R v Youkhana

[2015] NSWDC 314

District Court

New South Wales

Medium Neutral Citation:

R v Youkhana [2015] NSWDC 314

Hearing dates:

11 December 2015

Date of orders:

11 December 2015

Decision date:

11 December 2015

Jurisdiction:

Criminal

Before:

Knox SC DCJ

Decision:

Term of imprisonment of 12 years

Non-parole period of 7 years and 6 months​

Catchwords:

CRIMINAL LAW - sentence - cause grievous bodily harm with intent - victim was child of the offender - vulnerability of victim - offender in position of trust - prior conduct - matters on s 166 certificate - breach of good behaviour bond

Legislation Cited:

Crimes Act 1900 (NSW), s 33

Cases Cited:

Cheung v R (2001) 209 CLR 1; [2001] HCA 67
Heron v R [2006] NSWCCA 215
Josefski v R [2010] NSWCCA 41
R v Hill [2014] NSWSC 1010
R v JCW [2000] NSWCCA 209
R v Lolesio [2014] NSWCCA 219
R v Luu (unrep, 12 March 1998, NSWCCA)
R v Mitchell, R v Gallagher [2007] NSWCCA 296
R v Olbrich [1999] HCA 54
R v Pitcher (unrep, 19 February 1996, NSWCCA)
R v Ross Martin (unrep, 6 May 2011, NSWDC)
R v Williams (2004) 148 A Crim R 325
R v Zhang [2004] NSWCCA 358

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW)
Linda Youkhana

Representation:

Counsel:
Ms H Roberts (Crown)
Ms J Layani Ellis (Offender)

Solicitors:
Office of the DPP
Jack Rigg Solicitors (Offender)

File Number(s):

2013/229779

Sentence​

1. The offender, Linda Youkhana, was found guilty by a jury following a trial on a charge of intentionally causing grievous bodily harm.

Between 30 March 2013 and 2 April 2013 at Smithfield in the State of New South Wales caused grievous bodily harm to ‘A’ with intent to cause grievous bodily harm.

2. The charge was brought pursuant to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years imprisonment. A standard non parole period of 7 years has been established for that offence.

Offender’s background

3. The offender, Linda Youkhana ('Ms Youkhana')is the mother of the victim, ‘A’. She moved to Australia from Iraq in 2004, at the age of 19.

4. The offender has two other children, JY, now aged 9,and AY, now aged 5. At the time of the alleged incident, the victim, A, was aged two.

5. The offender is 30 years of age (born on 15 September 1985).

6. At the time of the offence, the offender was married to Benyamin Youkhana. He is not the biological father of A or of AY. That was not known to him at the time of the incident. Her marriage to Benyamin Youkhana took place in Australia when she, the offender, was aged 18. It was an arranged marriage. The Pre-Sentence Report simply states that her relationship with Benyamin ceased in 2013 as a result of infidelity and that they subsequently divorced in 2015.

7. Also living in the home at the relevant time was the maternal grandmother (Faha Suleiman) of the child and mother of the offender.

Facts

8. At 3pm on 1 April 2013, the child, A, was driven to Westmead Hospital Emergency Department by the offender. There, the offender presented the child, A, to the medical staff. When A was presented to hospital, the clinical opinion was, at that time, that she was close to death (Dr Marks’ evidence on 16 September 2015).

9. The first person the offender spoke to was Registered Nurse (‘RN’) Julie Austin, the rapid triage assessment nurse. RN Austin noted that A was pale, her lips were a bluey colour, and her body was cool. She asked the offender “what’s wrong with her?” The offender replied “I’m not sure what’s wrong with her, I think she fell, but I didn’t see it.”

10. RN Austin escorted the offender and A through to the resuscitation area of Emergency to be seen immediately. She asked “How long has she been like this for?” The offender paused before answering, “I don’t know”. The offender did not answer RN Austin’s further questions.

11. Immediately, a number of doctors and nurses began treating A. Dr Thosar asked the offender what had happened to A and the offender responded with words to the effect that A “… had a fall while playing about half an hour prior to arrival”, and since then had been turning blue, going in and out of consciousness.

12. The offender told Dr Paul Tait that A was “…playing with her brother AY in the house” while she, the offender, was in the kitchen and “…she heard running and then a thud followed by A crying”. When the offender went to investigate, A was lying on the floor crying. The offender said that she then drove A to the hospital.

13. A had sustained multiple injuries and more than one acute serious injury. In this context, ‘acute’ meant sustained within a maximum of 12-24 hours of her presentation to hospital and very likely within the approximately 1 hour time frame as described by the offender – but not by the mechanism described by the offender.

14. The child had earlier been seen on 26 March 2013. On that occasion, an ambulance took her to the hospital. She, A, was in varying states of consciousness over the journey. When seen by the doctor, she was fully examined and was found to have no apparent bruising other than that which was fully consistent with the history given. That formed the basis of the Crown case that whatever had occurred, occurred after 26 March 2013, and between that date and, most likely, 1 April 2013.

Injuries

15. A summary of A’s injuries included:

• Acute head injury – bilateral subdural and interhemispheric haematomas resulting in significant residual brain damage and functional impairment.

• Bilateral retinal haemorrhages resulting in cortical blindness.

• Subdural bleeding and swelling of the spinal cord.

• Multiple rib fractures with mature callous formation. These were healed and there was insufficient evidence as to how they were caused.

• Liver and splenic laceration

• Fracture of right elbow (old)

• Fractured right tibia (shin).

• Bruising: left thigh, 5 circular bruises in a pattern suggestive of fingertip pressure; right thigh: 8x4cm; left chest: 1cm diameter over 5th & 6th rib.

16. As a result of the offence, A underwent an emergency craniotomy to reduce the swelling to her brain. She was at risk of death at the time. She was then intubated for 19 days, followed by being cared for in the intensive nursing care ward, with a complex regime of medication.

17. Of those injuries, the most serious and life threatening injury was a severe traumatic brain injury. Brain imaging showed multiple areas of brain infarction, resulting in severe cognitive and physical disabilities.

Long term issues

18. A has also developed cerebral palsy and has spasticity. She requires full-time care and is unable to feed herself independently. As a result of the offence, she also has significant developmental delay (see Dr Marks’ evidence below).

19. A’s injuries are set out in the Life Without Barriers Reports which became exhibits S 11 and S 12. That is the agency which is responsible for the guardianship of the child. She now has spastic quadriplegic cerebral palsy which affects her physical movement, including eating, grasping, and sitting. She requires leg and hip braces and is confined to a wheelchair. She is unable to draw, use a spoon, point, or pick up a toy. She is not toilet trained and is unlikely to ever be able to independently use a toilet. She has severe vision impairment.

Issues

20. The existence and extent of those injuries were essentially not disputed. Similarly, it was not disputed as to whether those injuries constitute grievous bodily harm. The only issue at trial was whether the offender caused those injuries.

21. The matter proceeded to a five week trial in the face of a strong circumstantial Crown case and detailed medical evidence. Since the verdict, the offender has maintained an attitude of total denial towards this offence, and has sought to blame others and has maintained her innocence.

Other persons present

22. At the time of the incident, the offender was staying at the house with her mother, her son, AY (then aged 3 years old) and A (then aged 2 years old). The child was taken to hospital on 1 April 2013, being Easter Monday.

23. The offender’s husband, Benyamin, had stayed at his brother’s house with the couple’s child, JY, on 28 March 2013, being the Thursday preceding the Easter weekend. He was therefore not present at the time and day of the assault on A.

2011 assault conviction

24. The offender pleaded guilty on 22 August 2012 to a charge of assault on 17 December 2011. Two police officers attended that scene. Red marks on A were photographed. The offender admitted causing the marks, but not slapping her body. The prior incident involved the offender “pinching” the child.

25. The agreed facts for that offence were that what was involved was “a pinch”. That is all that was led before the jury at trial in relation to this incident.

Prior acts

26. An amended Tendency Notice relied on during the trial referred to a number of incidents where it was suggested that the offender used to essentially “force feed” A, including holding her mouth open or by pinching her nose to keep her mouth open.

27. In support, the Crown also relied on evidence obtained from witnesses in the extended family that the offender was:

• Engaged in forced feeding by forcing the child’s mouth open and holding her nose closed;

• Hitting A across the face with an open hand, hard enough to leave a visible red mark, and;

• Throwing her onto a tiled floor when frustrated by trying to put on her shoes.

28. On 26 March 2013, the offender was observed to be angry when the child spilt some water on a couch. She hit the child across the face and the child fell and hit her head on the floor, causing the child to lose consciousness. On that occasion, the offender told medical staff that the child had fallen from her cot.

29. Those acts formed the basis of the matters on the s 166 certificate which I have set out later in these remarks.

The offender’s account of events

30. The history given by Ms Youkhana to medical staff in relation to the incident on 1 April 2013 contained a number of variations. However, all her accounts were essentially a version of an accidental simple fall or the possibility of being pushed by her then three year old son, AY. Those accounts were clearly rejected by the jury.

31. The Defence case was also that there were other alternative scenarios and causes for the injuries which had occurred. Those scenarios put by the Defence before the jury were that the child may have fallen from her cot on the previous occasion of 26 March 2013 or that she had been pushed over onto a concrete floor, albeit a floor covered by lineoleum tiles. The child frequently played on a trampoline which formed the basis of the submission that she could have fallen or on which she could have experienced a knock to the head and body.

Defence written submissions

32. The submissions provided by Defence counsel are in conflict with the clear finding of the jury as to intent as well as the medical evidence which indicates more than one blow or traumatic event.

Medical evidence at trial

33. This is a difficult sentencing exercise in at least one respect, because the offender seems to be incapable of accepting responsibility for her actions and, in particular, the consequences to her daughter.

34. The offender continues to maintain her innocence and blames others for what occurred to A. Her evidence at the trial was unconvincing to say the least, and was clearly rejected by the jury. Mr Watson-Munro (Report dated 11 December 2015 – exhibit S 5) said that the offender is deeply regretful about what has occurred, and the attendant consequences. However, she continues to categorically deny any responsibility for what occurred to A.

35. In those circumstances, it is appropriate for some of the medical and factual evidence given at the trial to be set out so that those responsible for her treatment in the future may be aware of the reality of the relevant medical evidence. It may be important for subsequent treatment and/or parole authorities to determine what is an appropriate course of treatment or supervision for the offender. That evidence may also be relevant in relation to future care proceedings as have been foreshadowed in Mr Watson-Munro’s report.

36. In relation to the medical evidence, there were two doctors called, Dr Donald and Dr Marks and a report by Dr Tait was read and adopted by Dr Marks.

37. There were essentially two issues arising from that evidence:

1. The degree of force causing the injuries; and

2. The causes for the injuries, especially the intra-cranial injuries, the retinal damage and the abdominal injuries.

Dr Paul Tait

38. In the opinion of Dr Paul Tait, Consultant Paediatrician in Child Protection, there was no adequate explanation as to how A’s injuries occurred, specifically, that the offender’s account of the sequence of events was “not at all plausible”. Dr Tait’s opinion was set out in detail in his report dated 15 July 2013 (exhibit S 10). The report is relied upon in its entirety. Dr Tait’s unavailability meant that his report was essentially adopted in its entirety by Dr Marks (see below), who included in her report the materials she read before giving her opinion.

39. A short summary of Dr Tait’s opinion is set out at paragraph 44 of Dr Marks’ report:

“… it was clear she (A) would be left with significant residual brain damage and functional impairment. She was already developing spasticity of her limbs with reduced mobility increasing the risk of contractures, that is, stiffening of the joints in a flexed position. At best it would appear that she was able to recognise that there were people nearby and that she could hear. Clinically, she was blind, probably a cortical blindness. She had no real independent function or purposeful/voluntary movements. She had generalised spasticity. She could not stand independently. She was incontinent and unable to manage oral feeding.”

Dr Terence Donald

40. In the opinion of Dr Terence Donald, Paediatric Forensic Physician, the incident which led to A’s admission to hospital on 1 April 2013 involved high impact force to both her head and her abdomen. Dr Donald’s opinion is set out in detail in his report dated 9 September 2014 (exhibit S 9). The report annexes Dr Donald’s curriculum vitae. He has also had experience in case review matters – which is essentially what he carried out here.

41. Dr Donald said that the force required to cause the head and abdominal injuries could not be generated by another similarly aged child unless it involved A being pushed from a significant height, much greater than her standing height, and more of the order of 3 or 4 metres. This opinion contradicted the suggested version proffered by the offender, being either an accidental fall or a push by the offender’s older child AY (then aged 3).

42. Further, Dr Donald stated that, in considering whether A’s injuries could have been inflicted by the older child AY, it was first necessary to consider which injuries were likely to have occurred at the same time as the head injury.

43. Dr Donald said the abdominal and head injuries could have been caused by the same incident or, possibly two incidents at the same or similar time. The injuries described in all the medical and hospital reports were quite rare, and were not consistent with minor impact injury. Dr Donald had never seen such injuries nor read of any such injuries being explained by the account given by the offender in this instance. The injuries could have occurred or been caused by a short fall (less than 1.5 metres) but almost always when the fall was onto a hard surface.

44. The medical evidence established, in my view, that A suffered at least two high impact forces, one to the head and one to the abdominal region, within a short period of time prior to her presentation at the hospital. The extent of the force required to cause the injuries was indicative of deliberate force inflicted by an adult, either by direct blows or by impact with a wall or with furniture when thrown with force.

45. The child A’s CT scans showed the force applied to her head was high (strong) rather than low (weak). Dr Donald could not quantify the level of force save in qualitative and comparative terms as being a significant fall with a high velocity impact.

46. In the opinion of both medical specialists, even if A had suffered a head injury on 26th March 2013, such an injury could not have resulted in the acute traumatic brain injury with which she presented on 1 April without an additional high force impact. That is, the hypothesis that an accidental fall in the circumstances described by the offender on 1 April 2013 exacerbated a pre-existing head injury from 5 days earlier, was not adopted as a reasonable possibility by either Dr Marks or Dr Donald.

47. The Crown relied upon the medical opinions to establish that the history given by the offender could not explain the extent and nature of the injuries suffered by A. In turn, the Crown relied upon the false accounts, given by the offender to explain the injuries, as lies, which were told deliberately and with knowledge that the truth would implicate the offender in the offence charged.

Dr Susan Marks

48. Dr Susan Marks is a Staff Specialist in the Child Protection Unit, at the Children’s Hospital at Westmead, as well as in the Emergency Department of that Hospital.

49. Dr Marks provided an amended report dated 13 September 2015 (exhibit S 8). Also annexed to that report are a Brain Injury Clinic Report dated 17 June 2015 and Rehabilitation Team Discharge Report dated 15 July 2013.

50. Dr Tait is now no longer employed at the hospital, nor was he well enough to give evidence at trial. The Crown approach was to ask Dr Marks to read all materials, including hospital and medical records of Dr Tait, as well as his report. Dr Marks’ opinion was based on her own observations of A and the records and the report of Dr Tait – who could not give evidence at the trial.

51. Dr Marks’ opinions were based on the observations of the injuries to A’s head, spinal and abdominal regions, as well as her fractures, including to her right tibia. Some of those bruises were fading.

52. In relation to the abdominal injuries as was detailed in [66], [67] and [69] of her report, Dr Marks said that:

“A had evidence of major trauma to her abdomen including lacerations to her liver, her spleen, contusion to her pancreas and contusion and haemorrhage of her left adrenal gland. The raised lipase level was also indicative of trauma to the pancreas. Acute trauma with shock can lead to haemorrhage of the adrenal glands, but the presence of adrenal contusion (bruising) suggests that the cause of the adrenal injury was blunt trauma.

…

The abdominal findings are highly suspicious for one or more severe, forceful blunt impacts (direct blows) to A’s abdomen and, in the absence of any history that could explain these findings, the abdominal injuries are highly suspicious for inflicted injury.”

53. Dr Marks’ opinion was that there could be no explanation for the nature and location of the injuries being other than due to the application of force. They were not consistent with a child either falling over or being pushed over on to a piece of furniture. Dr Marks’ evidence was that there needed to have been the direct application of force to the areas manifesting the injuries as set out. She did not accept that the injuries could be caused by a short fall, nor were the injuries consistent with being caused by a motor vehicle accident.

54. In relation to the spinal subdural haemorrhage identified, Dr Marks explained the mechanisms which could have given rise to those matters, and the areas where the blood was located, as well as why in this case, the location of the blood was highly suspicious. In particular, an alternative hypothesis was suggested, as to the cause for the bleeding/blood found in the lumbar thoracic region (lower spine) area, namely, that the bleeding could have commenced in the head then flowed down to the lower spine region. However, Dr Marks said (on the voir dire) that she did not consider that explanation to be particularly likely, because, whilst there was bleeding in the head, and then in the lumbar thoracic region, there was no blood found in between, i.e. in the upper thoracic region. That, according to Dr Marks, indicated that the blood found in the lower spine was not caused by a flow of blood from the head.

53. Further, Dr Marks outlined the typical injuries suffered by children who have suffered suspicious injuries as compared with children who have been involved in motor vehicle accidents. Dr Marks said that children involved in road accidents do not typically present with any spinal bleeding, whereas up to 50% of children who have sustained suspicious injuries have presented with spinal bleeding.

54. Details of the head and eye injuries suffered by A were set out at [58], [60] and [61] of Dr Marks’ report. There was no evidence of any predisposing medical condition for the subdural bleeding. The possible explanation was the change in the direction of the forces being applied to the head, and the repetitive application of such forces. A fall or a push would not cause such injuries with those symptoms.

55. According to Dr Marks’ earlier report dated 19 August 2015 (which was since amended), the injury that was sustained by A on 1 April 2013 was highly suspicious. The opinions of Dr Marks were consistent with Dr Tait and Dr Donald, that the injuries involved “high impact force”.

56. A’s presentation with bilateral subdural haemorrhages and profound hypoxic/ischemic brain injury were highly suspicious of a severe head injury including an acceleration-deceleration (shaking) injury, rather than an impact injury, although she said an impact injury could additionally have been inflicted on the head area. Dr Donald’s evidence was that shaking would not have caused sufficient force. However, even if there had been impact injuries to her head, they would not explain the specific subdural haematoma.

57. The injuries to A’s eyes included retinal haemorrhages. Dr Marks’ findings indicated direct forceful impact trauma to A’s right eye but modified her views in cross-examination. In regards to A’s abdominal trauma, Dr Marks referred in her report to the one or more severe forceful blunt impacts to her abdomen, which were highly suspicious of inflicted injury.

58. Furthermore, the bruises on A (rib fractures and other bone injuries) were not consistent with normal activity and play. Dr Marks’ findings were that A’s multiple injuries were not explained by the history provided. The presentation was highly suspicious of severe inflicted injuries including both impact injuries and acceleration-deceleration injuries. Dr Marks confirmed that A’s head injuries were life-threatening.

59. The Crown case was that the injuries were inconsistent with a fall onto a linoleum floor, even when being pushed by another 3 year old child. Further, that those injuries nor the extent of them were not consistent with being caused by long term injuries even from the events of the previous week. The jury verdict indicated that the case put forward by the defence was not accepted.

Defence case

62. The Defence case at trial was that the evidence of each of the Crown witnesses who were relatives or family connections of the offender, were all concocted and/or contaminated by the witnesses, as a result of being influenced by what they had heard from other witnesses before and over the course of the trial. That was particularly the case given the extended family discussions which had clearly taken place about the offender both generally and in the context of her having had an affair unknown to her husband. That argument was clearly rejected by the jury.

63. In that regard, the offender’s case was that there were other people there at the time including the elder brother of the child, namely, AY, then aged 3 as well as the grandmother of A.

Findings on medical evidence

64. I accept the evidence of the medical experts, Dr Marks, Dr Tait and Dr Donald. To the extent that there were differences and distinctions between the doctors’ evidence, those aspects went towards determining the possible causes of the injuries sustained by A. In that respect, the jury verdict made clear that the injuries were caused by the actions of Ms Youkhana.

65. Defence counsel submits that the Court cannot exclude that the ultimate injuries were the result of other contributing factors such as seizures or raised intra cranial pressure. I do not accept that submission and find, consistently with the jury’s verdict, that the causes of A’s injuries, specifically, the abdominal injuries, the intra-cranial pressure and retinal haemorrhages, were the actions of the offender. It may have been that the subsequent developments, including the intra-cranial pressure flowed on from the initial assault or assaults. In my view, there is no evidence which I would accept sufficiently to establish, or even infer, issues of causation or absence of foreseeable injury by any other factor or factors other than the actions of Ms Youkhana.

66. There is no evidence which I accept to establish that there was any other cause for the injuries as they occurred and subsequently developed.

67. Notwithstanding this, even if the injuries were as a result of such factors, the precipitating cause was the assault by Ms Youkhana on her daughter, A.

Evidence on sentencing proceedings

68. A Pre-Sentence Report was prepared by Oscar Yu, dated 4 December 2015, which was tendered (exhibit S 6).

69. A Report from Mr Watson-Munro, psychologist, dated 11 December 2015, was also tendered (exhibit S 5). He described Ms Youkhana as cooperative, though highly anxious and depressed. In that Report, Ms Youkhana adheres to her view that “… the injuries were the function of an accident.”

70. Mr Watson-Munro considered that there were no indicia of major psychiatric disturbance, such as delusion of reference, formal thought disorder or auditory or visual hallucinations. He thought she was suffering from major depression according to the DSM-5 criteria. He has serious concerns regarding her mental state.

Offender’s attitude since verdict

71. The offender has maintained her view according to the Pre-Sentence Report (exhibit S 6) dated 14 December 2015, that the “… injuries may have been perpetrated by her ex-partner, and maintains it was a result of an accident”. Clearly, no remorse has been expressed.

Offender’s treatment

72. The Pre-Sentence Report sets out that the offender’s general practitioner referred her to a psychologist for her “major depression due to her legal matters and (because) there was reference made to domestic violence”.

73. She saw her psychologist on three occasions in 2013, and on eight occasions in 2015. Apparently, her psychiatrist diagnosed her with “adjustment disorder in response to her complex psycho-social history and ongoing legal matters”.

Offender’s mental condition

74. It becomes relevant in this case to determine to what extent the principles of general and specific deterrence should apply. Submissions have been made by both counsel in general terms.

75. Here, the offender was experiencing some stress, arising from her relatively recent background as a refugee moving from Iraq to Jordan to Australia, as well as the stressful situation of her marriage. But her issues regarding her affair were ongoing and a situation in which she had involved herself voluntarily. Her actions do not appear to have been predicated by any deep seated psychiatric condition.

76. It is submitted by the Crown that the offender took out her frustrations upon her highly vulnerable child. Defence counsel disputes that this should be accepted as fact, and submits that it is only an inference which is not supported by the evidence and denied by the offender. It is not necessary to make a conclusive finding in this regard, nor is it warranted given the absence of sufficient evidence and any disclosure of the facts or background by the offender.

77. There is no evidence of alcohol or of drug dependence, mental illness, or other subjective features which may have impacted upon the offender’s moral culpability for this offence.

78. This offence needs to be considered against the background of matters relating to the incident as set out, her subjective features, and her prior history including the prior assaults which took place by the offender on her baby daughter over an 18 month to two year period.

General deterrence

79. Here, there is a clear need for general deterrence to mark the community’s abhorrence of crimes committed against (particularly) very young and vulnerable children.

80. In R v Pitcher (unrep, NSWCCA, 19 February 1996), his Honour Cole JA said that:

“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… the only protection which society can give to young children is the protection afforded by the Courts. 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 the 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.”

81. Those comments are also apposite in this case.

Specific deterrence

82. In the circumstances, there appears to be a limited need for the application of the principles of specific deterrence. However, what needs to be remembered in this regard are the prior assaults and the other matters as set out in the Tendency Notice, being the s 166 matters dealt with below.

Authorities

83. I accept the Crown submission that the facts upon which an offender comes to be sentenced after trial is a matter for the assessment of the sentencing judge, provided those facts do not controvert the jury’s verdict: Cheung v R (2001) 209 CLR 1; [2001] HCA 67. I have also borne in mind that facts and circumstances that are adverse to the offender to be taken into account must be established beyond reasonable doubt, whereas circumstances favourable to the offender must be established on the balance of probabilities: R v Olbrich [1999] HCA 54.

84. This becomes relevant in relation to the issue of intention where, in my view, the jury’s verdict mandates a finding that the offender acted intentionally.

85. Defence counsel submits that the Court is to only have regard to the consequences of an offence that was intended or could have reasonably been foreseen: Josefski v R [2010] NSWCCA 41 at [4] and [39] and that the offender is not to be sentenced for harm which was not intended or could not have reasonably have been intended. In light of the jury’s verdict however, I do not accept that the offender could not have reasonably foreseen that her actions could have resulted in grievous bodily harm occurring. Not only is that an element of the offence, but I also cannot be satisfied, on the balance of probabilities, that the offender did not foresee that she, a grown adult woman, could have inflicted that force on a child of A’s age, without causing those injuries, or at least injuries of that nature.

86. BW v R (2011) 218 A Crim R 10 was a case of manslaughter whereby the offender, the father of the victim, his seven year old autistic daughter, was sentenced to a head sentence of 16 years with a non-parole period of 12 years. This case was not one of manslaughter. However, the actions leading to the grievous bodily harm were of a protracted and continuous nature, and stemmed from an apparent disregard by the offender for her daughter’s health and wellbeing.

87. I have had regard to R v Lolesio [2014] NSWCCA 219 which was a factually similar case and a recent outline by the Court of Criminal Appeal of relevant sentencing principles. There, the offender was convicted of two counts of intentionally causing grievous bodily harm to his six week old child. The first offence (of two) involved him inflicting injuries on the child including fractures to the ankle and other bones in the foot, bruising and swelling. That offence was committed when the offender was alone with the baby and, after inflicting these injuries, the offender did not take any steps to have the baby taken to a hospital or have her examined. The expert evidence in that case determined two possible causes of the injuries – either the pulling and twisting of the lower limbs, causing a shearing at the end of the bone; or the offender flailing the baby in a forceful way, causing a crushing injury, or by holding the baby’s feet and bending them in hyperflexion.

88. The second offence occurred only a week later. That involved injuries to the baby’s arms and wrists, further foot fractures, as well as the fracturing of four of the baby’s ribs, and a subdural haematoma. The expert evidence found that forceful squeezing was involved, resulting in the rib fractures. Further, significant or severe forces involving repetitive rotational movements caused the subdural haematoma.

89. Those offences arose out of the offender’s anger regarding financial stress. He, like this offender, was not forthright with the version he gave others as to how these injuries could have occurred.

90. It was found to have been aggravating in those offences that the offender abused his position of trust, and that the victim was a vulnerable person given her age.

91. The Court of Criminal Appeal held that the initial finding of the sentencing judge of a below mid-range of objective seriousness based on the limited injuries caused was erroneous, and held that it was in the middle range of objective seriousness.

92. In that case the Court of Criminal Appeal imposed sentences of:

1. Head sentence of five years, with a non-parole period of three years;

2. Head sentence of six years and six months, with a non-parole period of three years and six months.

93. While both cases involved cruel and unwarranted violence, I consider the injuries in the current case to be more serious and permanent than those in Lolesio.

94. In assessing the objective criminality of a s 33 offence, the Court is to have significant regard to the extent of the injuries sustained by the victim: Regina v Mitchell, Regina v Gallagher [2007] NSWCCA 296, although this is not the only factor to take into account.

95. In Lolesio, the matters which were evaluated to determine criminality were set out at [75]:

1. The injuries caused, including the seriousness and permanency;

2. The vulnerability of the victim;

3. The position of trust which the offender occupied;

4. The physical disparity in size and strength between the offender and the victim;

5. The deliberateness of the conduct which was wholly unrelated to anything which the baby had done, and the intention with which the conduct was engaged in, namely, an intention to cause grievous bodily harm; and

6. The cruelty of the manner in which the injuries were caused, and the force and violence perpetrated by the offender on the baby.

96. Here, the victim A was aged two at the time. She was completely vulnerable by reason of her age, the fact that she was the child of the offender, and the size, weight and strength disparity between the offender and her child, increase the objective seriousness of this offence.

97. Clearly, the offender, as the baby’s mother, was in a position of trust. On the medical evidence – in particular, that of Dr Marks, it is difficult to conclude that the conduct, was anything other than deliberate. The jury’s verdict also mandates the finding that the injuries were caused intentionally. Further, the injuries as detailed earlier were serious, permanent, and far-reaching.

Findings

98. The Crown further submits that the medical evidence given by Dr Marks and Dr Donald concerning the extent of the injuries, the possible mechanisms for each of the injuries, and the force required to cause those injuries, establishes that the assault itself comprised at least a shaking or high force impact to cause the head injuries, and a high force impact to the abdomen. Whilst I accept that, it is not possible to make a precise or definitive finding about how the offender inflicted those injuries upon A, I find that the injuries must have been caused by at least one, if not more, of those actions.

99. I have also been referred to a decision of Judge Ashford of this Court in R v Ross Martin (unrep, 6 May 2011, NSWDC), which is a factually similar case, whereby the offender there inflicted very serious injuries on his twin 4 month old babies resulting in long term and life-threatening injuries and, in the case of at least one twin, injuries and disabilities of the same nature and degree as of A in this case. The twins in that case were left in a vegetative state.

100. That offender did not seek any medical assistance for his victims. Here, the offender did by taking the child to the hospital.

101. The subjective features of the offender in that case, and the frustrations that were expressed by the offender resulting in his actions were of the same type as those that may have caused Ms Youkhana to act in the way that she did. For each offence, her Honour in R v Martin imposed a sentence of 20 years, with a non-parole period of 13 years, to be served almost concurrently (total head sentence 21 years, NPP 14 years).

JIRS statistics and comparative sentences

102. I have had regard to the JIRS statistics following a plea of not guilty for this offence. There is a sample size of 20 for those factors. It is unclear how many of those cases relate to this type of matter, namely, an assault by a mother on her child

103. I am aware of the limited use of these statistics, particularly in respect of the different circumstances and conduct that are covered by s 33.

Subjective features

104. The offender is 30 years old (born on 15 September 1985). She completed her year seven studies in Iraq, and since then and after her arrival in Australia in 2004, has not, according to the Pre-Sentence Report, pursued further education or engaged in employment and has been on government benefits. There is mention in the Psychologist’s Report that she was engaged in employment as a cleaner on a part-time basis some months prior to her incarceration, and hopes to study hairdressing in the future.

105. Ms Youkhana said she felt dissatisfied with her marriage to Benyamin Youkhana from the beginning. She told the Pre-Sentence Report writer that her relationship with him was marred with domestic violence, and claimed that her ex-partner was violent towards her and the children.

106. She had a relationship with another man who became the father of her two youngest children – including the victim.

107. Evidence of this extramarital affair was relied on by the defence to support the offender’s case that the evidence of her in-laws (on her ex-husband’s side) that was unfavourable towards her was concocted, as they had discovered her infidelity and were conspiring against her. That version was also given by her to the Pre-Sentence Report writer. She further told the writer that her son JY was coerced into making the statement by her ex-husband’s family.

108. It appears that the offender’s other two children were removed from her care shortly after the incident.

Criminality

109. The maximum sentence of 25 years imprisonment indicates the seriousness with which an offence under s 33 is regarded: R v Zhang [2004] NSWCCA 358.

110. There is a breadth of conduct and consequences comprehended by s 33: R v Williams (2004) 148 A Crim R 325 at [51]; Heron v R [2006] NSWCCA 215 at [54]. It is important in those circumstances to analyse the facts of each case. Only limited assistance is to be derived from previous cases: R v Luu (unrep, 12/3/98, NSWCCA).

111. The Crown submits that this offence is at the top of the range of objective seriousness. I do not accept that submission but rather find that the criminality involved in this offence is above mid-range based on the extent and effect of the injuries sustained by A, her vulnerability, and the offender’s abuse of her position of trust and authority.

112. The Crown fairly concedes, and I accept, that the offence was borne out of a spontaneous loss of control rather than a planned or pre-meditated assault. I also accept that the offence arose because of the isolated circumstances in which the offender found herself, which needs to be viewed against her personal circumstances as a migrant from Iraq. Further, that the offender brought the child to hospital soon after the incident involving the child to be cared for at that stage.

109. Importantly however, the offender’s criminal history does not assist her in this regard, as it is clear this type of assault was not completely out of character.

Criminal history

114. The offender has previously been dealt with pursuant to s 10(1)(b) for an assault upon A on 17 December 2011. A good behaviour bond was imposed for 12 months commencing 18 October 2012, and was therefore in place at the time of the present offence. That is not in dispute. The offender was also subject to an ADVO with standard conditions. That the offence was committed in breach of both the bond and the ADVO is an aggravating feature of this offence, but is not relevant to the consideration of objective seriousness.

Remorse and prospects of rehabilitation

115. The offender continues to deny her guilt in respect of this offence. The Crown submits, and I accept, that there is an absence of any expression of remorse. Rather, it appears that she did not have any insight into her behaviour at the time nor now. In the absence of any evidence of genuine remorse, it is difficult to assess the offender’s prospects of rehabilitation.

116. The Pre-Sentence Report contains an assessment that she is regarded as being a medium risk of re-offending.

117. The Report also recommends that the offender be referred to her psychiatrist and psychologist for ongoing treatment.

118. The injuries to the offender’s daughter were horrific, permanent, and with continuing consequences, not only for the child, but also for the community which will bear the costs of caring for an injured child in those circumstances.

119. While one can feel empathy for a person in the offender’s circumstances, moving from Iraq to Jordan and then to Australia where she had limited, if any, support, and a mother trapped in an isolated and possibly strange environment, and as well a violent relationship (the degree of violence being disputed by her ex-husband in his evidence). Nevertheless, she had her mother living with her at the time of the incident.

Special circumstances

120. Here, this is the first time in custody for this offender. She is unlikely to receive any family or community support given the circumstances of the offence. Her mother is likely to return (or has already returned) to Iraq given the circumstances of the criminal justice visa that she used to come to Australia.

Protection

121. Ms Youkhana is in Protective Custody, and is, because of this offence, classified as a C4 inmate. Her status as a Protected Inmate means that she is in her cell usually all but 3 hours per day over a 24 hour cycle. She has found that to be extremely onerous, which I accept.

122. She cannot access programmes, although that may be related to her current status on remand.

123. I find special circumstances warranting the reduction of the statutory ratio which the non-parole bears to the head sentence. I will vary the ratio to one of 62.5%.

Sentencing options

124. The offender was assessed in the Pre-Sentence Report as being suitable for a Community Service Order. I do not think that is appropriate in the circumstances, and in any event, would not adequately meet the principles of general deterrence.

Section 166 certificate matters

125. The Crown has also sought that the Court take into account the following matters on a s 166 certificate:

1. Contravene AVO (x 2);

2. Common assault (x 6); and

3. Assault occasioning actual bodily harm.

126. Evidence was called in the trial about these matters and accordingly it is necessary to make a finding on the facts relating to each count - R v JCW [2000] NSWCCA 209 at [54] - [56].

127. Here, these matters need to be the subject of a sentence determined as would have been the case if in the Local Court, with the restrictions on maximum penalties available in that jurisdiction to be taken into account.

Assault occasioning actual bodily harm 26 March 2013 (H52080612/4)

128. Defence counsel submits that the evidence of the then six year old JY cannot be accepted to establish a finding beyond reasonable doubt that the assault occurred.

129. While there are some minor inconsistencies, I accept his evidence given in relation to three separate questions, that the offender hit or smacked A on the side of the face.

130. Defence counsel has submitted that there is an alternative finding or explanation, namely, that the injuries arose on that day because of A falling from her cot - submissions [10] - [12], [15].

131. Defence counsel also attacks the credibility of JY's evidence and refers to the comments to, and behaviour of, the offender in the presence of the ambulance officers and treating doctor.

132. In my view, that alternative explanation is not consistent with the injuries said to have been observed. Having observed JY giving his evidence and taking into account the minor inconsistencies in his evidence, I accept JY as a witness of the truth as to the essential elements of this count. It is an aggravating feature of that offence that it was committed in the presence of the child, JY.

133. The offender's behaviour was also similar to her conduct in the hospital when she brought A in on 1 April 2013. I do not accept Ms Youkhana's account denying that incident took place either at all or by minimising her involvement.

134. I accept the evidence of JY and find the charge proved.

Contravene AVO charge (H 52080612/2: Offender hitting victim's head onto the ground twice);

135. I accept the evidence of Ghusson Abdalaziz as to her observations on 31 March 2013. Defence counsel attacks her evidence on the basis that she may have had a motivation to malign the offender.

136. If that was the case, and if Ms Abdalaziz had that motivation, it was not apparent to me during her evidence that her evidence was clouded by that matter.

137. I do not accept Ms Youkhana's account denying that incident took place either at all or by minimising her involvement.

138. I accept Ms Abalaziz’s evidence in relation to the relevant facts and find the charge proved.

Common assault charge (H 52080612/3: Offender kicking victim’s stomach);

139. I accept the evidence of Diana Issu as to her observations on 26 March 2013 at the Smithfield home. Ms Issu said that she told the offender on this occasion that next time, she would call the police. When asked in cross-examination why she did not tell her brother, Benyamin Youkhana, she said she did not want to cause any further problems between the two.

140. I accept the evidence of Ms Issu and do not regard the issues raised by Defence counsel as sufficient to establish doubt on this matter. Rather, I do consider that the absence of any contemporaneous reports arose out of a desire by Ms Issu to keep matters within the family. I do not accept Ms Youkhana's account denying that incident took place either at all or by minimising her involvement.

141. I accept Ms Issu’s evidence in relation to the relevant facts and find the charge proved.

Common assault charge (H 52080612/6: Offender slapping the victim; blocking her airways and stuffing nuts into her mouth)

142. I consider Defence counsel's submissions on this matter (at [24] ff of the written submissions) to be well-founded, in particular the criticisms of Ms Christine Sassine. I do not consider that her evidence and the overall evidence on the count establishes this matter beyond reasonable doubt.

143. I dismiss this charge.

Common assault charge (H 52080612/7: Offender slapping the victim on the beach)

144. Defence counsel's submissions on this matter (at [26] ff of the written submissions) criticises the evidence of Ms Diana Issu and points out the inconsistencies between that evidence and that of Ms Sassine.

145. I accept the evidence of Ms Issu and do not regard the issues raised by Defence counsel as sufficient to establish doubt on this matter. I do not accept Ms Youkhana's account denying that incident took place either at all or by minimising her involvement.

146. I find this charge proved.

Common assault charge (H 52080612/8: Offender force-feeding A)

147. I consider Defence counsel's submissions on this matter (at [29] ff of the written submissions) and the criticisms of Ms Stella Youkhana's evidence to be well-founded and do not consider that the evidence establishes this matter beyond reasonable doubt.

148. I dismiss this charge.

Common assault charge (H 52080612/9 and 10: Offender hit A while force-feeding her; throwing her on the tiled floor)

149. I accept the evidence of Ms Issu and Ms Sassine in relation to this incident. I do not accept that those witnesses have concocted their evidence in relation to that incident and the details they have provided.

150. I do not accept Ms Youkhana's account denying that incident took place either at all or by minimising her involvement.

151. I find this charge proved.

Effect of convictions

152. These convictions do not operate to aggravate the principal offence but to deny her the leniency to which she might otherwise have been entitled: R v Hill [2014] NSWSC 1010 at [12].

Totality and concurrence

153. I have considered the facts as I have found them to be on the s 166 matters and the counts/charges of assault occasioning actual bodily harm and the common assaults.

154. Given the dates of these offences and the fact that they each preceded the substantial charge, the charge of assault occasioning actual bodily harm (in the presence of the other child) would normally be the subject of a sentence of three months’ imprisonment and each of the common assault matters would be the subject of a suspended sentence of one month imprisonment. I have considered a s 10A option but that needs to be considered against the background of the 2011 conviction for a similar offence on the same child.

155. However, having regard to the dates when these offences occurred, the fact that the person involved was the same victim and the length of the sentence to be imposed on the substantive matter, it is appropriate for reasons of totality that those sentences be wholly concurrent with the sentence imposed on the principal offence.

Commencement date

156. The offender was remanded in custody from 11 April 2014 to 2 May 2014 (21 days) and from 26 October 2015, when she was convicted, to date (53 days).

157. That is a total period of 74 days spent in custody solely referable to this offence. That is not disputed. The sentence will be backdated to reflect that with a commencement date of 5 October 2015.

Sentence

158. The offender is sentenced to a term of imprisonment of twelve years to be served by way of a non-parole period of seven years and six months commencing on 5 October 2015 and expiring on 4 April 2023, with an additional term of four years and six months, expiring on 4 October 2027.

159. This reflects the finding of special circumstances.

160. For the matters on the s 166 certificate, I indicate the following sentences, commencing on 5 October 2015, to be served wholly concurrently with the sentence on the principal offence:

1. Assault occasioning actual bodily harm 26 March 2013 (H52080612/4) – I find this offence proven and sentence the offender to a fixed term of imprisonment of three months;

2. Contravene AVO (H 52080612/2: Offender hitting victim's head onto the ground twice). I find this offence proven and sentence the offender to a fixed term of imprisonment of one month;

3. Common assault charge (H 52080612/3: Offender kicking victim’s stomach). I find this offence proven and sentence the offender to a fixed term of imprisonment of one month;

4. Common assault charge (H 52080612/7: Offender slapping the victim on the beach). I find this offence proven and convict the offender, but no proceed to sentence, in accordance with s 10A;

5. Common assault charge (H 52080612/9 and 10: Offender force-feeding A). I find this offence proven and sentence the offender to a fixed term of imprisonment of one month.

161. I dismiss the other matters on the s 166 certificate, being the common assault charge (H 52080612/6) and common assault charge (H 52080612/8).

Parole

162. I recommend that on the offender’s release on parole, she be subject to ongoing psychiatric and/or psychological counselling, and that she comply with all treatment and medication prescribed for her.

Direction

163. I direct that a copy of the Pre-Sentence Report and the Psychologist’s Report from Mr Watson-Munro dated 11 December 2015 accompany the offender into her incarceration. The Corrective Services authorities should take particular note of Mr Watson-Munro’s serious concerns about the offender’s mental state.

Decision last updated: 04 January 2016