Tasmania v Hindle
[2024] TASSC 71
•29 November 2024
[2024] TASSC 71
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tasmania v Hindle [2024] TASSC 71 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| HINDLE, Jennifer Anne | |
| FILE NO: | 361/2016 |
| DELIVERED ON: | 29 November 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 17, 18, 19, 20, 23, 24 September, 1, 7 October 2024 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Criminal law – Sentence – Sentencing procedure – Factual basis for sentence – Particular cases –Ill-treatment
of a child
Criminal Code (Tas), s 178
REPRESENTATION:
Counsel:
Prosecution: L Mason SC, S Griffin Defendant: C Rainbird
Solicitors:
Prosecution: Director of Public Prosecutions Defendant: Craig Rainbird
| Judgment Number: | [2024] TASSC 71 |
| Number of paragraphs: | 120 |
Serial No 71/2024 File No 361/2016
STATE OF TASMANIA v JENNIFER HINDLE
| REASONS FOR JUDGMENT | PEARCE J 29 NOVEMBER 2024 |
1 Jennifer Hindle pleaded guilty to one count of ill-treating a child contrary to the Criminal Code, s 178(1). The person against whom the crime was committed was her grandson, Thomas Hindle. The period of ill-treatment asserted in the indictment was 1 June 2015 to 24 February 2016. Although Mrs Hindle pleaded guilty, many of the facts asserted by the prosecution during the sentencing hearing as constituting the charge were disputed. Thus, an evidentiary hearing was necessary to enable determination of the disputed facts. Evidence was called by both the prosecution and the defence. These are my findings of fact for sentencing. The published version of these reasons was edited so that different first names are used, with their agreement, for each of the children. There was no statutory provision which prohibited their identification, but the change was made in an attempt to reduce the embarrassment or distress they may experience.
The background
2 In early June 2015 Thomas Hindle and his three younger sisters, Amelia, Evelyn and Audrey, came into the care of Mrs Hindle and her husband at their home in Hobart. Meaning no disrespect to the children, who are now older, I will refer to them by their first names. When Thomas first came to Hobart he was 12. Amelia, Evelyn and Audrey were respectively aged 9, 8 and 6. They were the children of Mr and Mrs Hindle's son, Nicholas Hindle. They were born and had lived in Western Australia but were removed from the care of their parents by the child protection authority in that State in late 2014 or early 2015. The evidence of what went on before then was limited but suggests that the children's situation was highly traumatic. Their parents were seriously affected by alcohol and illicit drug abuse. Nicholas Hindle was imprisoned for family violence directed at the children's mother. The children witnessed the violence, were badly neglected by both parents and largely left to fend for themselves. School attendance was irregular and standards of hygiene and nutrition were poor. The full details of the abuse and neglect to which the children may have been subjected cannot be determined, at least on the evidence before me. Initially the children were placed into foster care. They also spent time with their maternal grandparents in Western Australia. In May 2015 Mr and Mrs Hindle agreed with the Western Australian child protection authority that they would take the children in. After one preliminary visit, they travelled to Western Australia in early June 2015 and brought the children back to Tasmania with them. The children had little notice of the move.
3 Although the children were living in Tasmania with Mr and Mrs Hindle, the child protection authority in Western Australia retained formal responsibility for decisions concerning their care and welfare. Their departmental case officer was a man named Phil Collins. According to Mr and Mrs Hindle, he informed them that he would arrange for the Tasmanian child protection service to become involved in the care of the children in this State, but that did not eventuate. Mr Collins visited Tasmania once in September 2015.
4 Mr Hindle was, and is still, employed on a gas production facility off the coast of northern Western Australia. He was a fly in fly out worker, his normal cycle of employment being two weeks on, two weeks off, two weeks on then four weeks off. His routine was to leave Hobart on Monday to commence work in Western Australia on Tuesday and then, two weeks later, leave Western Australia on Tuesday to arrive home on Wednesday. Because he was often away from home, care of the children fell largely to Mrs Hindle. She was then aged 58.
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5 Two of Mrs and Mrs Hindle's other children, Patrick and Madeline, also lived in the house. The house was on three levels. The top level had four bedrooms, each adjacent to a central common area. After they arrived, Thomas, Amelia, Evelyn and Audrey each occupied one of those bedrooms. The central level of the house comprised the kitchen and living areas and Mr and Mrs Hindle's bedroom. When the children arrived, Patrick and Madeline Hindle moved to occupy the bedrooms and living area on the lower floor.
6 In February 2015, before the children were moved to Tasmania, they were physically examined by a medical practitioner in Western Australia. Their physical health was determined to be generally good. However, Thomas and Evelyn were exhibiting symptoms of anxiety and depression. On 29 May 2015, a day or two before the move, Thomas was assessed by a clinical psychologist, Dr Audrey Tilbrook, at the request of the Western Australian Department of Child Protection and Family Support. The psychologist recommended that Thomas be provided with therapeutic support and that Mr and Mrs Hindle be assisted to understand and manage his psychological symptoms. It was also recommended that Thomas engage in trauma reprocessing, including cognitive behaviour therapy and undergo assessment for any biological or organic factors that may be impacting his function. What Thomas's psychological problems then were, beyond that which I have identified, was not stated.
7 The children remained living with Mr and Mrs Hindle until 24 February 2016 when they were taken away by the police and Tasmanian child protection workers. In summary, the prosecution case is that, during the period of almost nine months during which Thomas was in her care, Mrs Hindle subjected him to an extreme punishment regime designed to enforce a set of detailed and prescriptive rules which she took upon herself to implement. The punishment was both physical and psychological and escalated in the weeks before 24 February 2016. It is alleged that Mrs Hindle created an atmosphere of fear and apprehension, isolated Thomas from outside supports and made him confused, distressed and frightened to complain. It is asserted that conduct of this nature was directed at all the children, but the conduct towards Thomas was the most extreme and the charge relates only to him.
8 The substance of the defence case is that the children, as soon as they arrived, presented with behavioural difficulties likely to have resulted from the trauma they had already suffered. Thomas was defiant and behaved towards his sisters in a way which was arrogant, bullying and overbearing. A set of rules were agreed within the first few days of the children having arrived which were intended to provide the children with structure, certainty and safety. The rules were written down and displayed, and were reasonable and not unduly proscriptive. Although the children were aware that a breach of the rules may attract consequences, those consequences were not excessively punitive and were for correction of perceived misbehaviour with a genuine belief that they were for the ultimate good of the children. The defence position is that much of what the children now claim happened to them is untrue, exaggerated or mischaracterised. Mrs Hindle contends that Thomas, in particular, was never happy about having to be in Tasmania and attempted to deliberately manipulate a situation in which he was sent back to live with his grandparents in Western Australia.
9 Mrs Hindle admits, as will be explained, that she criminally ill-treated Thomas in early 2016. However she claims that, by then, his behaviour, which included serious self-harm and intentional bed wetting and defecation, had become so extreme that she was at her wits end. Without any of the promised assistance from the child protection authorities she did what she thought was necessary to address and correct Thomas's behaviour and protect him from himself.
The plea of guilty and the dispute
10 The crime of ill-treating a child is created by the Criminal Code, s 178. It is committed if a person over the age of 14 years, having the custody, care, or control of a child under the age of 14 years, wilfully ill-treats, neglects, abandons, or exposes such child, or causes such child to be ill- treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary suffering
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or injury to health. A course of conduct amounting to ill-treatment or neglect over an extended period may constitute a single crime for the purposes of s 178(1): Tasmania v M [2008] TASSC 21; 17 Tas R 220.
11 It follows from the plea of guilty to that crime that Mrs Hindle admits each of the elements of the offence, including all of the essential facts necessary to constitute the offence. The elements of the crime were stated by Crawford J (as his Honour then was) in Bresnehan v R [1992] TASSC 55; 1 Tas R 234. Adapted to the circumstances of this case, Mrs Hindle therefor admits that, at the relevant time:
• she was over 14; • Thomas was under 14; • she had custody, care or control of Thomas; • she voluntarily and intentionally performed acts which either individually or collectively amounted to ill-treatment of Thomas and were not justified by law; • such ill-treatment was likely to cause him unnecessary suffering or injury to health; and • she intended the act or acts which constituted the ill-treatment to cause such unnecessary suffering or injury to health. 12 The prosecution submits, relying on R v Hodgson [1985] Tas R 75, that wilful mistreatment may be constituted by subjective recklessness. That is, even if Mrs Hindle did not intend her act or acts which constituted the ill-treatment to cause unnecessary suffering or injury to health, it is sufficient that she realised that her acts may well have that result and acted regardless of that risk. No contrary submission was made on behalf of Mrs Hindle.
13 Not all of the facts which were asserted by the prosecution are disputed but many are. To the extent that the prosecution statement of facts was not disputed I am to act on it and sentence on that basis. Where asserted facts adverse to the defendant are disputed they must, before I may take them into account, be proved by the prosecution to my satisfaction beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270, [27]; Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [18]. Disputed facts in favour of the defendant must be proved by the defendant on the balance of probabilities. Where the prosecution fails to prove a fact or circumstance which is adverse to the defendant, but I am not satisfied on the balance of probabilities of an alternative version more favourable to the defendant, I am not bound to sentence on the basis which accepts the accuracy of the more favourable version: Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [64]. In that event I may proceed to sentence on the basis that neither of the competing possibilities is known: Filippou, at [64].
14 It is now about nine years since the relevant events occurred. Mrs Hindle was charged in September 2016. She pleaded not guilty and first appeared in this Court on 30 January 2017. In October 2017 the office of the Director of Public Prosecutions was informed that Mrs Hindle had extensive terminal cancer. She had transitioned to palliative care and was expected to live for only a few months. As a result she was discharged from the complaint. It was not until 2019 that the prosecution became aware that Mrs Hindle's health had not deteriorated as expected. Further information about her condition was invited. An ex officio indictment was filed and Mrs Hindle appeared in court again on 10 February 2023. The matter was listed for trial in September 2024 but resolved to a plea of guilty requiring a hearing to determine disputed facts.
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The disputed facts
15 In advance of the hearing the prosecution prepared and delivered particulars of the conduct alleged to constitute the ill-treatment. It contains 24 paragraphs[1].
[1] The particulars read:
16 However, the dispute I am to resolve derives from the assertions of fact made in open court in the prosecution statement of facts and the evidence adduced during the hearing. Subject to one qualification, the basis of Mrs Hindle's plea of guilty is that she admits the conduct alleged at
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paragraphs 1, 5, 6, 7 and 8 of the particulars. The particulars are footnoted, but the result is that the admitted conduct is, in substance, what is shown on CCTV images taken between 18 and 23 February 2016 and recovered by the police from cameras installed by Mr Hindle within the house. What is shown on the images will be summarised later in these reasons. Mrs Hindle admits that she directed Thomas to remain in his bedroom, standing with his hands on his head facing the CCTV camera for lengthy periods, on occasion until he collapsed, and required him, having removed the bedding from his room, to sleep on the floor. The one qualification is that Mrs Hindle does not admit that, as alleged in particular 7, she directed Thomas that he was not permitted to sleep. It follows from her plea that she also admits that the admitted conduct amounted to ill-treatment of Thomas, was not justified by law, was likely to cause him unnecessary suffering or injury to health, and that was either her intention or done with an appreciation that it was the likely result.
17 The remaining ill-treatment as asserted in the prosecution facts is in dispute. The following narrative comes from the prosecution statement of facts and from the evidence. Some of what was asserted is not contentious and was not disputed. Some of it provides general background and context.
Areas of dispute will be identified.
18 Within a very few days of the children arriving at Mr and Mrs Hindle's home, a set of house rules was written down and put on display. Some of the circumstances around the writing of the rules were the subject of conflicting evidence, but there was substantial agreement about most things. I am satisfied that there was a family meeting of all those who lived in the house: Mr and Mrs Hindle, each of the children as well as Patrick Hindle and Madeline Hindle. What the rules should be was discussed and, as they were agreed, they were written down by Madeline on large sheets of paper. I am satisfied that the rules were agreed by those present rather than unilaterally imposed by Mrs Hindle, although I have little doubt that she was a strong influence on what was included. Because the rules played an important part in the disputed evidence I will set them out in full. There were "House Rules", "School Rules", and "Bathroom Rules". The House Rules read:
RESPECT
• others and their property • by using No bad language • the rules • yourself and each other • adults
• all cars • the house • Alphonse and Pickles • be good for Maddy and Patrick.
HOUSE RULES
• NO playing with food/drawing on things, being silly • NO physical contact – hitting – kicking – fighting • NO LYING! 6 No 71/2024
• NO stealing • NO entering other peoples rooms without permission; • Be polite – please – thankyou • Do what you're asked • Clean up after yourself • NO letting the cats out • Clean up other peoples room if you were in there. • BE QUIET IN THE MORNING
19 The School Rules provided:
• Get up when your alarm goes off • Shower quickly • Do your hair • Eat breakfast and clean your teeth • Pack school bag – homework – lunch – water bottle – hat • Get in the car when asked • Get changed when you get home • Do your homework • Make your lunch • No missing school • Wait at school to be picked up
20 The Bathroom Rules were:
• Wash hair everyday • Turn off lights in the day, when you're not in the room • Hang towels up • Flush the toilet and change toilet roll • Wash your hands, turn off tap • Dirty washing in the laundry basket • Soiled clothes in the laundry sink • Don't throw foreign objects in the toilet 7 No 71/2024
• Clean teeth every night + rinse the sink out
21 There is, in my view, nothing unreasonable or onerous about any of these rules, even for relatively young children. Each is the type of rule which would be expected to apply in any such household, whether written down or not, and particularly so for this household as it was to be after the children arrived. The issue in this case centres not on the rules themselves, but on the manner in which Mrs Hindle implemented and enforced them.
22 The facts asserted by the prosecution range from the very general to the specific. In the most general form, the prosecution case is that the regime of discipline and the punishment imposed by Mrs Hindle on all of the children, not only Thomas, when she perceived the rules were not followed or for other conduct she disapproved of, was unduly and unreasonably punitive, disproportionate and arbitrary, and made the children frightened, apprehensive and confused. It is alleged that she alienated them from outside supports by being discouraged from complaining to others for fear of further punishment. More specifically, the prosecution alleges that Mrs Hindle would:
• send a child to his or her room with a direction to write lines, sometimes thousands of times, like "I will not lie," or, "I must not be selfish," or, "I must respect elders," or, "I must not be arrogant or selfish," or, "I must share"; • ground a child by sending them to his or her bedroom, where they would be required to remain unless they were going to school or eating dinner. The period of grounding varied from hours, to days, to weeks or longer; • make the children stand for extended periods away from the others; and • subject the children to other verbal and physical abuse. 23 Other even more specific assertions will be stated and addressed later in these reasons. Although this conduct is said to have been directed to each of the children, it can constitute the crime only as it is directed to Thomas. It is alleged that the punitive conduct directed at Thomas was particularly severe.
The evidence
24 The evidence falls into a number of categories. Thomas was interviewed at Taroona High school on 23 February 2016. Amelia and Evelyn were separately interviewed by police officers at school on 24 February 2016 and the interviews were recorded. The recorded representations made by each child during each interview were admitted into evidence. Thomas, Amelia and Evelyn also gave evidence in person in September 2024 at the sentencing hearing and were cross-examined.
25 When Thomas, Amelia and Evelyn were spoken to in February 2016 they were respectively aged 13, 10 and 9. There was a significant lapse of time before they gave evidence by which time they were aged 22, 18 and 17.
26 The prosecution also adduced evidence from a number of other persons about their respective observations of Thomas in 2015 and 2016 including things he said, his appearance, behaviour and demeanour. There was also evidence of written and oral interactions with Mr and Mrs Hindle. When the children first arrived in Tasmania they were all enrolled in primary school at Waimea Heights. The principal was Sally Gill. In 2015 Thomas was in Grade 6 and his class teacher was Uma Pratap. Donna Simpkins was a psychologist employed by the Education Department and engaged to work at the school. Ms Gill, Ms Pratap and Ms Simpkins each gave evidence. Caroline Bonney was the school social worker. She did not give evidence but was mentioned in some documents. In 2016, when Thomas commenced at Taroona High School, the Grade 7 co-ordinator was Michelle Andrews.
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Thomas also had some dealings with Robert Wishart, the school psychologist. Both Ms Andrews and Mr Wishart gave evidence as did a child protection worker, Shannon Clark, and a paediatrician, Dr Melissa Lambeth.
27 Uma Pratap said that when Thomas began in her Grade 6 class at Waimea Heights in June 2015 he was behind academically, but worked hard to catch up. He was polite, respectful, open and positive and excited to make a new start. However, over time, he became withdrawn and less happy. She observed him to have lost weight, and he told her that food was minimised or withdrawn at home if they had been naughty. He told her of an occasion on which his grandmother had brushed his teeth roughly so his mouth bled. Thomas told her that his grandma was strict with him, and more so when his grandfather was away, and he was not allowed to talk much about his home life. He seemed worried that if he lost something he would get in trouble at home. At some stage he started to go to army cadets but, after two visits, he stopped. He told Ms Pratap that he was not allowed to go any more because he "had lied." Ms Pratap agreed in cross-examination that she had little knowledge of Thomas's background in Western Australia and she left most of the liaison with his family to the principal, Sally Gill.
28 Sally Gill formed the impression that the children were all anxious when they started at the school. She was in contact with Mr Collins from the Western Australian child protection service and conveyed to the school social worker, Ms Bonney, her concern that Mr and Mrs Hindle should be supported in caring for the children. From quite early in the piece she formed the impression that the children were being treated harshly at home. Her communications were almost all with Laurence Hindle either through informal contact in person or by email, but she found it difficult to make contact by the phone which, she said, was not answered. On 23 July 2015 she received an email from Laurence Hindle complaining about one or more of the children being questioned about what was happening at home and that he felt that he and his wife were "being scrutinised in the way [they were] caring for the children". Mr Hindle's email also said that "These children are very good at extracting what they can use from this type of conversation, this serves to undermine our position as their carers and grandparents." Ms Gill subsequently maintained mostly email contact with Mr Hindle and continued to agitate for support to be offered to Mr and Mrs Hindle.
29 Between July 2015 and November 2015 there was a series of email exchanges which were tendered as part of the defence case. On 16 October 2015, Mr Hindle contacted Clare House and reported that he and his wife now had care of their four grandchildren "for the next two years", and he noted that he would appreciate any assistance Clare House could provide. Included in the emails are reports from Mr Hindle to Ms Gill about aspects of the children's circumstances: in August that Mr Collins was to be moved from the team managing the children from Western Australia; considerable difficulties with Audrey's toileting; the arrival of the children's father in Hobart around the beginning of October 2015 and a related attempt by Audrey to run away to his house, being returned home to Mr and Mrs Hindle's home after a little over an hour by the police; that Mr Hindle had a period of poor health in October 2015; the planning of a consultation with Clare House, a service provided by the Children And Adolescent Mental Health Service (CAMS); attendance at the Clare House appointment on 4 December 2015.
30 There are some noteworthy aspects of this correspondence. There are some emails in which Ms Gill praises Mr and Mrs Hindle for the way in which they are dealing with the children. In evidence she explained however that such comments were a way of maintaining a relationship with Mr and Mrs Hindle. Secondly, Mr Hindle initiated some of the exchanges, including by raising matters of substance and reporting about matters concerning the children. Thirdly, Mr Hindle's emails clearly convey a view that Thomas exhibits some troublesome behaviour and is manipulative. On 21 August 2015 Mr Hindle told Ms Gill that Thomas had been "out of sorts", was "reverting to some of his old ways by trying to take control of situations" and his behaviour at home has been "acceptable up until the past few days but is deteriorating somewhat." On 4 November Mr Hindle wrote to Ms Gill
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that Thomas had some sort of "meltdown" but he was "not sure what it is over", although Thomas had been talking about having to go to Taroona High School the following year. Ms Gill wrote to Mr Hindle indicating that "we have noticed a steady decline in Thomas's confidence over the last month and his need for approval from us all." In her evidence Ms Gill said that by November 2015 she observed Thomas to be depressed and withdrawn. Thomas had told her "I can't take a trick; Nanny is so angry with me."
31 On 9 December 2015 Mr Hindle wrote to Ms Gill asking that she help to control Thomas's internet access because "we feel that Thomas uses this type of access and other distinctions to oppress his siblings and the girls need as much help as they can to assert their right to be." On 13 December 2015 Mr Hindle wrote and sent to Ms Gill a lengthy email report of the appointment with Clare House which included the following relevant passages:
"Our take on this is that we need help for the children who have issues. For Audrey, she is a compulsive liar and seems not to be able or does not want to control her bodily functions. For Evelyn she is scared of her own shadow and is extremely insecure, she has trouble sleeping and is very concerned about Mum and Dad. Amelia seems to be the closest to normal of the four she has what we describe as the normal 10 year old problems with friends at school not knowing how to maintain a best friend and have play with other friends. Thomas presents as having things under control and being fairly mature but it is all a front that he uses to disarm adults and those he wants to impress. He is very insecure and unsure of himself.
…
We returned the children to school and went home. We formulated what we thought might be a better way to deal with Audrey's issues and presented this to the children when they came home from school. This did not go down well while Thomas and Evelyn accepted what we had proposed which was simply to reduce the severity of any discipline that Audrey would receive. We tried to explain that this had been a recommendation from Clare House and we should try what they said. Amelia flatly refused to accept that Audrey should receive any dispensation for her actions and believes Audrey is bunging it on. Even when we insisted that we should try this Amelia would not have any of it.
…
So in our opinion we are no further ahead of where we were before and that is that there is no help for the children to somehow unpack the things that have happened to them. Jenny and I feel that there will come a time in the not distant future where we can no longer help the children deal with these psychological problems they have acquired because of their upbringing, not because we do not want to help them but because we are not capable of helping them.".
32 The other witness from Waimea Heights school was the school psychologist at the time, Donna Gayton, then Donna Simpkins. Meaning no disrespect I will, for ease of understanding, refer to her by the latter name. She was at the school one day a week and became aware of the Hindle family. Later Ms Simpkins prepared a report of her dealings with the family for the police. She reported that she had found Mr and Mrs Hindle difficult to contact, reluctant to engage in discussions and defensive and distrustful of the school. She said that in her initial discussions with Thomas she found him open and communicative, not defiant or oppositional or displaying high levels of anger or resentment. Later, he told her of "inadvertently" breaking the rules at home and being punished by grounding or by having opportunities taken away. She formed the impression that Thomas did not "intentionally misbehave" and that by the end of the year he was very teary, sad and frustrated about not being able to meet behavioural expectations at home. She phoned Mr Hindle who, she said, was reluctant to accept a different view about Thomas's behaviour and motives. Ms Simpkins recorded that when she saw Thomas in December, he was crying and upset and told her that "Nan constantly called him names at home, and said that she doesn't treat him nicely or with respect."
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Ill-treatment in 2015 not proved
33 With some exceptions, the evidence of each child, whether in the form of the original 2016 interviews or the evidence in Court, is difficult to order chronologically, at least until the early part of 2016. The events and circumstances which are described must have occurred between June 2015 and February 2016, but for the most part cannot be readily placed within that time frame. For much the same reason the prosecution statement of facts provides only limited assistance in ordering events by date. I infer that this was so because of the nature of the events and circumstances the children describe, their age at the time and the lapse of time since. I also think it natural that when each of the children were interviewed on 23 or 24 February 2016 they were referring to more recent events, likely to have been fresher in their memory and at the forefront of their minds when answering questions. In some instances it is possible to infer an order of events by reference to other evidence, but generally only when the matters they describe can be associated with some other event or occasion. The limitations of the evidence are such that I am not satisfied beyond reasonable doubt that, with one possible exception to which I will come, any of Mrs Hindle's conduct during 2015 amounted, even as part of a course of conduct, to wilful ill-treatment of Thomas.
34 Amelia was ten when she spoke to the police in February 2016. She was asked about the house rules and how they were made. She said everyone got to choose a rule and one of rules that was particularly important to her Nan was that there should be no lying. If a rule was broken, she said, sometimes you got a warning or, if it was "really big", you were grounded, sometimes for a day, sometimes for a week and sometimes for a month. If grounded, she was allowed to leave the room to go to the toilet, or for meals, but "really most of the time is in your room", and "when you go to school you get that time and then you're back in your room". The punishments were the same, she said, for her brother and sisters; "no-one gets treated special."
35 When giving evidence in September 2024 Amelia said that the rules were a real focus for her, that she was petrified of breaking them to the point that she had them written in her room. She referred to groundings which could "last months at a time."
36 In February 2016 Evelyn told the interviewing police officers that Mrs Hindle, who she called "Nanny", was kind, although she was angry sometimes if "you be naughty". If she was naughty she was "sent to her room" or made to write lines, "three thousand", although the first time she had to write lines was, she said, "a few days ago". Her brother and sisters also had to write lines. She said that sometimes, if she was naughty, Nanny would smack her on the hand or the bottom with her hand. She described some of the housework tasks she helped with at home. Evelyn said that if she was "really, really naughty" Nan would make her stand up. She added, "if you're in trouble for something really, really bad then you get consequences, really bad ones" such as standing, or "you can get grounded for three or four months…or four or five weeks…or for a day."
37 Evelyn later explained that she had been grounded but not as much as "the others". Being grounded means to "go to your room and think about what you've done." She said sometimes she got to read books and sometimes had to write lines, and that you are grounded "when Nan says you are". The longest she had been grounded was the last time which, she thought, was for "three or four weeks." She was allowed out of her room to go to school and at meal times, and she was allowed out of her room to go to the toilet.
38 When asked about Thomas, Evelyn said that he had been in trouble in the last couple of weeks, about three or four days before school, for "hitting Nanny" on the arm and in the belly. She said Thomas "has to be standing because he keeps on hitting himself" and "he has to stand every day,
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all the time and he has to stand until Nan says he's allowed to sit and until Nan says bedtime." What
she was describing must have occurred in February 2016.39 In Court in 2024, Evelyn gave evidence relevant to the matters she had mentioned in her 2016 interview as well as some other prosecution assertions. She confirmed that Thomas had issues with "wetting and soiling in his underpants". She thought that they were "fairly well behaved children", but that if Nan thought they were lying there would be a "smack on the hand", or "we would go to our room to think about what we had done", or "one time … where she made us go and write lines", or they would be grounded, or "she used to stand facing the wall with our hands on the back of our heads" and "[w]e weren't allowed to move or go to the toilet."
40 In both 2016 and in 2024 Evelyn's evidence included reference to some of the specific allegations made by the prosecution to which I will return.
41 Not all of the conversation which took place with Thomas on 23 February 2016 was recorded. The recording was made by Sergeant Adrian Mollon who did not arrive until after the interview had already commenced with two child safety workers, Georgia Sloan and Shannon Clark, and the school psychologist, Rob Wishart. Sergeant Mollon observed that Thomas had a black eye and smelled of urine. He described Thomas as "quite reserved but impeccably polite." In the interview Thomas gave general descriptions of the running and organisation of the house. He spoke of the cleaning duties that each child had to perform. He talked about being grounded, his grandmother's dislike of lying and about getting into trouble for misbehaving in the garden on one occasion. However, the focus of his statements were events which I find occurred in 2016. He said that January and February had been "quite the worst months".
42 Mr and Mrs Hindle's agreement in about May 2015 to care for the children could only have been well intentioned. At their stage of life, to assume the care of four children of that age was a daunting, demanding and onerous task to say the least, especially for Mrs Hindle given that her husband would be away from home for much of the time. They had no obligation to accept the responsibility, although they must have felt a strong moral pressure arising from their familial relationship and the apparent lack of accommodation and care alternatives which would have enabled the children to continue to live together. They, along with their son and daughter, all accepted changes to the living arrangements in their home in Hobart to accommodate the children. New furniture was purchased. Mr Hindle had eight weeks off work. All of that is inconsistent with a plan or intention to ill-treat the children and is a strong indication of the opposite.
43 I also find that each of the children came into the care of Mr and Mrs Hindle having already been exposed to real and damaging trauma and exhibiting challenging behaviour. The evidence from the children themselves points to that conclusion. Mention need only be made of the toileting difficulties with Audrey in particular, but which I find Evelyn and Thomas also experienced. I find that those problems already existed when they arrived. The evidence of Mr and Mrs Hindle's ongoing contact with the Western Australian child protection service, their contact and engagement (even if limited) with some services and with the school is also inconsistent with wilful ill-treatment or neglect.
44 Having made those comments I am also left in little doubt that Mrs Hindle believed that measures were necessary to address the children's behaviour and decided to take such measures. The creation and implementation of the rules was part of that process from a very early stage. I also find that Mrs Hindle was very likely to have wanted to avoid what she perceived may have been mistakes in the raising of her son Nicholas, the children's father. Over time, the difficulty of the task she and her husband had undertaken became increasingly apparent to them, combined with what they perceived was a failure of the Tasmanian department to provide the support they thought had been promised. I would accept that both Mr and Mrs Hindle became defensive about their position and
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sensitive about criticism of their approach to the responsibilities they had assumed. The difficulties the children were experiencing were real and did not originate from the care provided by Mr and Mrs Hindle. Rightly or wrongly, they formed the view that Thomas was oppositional, defiant and manipulative, and behaved differently at home than he did at school. Their views about Thomas magnified as the year progressed. By the end of 2015 Donna Simpkins noted that Thomas thought that his home life was "characterised by mistrust, criticism and judgment which reflected a lack of warmth, sensitivity and understanding." Although recorded as Thomas's thoughts, they were obviously her words and description of what she perceived the position to be. I find that, as they applied to Mrs Hindle, Ms Simpkins' view accurately reflected the true position, and was a forecast of a further deterioration in the situation.
45 I am satisfied that during 2015 each of the children, including Thomas, were made subject to punishments including grounding and writing lines for perceived breaches of the rules. I think that there are legitimate criticisms which might be made of the approach Mr and Mrs Hindle adopted to address the children's physical and behavioural issues, to discipline and engagement with others outside the home. Mrs Hindle agreed in cross-examination that she did not consider whether the issues which Evelyn and Audrey had with incontinence might be trauma related. It could well be that Mrs Hindle was unjustifiably unsympathetic and punitive. I think it very likely that during 2015, Thomas was subjected to a strict household regime and punished for perceived misbehaviour, like his sisters, by being confined to his room or made to write lines. I find that Mrs Hindle and her husband were not very proactive in seeking support and access to services because they came to feel aggrieved that services were not more readily available and ultimately concluded that they knew best. What was happening at home, and the discipline to which Thomas was subjected, may well have contributed to a change in his presentation and behaviour as the year went on. However, it is not enough to prove that Mrs Hindle's care of the children became imperfect, misguided or even harmful. It must be proved that Mrs Hindle performed acts which either individually or collectively amounted to ill-treatment of Thomas and were not justified by law, that such ill-treatment was likely to cause him unnecessary suffering or injury to health and she intended or apprehended the act or acts which constituted the ill- treatment to cause unnecessary suffering or injury. The evidence of what happened in 2015, even as part of a course of conduct, falls well short of establishing to the criminal standard that Thomas was subjected to acts which extended beyond justified correction of perceived misbehaviour and amounted to criminal ill-treatment or neglect.
46 One of the prosecution assertions was that food was withheld as punishment. I will return to the assertion as it applies to early 2016, but I am not satisfied that there was any withholding of food from Thomas as punishment during 2015. There was evidence that the children were overweight when they arrived and that Mrs Hindle was controlling their diet. However the evidence of Evelyn and Amelia was overwhelmingly that they were eating regular meals at home and always sent to school with food and a drink, and more likely to get in trouble if they did not eat it.
47 Only two specific incidents are relied on by the prosecution as clearly having occurred in 2015. One concerns an allegation that Thomas was made to repeatedly wash cars as punishment for something which happened after an end of year school barbecue. Thomas attended the barbecue with his father who, by then, had come to live in Hobart. The prosecution assertion was that Thomas, after returning home, was verbally abused for eating food which was not intended for him and, in the summer heat, made to wash cars over and over again. In his evidence during the hearing Thomas said that, although he could not be precise, this lasted for about four hours until "the sun was going down". I am not persuaded that this event is proved as an incident of wilful ill-treatment. Thomas's account was inconsistent with other evidence about how many cars there were, how he got to and from the barbecue, and the place where the cars were. None of the evidence which conflicted with his account was inherently implausible or was capable of being rejected when all the evidence is taken into account. There was no evidence which directly corroborated Thomas's account. What he said might be
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true, but I cannot exclude as a reasonable possibility that his recollection or perception of the event is not accurate and is coloured by subsequent events. Mrs Hindle said Thomas was sent to his room because he lied about having taken food from his sisters at this event, but nothing else occurred at that time. She said that the washing cars took place on an entirely separate occasion after Christmas 2015 during the school holidays after Thomas complained about being bored. Her account was supported by Mr Hindle's evidence. I think that this account is at least reasonably possibly true although I am not satisfied on balance of its truth.
48 The other specific incident alleged to have occurred in 2015 was in October when Thomas took part in the school triathlon. In his February 2016 interview Thomas said that there was not time to go to the toilet before the race so he went "while he was [running] in the water." He later put his underpants in a plastic bag and hid them in his room. He said that when his Nan found them, she said they were "soiled". She made him wear them over his head when at home, and wear the same underwear to school until his grandfather eventually told him to throw them away about a week later. Then his Nan told him to kneel with his hands on his head and his back straight without moving. When his grandfather said "you're abusing him" Mrs Hindle replied saying "I don't care if I'm abusing him, I don't want him to turn out like Nick".
49 I find that there was such an occasion when Thomas hid soiled underwear in his room as he described. His evidence about it is to be viewed in context. I am satisfied that he was experiencing continence problems from when he arrived in Tasmania. In her interview in 2016 Evelyn said that Thomas was soiling his underwear, hiding it and lying about it. The time period she was referring to was not explored. However she said that he had been doing it "since he's nine or ten." Mr and Mrs Hindle were also faced with dealing with Audrey's even more serious problems. There is evidence of exchanges with the school in 2015 about whether the continence issues might have been addressed in a different more sympathetic way. As to precisely what conduct Thomas was exposed to in relation to the underpants involved on this particular occasion I am unable to reach a concluded view. There was conflicting evidence about whether, and to what extent, his underpants were soiled, or whether and if so when and how he was required to wear them to school. I am not persuaded to the required standard that the response was as the prosecution asserts such as to amount to wilful ill-treatment. Nor am I
satisfied on the balance of probabilities of the truth of the more favourable defence version.
Revelation of the offending behaviour: 2016
50 The position which emerged in January and February of 2016 is different. The events which led to the charge against Mrs Hindle came to a head in February 2016. There is evidence which enables the piecing together of those events in January and February 2016 with much greater clarity, substantially around the beginning of the school year. During 2015 Thomas attended primary school but on Wednesday 3 February 2016 he started in Grade 7 at Taroona High School. The Grade 7 co- ordinator was Michelle Andrews. She made a written record of her interaction with Thomas between the start of the school year and 23 February 2016. On the first day of school she noted bruises on his face. When giving evidence she could not remember precisely where the bruises were. Two days later, on Friday 5 February 2016, she again noticed bruises on his face. She also saw other bruises including finger shaped bruises on his upper arm. On 5 February Thomas told her that, after his younger sister had "wiped poo everywhere", he and his sisters were made by his grandmother to stand for 14 hours until he "owned up for something he didn't do." Thomas also told her of another incident which had occurred on "Monday", a couple of days before school started, in which he had been made to repeatedly wash dishes and was refused the toilet until he "soiled himself". He was made to wear a nappy, but "soiled himself again" and "threw up". Ms Andrews recorded that Thomas also told her on 5 February that the bedding, pillow, clothes and toys had been removed from his room and that he was sleeping on the floor. He told her that he was worried that what he was complaining about would get back to his grandparents and make things worse for him at home.
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51 Ms Andrews gave evidence that on 9 February 2016 Thomas arrived at school wearing a nappy and smelling "terrible", of "wee and poo". He told her that he was wearing a nappy because he was not permitted to use the toilet at home. On 11 February she saw that Thomas had bruising and swelling around his left eye which he claimed had occurred when he accidentally banged his head on a wooden box attached to a wall in the lounge room while arguing with his grandmother. He claimed that she had pulled his hair. On 23 February Thomas complained of not feeling well and said that he had been made to stand in front of a CCTV camera "all night with his hands on his head and his head held high." Ms Andrews noticed that his head appeared to have an "egg on it."
52 The child protection service and the police were notified. Thomas was interviewed at school on 23 February 2016 and part of the interview was audio visually recorded. Thomas spent that night back at home but on the following morning, 24 February 2016, he and his sisters were removed by child protection workers. One of the workers was Shannon Clark. She picked Thomas up from school and made a lengthy note of things which Thomas told her during a car ride. Thomas told her that on the previous evening his grandmother "made him strip down and then stand staring at the CCTV", made him read out the rules and had "pulled his hair". After having been asked to stand for "hours" he went to bed "even though he was not supposed to", because he knew that his grandmother was already asleep. Thomas said that he "wasn't allowed to wear his underwear" and was wearing a nappy. He said his "arms had grown weak since having to stand with his hands on his head for so long." He said he had been grounded "since the 21st" because he had not put the bins out or produced a birthday card or present for his sister. He claimed to have been made to write the line "I am in my room because I am lazy, selfish and arrogant" three thousand times as punishment.
53 Thomas was medically examined on 24 February 2016 by Dr Melissa Lambeth. Dr Lambeth is a paediatrician. At that time she was employed at the Royal Hobart Hospital as a senior paediatric registrar. Dr Lambeth prepared a written report of her examination which recorded that when Thomas presented for the examination he was wearing a light pink nappy with a frill on the front. Her examination disclosed:
• the top right of his head was swollen and tender; • his right eye was bruised; • swelling and bruising on his neck just below his right ear; • his right jaw and cheek were bruised; • a small bruise to his left jaw; • bruises all over the front of his chest and shoulders; • three bruises in a row on each of his upper arms with one bruise on the inner side of each upper arm; • a bruise to the back of his left thigh, a couple of small bruises on each shin and a scab on his left knee; and • nappy rash on both inner thighs and around his scrotum and penis.
54 The examination also revealed that both of Thomas's legs were swollen from just below the knee to his feet and both feet were red and swollen. All of the injuries were photographed.
55 Dr Lambeth took a history from Thomas. According to her report, the things he told her included that, at home, he had been punished for being "arrogant, selfish and lazy", and had been
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made to stand for hours with his hands on his head. He claimed that "during the last couple of weeks" the standing had led to sore and swollen legs and feet, and his arms were weak and his hands sore from holding them on his head. Dr Lambeth asked Thomas about sleep and reported the history he gave in these terms:
"When asked about his sleep, he responded that he is not allowed to sleep. He told me that he did not have a bed, but it was returned to him on Sunday 22 February. He is required to stand in his room, with his hands on his head, and he stays there until his grandmother falls asleep, and then he collapses onto the floor, and sleeps there. He then tries to get up before she does, and go back to standing with his hands on his head. He reports his sleeping time to be from 12.00 or 1.00 am until 7.15 am, except on weekends when his grandmother sleeps in until 11.00 am, and he sleeps in as well. Thomas reports he is watched on a camera to make sure he is standing."
56 Dr Lambeth's report also included the following passage:
"Monday 22 February 2016 in the morning he woke at 7.15 am, changed, got his bag, and went back to standing. He reports Nan then called to him to 'get your food and get out of here', he went to school and then came home for the same routine.
Tuesday 23 February 2016 in the evening Thomas tells me he was told to strip down and go to his room. He was then told 'come get your clothes out of my room, you animal'. He raced around cleaning up his items around the house. He reports his underwear and his toys are in plastic bags in the house.
There was also an episode, which he reported to be on Tuesday evening, when Nan pulled on his hair, on the right side of his head, and banged his head into the wall. Nan has grabbed him by the arms, in the upper arm area.
Thomas reports engaging in self-harm by punching himself over and over. He tells me this began happening within the last couple of weeks. (He wasn't clear exactly when.) He punched himself in the right eye, with his right arm, over and over, leading to significant bruising. He reports that he also caused the bruises on his shoulders and his chest. Thomas is left handed. Thomas stated that he had previously used scissors to make cuts on his right forearm.
Thomas reports that things are worse at home when Pop is away. Pop is away for 2 weeks, then back for 2 weeks for his working schedule. Pop has verbally threatened him when he had a urinary accident, but not been physically abusive. Following the urine accident, Nan is making him wear nappies. He is required to wear then all the time, but is not allowed to void or stool in them, even though he is only allowed toilet access occasionally. He has been sent to school with the nappies on. Is only allowed a new nappy every few days.
Later in the appointment, as I went through the examination, Thomas stated a few other things that Nan has said to him: 'she told me she didn't want me', 'she calls me dog, animal', "Nan said 'I thought I was getting 4 well behaved kids, instead I got 4 animals'", "Nan says 'you are just like your father'".
57 On 24 February 2016 the police searched the home. They observed the CCTV system set up with cameras in a few locations including inside Thomas's bedroom. The cameras were remotely monitored from other parts of the house. An SD card from the system was seized and examined. It contained visual recordings of Thomas standing in his room on each of the seven days between 18 February and 24 February 2016. Only extracts of the CCTV images were tendered but the defence does not dispute the accuracy of the summary of the recordings in the prosecution statement of facts. In Thomas's bedroom there is a bunk style bed but with the bed at the top and drawers and shelf below. When the vision commences on 18 February 2016, all bedding (including the mattress) is absent from the room and the room is devoid of any clothing and personal items. There is carpet but
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nothing else on the floor. The following description comes from the prosecution summary, and my
own observations of the recorded extracts and other evidence:
•
On Thursday 18 February Thomas did not go to school. He is depicted standing with his hands on top of his head facing the camera clothed only in a red polo shirt and a nappy. He remains standing in this position for seven hours and 45 minutes between 3.33 pm and 10.18 pm, when he collapses to the ground and falls asleep on the floor. At times his difficulty standing is obvious.
•
On Friday 19 February Thomas did not go to school. His black eye is visible. He wakes at 7.14 am, still clothed in the red polo shirt and nappy. He leaves his room for a short time before returning and falling asleep on the floor again. He wakes at 9.20 am and resumes standing to attention with his hands on his head where he remains until 7.32 pm. He leaves the room for about six minutes but returns to stand again until 11.49 pm. At that time he sits on the floor and falls asleep. The total time standing exceeds 14 hours.
•
On Saturday 20 February he wakes from sleeping on the floor and leaves the room for a few minutes at 8.24 am before sleeping until 11.52 am. After a few minutes he begins standing to attention and, apart for a few short periods when he leaves the room, he remains in that position for almost 13 hours until just before 1.00 am the following morning.
•
On Sunday 21 February Thomas sleeps until about 12.36 pm. After leaving the room for a few minutes he returns in an apparently distressed condition. He stands to attention for just over an hour until 1.53 pm. He sits on the floor for about 20 minutes until 2.11 pm from which time, apart from leaving the room for a few short periods, he stands in various positions until he leaves his room six and a half hours later at 8.48 pm. He returns to his room at 10.43 pm and stands to attention for almost two hours until 12.14 pm. He leaves the room and returns with a mattress at 12.55 am, places the mattress on the floor, puts on a fitted sheet and falls asleep. That is the first time since 18 February that there has been any bedding in the room.
•
On Monday 22 February, after waking at about 8.25 am, Thomas gets ready for school and leaves his room. He returns to his room at 4.30 pm and commences standing. Apart from leaving for three minutes at 4.56 pm and for five minutes at 9.01 pm, he remains in the standing position for about seven and a half hours until just after midnight. At that time he slumps to the ground. His legs and feet are noticeably red. He massages his legs for a few minutes until climbing into his bunk bed at 1.35 am.
•
On Tuesday 23 February (the day of the interview at school) Thomas climbs from his bunk bed at about 6.00 am. He returns to his room at 8.22 am and stands to attention for about half an hour until 8.54 am. He returns to his bedroom at about 4.30 pm, completely naked, and stands to attention for, apart from leaving the room for two minutes at 5.30 pm, about two hours until 6.34 pm. Again, his legs and feet are noticeably red and, to me, his discomfort and unsteadiness when standing are obvious. Just after 6.30 pm he leaves the room and returns after two minutes wearing a pair of underpants but carrying a bundle of clothing which he then folds and puts away. He leaves his room at 8.15 pm but returns after about half an hour, and stands to attention for three hours and fifteen minutes until 11.55 pm. He sits and massages his legs before climbing into his bunk bed and falling asleep just after midnight.
•
On Wednesday 24 February (the day the children were removed from the house) Thomas wakes at 7.50 am. He leaves the room for two minutes but returns to stand and fidget until 8.24 am, and then stand to attention with his hands on his head until 8.56 am.
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58 My assessment of the evidence of what occurred in the weeks leading up to these events is heavily influenced by what is shown on the CCTV recordings. Allegations that a child aged 13 would be subjected to the treatment disclosed on the CCTV would ordinarily be treated with scepticism. For most people, such assertions would seem implausible; so extreme as to be beyond credulity. However, the CCTV provides largely indisputable evidence that it did occur. On 23 February 2016 Thomas described how he had been made to stand "until my body just literally gives up from tiredness or too much pain" and he said that his Nan "makes the place all quiet and then everyone's asleep apart from her and me and I, I just give up and collapse and then probably five or ten minutes after massaging my arms an' all that my body's like… all tired sort of thing, I need to go to bed, even though I'm not allowed to so I'm basically breaking the rule". These complaints and his complaints to others that I have set out about being required to sleep on the floor in the room without bedding and clothing and to stand in the room for very long periods either naked or in just a nappy and a t-shirt with his hands on his head, are almost entirely confirmed by the images. That evidence adds to the credibility of Thomas's account in other respects and affects the credibility of other evidence, in particular Mrs Hindle's denials of other allegations of ill-treatment. The medical examination is probative of the assertions that Thomas was required to wear nappies not just on those specific days, and the swelling in his lower legs and feet tend to confirm the effects of the prolonged standing.
59 As to the assertion that Thomas was not permitted to sleep, I find the allegation proved in part. The assertion that he believed that he was not permitted to sleep when he was required to stand, while he was under observation by means of the camera, is borne out by the images of him. He can be seen standing until very late at night before sleeping on the floor. However he did in fact sleep during the period just described, and the assertion that he was not permitted to sleep at all for all of the days during which he was confined to his room goes beyond what can reasonably be accepted.
109 In the course of her evidence Mrs Hindle refused to accept that she had, as early as 3 July 2015, expressed to Caroline Bonney that she was having trouble with the children's behaviour by
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being responsible for tidying their rooms, eating properly, hygiene and putting soiled bed linen out to be washed. She disavowed any knowledge of Sally Gill's expressions of concern via email or to Mr Hindle about what Ms Gill was being told by the children about what was happening at home. In her interview Mrs Hindle told the police of an occasion on which she had punished Evelyn "hard" for writing abusive swear words on a chest of drawers. She said that Evelyn "had a whole month in her room, possibly even longer in her room. And that was your punishment. And she accepts it. She came back and said 'I will never do that again, I was so horrible'". When cross-examined about this statement she refused to accept the truth of it, claiming that during the interview she was confused because "I'd had nothing to eat since breakfast time, my blood sugars were low". Mrs Hindle also refused to accept the truth of what she told police about the possibility that she may be seen to hit Thomas on the CCTV. She said:
"I didn't hit him. I didn't do anything to him other than sending him to his room and
make him put his hands on his head…because he was cutting himself."
110 This was a gross minimisation of her admitted conduct. I find that her statements during the interview are cogent evidence of admissions which disclose an appreciation that she inflicted some force on Thomas.
111 I find that some but not all of the Thomas's injuries seen on 23 and 24 January 2016 were self- inflicted. I am not satisfied beyond reasonable doubt that the injuries to Thomas's eye, chest and shoulders were caused by Mrs Hindle. I am satisfied that the bruises to his upper arms were caused by Mrs Hindle grabbing Thomas, but I am not satisfied to the criminal standard that the injuries amounted to wilful ill-treatment, because I cannot exclude as a reasonable possibility that they were justified by reasonable discipline. However, I find that there is no reasonable or rational explanation for the bruises and swelling to the top of his head other than that it was caused by Mrs Hindle grabbing and pulling Thomas's hair. I accept Thomas's evidence about this and reject Mrs Hindle's denials. Similarly, I find that there is no reasonable and rational explanation for the bruising at the back and front of Thomas's ear, to the right side of his neck and to his right jaw and cheek other than that they resulted from the application of force by Mrs Hindle in the days prior to 24 February. The injury is consistent with his head being struck against the door or door frame, but I cannot be satisfied beyond reasonable doubt about precisely how the force was applied. However, I am satisfied that it could only have resulted from the application of force by Mrs Hindle and formed part of the conduct which constituted the ill-treatment.
Laurence Hindle
112 Mr Hindle gave evidence in support of his wife. He rejected the possibility that the allegations of ill-treatment were true beyond that which was admitted. One of the issues which arose is the extent to which Mr Hindle was in the house at the time or away at work. He had no memory of the dates of his absence except that evidence was that he remembered that he was working and not at home when his wife was interviewed on 24 February 2016. His routine was to leave Hobart on Monday to commence work in Western Australia on Tuesday and then, two weeks later, leave Western Australia on Tuesday to arrive home on Wednesday. He was at home to make the recording on his phone of Thomas hitting himself on 10 February 2016. According to Mrs Hindle her husband was at home after Christmas 2015 until "half way through January". It follows from that evidence, doing the best I can and assuming that Mr Hindle was following his normal routine, it was most likely that Mr Hindle was away from home from 18 January until he returned on 3 February. He would then have been at home from 3 February until leaving Hobart again for work on Monday 15 February 2016. That means that he was away for about two weeks before Thomas started school and away for just over a week before the children were removed.
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113 In the very early hours of the morning on Monday 15 February 2016 Mr Hindle sent an email to Thomas's grade 7 teacher, Yarnah Pearce. The email was sent at 12.48 am. In part, the email read:
"I am writing this email to explain the situation with Thomas. Thomas has been causing some serious problems at home, in the two weeks leading up to school starting and this has continued when school started. Last week Thomas went to school after not having showered for 4 days and did not smell so good, we allowed this to happen to show Thomas that this is not acceptable behaviour.
We noticed that when Thomas arrived home on Friday that he had some bruises on his face around his left eye. While we were shocked by this on reflection Thomas had an episode on Thursday were he had been slapping himself on the face and arms, we believe these bruises are the result of this. The bruises on his face are receding but are still visible."
114 The email continued with a report about consultation with Clare House and then:
"I just wanted to inform you that the situation with Thomas is under control or at least as under control as can be expected and we are working towards better outcomes with Thomas".
115 Mr Hindle sent a further email to Ms Pearce on the following day, 16 February 2016 at 5.43 pm. It asked Ms Pearce to "refrain" from giving Thomas water at school and continued:
"Part of the trouble that Thomas finds himself in is that he will not admit that he has made some very poor choices and take the responsibility for those poor choices. He then enlists the help of others by making out that he is being victimised and by pampering to his victim attitude you enable this behaviour to continue, thereby making the job of getting Thomas to realise his poor choices suffers continual setbacks."
116 Another email was written by Mr Hindle on 21 February 2016 to Yarnah Pearce, which was copied to others including Ms Andrews and Mr Wishart. It states:
"Thomas was not at school on Thursday and Friday due to an upset stomach. He will be at school on Monday however you may notice that he has some bruising on his face and there is some bruising to his arms and shoulders. This has been self-inflicted over the weekend while he has been grounded. While this is of great concern please be assured that we are doing all we can to get Thomas the help he needs. We have a meeting with Clare House on Thursday 3rd of March and a meeting with the Tasmanian Child Protection Services on Friday the 4th. I ask you and your staff to not make a fuss of Thomas as this is exactly the type of attention that Thomas is looking for and it will simply validate his idea that he is a victim."
117 While giving evidence Mr Hindle presented as a well-spoken and responsible man. His long and stable work history points to him being a person of competence and intelligence. However there are a number of aspects of his evidence which cause me to doubt aspects of it. He was very obviously highly defensive of his wife. The email written on 21 February 2016 and, I think also the email of 16 February, were likely written while he was in Western Australia, and were based on information conveyed to him by Mrs Hindle. The email of 21 February contains one obvious falsehood. It was correct that Thomas was kept home from school on 18 and 19 February, but on those days he is depicted standing for long periods in his room. An "upset stomach" was not the reason he was at home rather than at school. I am satisfied that Thomas was kept home from school as punishment. Moreover, the contention that he and his wife were doing "all we could to get Thomas the help he needs" was a distortion of the true position. Much the same can be said of the statement in his email a few days earlier that the situation with Thomas was "at least as under control as can be expected." It is to be recalled that the email was written only a few days after Thomas was filmed repeatedly striking
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himself on the arm in a highly disturbing fashion. I find that Mr Hindle either did not know the true
position because he was absent, or turned a blind eye to it in support or defence of his wife.118 I reject as implausible and irrational the contention that Mrs Hindle's motivation in keeping Thomas in his room as she did was to stop him self-harming. Keeping Thomas in his room would not have stopped him from self-harming even if that was his intention. If he was as defiant as has been suggested then it would not have stopped him anyway. Despite the extremely prolonged period during which Thomas was confined to his room between 18 and 24 February there has been no indication that he self-harmed or attempted self-harm during that period despite the intense pressure he was put under. Nor does Mrs Hindle's version adequately explain or justify the prolonged removal of the clothing and bedding from Thomas's room and the way in which he was forced to stand and sleep.
Summary of findings
119 For the foregoing reasons I am satisfied that Mrs Hindle should be sentenced on the basis that the following acts of Mrs Hindle were likely to cause Thomas unnecessary suffering or injury to health and were committed with an intention or appreciation that they would cause unnecessary suffering or injury to health. This summary can only be properly understood when read with the full reasons. It is:
(a) between 18 to 24 February 2016 Thomas was exposed to the circumstances disclosed in the CCTV and summarised in these reasons, in summary that he was required to remain in his bedroom standing with his hands on his head facing the CCTV camera for lengthy periods, on occasion until he collapsed, and required him, having removed his bedding and with no or no sufficient clothing, to sleep on the floor; (b) removing the bedding from Thomas's room and requiring him to sleep on the floor for prolonged periods from early February 2016; (c) requiring him to stand in the manner identified for other periods during February 2016, in accordance with these reasons, but for periods which cannot be determined with precision; (d) treating Thomas as asserted in relation to the toilet brush incident and the dishes incident; (e) requiring Thomas to wear a nappy; (f) knowingly creating a situation where, by express direction or implied pressure, Thomas was to wear a nappy rather than use the toilet; (g) pulling Thomas's hair so as to cause the bruises and swelling observed on his scalp on 24 February; (h) applying force to Thomas's head so as to cause the bruises in front of and behind his ear, on his neck and jaw observed on 24 February; and (i) in 2016 making Thomas eat from a bowl on the floor without utensils and calling him demeaning names. 120 By reference to the particulars referred to in paragraphs [15] of these reasons I find:
(a) particulars 1, 3, 5, 6, 8 and 9 are proved; (b) particular 7 is proved in part; (c) particular 11 is proved in part; 30 No 71/2024
(d) as to particular 12, application of force to cause bruising to the side of his head is proved, but the means of the application of force cannot be determined; (e) particular 17 is proved but only on 18 and 19 February 2016; (f) particular 21 is proved but only in February 2016; (g) particulars 2, 4, 10, 13, 14, 15, 16, 18, 19, 20, 22, 23, and 24 are not proved.
1 Directing Thomas to remain in his bedroom standing with his hands on his head for significant periods of time, to the point where he collapses.
2 Kicking Thomas to the body whilst verbally abusing Thomas after he had collapsed on his bedroom floor.
3 Not allowing Thomas to use the bathroom when confining Thomas to the bedroom for significant periods of time.
4 On occasions when he was confined to the bedroom and where he could not hold on and had urinated on the floor, screaming and insulting Thomas in front of his siblings.
5 Requiring Thomas to wear nappies for extended periods of time whilst standing in the room and whilst in the house and at school.
6 On occasions when he was confined to his bedroom directing Thomas to face the CCTV camera for significant periods of time.
7 On occasions when he was confined to his bedroom, and was directed to stand to attention for significant periods of time, directing Thomas that he was not permitted to sleep.
8 On occasions when he was confined to his bedroom directing Thomas to stand naked in front of the CCTV camera and in view of his siblings.
9 On occasions when he would be confined to his room, removing the bed, mattress and bedding and directing Thomas to sleep on the floor.
10 After a school triathlon directing Thomas to wear a pair of underwear on his head whilst in the home, for an extended period of time.
11 Grabbing and pushing Thomas, slapping Thomas to the face, pulling forcefully at his hair and grabbing his arms/hands and using them to strike his face, causing bruises and soreness to his arms, body and eyes.
12 Grabbing Thomas by his school bag, dragging Thomas to a door, placing his head in the doorway and slamming the door closed repeatedly on his head.
13 Pushing Thomas down flights of stairs.
14 Directing Thomas to eat food out of the bin that had been disposed of.
15 On an occasion when she had directed Thomas to eat food out of the bin, covering the food with washing powder before directing Thomas to eat it.
16 Spitting on Thomas and degrading Thomas in front of his siblings.
17 Keeping Thomas home from school to isolate and punish Thomas.
18 Directing Thomas to hand wash his clothes, and excessively clean the car or areas of the residence, including the bathroom and kitchen without assistance from an adult.
19 Directing Thomas to clean up his own vomit, but when his attempts were considered unsatisfactory directing Thomas to eat his own vomit. When he again vomited, further directing Thomas to eat his own vomit.
20 Requiring Thomas to kneel on his knees and elbows on the kitchen floor for long periods.
21 Directing Thomas to write in excess of 1,000 lines, such as "I must not lie…" in response to perceived bad behaviour.
22 Threatening that if he lied to her or told anyone what was happening at their residence his tongue would be cut out.
23 Withholding food or providing Thomas limited food as punishment.
24 Throwing rubbish on Thomas, pouring coffee grounds from a glass jar over his head causing Thomas to become distressed. Picking up the glass coffee jar and smashing it over his head whilst saying words to the effect of "now you have something to cry about…"
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