BJ v R

Ground 1 - The sentencing judge erred as to the mental element of the offence

Ground 2 - The sentencing judge erred by taking into account, as an aggravating feature, that the offence was committed in the presence of a child

FACTUAL BACKGROUND

1. On Friday, 11 October 2013 the applicant was at home minding his baby son (the victim), who was aged six months. The applicant's partner had left for work earlier that morning.
2. During the course of the morning, at some time between 7am and 9am, the victim sustained third degree (full thickness) burns to his chest. There were other areas of the baby's body which received less intense burning including his face, his mouth, his right arm and underarm, his penis and scrotum, including underneath his scrotum, and the top of his thighs. Obvious redness and blisters appeared on the skin of the baby's chest.
3. The applicant took the victim to a medical centre and the baby was seen by a general practitioner, Dr Mirza, at 11.40am. On the way, the applicant stopped at the home of his partner's parents, Mr and Mrs Humphries. Ms Humphries observed the top of the victim's chest and saw that it was red and the skin was peeling. The baby was obviously distressed at the time.
4. Dr Mirza gave evidence at the Hearing and explained that the applicant presented the baby for a rash on his face and told Dr Mirza that the rash was not present anywhere else on his body. The victim was held by the applicant during the course of the consultation and at no time was Dr Mirza asked or given reason to examine his chest or body. Dr Mirza prescribed a Hydrocortisone cream for the redness on the baby's face. He told the applicant to return in one or two days if the condition worsened, or if there were other concerns.
5. The baby's condition worsened considerably over the weekend. Despite being told by a number of family members to take him to hospital, the applicant and his partner did not take the victim to another medical centre until 2pm on Tuesday, 15 October 2013. The victim was seen by Dr Le, who referred them to Campbelltown Hospital.
6. The victim was admitted and placed on an intravenous drip for sepsis and treated for burns to his anterior torso and genitalia, covering a total body surface area of 8 per cent). The baby's condition deteriorated overnight and he was transferred to Westmead Hospital on 16 October where, some days later, he underwent surgery to his chest, abdomen and pelvis.
7. The victim initially underwent debridement of his wounds, during which an extensive layer of necrotic tissue was removed. During this process, pus was observed underneath the victim's skin and deep full thickness dermal burns were noted. The burns to his face, upper right thigh and scrotum region did not require surgery. The baby lost a significant amount of blood during the surgical procedure and post-operatively was noted to be at a "high risk" of sepsis. Less than 10 per cent of his body surface was subject to excision or debriding and the graft area exceeded 10 per cent of the body surface area. Further surgery for skin grafting was undertaken on 23 October 2013, with each thigh used as a donor site. The grafts covered about 12 per cent of the total body surface area. The baby was eventually released from hospital after 20 days, on 4 November 2013, into the care of the applicant's mother.
8. Professor Peter Maitz, a highly qualified specialist Plastic and Reconstructive surgeon and Professor of burns injury, gave evidence that when children grow the scar and skin graft does not grow to the same extent as the normal skin because it is not as elastic, and therefore will require reconstructive surgery. Professor Maitz also gave evidence that the injuries sustained would forever have an impact upon the child and would result in pain, disfigurement and psychological sequelae.
9. Professor Maitz also opined that it was difficult to indicate the effect of the delayed treatment on the injury. Proper medical treatment after first aid might have resolved the need for surgery. However, surgeons are generally very conservative when operating on children because "once they take the knife, this will be with him forever". For this reason, surgeons usually wait up to five days to see if the wound will heal itself.
10. The purpose of the Disputed Facts Hearing was to determine the cause of the injuries suffered by the victim. The applicant provided a number of inconsistent explanations, none of which were ultimately accepted by his Honour. These explanations included that the injuries were caused because of a new rug which caused a rash or an allergic reaction which looked like a burn; that it was a form of friction or carpet burn; and that it was caused from sitting in front of the heater (notwithstanding that the injury occurred in October). His Honour found that the applicant had lied on a number of occasions and that the evidence he gave raised considerable concerns about his veracity.
11. His Honour ultimately found, beyond reasonable doubt, that the injuries sustained by the victim were occasioned by the pouring of a very hot liquid to his chest area and that the lesions to his face, right armpit, and to his thigh were consistent with a splashing of the scalding liquid. His Honour further found that the injury to the victim's lower abdomen and underneath his scrotum and penis were consistent with hot liquid running down the torso of the child and pooling at the base of his body, however, he may have been sitting or held. His Honour was unable to come to any adequate, satisfactory understanding as to why such a hot liquid would have been poured on to the child.
12. His Honour made the following further finding: "80 I remind myself that the charge to which the offender has pleaded guilty does not include any intention to inflict grievous bodily harm. The charge to which he has pleaded guilty is recklessly inflicting grievous bodily harm. The concept of recklessness with respect to the mechanism of injury which I find established must therefore incorporate a failure to consider the likely or possible outcome of the pouring of hot liquid on to the child, whatever may have been the reason for it being poured in the first place. The concept of recklessness, in accordance with Blackwell v The Queen [2011] NSWCCA 93, with respect to the mechanism causing the injury, must incorporate a realisation by the offender that it was possible that grievous bodily harm, that is, really serious injury, would be inflicted on the child and yet he went ahead and acted in the manner which I find that he did."
13. In relation to aggravating features, his Honour referred to the fact that the offence was committed in the home and in the presence of a six month old baby, who was vulnerable. The offence constituted a breach of trust and authority. In terms of objective seriousness, his Honour found that the offence fell within "the mid to high range, that is the upper end of the mid-range of objective seriousness".
14. In respect of the Form 1 offence, his Honour found that the circumstances of the applicant's failure and subsequent delay in taking the child for appropriate medical care, and by deliberately withholding information had the effect of substantially increasing the gravity of the outcome of the primary offence. While not imposing a separate sentence for the Form 1 offence, his Honour indicated that the circumstances of the commission of the offence on the Form 1 warranted an increase in the appropriate head sentence for the principal offence by 12 months. No issue was taken by the applicant in respect of what his Honour found on this issue.
15. His Honour found that in the course of the weekend of 12-13 October, the applicant had variously lied to both his partner and her parents, in suggesting that Dr Mirza had in fact examined the child's chest and had prescribed cream for a rash in the light of such an examination. His Honour found that when the baby was taken to Campbelltown Hospital, the applicant maintained the false account, which he had persistently given regarding a reaction to the baby being left on the carpet.
16. The applicant gave evidence in the Disputed Fact Hearing that he has had contact with the baby, who is now aged four, once every two months under supervision of Family and Community Services (FACS) at Campbelltown. The applicant explained the relationship with the child's mother had come to an end. The child now resided full-time with the applicant's mother, who also lived in Appin. The applicant was aged 21 and 10 months at the time when the child suffered the injuries.
17. His Honour also found that the applicant had lied in his evidence in the Disputed Facts Hearing. His Honour noted: "85 He is not to be punished more severely because he has chosen to lie. He does, however, thereby lose any benefit of genuine remorse or contrition. He entered into a disputed facts hearing whereby much of the expert medical evidence which would have been called in a trial by the Crown was required to be called on the sentence hearing and cross-examined and he then gave evidence which, as I have said, I have found to be false. This substantially diminishes the utilitarian value of his plea."
18. Although there was a considerable amount of psychological evidence relating to the applicant's state of mind at the time of the offending, his Honour did not give it much weight. His conclusion was: "102 In all of the circumstances I am not of the view that this material warrants any substantial reduction in criminal culpability, particularly when balanced against the need for personal deterrence and general deterrence underlying the need for the protection of members of the community who are intrinsically and inherently vulnerable, such as a six month old child."
19. His Honour did, however, have regard to the delay in the matter being brought to final conclusion. His Honour set out how the applicant had originally been charged with the principal offence on 27 November 2013 but it had not come before his Honour until 24 April 2017.
20. When considering mitigating factors, his Honour found that the applicant was a person of good character, even though he had some driving convictions. Subject to the resolution of his psychological difficulties, he was unlikely to re-offend. Even so, his Honour was not prepared to find that the applicant had appropriately accepted responsibility for his actions, nor had he acknowledged the extent of the injury, loss and damage so caused.

THE APPEAL

1. The Crown accepted that Ground 1 had been made out. Specifically, the Crown conceded that his Honour's formulation that, given the applicant's plea of guilty, he must have realised that there was the possibility that grievous bodily harm (as opposed to actual bodily harm) would be inflicted on the victim and yet went ahead and acted in the manner that he did, was erroneous. This was because the current offences under s 35(1) and s 35(2) of the Crimes Act posit the broader state of mind of recklessness as to actual bodily harm rather than grievous bodily harm.
2. The Crown also conceded that Ground 2 had been made out. It had not been contended by the Crown in the sentence proceedings that s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW) had application in the present case. It was clear from the evidence that the only child under 18 years in the home at the time of the offence was the victim. The Crown accepted, that to the extent that his Honour sought to rely upon this factor to aggravate the sentence, he was in error.
3. The consequence of those concessions is that this Court must re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42]. Accordingly, both sides in the hearing of the appeal focused their submissions on findings this Court should make on re-sentence.

Re-sentence

1. The applicant accepted that the offence was objectively serious, given the extent of the grievous bodily harm suffered by the vulnerable victim. This was in turn aggravated by his failure to obtain prompt medical treatment. Nevertheless, the applicant submitted that there was evidence (in the report of the psychologist, Mr Hudd) that his failure to provide prompt medical treatment was because he was afraid that he would be seen as a child abuser like his father or might lose his son. He submitted that these matters lessened somewhat his overall moral culpability, particularly with respect to the Form 1 offence.
2. The applicant submitted that he did not try to hide the injuries suffered by the victim from his family. He submitted that the evidence did not permit a finding as to why hot liquid was poured on the victim, or the precise mechanism by which it occurred. He submitted that, in particular, the evidence did not permit a finding that he was reckless as to causing anything other than actual bodily harm to the victim.
3. The applicant noted that there was evidence (from his mother) suggesting that the victim had made an excellent recovery and did not require ongoing medical care, although the long-term psychological sequelae remained unknown. The applicant submitted that Professor Maitz was of the view that the victim would probably not need surgery, in the future, unless he suffered extreme weight gain.
4. The applicant submitted that he was only 21 years of age when the offence was committed and that some allowance should be made for his youth, with greater emphasis placed upon rehabilitation. The applicant noted the rationale behind the focus on rehabilitation for young persons, in that maturity and impulse control take time to develop. The applicant relied upon his solid work history, an unremarkable criminal history and the assessment by the author of the pre-sentence report that there was a low likelihood of him re-offending.
5. The applicant relied, in mitigation, upon an element of extra-curial punishment in that since the incident he had only been able to see his son for two hours every two months and even then, only under supervision of FACS.
6. The applicant also relied upon the substantial delay between charges being brought and the matter being finalised. He noted that during that time, there had been no repeat of these offences, nor had there been any offences of violence.
7. In oral submissions before this Court, the applicant submitted that there was no evidence which would permit a finding beyond reasonable doubt that he foresaw the possibility of the infliction of grievous bodily harm when the liquid was poured on to the victim. The basis for this submission was that there was no evidence as to the temperature or type of liquid involved, whether he knew how hot the liquid was, whether it was poured directly or indirectly and from what distance, on to the child.
8. It should be noted that no additional affidavit, or other material, was placed before this Court in addition to that which had been before the sentencing judge.
9. The Crown submitted that there was no challenge by the applicant to his Honour's finding of fact beyond reasonable doubt that the injuries sustained by the child were occasioned by the pouring of a very hot liquid on to his chest area. The Crown submitted that the only reasonable inference to be drawn from such an act was that the applicant must have appreciated the possibility of really serious injury occurring to a six month old child.
10. The Crown submitted that the absence of any explanation by the applicant as to his motive or the circumstances in which the very hot liquid came to be poured on to the baby did not assist him on that issue. In particular, it did not exclude an inference being drawn, beyond reasonable doubt, to that effect. The Crown submitted that on the contrary, the absence of any explanation made it easier to draw an inference that the applicant did appreciate the possibility that his actions might cause grievous bodily harm to a six month old child.
11. The Crown submitted that whether the applicant acted with the realisation of the possibility of actual or grievous bodily harm, the offence could only be regarded as objectively very serious. The Crown submitted that within the particular circumstances of this case, little turned on whether the applicant foresaw actual bodily harm (of a very high order) or grievous bodily harm. There was no issue that the victim in fact suffered grievous bodily harm and that the extent of the grievous bodily harm was significant and potentially life threatening. The Crown submitted that the victim was particularly vulnerable and that the offence constituted a serious breach of trust on the part of the applicant. The Crown submitted that a finding of objective seriousness at the upper end of the mid-range was appropriate and easily justified.
12. The Crown submitted that the matter on the Form 1, to the extent that it represented a failure to take and then to delay appropriate medical care, warranted additional weight being given to retribution and personal deterrence, and that should, in turn, be reflected in a significant increase in penalty for the principal offence.
13. The Crown challenged the evidence of the applicant's mother that the victim had made an excellent recovery and did not require ongoing medical care. The Crown noted that this was part of a tendency, on the part of both the applicant's mother and the applicant, to minimise and understate the extent of the victim's injuries. In any event, that evidence was in direct conflict with that of Professor Maitz, which his Honour accepted without reservation..
14. The Crown relied upon the following evidence of Professor Maitz: "Q. Does that affect him for example when he hits puberty and for example if he was to chest hair would that affect the growth of the chest hair? A. I don't think that this young man will have chest hair because there's no hair growth in skin grafted areas because all the hair follicles are damaged. Q. So that's what you would expect for this young man? A. But I think he will have problems before that, when these children grow, the scar and the skin graft do not grow in the same extent than normal skin because it's not as elastic and a lot of these patients, whilst I don't treat acute burns, acute burns in children, I treat a lot of adolescents and adults will come later after having injuries like this for reconstructive surgery. Q. And what are the problems they experience? A. Pain, obviously disfigurement and a lot of psychological sequela depending on where that is, for instance if this would be a female we would have grave concerns with breast mound development because the skin graft will not stretch. Q. So that's something that he'll have to deal with later on as he gets older? A. This will be with him forever and this will forever have an impact on him, there is absolutely no doubt. HIS HONOUR: Q. What is the likelihood of the need for reconstructive surgery? A. It appears that his nipples are not affected, the belly button is and these are really the only real functional areas in that area so he probably won't need surgery unless he has extreme weight gain because then his abdominal skin will not stretch, so for functional reasons, for aesthetic reasons I think by the time he will hit puberty which I estimate will be in ten years' time our ability to influence the visibility of this will be relatively good and that he will need laser surgery intervention to make that less visible. COUNSEL: Q. Laser surgery to try and reduce the appearance of the scars? A. Yes. Q. This child received the injuries on 11 October but did not receive proper medical treatment until 15 October? A. Yes. Q. Five days afterwards. Are you able to indicate what the effect was of delayed treatment? A. It's very difficult, it could have been a full thickness burn injury from the beginning, I'm a little bit doubtful that it is because if it would have been such a deep burn from the beginning people would have reacted to it because it becomes very offensive very quickly so I think in my view and again it's judged on photos and the clinical history, proper medical treatment after first aid probably would have resolved in not the need for surgery for this, five days is a very long time and in fact in general we tell patients that the burn injury will unmask itself within the first five days, it's sometimes very difficult on day one or two to judge the severity of a burn. Pain is good indicator and what we call recapularisation so there's still blood flow in the wound but it's still difficult. On day five and that's pretty much intermittently agreed is the day where the burn has unmasked itself and I can tell, yes this will heal or it will not heal because that's what makes the difference to the patient. Q. So day five is the day you know whether it's going to heal itself or not? A. Yes in general yes but the having said that in this child when it was brought to the hospital everybody tried to have conventional methods to heal that wound because it's just a young child and obviously their healing potential is much better than adults. He wasn't [taken] to theatres immediately and that's routine, as I said kids' burn surgeons are very conservative because once they take the knife, this will be with him forever." (T 27.4.2017, 9.43-11.7)
15. The Crown submitted that there was no evidence before the Court that the applicant has, even now, appropriately accepted responsibility for his actions, or acknowledged the extent of the injury, loss and damage caused by his actions. The Crown submitted that the applicant had demonstrated no insight into his offending, nor had he demonstrated any contrition or remorse. The Crown submitted that it was for those reasons that there should be some reservations concerning his prospects of rehabilitation and likelihood of re-offending, despite his age at the time of the offence.
16. The Crown submitted that there was no basis for the claim of extra-curial punishment. The Crown submitted that in the absence of any evidence to the contrary, one has to assume that FACS had good reason to restrict the times and circumstances in which contact between the applicant and the victim was to take place. The Crown noted that there was no evidence to suggest that the applicant may have been afforded more contact by FACS had he not been in custody. The Crown submitted that in any event, restrictive access to the victim in the present circumstances would not amount to extra curial punishment (R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398 at [62]).

Consideration

1. It is tempting to interpret the applicant's conduct, from the occurrence of the incident and the child being taken to Campbelltown Hospital, as avoidance behaviour, in the sense of him not being able to accept how serious the victim's condition was and that he had brought about that condition, i.e. an unwillingness or inability to admit to himself that he was responsible for such serious injuries.
2. While such an approach is tempting and would explain to some extent the applicant's conduct, the absence of any evidence to that effect, particularly from the applicant, does not allow such an inference to be drawn. The only evidence on the subject was the explanation given to the psychologist, i.e. that he did not wish to be thought to be a child abuser, like his father. That explanation fails to adequately, or at all, explain the applicant's conduct and was clearly rejected by his Honour. Accordingly, what we are left with is unexplained conduct which undoubtedly worsened the severity of the injuries. In those circumstances, the conduct giving rise to the Form 1 warrants additional weight being given to retribution and personal deterrence, which in turn should be reflected in a significant increase in the penalty for the principal offence.
3. I have considerable doubts as to whether the restrictions imposed on the applicant's right to visit the victim should be regarded as extra-curial punishment. Those restrictions were a direct result of the applicant's conduct, which was of such a kind as to require a level of protection to be given to the victim when he came in contact with the applicant. It does not easily fit in with the extensive analysis of extra-curial punishment conducted by James J in R v Daetz; R v Wilson. Even if it can be properly taken into account as extra-curial punishment, its effect on the sentence would, for the reasons set out by the Crown, be minimal.
4. The point raised by the applicant in oral submissions before this Court, that it was not possible to find beyond reasonable doubt, that the applicant foresaw the possibility of the infliction of grievous bodily harm because there was no evidence as to the temperature or type of liquid used, goes nowhere. His Honour found as a fact that hot liquid had been intentionally poured by the applicant on to the child. Having regard to the extensive injuries, the delicacy of the skin of a six month old baby and the fact that the unknown liquid was obviously very hot, I am satisfied that a finding beyond reasonable doubt to that effect could be made. This is particularly so in light of his Honour's finding that the pouring of the liquid was deliberate and not accidental.
5. Having regard to the factual findings made by his Honour which have not been challenged by the applicant, and the comparatively minor matters to which the Court's attention was drawn on re-sentence by the applicant, in the independent exercise of the sentencing discretion I am not satisfied that a lesser sentence is warranted in law. Having regard to the objective seriousness of the offence, the vulnerability of the victim and the enormity of the breach of trust on the part of the applicant, a sentence lower than that imposed by his Honour would be manifestly inadequate. This is particularly so in the absence of any explanation by the applicant of what happened, how it happened and why it happened.
6. Accordingly, the orders which I propose are: 1. Leave to appeal against sentence is allowed. 2. The appeal is dismissed.
7. McCALLUM J: I agree with the orders proposed by Hoeben CJ at CL, for the reasons his Honour has stated. Justice Hoeben has acknowledged the temptation to interpret the applicant's conduct in failing to accept the seriousness of the child's injuries as avoidant behaviour. The absence of any satisfactory account of the circumstances in which the child was injured is certainly a troubling feature of the case. The facts suggest some possibility of accident, but that is not what the sentencing judge found. As Hoeben CJ at CL has noted, this Court is required, having regard to the way in which the case has been presented at first instance and on appeal, to determine the present application in accordance with the unchallenged factual findings of the sentencing judge. Any more favourable analysis of the agreed facts would be speculative and beyond the authority of this Court.
8. BEECH-JONES J: I agree with Hoeben CJ at CL.

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