R v Tepania

[2017] NSWDC 435

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Tepania [2017] NSWDC 435
Hearing dates:	15 August 2017
Date of orders:	02 November 2017
Decision date:	02 November 2017
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	The offender is sentenced to full-time imprisonment. I set a non-parole period of 3 years and a head sentence of 5 years.
Catchwords:	CRIMINAL LAW – sentence – recklessly cause grievous bodily harm – plea to alternative count – ten-month old victim – burn injury – place child in bath – profound disadvantage – deprived upbringing
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Blackwell v R [2011] NSWCCA 93 Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v BJ [2017] NSWDC 234 R v Dashti [2016] NSWCCA 251 R v Egan [2016] NSWCCA 285 R v Fernando (1999) 76 A Crim R 58 R v Lolesio [2014] NSWCCA 219 R v Nolan [2017] NSWCCA 91 R v Pitcher (NSWCCA; unreported 19 February 1996, Gleeson CJ and Ireland J agreeing) R v Smith [2005] NSWCCA 286
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Atare Tepania (Offender)
Representation:	Representatives: Ms Trinnie for the DPP Ms Parker for the Mr Tepania
File Number(s):	2015/00343517
Publication restriction:	Nil

SENTENCE

HIS HONOUR:

OVERVIEW

1. On the afternoon of Saturday 21 November 2015, the offender Atare Tepania embarked on an alcoholic binge with a number of his friends. Later that night he consumed a number of tablets that he believed to be ecstasy. He became offensive and belligerent in public and ultimately ended up back at the home unit where he had been living with his girlfriend Natasha and her ten-month-old baby son. The state of oblivion into which he had descended is exemplified by the fact that he endeavoured to consume the birth control pills of his girlfriend. It is unclear what further mind-altering qualities he imagined contraceptive pills might have had. In the course of the evening he smashed items in the unit, tried to eat a baby’s bracelet, physically assaulted his girlfriend and bit one of his male friends on the chest causing him to bleed. Perhaps unsurprisingly after he eventually passed out, he slept until some time the following afternoon.

2. After the offender woke up, the Natasha offered to go to the shops to buy him some cigarettes. She left the offender to take care of her ten-month-old infant. While the child’s mother was absent, the baby apparently vomited. Having heard the child crying, the offender picked him up by one arm and took him to the bathroom intending to wash the vomit from the child.

3. Whilst I will come to the detail of the facts later in these Remarks it suffices to note that during the absence of the child’s mother, the offender placed the infant into the bath and turned on the hot water tap. Whilst not having put the plug into the drain, hence avoiding the possibility that the child might have drowned, the offender left the bathroom with the hot water running. In the ultimate the infant was badly scalded by the hot water and sustained extensive second-degree burns. Approximately 40% of the child’s body was burned. After being removed from the bath, the child continued crying and sustained other physical injuries at the hand of the offender.

OFFENCES

4. Against the above overview of the factual background, the offender now appears for sentence with respect to two offences prosecuted on indictment. The offender was originally charged with causing grievous bodily harm to the infant with intent to cause grievous bodily harm contrary to the provisions of section 33(1)(b) of the Crimes Act 1900. The deliberate or intentional infliction of grievous bodily harm contrary to that provision carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. This was originally the first count in the indictment charged against him.

5. The second count in the indictment was pleaded as an alternative to count 1. It alleged the occasioning of grievous bodily harm to the infant in circumstances where the offender was reckless as to causing actual bodily harm. This is an offence contrary to section 35(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is a standard non-parole period specified of 4 years.

6. The third count in the indictment alleged assault occasioning actual bodily harm to the child contrary to the provisions of section 59(1) of the Crimes Act 1900. That offence carries a maximum penalty of five years’ imprisonment.

7. The offender was committed for trial to the District Court on 16 September 2016. Upon his arraignment in this jurisdiction on 4 November 2016 the offender pleaded not guilty to each of the three counts in the indictment and the matter was listed for trial to commence on 14 August 2017. On that date the matter was adjourned for trial to the following day, Tuesday 15 August 2017.

8. On 15 August 2017 the offender requested to be re-arraigned. He maintained a plea of not guilty to the first count in the indictment of intentionally inflicting grievous bodily harm. However, he pleaded guilty to the alternative count in the indictment of causing grievous bodily harm in circumstances where he was reckless as to the causing of actual bodily harm. He also pleaded guilty to the third count in the indictment of assault occasioning actual bodily harm. The Crown accepted these pleas of guilty to counts 2 and 3 in full satisfaction of the indictment.

FACTUAL CIRCUMSTANCES

9. The detailed facts giving rise to the offences before the Court are set out in a Statement of Agreed Facts. They reveal that as at November 2015 the offender Atare Tepania resided with his girlfriend, Natasha and her ten-month-old son, the victim, at a home unit in Castlereagh St, Penrith. The offender and Natasha had been living together for a number of months. The offender was himself the father to two sons, the elder aged four years and the younger, aged two. As at 1 November 2015 the four-year-old ordinarily resided with his father at the unit which was shared with Natasha. However, on this particular weekend he was being looked after by respite carers and was away from the premises.

10. On the afternoon of Saturday 21 November 2015 the offender travelled to Manly where he met up with two friends, Bradley Hargraves and Blake Goodberg. From about 3:00pm that afternoon, the three men are said to have consumed a case of beer (which I presume to mean 24 cans) as well as two ten-packs of Woodstock and cola, which is pre-mixed cans of bourbon and cola. After consuming the alcohol during the afternoon and early evening, the three friends travelled back to Penrith where they met up with another man, Cody Cameron. The group purchased two bottles of Jack Daniels as well as a bottle of Wild Turkey, which are each brands of American whiskey, or bourbon. They then went to the unit at Castlereagh St for a short while where they spoke with Natasha.

11. The four men then walked to Jamison Park which is nearby. At the park, the group drank bourbon and listened to music. At some stage the offender showed the other males a tablet wrapped in a Ferrero Rocher chocolate-wrapper. In the course of the night the offender consumed more than one tablet that he believed was ecstasy. His behaviour was observed by the three other males to become increasingly erratic. The offender wrestled with Cody Cameron, was unsteady on his feet, and commenced an argument with members of the public who were present at the park. He spoke to them using offensive language and threatened to “fucking smash you”. As a consequence of the increasingly aggressive behaviour by the offender the group decided to leave the park. Hargraves told the offender to shut up because he was being annoying. The offender spat into Hargraves’ face. He also swung a punch at Cameron. The punch did not connect and the offender fell over. All four men walked back to the home unit in Castlereagh St.

12. The offender went into the bedroom where he spoke with Natasha and demanded that she hand over her contraceptive pills. He tried to take the pills while she endeavoured to stop him. A short time later Natasha was heard yelling: “Stop it, get off me” from the bedroom. The three other males, Cameron, Goodberg and Hargraves, ran into the bedroom where the offender was observed to have a fistful of Natasha’s hair and his right hand around her throat. The three friends wrestled the offender away from her. Natasha fled from the room. During the course of the struggle the offender bit Hargraves to the centre of his chest. He latched on with his teeth and had to be punched multiple times by Hargraves until he released his bite. The bite was sufficiently severe to cause bleeding.

13. The offender was subsequently charged with common assault against Bradley Hargraves in relation to having spat in his face. This is an offence contrary to the provisions of s 61 of the Crimes Act which has a maximum penalty of 2 years imprisonment. He was also charged with common assault against Natasha contrary to the same provision of the Crimes Act, and an assault occasioning actual bodily harm to Bradley Hargraves with regard to the bite, that being an offence contrary to s 59(1) of the Crimes Act carrying a maximum penalty of 5 years imprisonment.

14. Following these incidents in the bedroom, for the remainder of the night and going into the early hours of the following morning, the offender needed to be constantly restrained by Cameron and Goodberg. He smashed items in the home unit including a television and microwave. He broke jewellery and he swept items off the kitchen bench. He also tried to eat a baby’s bracelet belonging to Natasha’s infant child. Natasha later said that she had never seen the offender acting like that before. The offender ultimately passed out. He came to sometime the following afternoon. He was still feeling affected from the alcohol and drugs that he had consumed the previous afternoon and night. He had urinated in his own bed whilst he was asleep. After he was awake he argued with Natasha and told her that she should leave and go back to live at her home in Lithgow. Natasha offered to go to the shops to buy some cigarettes for the offender. The Agreed Facts state that this occurred sometime between 2:30 and 3:50 pm.

15. Natasha left the premises and walked to nearby shops. It is unclear as to whether or not she was absent for the hours between 2.30pm and 3.50pm which is a period of time approaching one and a half hours. At all events she left her child in the care of the offender. The baby was awake and lying on a bed in his room. He was, needless to say, uninjured when his mother left him. The infant had been given a bottle of formula and was wearing what is described as a grey “onesie”, which I presume is a jump suit. The offender was in the lounge room/kitchen area watching television and looking through his mobile phone.

16. The offender heard the child crying and he walked into the bedroom. He discovered that the boy had vomited. The offender picked the infant up by one arm and carried him to the bathroom intending to wash him in the bath. It would appear that he picked the child up by the arm in such a manner as to cause what was subsequently ascertained by bone scans and X‑ray to be a “bucket handle fracture” to the left elbow of the child. That injury which was apparently caused negligently is not the subject of any criminal allegation.

17. The offender put the infant into the bath still wearing a nappy. The facts are silent but I presume that he had removed the “onesie” or jumpsuit. He turned on the hot water tap but did not place the plug into the drain. He left the water running and walked out of the bathroom intending to have a cigarette. He also apparently spent some time looking at his mobile phone.

18. After some period the offender was alerted by the loud screams of the child. I would deduce it could not have been a particularly long period of time after he had left the bathroom. He returned to the bathroom and found the baby lying on his back underneath the tap in a shallow pool of accumulated water with his feet in the air. He picked up the infant who was still screaming. He noticed that the child’s skin was peeling off immediately. He grabbed the child by one arm but lost his grip and dropped him onto the tiled floor. The child struck his head as a consequence. The offender then picked the baby up and placed him in a towel. He noticed further skin peeling. He took the victim back into the child’s own bedroom and placed him on his bed.

19. The offender then poured cups of cold water onto the burns. The child continued to scream. The offender then tried to feed him with the bottle of formula. The victim continued to scream and would not take the bottle. The infant spat the bottle from his mouth multiple times. The offender repeatedly pushed the bottle with sufficient force to cause injuries to the inside of the child’s mouth. He observed blood coming from the child’s mouth. The baby continued to scream. The offender lashed out at him and struck him at least once to the face or the head.

20. Natasha arrived home shortly thereafter. When she came into the unit she saw the offender in the kitchen with what she described as a “strange look on his face”. She asked him what had happened. She described him as being “frozen”. The offender then told her what had occurred and told her not to call an ambulance. Natasha ignored him and dialled triple-0 seeking an ambulance. During that time, the offender placed the child under a cold shower. Following instructions from the triple-0 operator the child was then placed into a cold bath.

21. The ambulance arrived a short time later. After it arrived, a student ambulance officer, Kate Ljubic, was asked to obtain a history from Natasha about the child, whilst he was being treated by other officers. Ljubic walked into the child’s bedroom where Natasha and the offender were then located. She observed the offender to appear angry with his fists clenched and rocking back and forth. The student officer said: “It’s going to be fine we’re here to help”. The offender stood up and walked towards her and said: “It’s not fucking fine”. As he said that he smashed a Lego tower with an open hand with such force that the pieces flew towards the officer who was standing in the doorway. In his evidence before me the offender said that he did not hit the Lego with his hand, rather he kicked it. The difference as he described it is of no materiality in relation to his behaviour. With respect to projecting the pieces of Lego towards the student ambulance officer, by whatever physical means, the offender was subsequently charged with common assault.

22. Police attended the unit a short while later. The offender was seated in the dining room. He was cautioned. The offender made a phone call to the respite carer of his son Elijah who was apparently due to be returned at 5:00pm that day. The offender said: “I fucked up… I put Tash’s kid in the shower after he spewed up.” The offender told detectives that he had put the child in the shower and had neglected to turn the cold water on having simply run the hot water. He told police that he went and put his phone on charge and also had a smoke. He now acknowledges that he lied to police at that stage as he was scared to disclose that he had actually put the child in the bath.

23. The offender was arrested by police. They observed injuries to his knuckles which he indicated had occurred during the events of the night before. An examination of the home unit revealed skin which had come from the victim located on the shower floor as well as on the exterior side of the bathroom door. The child’s bed was wet and blood-stained. A dry towel in the bathroom was stained with blood. The lounge room carpet was also stained with blood. In a subsequent formal recorded interview, the offender said that he was very hung-over when he had woken up and that he had become “frustrated” at the child crying. He told police “he cries a lot”. He was asked why he had told Ms McCann not to contact an ambulance and he said “I fucked up and I’ll lose my kid”. This was a reference to his own elder son who had only comparatively recently been restored to the custody of his father.

24. The offender denied any knowledge of injuries to the victim apart from the burns. He told police: “I didn’t touch him”. He was asked by police: “Do you care about (him)”. The offender responded: “yeah, I fucked up, of course I care about him, yeah I fucked up.” He was asked if he would have done the same thing with his own son. The offender responded “I never have him when I am hung-over. I don’t drink around him. That’s court-ordered too. I do not drink around him.” When asked to rate his level of intoxication from 1-10 with 10 being as drunk as you could be, he responded: “10”. In a subsequently-recorded interview conducted by police whilst the offender was in the Metropolitan Remand Centre the offender told police how he had dropped the child on the floor in the bathroom.

25. The Agreed Facts disclose that expert opinion was obtained that water at 60 degrees Celsius can cause a full-thickness burn to an infant within a few seconds. I note that ultimately the victim’s burns were established to not be full-thickness.

26. The child was taken to Westmead Hospital where he was assessed and treated. He spent 26 days in hospital between 22 November 2015 and 18 December 2015. He sustained burns to approximately 40% of his body. The depth of the burns was assessed initially as between mid- and deep-dermal burns. The subsequent course of healing suggested that they were mid-dermal burns: namely second-degree burns rather than third-degree burns. The child did not require skin grafts and has not been left with any scarring.

27. The consequence of burns to 40% of total body surface is potentially fatal. This is a consequence of the possibility of hypovolemic shock and fluid loss if not properly treated. The mid-dermal nature of the burns sustained by the child victim in this matter and the fact that the burns were able to spontaneously heal without scarring, resulted in a positive prognosis with no necessity for long-term follow up.

28. The injuries sustained by the child when the bottle was endeavoured to be forced into his mouth were observed to include a cut to his frenulum, which is the tissue which connects the upper lip to the upper gum, as well as contusions inside his mouth and to the lips and gum area. Where the infant had been struck and also dropped to the floor there was a bruise from the temple to the jawline on the left side of his head as well as a bruise to the right temple and to the back of his head. There was also bruising observed over the right eye with subsequent swelling. As I have indicated earlier there was a “bucket-handle” fracture to his left elbow which is not the subject of a charge.

29. The fact that the victim has made a full recovery with no apparent scarring is a relevant factor in the assessment of the objective seriousness of the offence. On behalf of the offender, it has been submitted that the very young age of the child at the time of the offence may mean that he will arguably not recall the assault and therefore is less likely to suffer psychological injuries as a result. Whilst noting that he was only 10 months old, there is no actual evidence that would support such a finding. The victim impact statement prepared by the child’s mother describes what she perceives as a huge impact on him. She describes the child having constant nightmares and crying in his sleep. She describes that he no longer likes a bath and will now not even have a shower unless he is with his mother. He is said to be very distrusting of anyone outside the immediate family. He also, according to the account of his mother, has a visual reminder on his skin where, despite there being no scarring, spots can be observed on the part of his skin that was burnt.

9. The court has not been provided with any photographs other than those taken immediately after the injuries were sustained and there is no objective material upon which to form an assessment of the visual appearance of the area which was burned beyond the material referred to in the victim impact statement orally and the medical material.

10. Whilst different cases turn on their own facts, an assessment of the objective seriousness of an offence requires a consideration of where, in a conceptual spectrum of the range of potential offences, the specific case before the Court falls. In the present matter, the Crown submits that the objective seriousness of the offence falls “well above mid-range in relation to both relevant counts.”

11. Conversely, on behalf of the offender it is submitted that both offences “fall arguably below the mid-range when full consideration is given to the role that the offender’s moral culpability played in assessing the objective seriousness.”

12. In determining the objective seriousness of the offence it is appropriate to bear in mind that the offence was committed upon a person who falls into one of the categories of the most vulnerable in our society, in this instance a ten-month-old baby. The offender was in loco parentis. Although not the natural father of the infant he was clearly in a position of responsibility and authority as if he were the parent. As pointed out by Cole JA in R v Pitcher (NSWCCA; unreported 19 February 1996, Gleeson CJ and Ireland J agreeing):

“Young children cannot protect themselves from the acts of adults. They cannot lodge complaints about criminal behaviour perpetrated upon them. They are entirely reliant upon their parents or those in custodial situations to care for them and protect them.”

34. In the present matter, undoubtedly the end result of the injuries which were sustained from the application of the hot running water was a less severe outcome as a consequence of the application of some rudimentary first aid by the offender in the application, initially of cups of cold water, followed by cold running water under a shower and ultimately, on the advice of the triple-0 operator, the immersion into a cold bath. Scalding water on the skin of a young infant can often result in far more severe burns (see for example the injuries sustained and described in R v BJ [2017] NSWDC 234).

35. The above Remarks are not in any sense intended to diminish the seriousness of the second-degree burns which were sustained to such a substantial area of the infant’s body. However, the positive outcome with no scarring was undoubtedly achieved through a combination of the initial response with the application of cold water and the subsequent excellent treatment at the hands of the medical professionals. The Victim Impact Statement makes reference to the necessity to wear burn suits which could only be taken off when bathing and also for the necessity for the skin to be moisturised up to five times a day. However, after that necessary treatment regime, the excellence of the ultimate outcome stands in stark contrast to cases involving skin grafting and scarring.

36. It needs to be borne in mind that the offender has pleaded guilty to a charge which does not include any intention to inflict grievous bodily harm. The charge to which he has pleaded guilty is recklessly inflicting grievous bodily harm. The recklessness with respect to the mechanism of injury therefore incorporates a failure to consider the likely or possible outcome of the application of hot water onto the child. The concept of recklessness incorporates a realisation by the offender that it was possible that actual bodily harm might be inflicted on the child and yet he went ahead and acted in the manner which he did (see Blackwell v R [2011] NSWCCA 93).

37. With regard to the assault occasioning actual bodily harm, the hitting of a defenceless infant, presumably out of frustration because the chid would not stop crying, is an all too frequent occurrence in some sections of the community. The infant was totally vulnerable. The injuries sustained by the child as a consequence of the assault which is alleged, and in respect of which the offender has pleaded guilty, are somewhat difficult to discern. Partly that is because the child fell to the floor and struck his head in what must be perceived as a misadventure or accident. However the injuries, including the bleeding from the mouth which occurred as a result of the repeated forceful insertion of the teat of the bottle containing formula, appear to have all been comparatively minor, hence the charge of causing actual bodily harm rather than a more seriously defined injury.

SUBJECTIVE FEATURES

38. The offender was born in 1992. His family background is of Maori descent and aspects of his own upbringing are properly to be described as deprived and profoundly disadvantaged. His parents were apparently living near Katoomba with a number of young children when the family first came to the attention of the Department of Community Services in 1994. The offender himself was but two years and eleven months of age at that time. He and his brothers were confirmed to effectively be “homeless” and were viewed as being neglected as a consequence of their own parents’ substance abuse. Domestic violence was noted and the principal substance of addiction, according to the DOCS officers, was alcohol.

39. In 1998 and 1999 there were numerous notifications to the Department of Community Services with regard to the Tepania family. The offender, Atare Tepania, by that stage was only five and a half years of age. The children were found to be unattended and it was ascertained that the father apparently disciplined the young boys by hitting them across the face. The children were removed from the home in April 1998 under the Children’s (Care and Protection) Act. They were transported to hospital and medically examined. In due course, and following undertakings by the parents, the children were returned to the care of their own parents.

40. In early 1999 there were numerous notifications regarding the neglect of the children which was extensive. They were suffering from poor hygiene and poor nutrition. They were often left completely unattended. At the age of six years and three months the present offender was picked up by the Department of Community Services officers and taken to hospital where he was found to have infected ringworm from side to side around his waist, whilst one of his brothers had extensive infected scabies. The present offender himself was ascertained in due course to also need treatment for scabies. The children were collected from time to time by District Officers and taken to the medical centre as their parents did not take them for follow-up visits after the hospital admission. At this stage both parents were using alcohol excessively and the offender’s father had been incarcerated.

41. In due course the offender and his brother were placed under the care of the Minister for a period of 6 months. The boys were placed in foster care and this has been described as a very happy and settled time for the offender. Indeed he loved the lady who took care of him and in 2014 still had some contact with her from time to time.

42. A thorough psychological assessment was undertaken with respect to the care proceedings brought by the Department in 1999. Psychologist Gary Banks found that the offender’s full scale intelligence at that age, when properly normed against his peers, fell somewhere between 65 and 75 on the Wechsler Intelligence Scale. He was described as scoring “in the intellectually impaired to borderline range of intelligence.”

43. In the proceedings before me, Dr Maria Quinn, psychologist, adhered to her view that such an assessment, notwithstanding the young age of the offender when it was conducted, remained a valid assessment. In Dr Quinn’s report she expresses the view that his true score was closer to 65 than 75 indicating that he is best described and understood as intellectually impaired at that time.

44. Following the offender’s parents completing the Westmount Rehabilitation Program, their children were returned to their care during a staged-restoration in December 1999. The offender attended North Katoomba Primary School with his brothers and the family were not the subject of any Department of Community Service reports for a period of approximately five years. However, in 2004, 2005 and 2006 the Department received a spate of reports indicating alcohol abuse by the offender’s mother, physical abuse by his father and uncle, and neglect by both parents. Reports detailed the children witnessing aggravated sexual assault and assaults involving broken glass. The offender was identified having been singled out for cruel treatment over and above ordinary neglect.

45. The violence that he experienced in his home became reflected in his own conduct at school. He had many absences and acts of violence during high school. He was ultimately withdrawn from high school by his father in Year 9, rather than being expelled. He was taken to work as a fencer assisting his father. His mother apparently continued with excessive alcohol consumption.

46. In 2008 there were reports of aggression between the offender and his siblings. Their mother was drinking heavily, there was no parental supervision, there was no food in the house on the occasions of visits by DOCS officers, and irregular school attendance by all of the children. The Department of Community Services file noted that there were ingrained “parental capacity” concerns.

47. The offender reportedly started drinking himself at around the age of 18. He used alcohol excessively throughout 2011 and 2012. This is reflected in his criminal record. In November 2010, shortly after his 18th birthday, he was dealt with in the Children’s Court for being an accessory before the fact to an assault. This charge was dismissed under the relevant Children’s Act provisions.

48. In April 2011 he was dealt with in Katoomba Local Court for common assault and fined. In June 2011 he was convicted of using offensive language in or near a public place or school for which he was also fined. In the same month he was charged with common assault and placed on a section 9 bond. He was apparently intoxicated and the offence involved violence towards a supermarket trolley collector.

49. In March 2012 he participated in an affray which apparently culminated in a reckless wounding. The matter came to court in November 2012. He was called up on the earlier section 9 bonds and placed on fresh bonds from that date subject to the supervision of the Probation Service. With regard to the reckless wounding he was given a 12-month suspended sentence.

50. A psychological assessment had been conducted in October 2012 to inform the sentencing with respect to those matters. The forensic psychologist noted: “when he gets angry he becomes a different person, he is unaware of his behaviour and experiences dissociation with his surroundings and what he is doing.” In January 2013 he was noted as having little interest in abiding by the conditions of the bond on which he had been placed and demonstrating no motivation to address his alcohol drug or violence issues. As will become apparent, that position changed.

51. Between October 2012 and early 2013 police records indicate that they attended the Tepania family home on 24 occasions. On 8 of these occasions events were recorded. At that time the offender had become a father for the first time. The mother of the child had been under the care of the Minister until she was 18 years of age. She left her permanent placement and moved into the Tepania family home when she herself was about 15. The Department of Community Services were in regular attendance because of concerns that they held for the child.

52. It would appear that all members of the offender’s family were consistently heavy drinkers during this period of time. In due course a level of violence emerged and that escalated between the young parents. The mother moved into residential support in Penrith. She subsequently absconded from those facilities and breached various undertakings and left the infant child with the offender’s family. The Department took the offender’s first child into the care of the Department in January 2013. That was the period during which he had indicated no motivation to address alcohol, drug or violence issues.

53. In March 2013 the offender formed a relationship with the woman who became the mother of his second child. He moved away from his family in Katoomba and took up residence in Lithgow. He is said to have restricted his alcohol consumption to a drink after playing football with a local team.

54. Prior to leaving for Lithgow he had apparently been involved in an incident in Katoomba in December 2012 which resulted in two counts of common assaults. He was not charged until July of 2013 by which stage he was living in Lithgow. That matter eventually came before the court at Katoomba in March 2014. The minor nature of those assaults may be discerned from the imposition of a section 10 bond for a period of 2 years.

55. In March 2014 the offender’s first child was placed under the care and responsibility of the Minister. At that time there was assessed to be “no realistic possibility” of the child being restored to the care of either natural parent.

56. The offender was, of course, during 2014 in a new relationship with a new baby. He filed a section 90 application seeking the restoration of his elder son. He is reported as having been motivated to change his life because of the grief that he had experienced after his son was taken into care.

57. Returning, however, to the chronological sequence his new partner gave birth to the offender’s second child in late 2013 or early 2014. He appears to have taken some very positive steps towards turning his life around in the course of this second relationship. During 2014 he completed the Taking Responsibility course offered by Relationships Australia. This was a course aimed at helping men who had been violent in their relationships to take responsibility for their violence and to manage their anger differently. He also, as I have already indicated, filed a section 90 application seeking the restoration to his care of his elder son.

58. He was referred to Lithgow Family Support in March 2014. He worked assiduously towards reforming his previous anti-social behaviour, his drinking, his drug use, and developing his parenting skills. He completed numerous courses including a 20-session Domestic Abuse program; the CALM Anger Management Program; a 12-session Getting Smart addiction program; a Managing Emotions course; the Taking Responsibility course to which I have already referred; and the PPP program.

59. After some 9 months of therapy and courses a meeting was held with officers from the Department of Community Services in December 2014 with a view to assessing whether sufficient change had occurred in the offender for him to be able to demonstrate a capacity to care for his elder son. The Department had now become known as Family and Community Services, or FACS, and at that time the view which prevailed was that insufficient time had passed for him to establish the permanency of the changes which needed to be put in place before a recommendation could be made for the restoration of the child to his care.

60. In order to assess the degree to which the offender’s disrupted attachment history, particularly with respect to his poor relationship with his mother, had effected the development of his own self-capacities, he was clinically assessed. Whilst he did not meet the diagnostic criteria for any personality disorder the clinical observations led to a conclusion that he had a good capacity for empathy. He was assessed as suffering from immense distress because of his mother’s abuse and neglect. His affective and cognitive symptoms were said to be consistent with a complex grief or trauma reaction. His deep hurt and grief about the loss of his elder child to the Department was described as palpable. The clinical psychologist made positive observations during the course of a visit to the Lithgow home shared by the offender and the mother of his second child. The youngest child was, of course, living with his natural parents, namely the offender and the mother.

61. By February 2015 the offender was seeking appropriate accommodation in the Penrith area. He attended a further program called the New Pin Fathers’ Program which was a therapeutic restoration-based program intended to assist and support families to break the cycle of abuse and neglect so that they were able to provide safe, nurturing environments for their children. The offender attended that program three days per week. It was held in Bidwill and he travelled by public transport from either Katoomba or Lithgow three times per week to attend the program. In addition he attended the Circle of Security Parenting Program one day a week as well as a therapeutic men’s group program. During this period of time he provided twice-weekly urine analysis to Family and Community Services. He also attended counselling with a psychologist once weekly.

62. All objective appearances are that he was well on the way to being a responsible and good member of the community and an appropriate parent for both of his sons, one of whom, of course, at that stage was not with him. He did, of course, have visiting rights but the child was not living with him.

63. However, in early 2015, the offender had an affair at Lithgow with a friend of his partner. That led to the breakdown of the relationship with the mother of his second child.

64. Notwithstanding the breakdown of the relationship he continued contact visits with both of his sons and complied with all Family and Community Service requirements. As I indicated above he had been placed on a section 10 bond in July 2014 as a consequence of the common assaults which had occurred in December 2012. He continually returned clean urine samples and the requirement for supervision by Probation and Parole was terminated by the Department in February 2015. Releasing him from supervision they reported:

“Mr Tepania had achieved beyond his goals and had stabilised and so was released early… The programs that he attended were not court-ordered… He participated from his own initiative.”

65. This apparent remarkable transformation culminated in the restoration of his firstborn child to the custody and care of the offender on 27 June 2015. The resumed custody and parenting of his son led to the sharing of premises with his new girlfriend, Natasha, who as I have already indicated, had her own ten-month-old child. They shared the home unit at Castlereagh St Penrith and the offender’s own son, who was now four years old, resided at the home unit with them in the combined family situation.

66. It is against the background of the above dysfunctional upbringing, the descent into criminal conduct, alcohol and drug abuse, the loss of his first child to the Minister’s care, and the subsequent substantial and positive steps taken towards rehabilitation of himself, that the present offences occurred.

PLEA OF GUILTY AND REMORSE

67. The offender was arrested and charged on the day that the offences were committed. He has remained in custody since that time, a period approaching two years. I am advised in the written material provided to the Court on behalf of the offender that Mr Tepania’s solicitors wrote to the Director of Public Prosecutions on 2 August 2016 and offered to plead guilty to the offence of recklessly causing grievous bodily harm and also to the offence of assault occasioning actual bodily harm in relation to the injuries caused to the infant victim. This offer was on the basis that the first Count on the indictment, namely the intentional infliction of grievous bodily harm would be withdrawn. The balance of summary charges were also invited to be placed on a Form 1.

67. Following the rejection of that offer the offender was committed for trial on 16 September 2016 and the matter was ultimately listed for trial in the District Court. After the mentions and adjournments that I have earlier detailed, the Crown ultimately accepted the offer to plead Guilty to the alternative count of recklessly causing grievous bodily harm and to the charge of assault occasioning actual bodily harm, in full discharge of the indictment. The offer to plead Guilty to those counts had been put to the Director’s office on behalf of the offender when the matter was still in the Local Court.

68. The utilitarian value of the plea, although delayed as a result of the rejection of the initial offer, has resulted in the witnesses, including medical professionals, not being required to attend court. It is also a reflection of remorse and contrition.

69. The offender gave evidence before me in the course of which he articulated an apology for what he did to the victim and also expressed an apology to the child’s mother. He appears to have accepted responsibility for his actions. I accept that what he had to say in the witness box was genuine. In all the circumstances, I am of the view that the full discount of twenty-five percent should be applied to the otherwise appropriate sentence.

PROFOUND DISADVANTAGE

71. I have, earlier in these Remarks, noted the detail of the profound disadvantage in the upbringing of this offender. The significance of socio-economic disadvantage, endemic substance abuse, and alcohol-fuelled violence, amongst other factors, have been recognised as significant factors to be given consideration in determining an appropriate sentence. The Fernando principles, derived from the judgment of Wood J in R v Fernando (1999) 76 A Crim R 58, provide a framework. Wood J (as his Honour then was) said at [64]:

“As is well established, it is a primary objective of sentencing for criminal offences that the community must be protected from the commission of crimes, by deterring both the particular offender and other possible offenders- referred to as personal and general deterrence respectively… it is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the court is presented with information about the personal circumstances which have led an individual into a life of crime.”

72. The so-called Fernando principles were confirmed by the High Court of Australia in Bugmy v R [2013] HCA 37; (2013) 249 CLR 571. The Court said:

“The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”

73. Mr Tepania was 23 years of age at the date of the commission of these offences. His childhood had been characterised by profound disadvantage and neglect. The frequent interventions by the Department of Community Services and the necessity to be treated in hospital for a combination of malnutrition and neglect do not reflect well on a civilised society in the late 20th and early 21st century. However, whilst recognising those circumstances and giving them appropriate weight, the Court needs to be cognisant of the fact that in the face of such adversity the offender had, during the periods that I have identified, taken significant positive steps towards his own effective rehabilitation and towards becoming a good parent and a responsible member of the community. His “falling off the wagon”, if I may use that colloquial description, came as a substantial shock to his then partner Natasha who subsequently confirmed that he did not drink around his own son who had lived with them since June 2015, in conformity with the requirements which had been put in place by the Department.

74. His conduct in drinking himself, effectively into oblivion, in combination with the ingestion of what presumably was a quantity of ecstasy or similar, may properly be seen as an aberration insofar as his conduct during 2014 and 2015 would appear to have been. A blood sample was taken from the offender the day after his arrest as well as a urine sample. The urine sample confirmed the prior ingestion of methamphetamine. Whilst recognising that his socially disadvantaged upbringing may have contributed in some way to what ultimately transpired, he had had the opportunity of substantial re-education insofar as parenting skills were concerned and had also taken substantial steps to remedy his abuse of alcohol and drugs.

75. Against that background, however, the clinical psychologist has expressed the opinion that it is only since the more recent events that he has finally recognised the insidious effect of substance abuse on his own persona, not merely when he is in the actual presence of children but the effect that it has had upon his life more generally.

76. There is accordingly, some reduction in his moral culpability as contrasted with an offender from a more advantaged upbringing. However, a substantial contributor to the recklessness of his conduct and his anger in physically assaulting the infant is more readily to be found in what was undoubtedly, in colloquial terms, “the mother of all hangovers” brought about by his own voluntary ingestion of an extraordinary amount of alcohol as well as the presumed ecstasy tablets which he had taken the previous day and night. The Court must not take the self-induced intoxication of the offender or its aftermath into account as a mitigating factor.

77. No doubt the impairment under which the offender was labouring as a result of such a hangover was exacerbated by his apparent level of intellectual functioning. Dr Quinn noted the earlier assessment that he was “intellectually impaired to borderline range of intelligence”. This also is a factor which is relevantly to be considered in an assessment of his moral culpability. The High Court made reference to the significance of a determination of intellectual functioning in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The evidence in the present matter regarding the intellectual function and capacity of the offender to some degree lessens his moral culpability. The retributive and denunciatory aspects of sentence, as well as the significance of general deterrence, may also be reduced to some extent.

SPECIAL CIRCUMSTANCES AND PROSPECTS OF REHABILITATION

78. In imposing an appropriate sentence, the Court is required to set a non-parole period that is the minimum period of time which must be served in prison before a person is eligible for release on parole. The statutory ratio of the non-parole period to the head sentence is 75%. Where a court finds that there are special circumstances, there is a discretion to vary that statutory ratio. A finding of special circumstances is however integrally linked with the determination of an appropriate non-parole period: see R v Dashti [2016] NSWCCA 251 at [84]. The authorities clearly indicate that there are a wide range of factors which may capable of constituting special circumstances. In the present matter, the offender is a comparatively young man who has not previously served a term of imprisonment. Such factors do not automatically amount to special circumstances. Whether they do so, independently or in combination with other factors, will depend upon the circumstances of a particular case: see the remarks of Bellew J in R v Egan [2016] NSWCCA 285.

79. In the present matter, Dr Maria Quinn, the treating psychologist, in her extremely helpful report and in her oral testimony, indicates a number of factors relevant to rehabilitation which would require ongoing counselling and prolonged support and participation in programs including abstinence-based programs with regard to drug and alcohol abuse. Those factors, in addition to the circumstance that the offender voluntarily attended the programs to which I have earlier adverted during 2014 and the early part of 2015, support a finding that there are significant positive signs which show that if the offender is given a longer period on parole, his rehabilitation may well prove to be successful and long-lasting.

80. Undoubtedly the perception by the Crown of those factors has led the Crown to concede that a finding of special circumstances would not be disputed.

FORM 1 AND RELATED OFFENCES

81. The offender was charged with a number of additional assault matters which I have referred to earlier in these Remarks. One of them, the common assault occasioned by the throwing of Lego pieces towards the student ambulance officer has been placed on a Form 1. I have been asked to take that into account in passing sentence for the offence of recklessly causing grievous bodily harm and I will do so.

82. There are four related offences set out on a section 166 Certificate. The common assault with respect to the student ambulance officer will be taken into account on the Form 1 and accordingly is dismissed. The assault occasioning actual bodily harm arising from biting Mr Hargraves forms part of the surrounding circumstances giving rise to the more serious offences and in light of the sentence which I propose to impose on those other matters I record a conviction with respect to the assault occasioning charge but impose no additional penalty. A common assault charge with respect to Mr Hargraves was charged as a back-up offence to the assault occasioning and that charge will be dismissed.

83. The remaining common assault charge on the section 166 Certificate with respect to the assault upon Natasha will also have a conviction recorded but no additional penalty will be imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

DETERMINATION

84. In determining an appropriate sentence in this matter I have had regard to the aggravating and mitigating factors which I have identified earlier in these Remarks. An additional aggravating factor is that the offender was on conditional liberty pursuant to the section 10 bond on which he had been placed at Katoomba Local Court in July 2014. I note that his behaviour under that bond had been of such an exemplary nature that he had been discharged from the supervisory component by Community Corrections. Nonetheless, he remained subject to good behaviour requirements.

85. I have taken into account, to a limited extent, evidence given of the circumstance that the offender has been placed in segregation and on protection. The nature of the offence with which he is charged gave rise to separate incidents of assaults upon him in the custodial setting into which he had been placed when bail was refused. The first, perhaps predictably, involved hot water being thrown into his face by another inmate. In the offender’s evidence before me he indicated that in addition to the hot water it had been mixed with jam which was intended to exacerbate any consequent burning. The matter was reported. Fortunately for the offender this aspect of extra-curial punishment did not result in any severe or lasting injury. On another occasion he was physically assaulted by other inmates. I accept, on the basis of the material before me, that the circumstance of his being placed on protection will render his incarceration to some degree more onerous than an offender in the general prison population.

86. I have had recourse to the statistics maintained by the Judicial Commission for offences prosecuted under the same section. The variation of the factual scenarios evident in cases prosecuted under the same provision are so differing in nature that the statistics do not provide any meaningful guide. I have perused some cases involving injuries being sustained by babies and small infants including R v Lolesio [2014] NSWCCA 219; R v Smith [2005] NSWCCA 286 and the more recent matter of R v Nolan [2017] NSWCCA 91. I have also had regard to an earlier matter which was before me involving the severe scalding of a baby in R v BJ [2017] NSWDC 234. Needless to say, each of those cases turn on their own individual facts and circumstances.

87. I am ultimately of the view that each of the two offences before the Court in this matter fall within the broad mid-range of objective seriousness. I have taken into account the need for general deterrence in such cases and I heed the words of Cole JA, in R v Pitcher (unrep, 19 February 1996, NSWCCA):

“The courts must make clear by their sentences that acts of violence on young children, whether within or without a custodial situation, will not be tolerated in our society, and that criminal acts of violence against young children will result in appropriately severe sentences. Deterrence through the severity of sentence, is the only way in which young children can be protected”.

88. I have taken into account the subjective features which I have identified earlier in these Remarks and I am of the view that special circumstances are established. I have regard to the maximum penalties which are prescribed by the Legislature and the standard non-parole period which is specified with respect to the first count before me as legislative guideposts with respect to the appropriate sentences to be passed.

89. I propose to impose an aggregate sentence with respect to the two offences before me. That requires me to nominate the indicative sentences that would have been passed if the matters were dealt with separately. Mr Tepania, would you please stand up.

90. The indicative sentence with respect to the charge of recklessly causing grievous bodily harm is, allowing for the appropriate discount, a period of four years six months. The indicative non-parole period is two years eight months. With respect to the charge of assault occasioning actual bodily harm the indicative sentence is 12 months.

91. I impose an aggregate sentence which is a minimum term, or non-parole period, of three years. That period will be backdated to commence on 22 November 2015 and it will expire on 21 November 2018. I sentence you to a balance of term of two years which will expire on 21 November 2020. The effect of that sentence is a head sentence of five years with a non-parole period of three years.

**********

Amendments

06 July 2018 - correction to coversheet

Decision last updated: 06 July 2018