DPP v Ripper [2006] VSCA 282

3 On 24 May 2006 the respondent pleaded guilty in the County Court at Bairnsdale to one count of causing serious injury recklessly. The offence carries a maximum penalty of 15 years' imprisonment. After a plea in mitigation conducted that day the learned sentencing judge sentenced the respondent to two years' imprisonment with a non-parole period of 18 months and a declaration was made that the respondent had served 64 days of pre-sentence detention. The learned sentencing judge further made an order that the respondent undergo a forensic procedure pursuant to s. 464ZV(2) of the Crimes Act 1958.

Crown Appeals - the principles

4 The principles which govern appeals by the Director of Public Prosecutions are set out in the oft-referred cases of R v Clarke[1] and R v Johnston.[2] In Clarke Charles JA, with whom Winneke P and Hayne JA concurred, stated the relevant rules in respect of Crown Appeals as follows:

"1. An appeal by the Crown should be brought only in "the rare and exceptional case" to establish some point of principle.

2. Occasions may arise for the bringing of a Crown Appeal. Those occasions would be as follows:

(a) where a sentence reveals such manifest inadequacy or

inconsistency in sentencing standards as to constitute error in principle;

(b) where it is necessary for a Court of Criminal Appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;

(c) to enable the courts to establish and maintain adequate standards of punishment for crime;

(d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected;

(e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and

(f) to ensure so far as the subject-matter permits that there will be uniformity in sentencing."

5 As the court explained in R v Clarke, the reason that there should be Crown Appeals, only in exceptional cases, is that such appeals:

"represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy".[3]

6 It has been made clear in numerous cases[4] that this Court does not interfere with the sentencing discretion of sentencing judges merely because it disagrees with the sentence imposed or thinks it is a sentence less than the Court itself would have imposed. As Winneke P said in DPP v Whiteside and Dieber:

"Those authorities make it clear that the Court's jurisdiction under s. 567A of the Crimes Act to interfere at the instance of the Director of Public Prosecutions, with a sentencing discretion already exercised against a respondent, should only be used in those rare cases where, inter alia, it is necessary to maintain proper sentencing standards and principles. The Court does not interfere with a sentence merely because it thinks that it is less than it would itself have imposed; rather it only intervenes when material error in reasoning is discerned or such inadequacy as indicative of error or departure from principle: R v Dodd."

7 The inadequacy of the sentence must be clear and egregious.[5] The sentence must be so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.[6]

8 If the appellate court determines that the inadequacy of the sentence falls within that category then as stated in R v Clarke:

"It ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance."

The Factual Circumstances

9 The respondent in this matter is the father of BS born on 25 June 1999, the victim of the charge of recklessly causing serious injury, to which the respondent pleaded guilty. The offences occurred between 14 April 2005 and 16 April 2005 at which stage BS was aged five years and approximately 10 months. The respondent, Damien Paul Ripper, was born on 3 May 1976 and at the time of the commission of this offence was aged 28 years and 11 months.

10 The respondent admitted 270 prior convictions and 27 prior findings of guilt from 32 previous court appearance ranging from October 1994 through to January 2004. Those prior convictions include seven counts of assault or assault with a weapon, five counts of making a threat to kill or threat to inflict serious injury, two counts of threatening to damage property, four counts of intentionally damaging property, two counts of criminal damage and two counts of recklessly causing injury. There are numerous other offences relating to driving, dishonesty and drugs.

11 Equally the respondent's criminal history demonstrates multiple breaches of sentencing orders including suspended sentences, community based orders, intensive corrections orders and combined custody and treatment orders.

The Prosecution opening

12 Exhibit A set out the agreed circumstances relating to the offending as follows:

"The mother of BS is MS. She gave the care of BS to the Accused on or about 24 October 2004.

During late October 2004, the Accused together with his son, BS, took up residence with Lydia Rees at her address at Madden Street, Morwell. Also living at that address was Adam Ripper (born 2 April 2004). The accused is the father of Adam Ripper.

Just prior to Christmas 2004, the Accused bought a 'Pocket Rocket', which is a very small motor bike, as a Christmas present for BS.

An aunty of the Accused, Debra Marks, visited the house of Rees and the Accused in January 2005. The Accused said to Marks that the child was being punished. The Accused pointed to a cupboard and said he was 'in there.'

When the child was examined by Debra Marks it was seen that he had purple welt marks on his back. Debra Marks then took the child to her home.

Some 4 or 5 days later another aunty of the Accused, Mary McLaughlin, visited Debra Marks. By that time the marks on the child's body had diminished. Mary McLaughlin noted on the child's body. Debra Marks had the child at her home in total about 2 weeks. Eventually the accused was allowed to take the child.

BS commenced school at Morwell Primary school on 1 February 2005. Teachers noticed injuries being injuries to the face, bumps and bruises, on the child on 8 February 2005. On 9 February 2005 it was noted that the child had sore fingers. The accused attended the school on this date. He said the child sustained the injuries when he fell off a motor bike. On 25 February 2005 the accused dropped off the child late to school. It was noted that he had further injuries to his face. The accused said that the child had sustained the injuries when playing with the (then 10 month old) child Adam.

The child was absent from school on 24 and 25 February 2005. On 28 February 2005 he arrived at school wearing a nappy. It was also noted that the had a black eye and bruising on his face. The accused, when questioned by the teachers about the injuries, said that the child had had another motor bike fall.

On 25 February 2005 a Paul Darcy sold to a cousin of the accused, Adrian Patrick McLaughlin, known as 'AJ', a small motor bike, described as a chopper. Later the same day the accused allowed to the child to have a ride on the bike. The child collided with a fence and sustained injuries to the face.

On 10 march 2005 when the child arrived at school he was seen to have a swollen nose and bruising across his face.

On 26 march 2005 Mary McLaughlin received a message from the accused asking it he and the child could come and stay at her place for the night. Mary McLaughlin was not at home at the time but agreed. The next day she returned home. The child was wearing sunglasses. She removed the sunglasses and saw that he had two black eyes. He also had a bruise in the middle of his forehead about the size of a 50 cent piece. She had seen the child two days earlier and on that occasion he did not have injury to his face. He also had bruises upon his stomach. Over the ensuing days she noted that the swelling was going down.

On 12 April the accused left the house of Mary McLaughlin and took the child back to the premises of Lydia Rees in Madden Street, Morwell. Rees, it is understood, will say that when he BS returned from Mary McLaughlin's place, he did not have black eyes anymore.

Mary McLaughlin visited those premises on 13 April basically to see if the child was all right. The accused refused entry to her because the child was 'being punished'. The mother of Mary McLaughlin was similarly refused entry on the following day.

On 16 April 2005 Lydia Rees was scheduled to go to her mothers house before midday. The child dilly-dallied over breakfast. Rees yelled at him. Under cross examination at committal Rees said that on that occasion she smacked BS ('I did not hit him') two or three times on the back of the leg. The accused who had, as he later told police, arrived home at about 4.30-5.00 am, woke up. He heard the yelling. He took the child to the bedroom. Rees later saw him sobbing. She saw that he had marks on his face. The accused left the premises at this time. When he returned Rees left the premises.

A man named David Dawe visited the premises after Rees left. When he arrived he saw the accused, AJ and the child at the premises. Dawe will say, it is understood, that he can't remember seeing any bruises on the child's face. Dawe left after a couple of hours.

The police then went to the house that evening and found the child alone and barricaded in the house."

The Injuries

13 The prosecutor opened in some detail the injuries suffered by the child, BS and read from a prepared document which was tendered and became Exhibit A on the plea.

14 That document referred to the background of this situation, as outlined above, and then stated, very specifically, the injuries upon which the Crown relied, which were as detailed in the report of Dr Andrea Jane Smith who examined BS on 18 April 2005.

15 In the report of Dr Andrea Jane Smith, the doctor identified specific injuries inflicted on the child. The Crown relied upon some of those injuries as being injuries that had occurred within the relevant time period to which the respondent had pleaded guilty. Those injuries, as listed in Dr Smith's report, were as follows:[7]

1. Head

(a) The majority of the left cheek was covered by mottled brown/yellow/red bruising which contained a donut-shaped clearing within it. Within this clearing were multiple, approximately 5 to 10 millimetre length long scabbed scratches mostly aligned parallel to each other and in a corner of mouth to left-ear orientation. In the lower part of this bruising overlying BS's left jaw was a cluster of scabbed abrasions.

(c) A swollen red-left upper pinna (upper end of ear) and a 10 millimetre by 20 millimetre brown bruise on the scalp behind his left ear. There were also three 5 millimetre scabs on the back of his left ear.

(d) On BS's right ear, over the lower pinna, was an area of purple/red bruising.

(g) BS had green/black bruising and a small scabbed lesion along his right upper eyelid.

(k) BS had a sloughy lesion under his tongue, involving the frenulum, a small ulcer at the back of the inside of his right cheek, and two small lesions, one each above his right upper lateral incisor and right upper canine tooth.

(a) BS's right arm from below his elbow to his right fingers was bandaged protecting an intravenous site.

(b) Over the upper front and outer aspect of both arms were multiple small blue/grey/yellow/brown bruises. On the left arm they appeared to be approximately 15 millimetres by 15 millimetres each.

(c) A large scabbed lesion on his left elbow and multiple yellow/grey bruises behind and surrounding his left elbow.

(d) There were a number of scabbed scratches on both shoulders.

3. Chest

(a) On BS's mid to upper right side of his chest were blue/red bruises.

(c) BS had small blue bruises over his left lateral ribs.

4. Abdomen

(a) On BS's upper right abdomen was a small blue bruise.

5. Back/Buttocks - BS had extensive bruising over his entire back

(a) Situate over his mid to upper back were at least seven yellow or blue bruises, the smallest measuring 7 millimetres by 7 millimetres and the largest was triangular shaped measuring 40 millimetres by 25 millimetres.

(b) Covering most of BS's mid back, particularly pronounced on the right side, was a large area containing numerous mottled purple/blue/black bruises. Within this area was some horizontal linear bruises. At the lower portion of this large area were a couple of clusters of scabbed abrasions.

(c) Overlying BS's lower back were three almost horizontal, raised, welt-like red bruises - the upper one measuring 80 millimetres long and the lower two measured 130 millimetres each.

(d) Over BS's lower back and both buttocks were a number of faded yellow/brown bruises.

6. Penis

(a) BS had a large blue/red bruise on the right side of his penal shaft.

7. Legs

(a) BS had red tram-track bruising over the lower front aspect of his left thigh.

(b) There was a red purple slightly curved bruise, with the suggestion of tram-tracking, over the lower front aspect of his right thigh.

(d) BS had faint grey bruising and a blue bruise over the front of his left knee and also had a number of scabs surrounding his left knee including two distinctly curved scabs and two straight scabs.

(e) Over the front of his right shin was a large grey bruise that contained some purple bruises and two straight scabs.

(f) Over the upper aspect of the back of his right thigh extending into his buttock was a large curved linear lesion of which the inner portion was scabbed and the outer portion was a brown bruise.

(g) Below this on the back of his right thigh was a small scratch and a large area of muffled purple/brown/yellow bruising.

(h) Over the back of his right knee was a large purple/yellow bruise that contained tram-track bruising.

(i) On the inner aspect of BS's left thigh was an area of mottled purple bruising.

(j) BS had a number of small mostly linear brown bruises over the back of his left thigh.

16 Photographs were taken of these injuries. Those photographs were tendered on the plea and became Exhibits B1, B2 and B3. Those photographs were before this Court. The description given by Dr Smith subsequent to the listing of the injuries was at page 7 of her report and read as follows:

"BS had significant injuries over his body and resembled a 'battered child'. The pattern and extent of injuries suggested repeated deliberately inflicted trauma."

Background

17 What emerged during the plea, and which goes beyond what is stated in the prosecutors opening, is as follows: On or about 24 October 2004 MS, who had subsequent children to another partner, gave the care of BS to the respondent. He was described as being a difficult child by both his mother and father. The respondent had not previously had much in the way of association with BS. From late-October 2004 until the time of BS being taken from his custody, the respondent lived at an address in Morwell with his ex de facto partner and their child who was born on 2 April 2004. There were some occasions, as earlier referred to, when the respondent and BS may have stayed at other premises for a week or possibly two.

18 On 16 April 2005 the police had a warrant to take possession of the child, BS. They went to the premises of the respondent. The child was found barricaded alone in the house and was removed to the police station. The respondent observed the police at the house, decamped and stayed out in the bush area until 28 April 2005 when he went to the Victorian Legal Aid offices at Morwell and, by arrangement, met the police. When BS was taken to the police station on 16 April 2005, it was noticed that he was hunched over and struggling to walk - in obvious pain. Initial photographs were taken at that point. He was transferred to the Latrobe Valley Regional Hospital by ambulance and on the following day transferred to Monash Medical Centre where he was examined, firstly, by Dr Nova Gibson a maxillofacial surgery senior registrar. That doctor's report, tendered on the plea, referred to multiple bruises to his face, jaw and neck, including a circular blue bruise over the right and left cheek that could have been bite marks and appearing to be of different ages and a fracture of the lower jaw bone accompanied by tender left jaw joint with an associated click on opening of the mouth. She described the amount of force required to cause the broken jaw as considerable, as children have a relevantly increased thickness of the bone in the area compared to adults. In her view the fracture had occurred within a period of three days prior to examination. In cross-examination at the committal proceedings another doctor agreed the injury could have occurred up to two weeks prior to the examination.

19 It would appear that the broken jaw was referred to initially during the plea as being part of the material that the Court could act upon in sentencing the respondent. Indeed in the initial submissions to this Court Mr Coghlan indicated that the infliction of the broken jaw upon the child was part of the serious injury count to which the respondent had pleaded guilty. Mr Holdenson for the respondent, carefully took the Court through the materials and demonstrated that the fractured jaw was not part of the injuries upon which the Crown had relied, or the respondent had acknowledged, with his plea.

20 There was undoubtedly some confusion in respect of this before the learned sentencing judge, as his Honour made reference during his very brief sentencing remarks at page 31 to the "possible broken jaw, concerns about possible internal bleeding, a fractured left cheekbone and the left rib". The broken jaw and the broken rib are not injuries that the respondent has conceded were inflicted by him and the Crown have accepted that, as demonstrated by the prosecutor at page 29 of the plea transcript.

21 The Director agreed that this was correct, and accordingly I will not act upon the injuries relating to the broken jaw or the broken rib as having been in any way caused by the respondent. I do however, act upon the basis that the injuries to the face as admitted by the respondent, were injuries inflicted upon a child with an already broken jaw, and who had clear and obvious swelling to his facial area at that time. It cannot be disputed that the infliction of further injuries on an already significantly injured area of his face must have caused the child a great deal of pain and suffering.

The Sentence

22 The courts have an obligation to protect children from harm, be it physical sexual or psychological. Accordingly, sentences in cases of this kind should send a message which is clear and unequivocal. As Tadgell JA put it in R v Thompson:[8]

"The courts must do what they can to send to the community a message of crystal clarity that conduct of this kind is intolerable in a civilised society."

Save for most unusual circumstances, the infliction of serious injury on young defenceless children will be visited with condign punishment.

23 The victim in this case was only five years of age and incapable of defending himself in any way. The judge directed attention to those facts in his sentencing remarks, as follows:

"It is plain however for a period you were certainly doing your best as far as you could and that you gave him quite a few gifts, including a miniature motorbike which apparently was the cause of a number of his injuries. In any event you found you could not control him and it seems also plain on the evidence you resorted as a means of control, and the only means of control, to hitting and punishing him in the hope that that would make him behave, and it may be that you took out some of your frustrations on the child. However the injuries which you inflicted upon him were by any standard both brutal and severe, and you probably now appreciate that yourself."[9]

24 Despite those observations, however, it is clear that the sentence which was imposed was manifestly inadequate. This was a savage and brutal beating of a defenceless young child which was productive of serious injuries. It called for condign punishment. On any analysis, a head sentence of two years' imprisonment with a non-parole period of 18 months fell way short of the mark.

25 The sentencing synthesis having miscarried, it falls to this court to re-sentence the respondent.

26 There are numerous matters that must be taken into account in determining the sentence that this Court should impose upon the respondent. I start with the offence, it was a cowardly beating of a young child, that involved infliction of injury to every part of his body - head, arms, chest, buttocks, legs and penis. From the description of the injuries and the photos of those injuries it must have been a sustained beating of the child. It is my view that this is a serious example of the reckless causing of serious injury to a child, albeit that no bones were broken in this attack upon the child. However the child could barely walk when found by police and was, not surprisingly, silent and withdrawn. The victim in this case was beaten by his own father, a person who had a duty, an obligation, to protect and care for him, the respondent was in a trusted position in relation to the child and he abused that position.

27 There is no doubt that the respondent must have been angry at the time of the infliction of these injuries and it is clear from his criminal history that when angry he becomes violent and loses his self control. Such loss of self control does not in any way excuse his behaviour to this child. His inability to control the child may well have been caused by his lack of familiarity with parenting, and his unsuitability to care for a young growing child, but that in no way minimises his responsibility for the commission of these offences. The evidence was that he was part of an extended family and did on occasions go to others for assistance or accommodation, but at no stage did he ask for assistance from them or any welfare agency to prevent him hurting the child.

28 I take into account in the respondent's favour that he pleaded guilty to this offence, albeit not at the earliest stage, but shortly prior to a trial. I take into account also his personal circumstances including his lack of male parental role model, and his deprived background.

29 I recognise the element of double jeopardy involved in the respondent facing sentence more than once in respect of the same crime and I proceed on the basis that the sentence I would impose should not be as severe as the Court would otherwise impose.[10]

30 Balancing the considerations to which I have referred with the obvious need for specific deterrence of this respondent and the need for general deterrence for crimes of this nature, I am of the view that the sentence that should be imposed is one of four years and six months' imprisonment. And that the respondent should serve a non-parole period of two years and six months' imprisonment.

[1] [1996] VICSC 30; [1996] 2 VR 520 at 522.

[2] [2004] VSCA 150; (2004) 10 VR 85 at 96-7.

[3] R v Clarke p 522

[4] DPP v Phillip Josefski [2005] VSCA 265; Everett v R [1994] HCA 49; (1994) 181 CLR 295; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227; DPP v Whiteside and Dieber [2000] VSCA 142; (2000) 1 VR 331.

[5] DPP v Oversby [2004] VSCA 208.

[6] Everitt v R at 306 per McHugh.

[7] There were a number of other injuries upon which the crown placed no reliance and accordingly not included in this list of injuries.

[8] Unreported, Court of Appeal 21 April 1998 page 7-8

[9] Sentencing remarks para 13

[10] Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at p 383