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The Offending

7. A statement of facts was tendered by the prosecution, without objection on the part of the offender. That statement records as follows.

8. At the time of the offending, the offender had been in an intimate relationship with the victim’s mother for around six months. The victim was then four years old. Although the offender had his own home, the offender spent most of his time at the apartment where the victim and the victim’s mother lived together. The victim referred to the offender as “pa” or “dad”.

9. On 13 September 2023, the offender came to the victim’s home, having worked earlier in the morning. At some point during the afternoon, the victim’s mother left the apartment to attend an appointment, leaving the victim alone with the offender.

10. Call records show that at around 1:43pm that afternoon, the offender tried to call the victim’s mother twice. Minutes later, the offender conducted several Google searches about “child head injuries”, as well as searches about the victim’s biological father.

11. Around 3pm that afternoon, the offender drove his ute to a pre-arranged mechanic appointment. When they arrived, the offender helped the victim get out of the car. After they went into the garage, the mechanic saw the victim vomiting water. The mechanic saw that the victim was pale, and noticed that the victim was not speaking. The offender told the mechanic that the victim had fallen off his bike and that he had a concussion.

12. Shortly after, the victim’s mother arrived at the garage. The victim’s mother then drove the victim and the offender back to the apartment.

13. At around 3:30pm, the victim’s mother called the “Health Direct” medical advice hotline. As a result of that phone call, ACT Ambulance Services were notified and attended the apartment.

14. On their arrival, the ambulance officers observed that the victim was pale, green, lethargic, drowsy and quiet. The officers also immediately noticed that the victim had a large deformity to the back of his head. The offender and the victim’s mother told the ambulance officers that that head injury had occurred when the victim fell onto his bed or bedframe a few days previously. The victim’s mother also said that the victim had fallen off his bike earlier in the day, and that he had been vomiting since the fall. After the victim was moved into the ambulance, the ambulance officer also observed a number of injuries to the victim’s body, including bruising to the buttocks.

15. The victim was taken by ambulance to Canberra Hospital. On arrival, the victim told medical staff that the offender had hurt him “because he was being annoying”. The victim disclosed to police officers around a week later that he was “naughty” and the offender “got angry”. The victim told police that the offender “smacked him in the bum” and “made his head hurt”.

16. CT scans on the victim’s body revealed the following: (a) A diagonal fracture to the back of the head with overlying scalp collections of blood; (b) A small extradural haemorrhage next to the left temporal bone (a collection of blood between the skull bone and dura that lines the outside of the brain); (c) An approximately 5mm haemorrhagic contusion to the inferior left frontal lobe (bruising to the brain); (d) A small haemorrhage contusion to the left temporal lobe (bruising to the brain); (e) A subdural haemorrhage extending within the bilateral tentorium (a collection of blood accumulating within the dural folds between the cerebellum and occipital and temporal lobes of the brain); and (f) Hairline anterior fractures to three ribs.

17. The statement of facts also records that the victim participated in several Evidence in Chief Interviews. In one of those interviews, conducted on 20 September 2023, the victim disclosed that: (a) He had been “naughty”; (b) “Dad” (who the victim identified as the offender) had become angry; (c) He had been running in the house and making noise; (d) Dad “smacked him in the bum”; the smack was “hard”; and he had a “sore head” because he had been “naughty”, which made Dad “angry”; and (e) “Dad [had] made his head hurt”.

18. The statement of facts further state that the injuries to the victim’s head were sustained whilst the victim was alone with the offender, sometime between 1pm and 3pm.

19. The statement of facts also records that the offender participated in a record of interview on 14 September 2023. During that interview, the offender said that he had heard “some bangs” out the front of the apartment, and had seen the victim next to his bike. The offender said that the victim told the offender that he had fallen off his bike, and hit his head on concrete. The offender denied causing the victim any injuries.

20. The prosecution also tendered a report of Dr Lydia So, a paediatrician at Canberra Hospital, who examined the victim. She expressed the following opinions concerning the injuries sustained by the victim: (a) There were 34 bruises not consistent with normal rough and tumble play; (b) The “patterned bruising” observed to the side of the head, hands and buttocks can reflect the shape of an impacting object; (c) Skull fractures of the kind observed on the victim are more likely caused by a high force trauma such as a motor vehicle accident than by a fall from a small height; (d) A subdural haemorrhage is frequently associated with skull fractures and children experiencing head trauma; (e) An extradural haematoma is relatively uncommon and can occur after injuries to the temple, such as being hit with a blunt object; (f) The combination of head injuries with injuries in multiple planes is mostly likely due to blunt force trauma with several cranial impacts; (g) Cranial impact can be due to the head striking an object, or an object striking the head; (h) It was difficult to comment on the timing of how the injuries were acquired; (i) It is unlikely that the injuries can be explained by a fall from a bicycle; and (j) The quantity, distribution, character and clustering of these injuries are “highly suggestive for inflicted injury” and “more likely represent inflicted blunt force trauma”.

21. The statement of facts also records that Dr Catherine Sansum, a specialist medical practitioner, had also provided a report in relation to some of the victim’s injuries. While Dr Sansum’s report was not tendered in evidence, the statement of facts record that she expressed the following opinions: (a) The skull fracture, subgaleal haematoma and subdural haematoma can be caused by significant blunt force trauma and are likely to have occurred within a short time frame; (b) Significant force would be required to cause the skull fracture and this force would likely cause symptoms such as slurred speech, recurrent vomiting, a pale or green complexion, lethargy and dizziness almost immediately; and (c) The patterned bruising is highly suggestive of infliction of force by an object.

22. At the time of the offending, the offender was the subject of a parole order with respect to a sentence for which the non-parole period had expired.

Victim Impact Statements

23. The victim’s grandparents provided eloquent victim impact statements which informed the Court about the consequences of the offending for the victim. The victim has had multiple follow up medical appointments. The emotional burden upon him has been intense. He is currently obtaining counselling to address the trauma of the offending and its aftermath.

24. One victim impact statement describes these effects in the following way: Prior to this crime my grandchild’s previous personality was happy, outgoing, curious, adventurous, etc… since the crime there has been a dramatic change in his fundamental personality and daily life. It is as if a light has gone out. He is no longer the child he was. He now lives in a constant state of fear and he is scared of not knowing if [the offender] is wandering out and about or if he’s going to return home to hurt his mum. He refuses to sleep alone and still constantly wakes up to check I am still with him, he’s afraid of the dark and terrified of strangers and scared to get a drink on his own unless the lights are on.

25. The victim’s other grandparent also described the effect that the offending has had on the victim’s extended family, stating: I will never truly digest the heartbreak and sadness of what [the victim] has been through in his short life and the impact it has had on our entire family. Subjective circumstances

Childhood

26. The offender had a disruptive upbringing. He was exposed to abuse, alcoholism and antisocial behaviour as a child by a parent. His parents separated when he was a teenager, after which his mother ceased contact with him. He remained in his father’s care until he was 17 years old, when he was asked to leave the home following an altercation.

Employment

27. The offender has a consistent employment history. He commenced work in customer service after leaving school in his senior years, before later obtaining full time work as a concreter. He has been self-employed for the past three years, and generally works up to six days per week.

Remorse

28. During his interview with the PSR author the offender accepted responsibility for “a lack of care and neglect” and expressed concern for the victim’s recovery. However, the offender did not accept responsibility for inflicting harm upon the victim. The offender accepted that “this may look bad for the court”.

29. I am not satisfied that the offender is remorseful for the offending. Criminal history

30. The offender has a criminal history in the ACT and New South Wales dating back to 2013. The offender’s criminal history includes property offences, driving offences, assaults, sexual assaults, family violence offences and breaches of conditional liberty. The PSR further reports that the offender’s past compliance with service engagement and supervision obligations has been “inconsistent”. Most concerningly, the offender’s criminal history includes a conviction in 2019 for an assault of the child of the offender’s then partner.

Determination

31. The present sentencing task is difficult. The offender has entered a plea of guilty to the charge of aggravated assault occasioning actual bodily harm. As Taylor J held, the offender is bound by that plea. The offender’s plea establishes each of the elements of the offence: namely, that the offender intentionally or recklessly applied force to the victim’s body without the victim’s consent, the application of force caused the victim to suffer actual bodily harm and the offence involved family violence. It is clear from the medical evidence before me that the victim was seriously injured as a result of the offender’s conduct and that the offence involved family violence. However, as the offender now denies his guilt, there is no agreement between the parties as to the manner in which the offender caused the victim’s injuries.

32. The prosecutor submitted that the Court should infer that the offender struck the victim with an implement, with considerable force. In support of this submission, the prosecutor relied upon the expert reports, that is, both the report of Dr So which was tendered in evidence, and the summary of the report of Dr Sansum contained in the statement of facts. These reports stated that the quantity, distribution, character and clustering of these injuries are “highly suggestive for inflicted injury” and “more likely represent inflicted blunt force trauma”.

33. A finding that the offender struck the victim with an implement and/or with considerable force would operate as a matter of aggravation on sentence. For this reason, it is necessary for the prosecution to demonstrate these matters beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270 at [31] and [57]. The equivocal language (“highly suggestive” and “more likely”) used by the medical experts is not sufficient to meet this onerous standard. The prosecution was afforded an adjournment to obtain further expert evidence addressing or clarifying this issue, but did not do so. In those circumstances, I reject the prosecution’s submissions that I should infer that the offender struck the victim with an implement with considerable force from the nature of the injuries sustained.

34. On the other hand, the explanation for the injuries suggested by the offender in his record of interview (namely, that the victim fell off his bike) must also be rejected. Although I am not able to make a definitive finding as to how the victim sustained his injuries, it is abundantly clear that those injuries were not sustained as a result of the victim falling off his bike. Further, that explanation would be inconsistent with the elements of the offence that the offender has pleaded guilty to.

35. On the basis of the offender’s plea of guilty, and the nature of the injuries recorded, I am satisfied beyond reasonable doubt that the offender applied physical force to the victim, that force being not of a minimal nature, and that the victim sustained his injuries as a result of that application of physical force. I am unable to make any finding, whether by way of aggravation or by way of mitigation, as to the manner in which the force was applied.

36. Nonetheless, even in the absence of such a finding, I am satisfied that the offending is a very serious example of the offence of aggravated assault occasioning actual bodily harm. The victim was very young – he was only four years old. The offence was statutorily aggravated by the family relationship between the offender and the victim (who called the offender “dad”, or “pa”), enlivening the matters contained in the Preamble to the Family Violence Act 2016 (ACT). Within this context, the offending represented an acute breach of trust: the victim’s mother had left the victim in the care of the offender. The victim was at home, a place where he should have been safe from the violence of others. The injuries inflicted by the offender were severe, and at the upper end of the injuries which are encompassed by the offence. As the victim’s grandparents have powerfully described, the offending has had pervasive effects upon the victim, including psychological as well as physical harm.

37. The prosecution accepted that Bugmy principles apply (Bugmy v R (2013) 249 CLR 571; [2013] HCA 37), and that the offender’s background of disadvantage is such as to reduce his moral culpability for the offending. I agree that there has been some reduction of his moral culpability by reason of his background. However, such a finding does not necessarily result in the imposition of a lesser sentence. In the present case, where serious harm was inflicted upon a vulnerable child in a family violence context, there remains a need for denunciation, for punishment and for general deterrence. In view of the offender’s criminal history (particularly the fact that the offence was committed in breach of his conditions of parole and where the offender’s previous offending included an assault on a child) and where the offender has no remorse for the offending, I also find that significant weight should be given to specific deterrence.

38. In view of the above, the only appropriate sentence is one of imprisonment. The starting point of the sentence to be imposed will be imprisonment for a period of three years. The offender pleaded guilty three weeks after the criminal case conference. Such a plea would usually attract a reduction in the range of 15 to 20% of the sentence. Some of the utility of that plea of guilty has been eroded by the offender’s application to withdraw his plea. However, in circumstances where the plea has nevertheless avoided the need for a trial, at which the very young victim would have been required to give evidence, I consider that a reduction of 15% remains appropriate. Following that reduction, and rounding down, the sentence to be imposed will be imprisonment for two and a half years.

39. The offender’s counsel urged the Court to order that any sentence of imprisonment be served by way of an ICO, noting that the offender has been assessed as suitable for an ICO. However, a sentence other than one of full-time imprisonment cannot adequately meet the need to recognise the harm caused to the victim, and to meet the real need for general and specific deterrence and denunciation. Accordingly, a sentence of full-time imprisonment must be imposed

40. The offender has spent two days in custody solely referrable to the present offending, between arrest and his grant of bail. The sentence to be imposed will be backdated by two days to take account of this presentence custody. I will set a non-parole period of imprisonment of 18 months, which has also taken into account the offender’s plea of guilty.

Orders

41. The orders of the Court are: (1) For the offence of aggravated assault occasioning actual bodily harm (CC 2024/66) the offender is convicted and sentenced to imprisonment for 2 years and 6 months, commencing on 22 July 2026 and expiring on 21 January 2029. (2) A non-parole period of 18 months is imposed, expiring on 21 January 2028. I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker. Associate: Date: