DPP v Weston [2015] VCC 1790

(b) a bilateral supra and intratentioral subdural haematomas with further extra-axial, subarachnoid fluid to the left;

(c) petechial haemorrhages within the substance of the child's brain;

(d) a vitreous bleed in the left eye of the infant victim with multiple bilateral retinal haemorrhages in all quadrants of her retina;

(f) a distal left femoral metaphyseal fracture, which is a "corner" at the end of the femur; and

(g) bruises to the infant victim's forehead and left cheek.

4 After the child's admission to the Royal Children's Hospital, you gave untruthful accounts as to the cause of the victim's injuries and encouraged her mother and one of her young daughters to do likewise. (Charge 1) At the time that the infant was admitted to hospital, her older sister, who was aged three, was observed to have bruises on her right cheek. Some two days later, she told her uncle that you had caused those bruises. A further two days later, those bruises were seen by a medical practitioner who described them as three linear bruises on the right side of the child's face and who opined that they were suggestive of forceful impact with an adult hand.(see Exhibit C ) It was asserted by the Crown that you slapped the victim of Charge 2 between 20 and 25 November 2013 and most likely on the night of 23 November 2013, when you were minding both victims. (Charge 2)

5 Initially, the mother of the victims told false stories to medical staff and police concerning the mechanism of the trauma suffered by the victim of Charge 1. In effect, she protected you. Ultimately, she recanted her initial version of events.

6 You were interviewed under caution on two occasions by investigating police, on 25 November 2013 and again on 18 December 2013. In the first record of interview you maintained the false story that you had concocted with the mother of the victims, whilst in the second record of interview you made "no comment" answers to questions put to you by investigating police.

7 At the time of the commission of these offences, whilst you were living with the victim's mother, you were still married but separated from your wife, Nicole Weston. In her statement contained within the depositions and commencing at page 284, she recounts an incident where she observed you to be holding the victim of Charge 1 who was then but a number of days old. You were not supporting the baby's head. She asked you to be careful of the child, to which you responded, "I am. You need to be rough with them when they're little so they don't grow up to be sooks." As you said this, you started shaking the baby back and forth. You were not supporting the infant's head.

8 This incident gives insight into your attitude to children generally and is evidence that you were effectively warned that you needed to be careful of the infant.

9 At the time of your offending, you were the father of four children who were then aged eight, seven, six and five.

10 At the time of your offending, you stood in the position of father to each of the two victims. The duty of care that you owed to each of the child victims was a high one. In particular, the victim of Charge 1 was but four weeks old at the time that you inflicted serious injuries upon her. Objectively, your breach of your duty of care to each of these children is high and in respect of Charge 1, I regard your offending as a serious example of the crime of negligently causing serious injury.

11 The maximum penalty for negligently causing serious injury is 10 years' imprisonment, whilst the maximum penalty for recklessly causing injury is five years' imprisonment.

12 Tendered as Exhibit D was the report of Dr Lo, consultant neurosurgeon, dated 5 November 2015. In essence, the victim the subject of Charge 1, suffers no residual disability from her injuries and I sentence you on that basis. Dr Lo did express some reticence concerning any long term assessment of the infant victim of Charge 1, because of her tender years as she is now only two years old, and this presents difficulties in forming an opinion as to any potential difficulties that the victim may face in the future.

13 You are thirty-two years of age and were thirty at the time of your offending. You have 39 convictions or findings of guilt from 11 court appearances. You have prior convictions for violence and in particular violence in a domestic setting. At the time of the commission of the instant offences, you were serving a wholly suspended term of imprisonment for criminal damage, unlawful assault and contravening a family violence final intervention order. This is an aggravating circumstance of your offending.

14 Tendered as Exhibit 2 on the plea was a report dated 28 October 2015 from Gina Cidoni, psychologist, that when taken in combination with the written and oral submissions of your counsel, Mr Pearson, revealed that you are man of below average intellect. You were raised in Boort until the age of fifteen. Your mother and father, aged fifty-nine and fifty-eight respectively, work and are still married. You have two older and one younger siblings. Until recently, you have been estranged from your family. However, your mother was present in Court during the course of the plea and provided a reference for you. (See Exhibit 5.) As well, your younger sister provided a reference. (See Exhibit 6.)

15 You were exposed to domestic violence as a child. Your father was a violent man when under the influence of alcohol and was violent towards you and your mother. This has had an adverse effect on you and unsurprisingly has been influential in your attitude to violence/discipline towards/of children. However, having said that, your sister maintains that you are good with children which runs contrary to the statement of your former wife, Nicole Weston, that you had been violent towards her own children. Mr Pearson submitted that your offending conduct was explicable by your lack of intellect and your own upbringing. While this may explain your conduct it cannot excuse it.

16 You left school at the age of sixteen in the middle of Year 10. It was put that you were a poor student, which is consistent with your level of intellect. You were bullied at school and school was an ordeal for you. At sixteen you commenced an apprenticeship as a carpenter but did not complete your indenture. Since that time, you have lived a nomadic life travelling widely throughout Australia. You have, from time to time, undertaken certificate courses relating to motor vehicle mechanics and the driving of heavy vehicles and plant, and have more often than not worked in those areas, although you have often worked as a labourer. (See Exhibit 4.)

17 You have seasonal work available from Simpsons, a labour hire firm. You have worked for this organisation in the past. The work available to you is in road construction and principally line spraying. You are said to have been a good worker whilst employed by Simpsons. (See Exhibit 4.)

18 Whilst Mr Pearson did not pray in aid any of the principles set out in R v Verdins, you did undergo counselling after separating from your wife in 2012. You have been prescribed Carbamazepine as a mood stabiliser, although you experience side effects of sleeplessness and pruritus (that is uncontrollable itching) from this medication.

19 You have been a regular user of cannabis since your teenage years and after the instant offending, started to use methylamphetamine and your habit escalated to daily use, although it is much reduced in recent times.

20 You have pleaded guilty to charges different to those that you faced at trial, particularly in respect to the victim of Charge 1. Your plea, therefore, must be regarded as an early one and you are entitled to the benefits that flow from such a plea as it is some evidence of your remorse and it facilitates the course of justice. In this case, the utilitarian value of your plea is high.

21 Each of your victims were but children aged four weeks and three years respectively. They were in your care. The duty of care that you owed to each of them was of a high order and particularly so in respect to an infant four weeks old. The constellation of injuries suffered by the four week old child are redolent of severe shaking. Your attitude to the infant whilst born out of a combination of below average intellect and personal experience as it may be, is antithetical to proper parenting and the treatment of children. To my mind, your attitude is as unacceptable as it is inexcusable and it resulted in an assault on the victim of Charge 2.

22 You are an appropriate vehicle for the application of the principle of general deterrence. There were two victims of your acts. You have prior convictions for violence in a domestic situation, albeit in relation to an adult, your former wife. You were undergoing a suspended term of imprisonment at the time of your offending. You need to be specifically deterred from committing acts of violence.

23 Will you please stand up. Taking into account the circumstances of the offences and their effects, with your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.

24 In respect of Charge 1, you are sentenced to a term of two years' imprisonment.

25 In respect of Charge 2, you are sentenced to a term of one month's imprisonment.

26 This results in a total effective sentence of two years' imprisonment.

27 I direct that you serve a minimum of 15 months' imprisonment before you become eligible for parole.

28 I declare that you have spent 14 days by way of pre-sentence detention not including today.

29 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 42 months' imprisonment with a non-parole period of 30 months.

30 The Crown made application, pursuant to s.464ZF2 of the Crimes Act that you undergo a forensic sample and I have granted that order in respect to a scraping of your mouth. I have done so because the seriousness of the circumstances of the offending warrant the order, your prior convictions warrant the making of the order and the order or the granting of the order is in the public interest.

31 I must inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Police Force, then the sample that may be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I hand down three copies of my order. Are there any other matters to attend to? No. Remove the prisoner. I would like to thank counsel for their assistance in the matter and particularly in the sensible way in which the matter was settled.