R v TT; R v SN
[2018] ACTSC 253
•29 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TT; R v SN |
Citation: | [2018] ACTSC 253 |
Hearing Dates: | 15 March 2018; 23 May 2018 |
DecisionDate: | 29 June 2018 |
Before: | Burns J |
Decision: | See [77] – [79] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – grievous bodily harm by negligent or unlawful act or omission – co-accused – plea of guilty in Supreme Court – child – removed from care of parents – substance abuse – mental health – physical health – different levels of moral culpability – whether a term of imprisonment is appropriate |
Legislation Cited: | Crimes Act 1900 (ACT) s 25 |
Parties: | The Queen (Crown) TT (Offender) SN (Offender) |
Representation: | Counsel Ms J Campbell (Crown) Mr T Pasi (Offender (TT)) Mr A Doig (Offender (SN)) |
| Solicitors ACT Director of Public Prosecutions (Crown) Prudential Legal (Offender (TT)) Darryl Perkins (Offender (SN)) | |
File Numbers: | SCC 76 of 2017; SCC 77 of 2017; SCC 78 of 2017; SCC 79 of 2017 |
BURNS J
TT and SN, you each appear before me today for sentencing, having pleaded guilty to one count of causing grievous bodily harm to EN by a negligent or unlawful act or omission between 2 January 2015 and 25 December 2015.
The maximum penalty for the offence of causing grievous bodily harm by an unlawful or negligent act or omission contrary to s 25 of the Crimes Act 1900 (ACT) is five years' imprisonment.
The offending
I now turn to the facts relating to the offences. On 2 January 2015 you, TT, gave birth to EN at the Canberra Hospital. You, SN, are the partner of TT and EN's father. EN was born approximately five weeks' premature. He weighed 1.95 kg at birth, measured 40 centimetres in length with a head circumference of 29.5 centimetres. EN was discharged from hospital on 25 January 2015 weighing 2.57 kg. He was tube fed whilst in hospital and bottle fed when discharged.
While EN was in hospital a referral was made to the Parent Enhancement Program of the Maternal and Child Health Nurse Team for ACT Health. The Parent Enhancement Program is an intensive program for families identified as being particularly vulnerable and offers one‑on‑one service to the family for the first year of the baby's life.
The two of you agreed to participate in the program. This would involve weekly visits by a nurse to your house, or at the West Belconnen Child and Family Centre in Holt. Both of you also commenced an eight‑week program called Circle of Security held at the West Belconnen Child and Family Centre. However, you only attended the first session.
The Parent Enhancement Program nurse conducted two home visits and a visit at the West Belconnen Child and Family Centre in the first three weeks after discharge from hospital. On 4 February 2015, EN weighed 2.98 kg, having gained 300 g in a week. The Parent Enhancement Program nurse, concerned that you may be overfeeding EN, spoke to you about the volume of formula and the frequency of feeding.
The two of you attended the West Belconnen Child and Family Centre on 24 February 2015 for EN's immunisation and a full physical check. Following this appointment arrangements were made for a home visit the following week. Neither of you were at home when the nurse attended for the following home visit and you did not respond to phone calls or text messages sent to each of your phones. No further contact was made by either of you and the nurse advised Child and Youth Protection Services on 19 March 2015 that you had disengaged from the Parent Enhancement Program. EN did not receive the usual immunisations at four and six months of age.
During his first year of life EN was consistently not supplied with proper food and hydration and his physical and emotional development was grossly neglected. The care given to EN by both of you whilst he was in your care was grossly deficient and caused serious harm to his physical state.
On 7 December 2015, you, TT, gave birth to your second child, FN. FN was born approximately seven weeks' premature at Calvary Hospital and was then later transferred to the Canberra Hospital Neo Critical Unit.
Following the birth of FN, Child and Youth Protection Services tried to engage with the two of you, however, they were unsuccessful in meeting with you over the next few weeks. Arrangements were made with you both to meet at your house on 16 December 2015. When Child and Youth Protection Services officer, Ms Stokovich, arrived at the house on 16 December 2015 you, SN, told her that TT was at the hospital visiting FN. Ms Stokovich contacted the hospital and was advised that TT had not attended that day. Child and Youth Protection Services staff had concerns about you and EN as hospital staff had advised that EN appeared small for his age.
The events of 23-24 December 2015
11. Two Child and Youth Protection Services officers attended your home in [redacted] during the day on 23 December 2015. However, there was no‑one home. Two other Child and Youth Protection Services officers attended the house later that day at about 5.30 pm. You, SN, informed them that TT was visiting FN and you spoke to them on the doorstep. The staff asked to see EN and you agreed to get EN. You shut the door and three to five minutes later you returned with EN. One of the Child and Youth Protection Services officers, Ms Pham, noted that EN was very pale, his eyes appeared sunken into his sockets. He just stared when she tried to engage with him by waving a keyring. He did not make a sound, was floppy to hold and he was very light.
12. You, SN, stated that you thought EN was about five or six kg, he was feeding okay, drinking milk and eating solids. The Child and Youth Protection Services officers left the house stating that they would return when TT returned home. Inquiries were made at the hospital about TT's attendance that day and Child and Youth Protection Services were advised that she had not attended the hospital that day, 23 December 2015.
13. The two Child and Youth Protection Services officers returned to the house at approximately 8.30 pm that evening. You, SN, answered the door and said that TT was still not home and that EN was asleep. You then slammed the door. Consideration as to whether emergency action should be taken was given at this time. It was decided to return the next day.
14. At about 11.30 am on 24 December 2015, Child and Youth Protection Services officers, with the assistance of police, conducted a visit to your home to check on the welfare of EN. Both Child and Youth Protection Services officers and police knocked on the door but there was no answer. Police officers walked into the backyard but were unable to see anyone. Police subsequently entered the premises and were met by you, SN, at the back steps, and you agreed to meet them at the front door.
15. About five to 10 minutes after first knocking on the door you, SN, opened the front door slightly and spoke to the Child and Youth Protection Services officers through a small opening of the door. You stated that you and TT had been asleep and that EN had just had a bottle. TT came to the front door and Child and Youth Protection Services requested to see EN.
16. SN agreed to get EN and then shut the door. Child and Youth Protection Services asked if they could see inside the house, and this was refused. SN returned to the front door about five to 10 minutes later holding EN close to his chest. Both of you told the Child and Youth Protection Services officers that EN was eating solids and drinking bottles of formula milk.
17. You, TT, advised that you had not been to the hospital to visit FN as you had been unwell. Child and Youth Protection Services asked to look at EN's bed. SN asked if he could first put the dogs away, and he went into the house for about five to 10 minutes before returning perspiring excessively and allowed staff to enter the house.
18. Child and Youth Protection Services looked in the kitchen cupboards and EN's bedroom. EN's bedroom was clean and the cot had sheets and a blanket tucked in. Dirty sheets were on the floor and there was a strong odour of stale urine in the room. The doors to all other rooms were closed. Child and Youth Protection Services asked to see the kitchen. A number of small baby bottles were found in the kitchen as well as “S26 Baby Formula” tins. There was a large amount of rubbish and rubbish bags on the floor of the kitchen.
Removal of EN from TT and SN’s care
19. TT told Child and Youth Protection Services officers that EN was starting to crawl. Child and Youth Protection Services officers spoke to the two of you about their concerns regarding EN's size and development and the condition of the house. You were informed that Child and Youth Protection Services were taking emergency action and removing EN from your care. EN was taken to the Child at Risk Health Unit where he was examined by Dr Alexis Bennett. EN showed no emotion, and apart from looking at the new faces showed no response during the examination.
20. He was malodorous, however appeared clean. He had dry skin on his arms, trunk and legs and active thickened dermatitis to his knee, toes, feet and the back of his head. EN had an ulcer on the roof of his mouth and teeth developing. He had poor body tone, was unable to sit unsupported and had difficulty putting weight through his legs. He was able to roll from his back to front but was still developing his roll from front to back. He was unable to crawl or push himself forward on his stomach. EN weighed 5.83 kg, which is below the third percentile for his age taking into account his prematurity.
21. He was provided with a 260 ml bottle of formula milk, which he drank rapidly without stopping. He cried when the bottle was finished and was then provided with a second bottle which had to be stopped at 220 ml. Shortly after his bottles EN was more interested in his surroundings and started to babble.
22. Dr Bennett was of the opinion that EN was underweight for his age and was showing signs of dehydration, including a sunken fontanelle, rapid pulse and thirst. Further, EN was significantly developmentally delayed in his motor skills, language and social development for his age. EN's dermatitis suggested chronic irritation and inadequate medical management.
23. He was placed in the care of a foster carer. He was offered pureed food, however he gagged when eating, suggesting he was not used to eating solids. He had difficulty grasping finger food and was unable to put it in his mouth. He continued to drink formula voraciously and got upset when the bottle finished. He was unable to produce saliva and tears due to dehydration. It was not until 27 December 2015, his third day in foster care, that he produced tears. EN was very quiet in the first few days with his foster carer. He would cry when he was bathed and when his bottle finished. He did not move very much and just looked around him. He did not cry for attention when he woke from sleep.
His foster carer noted that EN would grind his teeth if he did not have a dummy or when he was distressed and he would roll his head when he was alone. She noticed that EN had a strange smell for the first four days in her care. He did not grasp anything and held his hands flat if something touched his palms. EN developed a rash around his eyes, neck, ears and knees around 4 to 5 January 2016 and was quite unwell. His formula was immediately changed to lactose free and his condition improved overnight. By 18 January 2016 EN had progressed to eating pureed porridge and pureed fruit, which is four-month age appropriate, but he would continue to gag if there were any lumps. His dermatitis had improved and he was starting to grasp for toys, kick, wave his arms and put toys in his mouth.
EN continued to be regularly assessed by Dr Bennett. At the examination conducted on 30 December 2015 EN appeared very different to his initial presentation just six days before. He was bright, had plump skin with good colour and elasticity. No dermatitis was present. There were some improvements in his body tone, however, he still required significant support. His fontanelle was now flat, his mouth ulcer had resolved and he had gained 25 per cent of his body weight.
An Ages and Stages Developmental Questionnaire was undertaken on 5 January 2016 when EN was 12 months of age. The results suggested that EN had global development delay which warranted urgent further assessment and therapy in all developmental domains. By the assessment on 13 January 2016 EN was able to push his weight onto his knees when lying on his tummy. His dermatitis had returned and a steroid cream was prescribed.
By mid-January 2016 he was starting to commando crawl about one metre and could support himself when sitting forward. At the examination on 22 January 2016 EN was unwell, however his weight had increased to 7.23 kg, an increase of 290 g since he was last weighed. At his medical review on 23 March 2016 EN was tolerating nine-month-plus baby pureed food, able to sit independently and stand with support. He now weighed 8.5 kg, which was in the third to 15th percentile of similar prematurity at birth.
Based on the continued assessment over three months by Dr Bennett, she concluded that EN demonstrated signs of acute and chronic neglect of his nutritional, developmental, medical and emotional needs. Dr Bennett identified the following areas as indicating chronic neglect. EN was significantly underweight for his age when first presented to the Child at Risk Health Unit in December. He weighed 5.83 kg, where the average weight for a 10 month old boy, age adjusted for prematurity, is greater than nine kg. Whilst in foster care he gained significant weight. No medical reason was identified for his significantly smaller size than his age matched peers.
29. The thickened appearance of EN's skin at his first presentation suggested a chronic irritation and inflammation and inadequate medical management of his dermatitis. Dermatitis of this severity can cause disturbances in behaviour and sleep in infants and places the child at risk of secondary skin infection.
30. The failure to present EN for health checks at four and six months would have identified and managed failure to thrive and developmental delays. EN expressed no emotion at his first presentation at the Child at Risk Health Unit. He made minimal eye contact and very limited engagement with people. He showed very little interest in his surroundings. He demonstrated unusual repetitive movements of his head when distressed or tired. After three months of foster care he enjoyed social interactions and engaged well with his foster carer. His unusual head movements were rarely seen.
Dr Bennett identified the following matters as indicating acute neglect. When first removed EN showed signs of acute neglect of his nutritional and fluid requirements. At the first examination he was showing signs of total body water volume depletion. On the second examination, and in view of the significant weight gain in six days, Dr Bennett was able to assess that at the time of his removal EN's total body water could have been up to 10 per cent depleted. Total body water depletion greater than 15 per cent is often fatal. His initial voracious thirst suggested EN had not been offered a bottle recently and that formula was not readily available to him when he was hungry in the past. Dr Bennett concluded:
The condition that [EN] was found in on 24/12/15 placed him at risk of serious illness or death. Infants of [EN]'s size can deteriorate rapidly once volume depletion begins if adequate management is not commenced. If not found and provided large volumes of fluid on the 24/12/15, it is expected that [EN] would have developed complications secondary to the volume depletion such as seizure, brain damage and even death within 24-48 hours, or an even shorter period if the ambient temperature was high or he was left in inappropriate clothing for the weather.
This acute state of illness that [EN] was found on 24/12/15 was on the background of evidence of chronic nutritional neglect leading to failure to thrive and developmental delay. [EN] has also shown signs of abnormal emotional regulation and social response which questions the attachment that he had developed with his primary caregivers.
A further examination was conducted by Dr Nahal Payman on 9 June 2016 when EN was 18 months old. EN had continued to thrive nutritionally, emotionally and developmentally whilst in foster care. His developmental range at that time was assessed as being in the 11-12 month age range.
Consideration
33. TT participated in a record of interview on 23 January 2016. She stated that SN had been the primary caregiver due to her illness associated with her pregnancy and birth. However, she was aware of what EN was eating and drinking.
34. You, SN, also participated in a taped record of interview on 4 February 2016 in which you confirmed that TT had not been the primary caregiver due to her illness. You said that you were aware of what EN was eating and drinking and that you considered him to be healthy. You said that he was eating solids, could sit unsupported for a short time and could bear weight on his legs.
35. Pre‑Sentence Reports were prepared for each of you. You, TT, are 23 years old. You were born in Canberra and you are one of five daughters. You described your father as a domestic violence offender and stated that you were removed from your parents' care by Care and Protection Services, as it was then called, when you were 14 years old. Your parents are still together, but you have no contact with your father and little contact with your mother. You stated that your mother has mental health issues.
36. You reported entering into a relationship with SN when you were 18 years old and the relationship became difficult around the time that EN was born. You told the author of the report that your relationship continued to be strained as at the date of preparation of the report. You said that SN is verbally and emotionally abusive and that he blames you for current Child and Youth Protection Services proceedings and the current court proceedings.
37. There are apparently three children from your relationship with SN of whom the two eldest are in permanent out of home care, but you held some hope that the youngest child will be restored to your care. You expressed frustration that SN does not appear to be committed to restoration with EN.
38. At the time of preparation of the report you were living with SN. However, you reported an intention to end your marriage if he did not improve his behaviour.
You were attending a parenting program but this involvement was to cease on 15 May 2018, despite your positive engagement in the program, due to Child and Youth Protection Services' intention to seek permanent care orders for your youngest child. As I observed at the sentence hearing, this appears to be a particularly short-sighted approach on the part of Child and Youth Protection Services, particularly bearing in mind your age. I would have thought that it was in the best interests of the community for you to continue in and complete such a program.
40. You reported leaving school after completing Year 9 and you have a limited employment history. You reported that you were currently seeking employment and that you had a significant level of debt. You reported that the only prosocial organised activity in which you were involved was the parenting program to which I just referred.
41. You admitted periods of alcohol abuse in the past but claimed to have ceased this behaviour when you became pregnant with your oldest child. You were assessed as being at low risk of alcohol abuse. You also reported past use of amphetamines but identified cannabis as your drug of choice, using up to seven g a day until 15 months ago. You claimed no illicit substance use since that time. This was supported by drug testing using a sample of your hair. You have had very limited counselling to address substance abuse.
42. You reported no current physical or mental health issues, although that must be considered in the light of a subsequent report prepared by a psychologist, to which I will refer in a moment. You did, however, provide a history of prior self‑harm.
43. You told the author of the report that you agreed with the Statement of Facts and attributed your failure to care for EN to severe morning sickness which required hospitalisation, and you indicated that SN had cared for EN while you were in hospital.
44. You admitted that EN had not been fed enough and that you had not sought advice on how much he should be consuming. You also acknowledged that you had not attended appointments with the community nurse. You said that you were upset to hear about the severity of EN's condition when he was removed from your care and his developmental delays, but you stated that you felt confident that his development had now improved.
45. You were assessed as at medium risk of general re-offending and it was recommended that you address criminogenic risks such as parenting deficits, substance abuse, lack of prosocial activities, emotional wellbeing, unemployment and financial issues. I note that you have no prior criminal history.
46. Your Pre‑Sentence Report, SN, states that you are 35 years old and you were born in Sydney. You lived with your father from the age of 16 after your parents' separation and you described your childhood as marred by your father's harsh physical discipline. You have apparently had no contact with your mother and your younger siblings since you were 18 years old, and while your relationship with your father has been difficult in the past you have recently reconnected with him for support around your current situation.
47. You acknowledged that there have been difficulties in your relationship with TT, but you described your current relationship as positive. Information provided by Child and Youth Protection Services indicated your engagement with their service and other therapeutic programs has been inconsistent and they would not support restoration of your youngest child.
48. You reported that you have an 18 year old daughter from a previous relationship with whom you recently reconnected through Family Services. However, information received from your father indicated that you may also have other children from previous relationships.
49. You reported leaving school in Year 11 and that you have completed some certificates in business and information technology since. You were on Newstart allowance for five years while also undertaking some occasional cash in hand jobs. You reported that you were struggling financially and also paying off outstanding court fines. You reported no involvement in organised activities and you had friends and acquaintances involved in criminal activities, although you stated that you have recently distanced yourself from antisocial peers.
You reported no issues with alcohol. You began using cannabis when you were 19 years old and stated that you would smoke up to three g of cannabis each day until 12 months ago when you ceased. Your abstinence was confirmed through a recent urinalysis conducted through Child and Youth Protection Services.
51. You reported that you have completed counselling through the Court Alcohol and Drug Assessment Service as requested by Child and Youth Protection Services. However, information received by the author of the report suggested that you had only completed a brief intervention with that service. You did not disclose any health issues. However, you stated that you often suffer from panic attacks and anxiety.
52. You told the author of the report that you mostly agreed with the Statement of Facts and stated that you were smoking cannabis daily around the time that you committed the present offence. You said that you believed that you were feeding EN adequately based on knowledge from your cultural background and advice from the nurse. I note that at the sentence hearing your counsel also indicated that you had sought advice by searching online.
53. The author of the report believed that you minimised your involvement in this offence by stating that you were not made aware of your family's involvement with Child and Youth Protection Services since the birth of your first child and you felt that you did not have a say during your appointments with the nurse. You stated that TT's sickness also contributed to your inability to care for your children, but you acknowledged your cannabis use reduced your ability to be more proactive. You stated that you now believe you have acquired the right skills to be able to look after your children through attending parenting programs.
54. You were assessed as at medium risk of general re-offending with your criminogenic needs relating to your substance abuse, mental health and employment. I note that you have a relatively minor criminal history, not involving offences similar to the present and that you have not previously served a term of imprisonment.
55. A report dated 22 May 2018 from Dr Tran Dinh, a clinical psychologist, was tendered on behalf of TT. I have given very careful consideration to the contents of this report. The history provided to Dr Dinh was one of an upbringing marked by numerous traumatic experiences, including exposure to domestic violence and experience of sexual assault. She noted that your account indicated spiralling mental health difficulties and general functioning following moving out of your home when you were 14 years old.
56. Dr Dinh noted that you left home at a vulnerable and impressionable point in your development due to domestic violence perpetrated by your father. You had limited positive support, being part of a highly dysfunctional extended family, with people with mental health difficulties, substance abuse and problems with the law. You experienced instability in housing and in schooling, resulting in your attendance at school diminishing and your grades falling. You said that you could not focus at school and you began drinking alcohol and using other substances.
57. Dr Dinh stated that your reported history indicated that you suffered from post‑traumatic stress due to your father's violence. In addition, you experienced two instances of sexual assault between 15 and 16 years of age. This resulted in an increase in emotional distress and psychological symptoms from about 15 years of age, with the onset of self‑harming behaviours and suicidal ideation.
58. It was Dr Dinh's opinion that your reported symptoms in that period were consistent with Post Traumatic Stress Disorder, Borderline Personality Disorder and polysubstance abuse. It was her opinion that the Post Traumatic Stress Disorder and Borderline Personality Disorder were caused by the trauma which you had experienced, your environmental instability and relationship difficulties. She believed that the polysubstance abuse was a method of self‑medicating and a form of escape. These conditions caused significant problems in your social, emotional and academic lives, with you dropping out of school before Year 10.
59. Dr Dinh noted that you began individual counselling when you were 18 years of age and reported attending regular sessions for three or four years. This was a time of relative stability in your life, with cessation of self‑harm and reduction in substance abuse. Unfortunately, you ceased attending counselling when the practice you were attending closed down and you did not re‑engage with alternative providers. You continued cannabis use and this increased with stress.
60. Dr Dinh noted that the present offence coincided with a period of high stress in which severe mental health and physical health symptoms were present. She believed that given your account it was highly likely that your substance abuse, mental health disorders and physical health problems impacted on your judgment and affected your parenting capacity. She noted that at interview you evidenced insight into substance use problems and mental health problems and expressed what appeared to be genuine regret and remorse for your conduct and its effect on your children.
61. He made formal diagnoses of Major Depressive Disorder, recurrent severe without psychotic features, Post Traumatic Stress Disorder, Borderline Personality Disorder in remission at a subclinical level, and Cannabis Use Disorder, moderate, in early remission.
62. The report prepared by Dr Dinh also provided useful information concerning your physical health in 2015. You gave birth to EN in January 2015 but later that year you again became pregnant with your second son, FN. FN was born in December 2015. During your pregnancies with both EN and FN you suffered from a condition called hyperemesis gravidarum, which I will refer to as HG, which caused unremitting nausea, dizziness and severe vomiting which prevented you from being able to keep any food down.
63. The condition presented from around eight weeks of pregnancy and remained until about two weeks after you gave birth. The vomiting occurred night and day, affecting your ability to sleep. You sought medical assistance and you were given sleep medication and anti‑nausea tablets. You were required to attend hospital for treatment on a number of occasions when your vomiting would not subside. You reportedly relied heavily on SN for support and caring for EN when you were pregnant with FN.
64. Dr Dinh noted that your life between 2015 and 2016 was highly stressful, with multiple stressors that overstretched your coping resources and affected your mental health. You suffered a miscarriage around 2014 and reported the beginning of relationship stress with SN. Relationship issues resurfaced when you were pregnant with EN which caused you significant emotional distress and appears to have triggered Borderline Personality Disorder symptom relapse with you reporting preoccupation with the relationship, fears of abandonment, paranoia, strong feelings of emptiness and suicidal ideation. These stressors appear to have precipitated a severe depressive reaction marked by suicidal ideation, feelings of worthlessness, low mood, unhappiness, excessive feelings of guilt and self-blame and problems with concentration and memory. You reported increasing dependence on substance use to manage your distress. As a result of your depression and suffering from HG, you suffered fatigue and lack of energy.
65. Dr Dinh considered that you have good prospects for rehabilitation based upon evidence of previous responsiveness to treatment, your lack of any previous criminal history, your reported desire to change and willingness to engage with help and support, your acceptance of responsibility for this offence and your expressions of remorse and regret.
With regard to the prospect of a term of imprisonment, Dr Dinh stated that such a disposition is likely to cause you significant emotional stress and could cause a deterioration of your mental health, including a relapse of your Borderline Personality Disorder and an increase in the severity of your depression. This may manifest in self‑harming behaviour and suicidal ideation. It could also increase the risk of relapse into substance abuse. Given your complex mental health difficulties Dr Dinh recommended long‑term treatment and support.
67. A letter dated 21 March 2018 from SE was tendered on behalf of TT. She speaks of you as a kind, compassionate and emotionally intelligent friend. She said that you have acknowledged the severity and consequences of your actions and the impact that it has had on your children and you have taken full responsibility for your actions. She believes that you are intent on improving yourself. She further believes that you are willing to undertake programs and to cooperate with the authorities with a view to regaining custody of your children.
68. Although the maximum penalty for an offence of causing grievous bodily harm by a negligent or unlawful act or omission is only five years' imprisonment, any such offence involving the causing of grievous bodily harm to a child must be considered to be a particularly serious example of this type of offending. In assessing the objective seriousness of this offence I take into account that it involves a significant breach of trust on the part of each of you, that the offence continued for a period of approximately 11 months and as such was not a momentary lapse and that the offence caused both physical and emotional harm to EN.
69. It need hardly be said that EN was vulnerable because of his age and was completely dependent upon the two of you as his parents to provide for his needs. I accept that EN is likely to suffer long‑term psychological consequences. There was a high degree of negligence involved. It is also important to note that offences such as these are difficult to detect.
70. I am satisfied that there are reasons to distinguish between the two of you with regard to your moral culpability for this offence. I am satisfied that you, TT, were quite ill, both physically and mentally, during the great majority of the period of this offence. I am satisfied that as a result of your illness your ability to cope with parenting EN was severely diminished and you mostly left the care of EN to SN.
71. You were using cannabis during the period of this offence, but I am satisfied that your use of cannabis was linked to your mental illness, and in any event the predominant reason for your failure to care for EN was your physical and mental illnesses. These illnesses do not provide you with a defence to the present charge, but I am satisfied that they very significantly reduce your moral culpability.
72. The fact that you were suffering from a mental illness at the time of this offence means that general deterrence as a sentencing consideration should be moderated. I take into account the steps that you have taken towards rehabilitation and I am satisfied that you have very good prospects for rehabilitation. I also accept that a term of imprisonment is likely to have adverse effects upon your mental health. There is no particular need for specific deterrence to be given prominence as a sentencing consideration.
At the time of this offence you were only 20 to 21 years of age and had no previous convictions. Your plea of guilty was late, being entered only three days before your trial was due to commence, but nevertheless had a degree of utilitarian value. I will reduce the otherwise appropriate sentence by approximately 10 per cent in order to reflect your plea of guilty. I am satisfied that a wholly suspended term of imprisonment is appropriate in your case.
74. You, SN, were between 32 and 33 years old at the time of this offence. You were not suffering from any relevant physical or mental illness which would reduce your moral culpability for this offence. Because of TT's illness you had the day‑to‑day care of EN. The only apparent explanation for your neglect of EN was your persistent use of cannabis. Your moral culpability is quite high. You have not demonstrated the same commitment to rehabilitation that TT has demonstrated, although I note that it is positive that you have apparently ceased using cannabis. At the present time your prospects for rehabilitation must be considered guarded.
There is no reason to moderate general deterrence as a sentencing consideration in your case, and an element of personal deterrence is also appropriate. In my opinion, I should impose a sentence which incorporates at least some period of full‑time imprisonment in order to reflect the serious nature of this offence and to deter others from committing offences of a similar nature. Your plea of guilty was also late, but I accept that it had utilitarian value and I will also reduce the appropriate sentence in your case by 10 per cent to reflect your plea of guilty.
Sentence
76. With regard to the charge against TT, I record a conviction and you are sentenced to nine months' imprisonment commencing today, 29 June 2018, but wholly suspended with a good behaviour order for a period of two years, requiring you to accept the supervision of ACT Corrective Services for that period of two years or such lesser period as deemed appropriate by your supervising officer, and to undertake such treatment, counselling or programs as directed by ACT Corrections. I recommend that you be directed to continue to undertake a parenting course and that you be directed to undertake appropriate counselling with a psychologist.
77. With regard to the charge against SN, I record a conviction and you are sentenced to 15 months' imprisonment commencing today, 29 June 2018, and expiring on 28 September 2019. The period commencing today and expiring on 28 December 2018 is to be served by way of full‑time imprisonment. The balance of the sentence will be suspended with a good behaviour order for a period of 18 months from 29 December 2018, requiring you to accept the supervision of ACT Corrective Services for that period of 18 months or such lesser period as deemed appropriate by your supervising officer and/or undertake such treatment, counselling or programs as directed by ACT Corrective Services.
78. The backup charges of neglect (CC16/4453 and CC16/4454) will be dismissed.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 6 September 2018 |
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