspended sentence – good behaviour order – discount of 25% for early guilty plea |
Legislation Cited: | Crimes (Sentencing) Act2005 (ACT) ss , 7, 12 33, 35 Crimes Act1900 (ACT) s 25 |
Cases Cited: | Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Monfries v The Queen [2014] ACTCA 46 R v Verdins (2007) 16 VR 269 |
Parties: | The Queen (Crown) SO (Offender) |
Representation: | Counsel Mr M Fernandez (Crown) Mr J Pappas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number(s): | SCC 22 of 2013 |
MURRELL CJ:
Introduction
The offender was committed for trial on the offence that between 3 and 28 December 2010 he recklessly inflicted grievous bodily harm on his daughter, B. When he appeared for trial on 2 September 2014, the Crown accepted a plea of guilty to the alternative offence (charged ex officio) that between 3 and 28 December 2010 the offender caused grievous bodily harm to his daughter by a negligent act.
At the relevant time, an offence against s 25 of the Crimes Act1900 (ACT) (Crimes Act) carried a maximum available penalty of 2 years’ imprisonment. It is now five years’ imprisonment. The offence with which the offender was originally charged carried a significantly higher maximum penalty.
The Crown’s acceptance of the plea to the lesser charge in full satisfaction of the indictment is a practical acknowledgement of the unique factors (primarily relating to the offender’s mental condition) that are present in this case.
In the Magistrates Court, there were discussions about the possibility that the offender would plead guilty to a lesser charge. The offender pleaded guilty as soon as the Crown indicated that it was prepared to proceed under s 25 of the Crimes Act. The Crown agreed that the offender had pleaded guilty at the first opportunity. The offender will receive a discount of 25% to recognise the utilitarian value of the plea and the other considerations under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The facts
The offender was 19 years old at the time of the offence. He had no prior experience with infants.
The accused and R were in a de facto relationship. R became pregnant to the offender. In late 2010, R gave birth to B at the Canberra Hospital. Two days later, R and B were discharged from hospital. Thereafter, the offender, R and B resided at the home of R’s mother. At that time, R considered that the accused was “a good new dad”.
The offender proposed to R. The couple were looking forward to the future.
A few weeks later, R and her mother went shopping, leaving B (who was then three weeks old) in the sole care of the offender. While the offender was minding B, she began to cry and the offender was unable to settle her. Out of frustration and annoyance, and in an effort to stop B from crying, the offender picked her up and impulsively shook her hard, causing B’s head to move backwards and forwards violently.
When R and her mother returned home, they noticed that B was still, pale and cold. She was crying but was not opening her eyes. The offender denied that anything unusual had occurred while he was minding B.
After R consulted a general practitioner, B was taken to Canberra Hospital, where she was admitted. Later that evening, B experienced seizures. Investigations at the Canberra Hospital and later at the Sydney Children’s Hospital (to which B was airlifted three days later) revealed that she had suffered hypoxic-ischaemic brain injury (insufficient blood flow to the brain) resulting in severe encephalomalacia (death of brain tissue due to lack of blood supply). There had been a significant rotational acceleration injury when the offender shook B. B was discharged from the Sydney Children’s Hospital in early January 2011.
In early January 2011, the offender spoke to his mother’s partner and admitted that he had shaken B twice, causing her head to move backwards and forwards. He said that, on one occasion, R had been in a different part of the home. On the other occasion, he had been at home alone with B. In January/February 2011 the offender admitted to R that he had shaken B more than once, and he said that B’s condition was his fault. He was unable to explain why he had shaken B, other than to say that he had become frustrated because she would not stop crying.
On 31 March 2011, the offender was arrested and charged. The following day, he was granted bail. As a result, the offender spent one day in custody.
Victim impact
B suffered profound and irreversible injury. She has a bilateral asymmetric lower limb predominant cerebral palsy GMFCS level 111. She is now almost 4 years old. She has made progress towards crawling and can interact happily, but she will always be heavily dependent on others for the activities of daily life.
R’s mother read a victim impact statement in which she spoke of the indescribable trauma suffered by R when she learned that her fiancé had injured B. R’s mother explained that B’s future care will be very onerous and will impact on every aspect of R’s life. Apart from the huge financial impact, it will have an enormous impact on R’s ability to enjoy a normal social and family life. As R’s mother said, as a result of the offender’s momentary thoughtlessness, R and B have been sentenced to a lifetime of hardship.
In relation to the impact of the offence on B and her family and the interrelationship between the sentencing process and that impact, the Crown made the following point:
Ultimately the child’s security and well-being will depend on the collaboration of both sides of the child’s family in ensuring that the child and those who care for her receive the necessary and ongoing physical, financial and emotional support required in all the circumstances.
The Court acknowledges the devastating impact of this offence upon B, R and others within the family circle. For them, these proceedings will offer little consolation. I hope that they continue to find the strength and courage to deal with the very challenging situation.
Objective seriousness
The objective seriousness of the offence is to be assessed by reference to the two elements of the offence; the offender’s conduct and the injury sustained by the victim.
The conduct of the offender was reprehensible and, ordinarily, it would sit at the upper end of the spectrum in terms of the range of negligent conduct caught by s 25. However, the offender’s moral culpability is to be considered in the context of the significant mental conditions from which he suffered at the time of the offence (and from which he continues to suffer: see below).
The grievous bodily harm sustained by B is in the worst category; from the very outset of her life, B has been injured in a way that will continue to affect every facet of her life.
The psychological evidence
In February 2011, the offender was examined by Dr Byrne, a clinical and forensic psychologist. Dr Byrne spoke at length to the offender’s parents in February 2011, late 2011 and January 2012. He concluded that the offender suffered from two psychological disorders. The first was an intellectual impairment which made the offender much less able than others to interpret accurately what was happening around him. The second was a major affective disorder (i.e. a mood disorder, possibly bipolar disorder) characterised by irritable mood and dramatically impaired self esteem.
Recently, Dr Byrne re-examined the offender to determine his current medical condition and present circumstances. He found no significant change, although the offender’s mood was more stable, probably because he was taking the mood stabilising medication that was originally prescribed in 2010. This finding reinforced Dr Byrne’s earlier opinion that the offender suffered from a bipolar disorder.
As a child, the offender exhibited delayed development. The offender’s mother first sought professional help for the offender when he was a preschooler. Throughout his schooling, he had special educational requirements and attended special needs classes. During his primary school years, he exhibited anxiety and aggressive outbursts. He has always had difficulty controlling frustration. When he was in high school, he was suspended for fighting on several occasions. His lack of self-confidence became more noticeable as he moved into adolescence. He found it difficult to interact in a socially appropriate way and he had difficulty making friends. He did achieve success at sport. He completed Year 12 in the special education stream.
Over the years, the offender has undertaken a number of cognitive tests, all of which have confirmed that his full-scale IQ is about 70 (62–74), i.e. in the 2nd percentile (98% of the population functions better). Intellectual functioning of 70 warrants a diagnosis of mental retardation. Dr Berman (who reported in 2007, when the offender was in Year 10, and arrived at a full-scale IQ of 74 i.e. 4th percentile) described the offender’s functioning and intellectual impairment as “borderline”. The offender’s limited intellect means that he has very little insight into the nature of his difficulties. The intellectual impairment causes the offender to become very frustrated and aggressive and has profoundly impaired his self-esteem because he always feels inadequate. The enormous social support that the offender has received from his mother and others over the years means that the offender may superficially present with a level of sophistication that belies his underlying difficulties.
The offender experienced suicidal ideation at age 12. In 2009, he was diagnosed with depression and medicated for that condition. The condition may have been associated with the stress of leaving a protected school environment and entering a mainstream school. In late 2009, the offender attempted suicide on two occasions.
Between late 2009 and early 2011, the offender was frequently cared for by the ACT Crisis Mental Health Team and by his general practitioner. He was medicated for anxiety and depression. In October 2010, he began to consult a psychiatrist, Dr MacAndrew, who prescribed a mood stabilising medication. The offender did not adhere to the medication regime.
It was in this context that the offender was confronted with the responsibility of a baby.
Relevance of psychological state to offence
As the Crown submitted, the conduct of shaking a baby and thereby causing profound injury would normally attract stern punishment and raise issues of specific and general deterrence.
Fairly, in this case the Crown accepted that the offender’s intellectual disability and mental illness are such that the usual sentencing approach is not appropriate.
The principles that apply to the sentencing of offenders who suffer from a mental health condition were recently summarised in Monfries v The Queen [2014] ACTCA 46 at [63]–[65], where reference was made to Muldrockv The Queen (2011) 244 CLR 120 at [54], Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177] and R v Verdins (2007) 16 VR 269 at [32]. To further summarise:
(a)An offender’s mental condition will reflect on the offender’s moral culpability if it has contributed to the commission of the offence. A mentally retarded offender may lack the capacity of an ordinary person to control or understand the wrongfulness of the conduct, thereby lessening the offender’s moral culpability. As a consequence, the degree of punishment may be reduced.
(b)General deterrence may assume less importance as a sentencing purpose if the offender presents as an inappropriate vehicle for a message of general deterrence to the ordinary population. The relevance of general deterrence will depend upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the offender’s mental capacity, whether at the time of the offence or at the date of sentence, or both.
(c)For similar reasons, the offender’s mental condition may reduce or eliminate the significance of specific deterrence as a sentencing purpose. On the other hand, it may mean that the offender presents a greater risk to the community and therefore considerations of specific deterrence may result in a heavier sentence.
(d)Denunciation may assume less importance as a sentencing purpose if the offender’s mental condition has contributed to the commission of the offence.
(e)A custodial sentence may weigh more heavily on an offender because of the mental condition. If so, the condition may affect the type of sentence that is imposed and the conditions in which it should be served.
In the opinion of Dr Byrne, there was a significant connection between the offender’s mental state and the offending behaviour. The offender has very limited problem solving ability. Further, at the time of the offence, the offender was suffering from an unmedicated bipolar disorder which, in the context of significant intellectual impairment, increased the risk of impulsive behaviour in response to feelings of frustration.
I accept that the conditions suffered by the offender were integrally related to the commission of the offence and lessen the offender’s moral culpability, thereby affecting the level of punishment that is appropriate.
The combination of the offender’s very low intellectual functioning and bipolar disorder mean that the offender is an inappropriate vehicle for a message of general deterrence, and denunciation is a purpose of lesser importance. Specific deterrence is an irrelevant consideration, particularly as there is no suggestion of significant future risk (see [40] below).
Dr Byrne considered that, if the offender was to be incarcerated on a full-time basis, then he would need to be placed in protection as the nature of the offence and the offender’s intellectual impairment make him very vulnerable. Further, imprisonment would increase the risk of future antisocial behaviour because, as a result of his intellectual impairment, the offender is easily influenced and manipulated.
I accept that it would be contrary to the community’s interests if the offender was incarcerated on a full-time basis because such incarceration would remove the offender from a supported, pro-social environment and place him in an environment where he was peculiarly likely to be influenced towards antisocial behaviour, thereby substantially increasing the risk of future antisocial behaviour. It is important that the Court promote the offender’s rehabilitation.
Other subjective circumstances
The offender is the younger of two children. He has good family relationships and enjoys strong family support. His relationship with R ended at about the time of the offence. Currently, the offender resides with his mother and her partner.
The offender has worked in his father’s business and is capable of continuing to do so, provided that he is given a strict schedule of simple, repetitive tasks and is supervised closely. In the opinion of Dr Byrne, it is unlikely that the offender’s limitations would be acceptable to an employer on the open employment market.
In Dr Byrne’s opinion, the offender should not drive a motor vehicle because he is incapable of achieving the necessary level of attention and concentration.
Dr Byrne gave evidence that the offender would benefit from counselling by a psychologist to whom he could express his frustrations. The psychologist could support the offender in the setting of small and realistic goals, and by teaching coping mechanisms.
Dr Byrne assessed the offender as being sincerely contrite and remorseful. I accept Dr Byrne’s evidence on that matter.
The author of the presentence report assessed the offender as being at moderate to low risk of future general offending, and said that the risk would be further reduced by psychological counselling in relation to mental health and anger management issues. Dr Byrne also said that adequate psychological support would significantly reduce the prospect of reoffending. I accept these opinions.
Sentence
In sentencing the offender, the Court must weigh the objective seriousness of the offence and the offender’s subjective circumstances in the context of the maximum available penalty of two years’ imprisonment.
The Court must consider the sentencing purposes that are relevant under s 7 of the Sentencing Act. Most of the relevant sentencing purposes are discussed above. In addition, taking into account the offender’s mental condition, the Court should impose a sentence that addresses the considerations of adequate punishment and accountability.
The Court must also ensure that (insofar as they are relevant and known to the Court) s 33 considerations are taken into account. Relevant matters are addressed above.
The offender’s conduct and the seriousness of the grievous bodily harm caused to B are such that a sentence of imprisonment must be imposed. From a starting point of 18 months’ imprisonment I have reduced the sentence by 25% to 13 months and two weeks’ imprisonment. The interests of the offender (who is particularly vulnerable) and the community (for whom the offender does not currently represent a risk of reoffending), not to mention B and her extended families, will be best served if that sentence is suspended.
The offender is convicted of the offence and sentenced to 13 months and two weeks’ imprisonment. Pursuant to s 12 of the Sentencing Act I make an order suspending the whole of the sentence of imprisonment and an associated good behaviour order for a period of two years from today. The good behaviour order is subject to the condition that the offender report to ACT Corrective Services at Eclipse House by 4 pm on Monday, 17 November 2014, and submit to supervision by ACT Corrective Services for as long as the Corrective Services consider necessary (but no longer than two years).
It may be helpful for the ACT Community Corrections Office to facilitate ongoing treatment by Dr MacAndrew or another suitable health care practitioner who is recommended by her.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 26 November 2014 |
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