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[2016] VSCA 243
General information, not legal advice.
Court of Appeal (Vic)
2016-10-10
Mr J, Maxwell P, Osborn JA
Original judgment source is linked above.
[2015] VCC 1790 (Judge Ryan)
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Negligently causing serious injury - Baby shaking - Infant victim - Fractured skull, haemorrhages, fractured ribs and femur - Plea of guilty - Sentenced to two years' imprisonment - Whether manifestly inadequate - High level negligence - High culpability - Offender warned previously - Victim's condition - Risk of future seizures, cognitive decline - Loss of enjoyment of life - Appeal allowed - Resentenced to four years' imprisonment.
1 The respondent, Darren Weston ('DW'), pleaded guilty to one charge of negligently causing serious injury (to a four week old infant) and one charge of recklessly causing injury (to her older sister, aged three years). The victims were his de facto partner's children. He was sentenced as follows:
2 The Director of Public Prosecutions has appealed on the ground that the sentence is manifestly inadequate. For reasons which follow, we would allow the appeal and resentence DW to four years' imprisonment, with a non-parole period of two years and six months.
Circumstances of the offending****[3]
3 DW is the father of four children from a previous marriage. Following the breakdown of that marriage, he commenced a de facto relationship with Mary,[4] who was then in the early stages of her third pregnancy. DW began living with Mary and her two daughters. DW's former wife (Susan) maintained contact with him and with Mary. Susan provided support to them both before and after the birth of Mary's third daughter, Laura.
4 During the first weeks of Laura's life, several family members saw DW treating her roughly. As detailed below, he was seen shaking her, throwing her at another person and holding her by one leg. He was observed becoming easily frustrated and angry with her.
5 When Laura was a week old, Susan was at the home of DW and Mary. Susan was helping with Laura, who had been discharged from hospital the previous day. She asked DW to be careful with Laura because he was holding her under the armpits without supporting her head. DW shook Laura four or five times and said, 'I am. You need to be rough with them when they're little so they don't grow up to be sooks.' Susan removed Laura from DW and gave her to Mary.
6 The same day, Susan saw DW holding Laura on his chest. He removed his hand from her back and let her hang by one leg. Susan told DW not to be rough and not to shake the baby.
7 A few days later, DW went with Mary and her daughters to a barbecue at Susan's home. DW took Laura from her mother and threw her to Susan, calling out 'catch' as he did so. Susan turned around and was able to catch Laura on her chest.
8 When Laura was between one and one and a half weeks old, DW was holding her when she began to cry. DW grabbed her under the arms and shook her without supporting her head. Her crying increased. Mary was sitting on the couch and told DW to stop. DW told Mary that Laura was her problem and threw the baby at her. Laura's head hit Mary's collarbone.
9 When Laura was approximately three weeks old, the family were again visiting Susan's home. On this occasion, DW threw Laura in the air. Stephanie, the daughter of DW and Susan, told her father not to be rough. Stephanie was aged eight at the time. During the same visit at Susan's home, DW shook Laura. Susan entered the room and told DW not to shake her. DW said, 'Don't tell me what to fucking do', and threw Laura to Susan.
10 On another occasion, at Mary's home, Laura was lying on the floor. Mary was present, as was DW's daughter, Stephanie. DW picked Laura up by one leg and flipped her towards him.
11 Stephanie described her father's treatment of Mary's daughters in her diary. She said he smacked Mary's girls much harder than he had done with his own children when they were naughty. Stephanie described to police an incident where DW had slapped Laura on the face and pushed her from side to side, rolling her around on the change table. He left the room for a while and then came back. He picked Laura up and then dropped her back onto the change table. He then took Laura to the cot and dropped her into it.
12 On Friday 15 November 2013, Susan and her partner saw bruising on Laura's face. She was then three and a half weeks old. DW and Mary each said that the other had pinched Laura on the cheek. They were both observed laughing about the injury.
13 Between 20 and 24 November 2013, as detailed below, Laura sustained multiple injuries at the hands of DW, culminating in her admission to the Royal Children's Hospital on 24 November 2013.
14 On Thursday 21 November, Mary heard Laura crying. DW told Mary that he had rolled off the couch while holding Laura and that her head had become caught in the couch recliner. Later than evening, Mary noticed a red mark or bruise on Laura's cheek and a bump/line on her head.
15 On Saturday 23 November 2013, Mary went to her mother's birthday party. DW stayed at home with Laura and her three year old sister (Rosie). The eldest of Mary's three girls was away for the weekend. DW was alone with the two younger girls from approximately 7.30 pm until after midnight. He exchanged text messages with Mary, assuring her that everything was fine.
16 During the evening, however, DW lost his temper and vigorously shook Laura. He applied significant force to her head, causing multiple injuries (detailed below).
17 The following day, Sunday 24 November, Laura presented as unsettled and in pain. Around 7.00 pm, Mary was feeding Laura on the couch. Laura began vomiting. Mary handed Laura to DW, who began removing her jumpsuit. Laura went limp and her arms began flopping.
18 Mary called an ambulance. The dispatcher gave instructions and DW performed CPR on Laura as the ambulance was en route. A paramedic observed Laura to be limp and drowsy, with a bruise to her left cheek. At the Emergency Department, Laura was breathing intermittently. She had a seizure. She was intubated, ventilated and sedated.
19 Laura was admitted to the intensive care unit and underwent various examinations including a CT scan, an MRI, a bone scan and a skeletal survey. She was found to have the following injuries, which form the basis of charge 1:
(b) a bilateral supra- and infratentorial subdural haematoma, with further extra-axial, subarachnoid fluid to the left;
(c) petechial haemorrhages within the substance of her brain;
(d) a vitreous bleed in her left eye, with multiple bilateral retinal haemorrhages in all quadrants of the retina;
(f) a distal left femoral metaphyseal fracture, which is a fracture at the end of the femur; and
20 At the time of Laura's admission to hospital, staff observed that Rosie, Laura's three year old sister, had bruises on her right cheek. Two days later, Rosie told her uncle (Mary's brother) that DW had caused the bruises. A further two days later, a medical practitioner described the bruises as three linear bruises on the right side of the face. The injury was suggestive of forceful impact with an adult hand. DW had slapped her some time between 20 and 24 November, most likely on the night of 23 November 2013, when he was at home alone with Rosie and Laura. This was the basis of charge 2.
21 In the aftermath of Laura's admission to hospital, DW lied about the cause of her injuries, and encouraged Mary and Rosie to give false accounts of what had happened to Laura.
22 DW and Mary both told hospital staff that Laura had been injured after being dropped by Rosie. Shortly after DW and Mary were told that Laura had suffered a bleed on the brain, Rosie awoke from sleep on a couch in the hospital waiting room. DW asked her if she remembered dropping Laura. Rosie replied, 'Yes', and went back to sleep. DW then told Mary, 'Rosie would say anything you want'.
23 Rosie was taken to police by Mary's mother on Monday 25 November 2013 and participated in a video-recorded interview, in which she said that she had dropped Laura. She said that she had got Laura out of her cot. She had then fallen over on the stairs at the house and had dropped Laura. In a later interview, however, Rosie stated that she had never dropped Laura.
24 When DW was interviewed by police, he described the events of the Sunday evening and Laura's collapse. He said that hospital staff had told him that Laura had some bleeding on the brain and had had a seizure. He said that hospital staff had also asked about a bruise on Laura's eye, but that they were 'mainly talking to [Mary]'.
25 DW said that all he knew was that Rosie had been walking down the steps and had dropped Laura. When he was asked how he thought Laura had sustained injuries to the head, DW said that she had not hit her head at any other time. He said that he and Mary 'played' with Laura, by holding her and moving her around and 'going to throw her,' but he denied becoming frustrated with her, shaking or otherwise assaulting her.
26 These matters were set out in full in the prosecution summary on the plea. The prosecutor did not, however, make any submission as to their potential relevance to the sentencing. Unsurprisingly in the circumstances, the judge did not treat the post-offence conduct as having any direct relevance to the sentence.
27 The Director's written case for the appeal included DW's post-offence conduct in a list of what were said to be the aggravating features of the offending. In response to questions from the Court, however, senior counsel for the Director submitted that the only relevance of the post-offence conduct was in demonstrating an absence of remorse. Thus characterised, of course, it could not constitute an aggravating factor. Rather, it would amount to the absence of a mitigating factor.
28 In our view, it would have been open to the sentencing judge to conclude - and for the Director to have submitted on this appeal - that this conduct was indeed an aggravating factor, that is, that it increased DW's culpability for the offending. There is clear authority in decisions of this Court for such conduct to be treated as part of the relevant circumstances of an offence.
29 In Director of Public Prosecutions v Scholes[5] the offender had pleaded guilty to causing death by culpable driving. The victim had been a passenger in the car which the offender was driving. After the accident, however, the offender moved the victim's body - 'forcefully and roughly'[6] - from the passenger's seat to the driver's seat. The uncontested evidence was that he had done so not to help the victim but 'to make it look like she had been driving the car at the time of the accident'.[7] The sentencing judge concluded that, because there was no evidence that this conduct had contributed to the victim's death, he could not take it into account in sentencing the offender.[8]
30 On an appeal by the Director, Tadgell JA (with whom Charles and Buchanan JJA agreed) concluded that this was an error on the judge's part and that the postoffence conduct was relevant to sentence. The use to be made of it was:
not essentially different from the use to be made of his relevant pre-accident conduct, including his criminal history. ... The conduct in question was, in my opinion, useful at least to illuminate [his] moral culpability for the offence of causing the death of [the victim] by negligently culpable driving. It did so just as, for example, [his] act of getting into the [car] and driving it showed an indifference to the law and a contumelious infraction of it.[9]
The Court rejected a defence contention that to use the post-offence conduct in this way would be tantamount to sentencing the offender for conduct constituting a separate offence of which he had not been convicted, namely, attempting to pervert the course of justice.[10]
31 The same issue arose the following year in Director of Public Prosecutions v England,[11] in the context of interference with a corpse following a murder. Brooking JA (with whom Batt and Chernov JJA agreed) said:
Long before the Sentencing Act rose above the horizon judges drew on their common sense and their moral sense, as representing that of the community, in deciding what things about a crime could be said to make it more or less serious. They still do; nothing in the Act stops them doing this. Common sense and moral sense, which are and must ever be the essential foundation of sentencing principles and practices, unite in rejecting the notion that 'the circumstances of the offence', for sentencing purposes, are neatly marked out by two lines, one at the technical beginning and the other the technical end of the crime.[12]
Against that background, his Honour said, the decision in Scholes had come 'as no surprise'.[13]
32 In our view, DW's conduct fell squarely within this line of authority. His attempt, in the aftermath of his own mistreatment of Laura, to lay the blame for her injuries on her three year old sister was disgraceful. That he tried to enlist a three year old as an unwitting participant in the lie defies credulity. This was not done in the heat of the moment, and so could not be explained away as an act of sudden panic. At the same time, it was sufficiently proximate to the offending to be properly regarded as part of the relevant circumstances.
33 Viewed in this light, DW's conduct 'was useful at least to illuminate his moral culpability for the offence',[14] and should have been regarded as making him the more culpable. Given, however, that no such argument was advanced either on the plea or on the appeal, such considerations must be disregarded for the purposes of this appeal.
34 Defence counsel tendered a psychological report, which was relied upon only for the purposes of background and context, and to inform the judge that DW was of below-average intelligence.
35 At the time of the offending, DW was aged 30. By the time of the plea, he was 32. He had experienced a dysfunctional upbringing, including exposure to violence at the hands of his father. In a helpful written outline, defence counsel submitted to the judge that DW:
clearly grew up in an environment involving an exposure to high level domestic and personal violence, where survival involved becoming inured to regular corporal punishment. His learnt 'old school' values have dictated that people, including children, must be physically robust to survive.
36 DW was educated to year 10. He was a poor student academically. He was bullied and found school difficult. He is barely literate. He has an older sister, an older brother and a younger sister. DW is not close to his family, although his mother attended the plea hearing to support him.
37 Upon leaving school at age 16, he commenced but did not complete a carpentry apprenticeship. Over the years, he undertook training towards a motor mechanics certificate, and worked in various car dealerships in a mechanical capacity (although he has never undertaken an apprenticeship in this area). DW's employment had always been sporadic and menial. At the time of the plea, he was employed as part of a bitumen spraying team for the roads around Bendigo.
38 DW had previously lived a largely nomadic lifestyle. He travelled around Australia with his former wife, Susan, and their four young children. Because of these charges, DW had not seen his children since October 2014, which was a source of sadness and frustration for him.
39 DW's relationship with his former wife had been tumultuous and marred by domestic violence. Intervention orders had been a feature, both against DW and against Susan. DW had experienced problems with alcohol and substance abuse. He was not, however, affected by drugs or alcohol at the time of the offending.
40 Following the commission of these offences and his subsequent separation from Mary, DW was under a great deal of stress and resorted to the daily use of methylamphetamine. At the time of the plea, this use had stopped.
41 The circumstances of the offending were, according to DW's instructions, that he was placed in a situation where he became frustrated by the children crying. He slapped Rosie. He grabbed the infant Laura and shook her for a period of time. Notwithstanding this, Laura appeared to him to be fine the next day, albeit that she was crying on occasion. Defence counsel submitted that it had been 'a long struggle' for DW to accept that he was the cause of Laura's serious injuries.
It is extremely fortunate that on the available evidence there's been no long-term physical effects on [Laura]. ... [T]o sentence [DW] on any other basis by way of wondering or speculating or guessing whether [Laura] will have any long-term problems would not be the correct basis upon which to sentence him.
43 Despite DW's obvious limitations, it was submitted, his prospects for rehabilitation were reasonable. In relation to disposition, defence counsel submitted that this offending was 'at the low end of the range, taking everything into account'.
44 Assessing the seriousness of DW's offending requires consideration of the objective gravity of the offences and of DW's moral culpability. As this Court recently affirmed in Harrison v The Queen,[15] the objective gravity of a particular instance of negligently causing serious injury is to be assessed by reference to the degree of negligence involved and the seriousness of the injury caused.
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.
...
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.[16]
46 Unsurprisingly, counsel for DW took no issue with these findings on the appeal. They were, with respect, plainly correct. His Honour's reference to the duty of care being 'a high one'[17] rightly emphasised the stringency with which a court would view the standard of care expected of a parent (or a person in the position of parent) looking after an infant child. The utter dependence of the child on the adult's care and protection is self-evident.
47 The duty of the parent has two key aspects: to provide the child with what it needs for its healthy development, and to protect it against harm. What occurs in a case such as the present, of course, is not merely a failure to protect the child from harm. It is the active causing of harm - albeit by negligent conduct - which makes the breach of duty so grave.
48 It is convenient to deal now with DW's culpability. As we have said, the vulnerability of an infant is immediately apparent to any adult of ordinary sensibility, whether or not the adult has had any previous parenting experience. DW, of course, had had extensive parenting experience, there having been four children of his marriage to Susan. He knew perfectly well what care was required, and what a high responsibility he carried in caring for a baby.
49 Much was made on the plea - though not on the appeal - of DW's 'limited intellect' and the damaging effect on him of having been subjected to, and having observed, domestic violence as a child. According to the plea submission:
Domestic violence within the family grouping is generational in the sense that those who are witness to domestic violence at a young age come to accept it as the way the world is and become inured to violence within the home unit.
50 The judge accepted that DW's upbringing had had an adverse effect on him which 'unsurprisingly [had] been influential in [his] attitude to violence/discipline towards/of children'.[18] Nevertheless, his Honour said, '[w]hile this may explain your conduct it cannot excuse it'.[19] We respectfully agree. Nothing in DW's upbringing could be viewed as in any way reducing his culpability for causing injury to an infant or a three year old child. Moreover, even though his post-offence conduct is not to be treated as aggravating his moral culpability given that no relevant argument was made on the plea or on the appeal,[20] it illuminates his moral culpability.
51 As senior counsel for the Director correctly submitted, DW's culpability for this offending had to be assessed as high. As the judge pointed out to defence counsel on the plea, this was not a case of sudden, unanticipated loss of control by an adult, out of anger or frustration at a crying child. DW had been specifically, and repeatedly, upbraided by his former wife, his daughter and his partner for his violent treatment of Laura, and told in very plain terms not to behave in that way. His stubborn and offensive responses to these very sensible interventions reflect no credit on him at all.
52 In his reasons, the judge described the incident where DW shook the baby immediately after having been warned by Susan to be careful.[21] His Honour then said:
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.[22]
His Honour did not, however, proceed to make any finding about DW's culpability or about the significance for that purpose of his having been repeatedly warned not to be rough with Laura. With respect, this was a necessary part of the sentencing analysis, as it would readily have exposed a key difference between this case and that of Mok v The Queen,[23] to which the prosecutor referred and which we discuss below.
53 As we have said, the fact of the prior warnings increased DW's culpability for this offending. He was not, of course, to be punished for any of the conduct which had prompted others to warn or upbraid him.
54 On the plea, the prosecutor relied on the report of Dr Patrick Lo, a consultant paediatric neurosurgeon, who had assessed Laura on several occasions between November 2013 and July 2015. The relevant part of Dr Lo's report was in these terms:
[Laura] was admitted to the Royal Children's Hospital in November 2013. She had allegedly suffered a head injury with bilateral subdural haematomas. I have since reviewed her on occasions after discharge with the last appointment being in July 2015. As of her last appointment I could not elicit any focal neurological deficits. However, she did have seizures early on in her post injury phase. She was able to be weaned off her anticonvulsant therapies shortly after.
In addressing your specific queries regarding this delightful young child, I can state the following:
As of her last appointment, [Laura] does not have any focal neurological deficits. However, given the history, in my clinical opinion and on balance, with the significant head injuries sustained by [Laura], and the fact that she had seizure events after the injury, the potential of seizure will always be present. That is, if she is unable to maintain a healthy lifestyle with adequate hydration, nutrition, exercises and avoidance of risk factors such as alcohol consumption, there remains a possibility of her developing seizures at a later age. In my clinical opinion, based on the relevant findings in radiology and clinical follow up of this patient, if the stated injury has altered, then there is an increase in the likelihood of [Laura] developing seizure events at a later age.
As this child is only two years of age, long term cognitive decline cannot be assessed at present. There may be issues with her learning, cognition and behaviour into the future that cannot be identified at present. It is has been reported that significant head injuries will result in a decline in cognitive function, intelligence and may lead to major behavioural issues at a later age. This cannot be determined at present and further assessment by expert specialists will be required.[24]
55 In his sentencing reasons, the judge expressed his conclusion in these terms:
In essence, [Laura] 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 [Laura] 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 [she] may face in the future.[25]
56 The appeal submission for the Director emphasised, quite correctly, Dr Lo's findings that:
The submission also pointed out that, on Dr Lo's assessment, Laura would be at risk of seizures at a later age unless she maintained 'a healthy lifestyle' and avoided 'risk factors such as alcohol consumption'.
57 Plainly enough, the present case is different from one where - at the date of sentencing - the evidence establishes actual brain damage and resultant disability. The case of R v Rallis,[26] discussed below, is such a case. The seriousness of a frank injury of that kind is relatively easy for a judge to assess. But the injury in the present case seems to us also to be very serious, notwithstanding that there is no present disability.
58 On the evidence, the injury which DW caused means that Laura will be at risk of seizures for the rest of her life. She will live her life in the constant knowledge of that risk and is likely to experience stress and anxiety as a result. She will also have to maintain a healthy lifestyle and avoid risk factors such as alcohol. There is also the risk of a decline in cognitive function and intelligence.
59 It is, in our view, a very serious thing to place a child at lifelong risk of this kind. The inevitable consequence, as Osborn JA pointed out in argument, is that Laura will be constrained in her life choices. She will suffer what is described in the field of damages for personal injury as 'loss of enjoyment of life' or 'loss of the amenities of life'. That is, she will not be able 'to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer'.[27] That the magnitude of the loss cannot be accurately predicted at this stage does not diminish the seriousness of what has occurred, particularly as it is to be assumed that Laura will be fully aware of her limitations.[28]
60 As the majority in Director of Public Prosecutions v Karazisis[29] pointed out, the contention that a sentence is manifestly inadequate is invariably expressed as a contention that the sentence was outside the range reasonably open to the sentencing judge in the circumstances of the case. The Court said:
As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[30]
61 Since the High Court decision in Barbaro v The Queen,[31] it has not been possible for sentencing judges, or for this Court on appeal, to receive assistance from prosecutors as to what is said to be the applicable sentencing range for the case before the Court. On the present appeal, accordingly, senior counsel for the Director could give no assistance beyond affirming, in answer to a question from the Court, that the sentence imposed on DW should have been 'much higher'.
62 It is well understood by those who appear in - and those who have to decide - sentence appeals that what is in issue on every appeal is whether the offender will have to spend more or less time in custody. Of necessity the debate is conducted by reference to sentencing principles and the appellate court must ensure consistency in the application of such principles.[32] But what both sides to a sentence appeal are chiefly concerned with is whether the prison term is to be shortened or lengthened. Given the profound punitive effect of the loss of liberty, this is hardly surprising.[33]
can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.[36]
To that end, the parties to sentence appeals invariably rely on other sentencing decisions for the purpose of comparison.[37]
64 In the present case, the prosecutor provided the judge with a folder containing a number of sentencing decisions. The prosecutor's submission was that 'there aren't many cases that can really assist your Honour with this offence'. She did, however, draw the judge's attention to this Court's decision in Mok.[38]
65 In that case, the offender was found guilty, after a trial, of negligently causing serious injury to his infant son, who was 23 months old at the time. The injury occurred when the offender decided to give the child a bath. He turned on the hot tap and filled the bath, without realising that he had not also turned on the cold water tap. The offender then put the child into the bath and left the room for less than 30 seconds, to collect clothes and a nappy. As soon as he realised the water was very hot, the offender picked the child up and ran cold water over his feet. The child sustained full thickness burns to his feet, ankles and the lower parts of his legs. He also had partial thickness burns to his lower back, upper thighs, buttocks, and genitalia.
66 The sentencing judge had imposed a sentence of three years' imprisonment, with a non-parole period of 20 months. This Court upheld the manifest excess ground and reduced the sentence to two years' imprisonment, of which all but nine months was suspended. Nettle JA (with whom Sifris AJA agreed) explained the resentencing decision in these terms:
First, despite the very serious consequences of the offence, I place the objective gravity of the offending down in the low to medium range. By definition, it involved a degree of negligence worthy of criminal punishment. But according to the jury's verdict, and my assessment of the facts, it was negligence constituted of momentary inattention, as opposed to the kind of sustained, near to recklessness negligence often associated with offences of negligently causing serious injury in motor accidents. It was with a view to the latter, not the former, that the maximum penalty for negligently causing serious injury was increased from five to 10 years' imprisonment.
Secondly, I place the appellant's moral culpability towards the lower end of the scale. Certainly, he is responsible for what occurred and he should not have allowed it to happen. But according to the jury's verdict, and my assessment of the facts, his negligence was the result of nothing more egregious than immaturity, inexperience and inattention. That he did not own up to the error as quickly as he should have does not alter that fact. Given his age and immaturity, one can readily understand that he might have hoped and perhaps even believed that the problem would go away without medical intervention. More importantly, there was no thought here of hurting the child or disregarding its welfare. The appellant's intention was to care for the child by bathing it. The only problem was that he went about it negligently. His degree of moral culpability thus stands in contrast to the higher degree of moral culpability involved in the so-called baby shaking cases of negligently causing injury.
Thirdly, there is no need here for specific deterrence. There is no question that the appellant loves his son and is remorseful of causing him harm. There was also evidence put before us on the plea that the appellant's relationship with his younger child and his ability to care for her were monitored and assessed in the home by the Department of Community Services before the appellant was gaoled, and that the Department determined that there is no reason to have any concerns about the appellant's ability to care for the child.
Fourthly, although general deterrence is always a relevant sentencing consideration, in this case it does not loom large. It would be unrealistic to think that the sentence to be imposed in this case would have the slightest effect on the likelihood of similar offences being committed in the future.
Finally, continued incarceration of the appellant is particularly burdensome, because he is separated from his young partner and younger child and, therefore, unable to care for them when they need his support most. Additionally, due to Corrections Victoria guidelines applicable to offences involving injuries to children, as long he remains in prison, he will not be permitted to see either of his children; even at gaol on prison visiting days.[39]
67 Neave JA dissented in the result. Her Honour would not have suspended any part of the sentence of two years' imprisonment. Accepting as relevant that the offender was only 18, had limited prior convictions and had not previously abused the child, her Honour said:
Despite these mitigating factors, I consider that both the vulnerability of the victim, an infant aged only 23 months and the lasting effects the injury will have on him, place the offending at least in the middle range of seriousness of the offence of negligently causing serious injury. [The victim] has had to undergo painful surgical procedures on a number of occasions. Further skin grafting is likely to be required in the future. He will have permanent visible scarring on his feet and may have difficulty in running.
The appellant knew that the temperature of the water coming out of the hot tap was very hot and said that he would himself have found it intolerable to have a bath or shower standing under the hot tap. The risk of exposing a small child to scalding if he or she is bathed in very hot water would have been self-evident, even to a person of the appellant's age and immaturity. The appellant had had ongoing contact with the child since his birth, and indeed, had sole care of the child for some or all of the six months when the child's biological mother was overseas. He also had some experience in caring for his step-sister when she was an infant. His culpability was arguably higher than that of an offender who shakes a crying baby, without appreciating that this is likely to seriously injure the child.
In many cases it will not be appropriate to compare the moral culpability of a driver who negligently causes serious injury, with the moral culpability of a person whose negligence occurs in a non-driving context, because negligent driving creates a very obvious risk that others will be harmed. However in my opinion, the appellant's inattention involved culpability reaching at least the level of culpability of a driver who negligently causes serious injuries to a passenger because he is distracted by looking at SMS messages on a mobile phone.[40]
68 The prosecutor in the present case submitted that DW's offending should be contrasted with that in Mok. The judge agreed, saying that the present offending was 'not of the same character'. Quite properly, in our view, the prosecutor was relying on the decision in Mok (as did senior counsel for the Director on the appeal) not as directly comparable but as 'instructively different'.[41] As Gaudron, Gummow, and Hayne JJ said in their joint judgment in Wong v The Queen:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.[42]
69 Counsel for DW, on the other hand, drew attention to two first instance decisions, in each of which a non-custodial sentence was imposed for what was said to be comparable offending. Both on the plea and on the appeal, it was submitted that, because of the similarities, the sentence imposed on DW should be viewed as stern.
70 The first case relied on was Rallis.[43] In that case, the offender had pleaded guilty to one charge of negligently causing serious injury. (Importantly, at the time of that offending the offence carried a maximum penalty of five years' imprisonment. The maximum was later increased to 10 years.) The offender was caring for his six week old daughter when he shook her, causing her to suffer cerebral oedema, subdural haemorrhages, severe diffuse brain injury and bilateral retinal haemorrhages. By the time of sentencing, the child was aged two years and three months.
71 The sentencing judge made the following findings:
She continues to suffer profound consequences of the injuries caused by you to the present time. She suffers asymmetrical spastic quadriplegic cerebral palsy, a significant seizure disorder and cortical vision impairment. Her use of vision is variable and sometimes her visual responses are after a delay. She has only just begun to stand using a standing frame at home and has difficulty maintaining her head upright and in maintaining back extension. She has only just begun to touch and grasp toys, and has very limited use of her hands. She is unable to speak and communicates through crying and smiling. She is a severely disabled child who requires an intensive home exercise program and has ongoing review from a physiotherapist and paediatrician at the Royal Children's Hospital. She is also case managed by the 'Early Choices Program' at MOIRA, an organisation which supports families who have a severely disabled child under five years of age.[44]
The injuries which you [have] inflicted upon [the child] are of an extensive, debilitating and permanent nature. You have destroyed the potential of a perfect newborn baby to have a normal life. Her quality of life is drastically reduced to one where she is destined throughout her life to be dependent upon others in order to have her basic needs fulfilled or to have any sort of enjoyment of life.[45]
73 Subsequent to the offending, however, the offender had
diligently attended to the high level of care which [the child] requires because of the injuries which you inflicted. She is unable to do anything for herself. She needs assistance in selecting a position, is upset by loud noise and requires reassurance. She needs to be fed, bathed, dressed and have administered to her medication for seizures and an intensive daily regime of exercise.[46]
74 Having viewed a video of the child with the offender, her Honour commented that the child
appeared to be a clean, well dressed and well-groomed baby who was being given a great deal of attention, stimulation and painstaking care by yourself. You demonstrated gentle and loving care of her with regular caressing and kissing ... you impressed me as a loving father who takes genuine pride in both of your children. I was left in no doubt that each day you are reminded of the damage that you have done to [the child] and that you have determined to do your utmost to help her realise her remaining potential.[47]
75 The judge imposed a sentence of three years' imprisonment but ordered that the whole of the sentence be suspended for a period of three years. Her reasons were as follows:
the material before me indicates that, notwithstanding a significant struggle with huge disabilities, [the child] has made physical progress and has developed a strong attachment to you. It also indicates that you provide comfort to [the child], along with the servicing of her many physical needs. I am satisfied that your genuine remorse has created a devotion to [the child's] physical and emotional wellbeing which is unlikely to be matched by another carer, even her mother. I consider this to be one of those rare cases where mercy should be extended in the interest of the welfare of [the child], so that her routine of care which has now been in place for some 15 months should not be disrupted by requiring you to serve an immediate custodial sentence. As a very vulnerable, profoundly disabled member of society, she is entitled to optimal care. Ironically, although you are the person who caused her to be so needy, I am of the view that you are the best person to continue to address her needs. Moreover, I believe that the community would consider it morally appropriate that you, who caused her injuries, should take up the very considerable burden of caring for their consequences. I am satisfied that you [are] capable of doing so not only without any likely risk of further harm to [the child], but with the maximum benefit to her.
The other factors which I have taken into account in arriving at this decision are your remorseful plea of guilty, the very substantial rehabilitative gains made by you as evidenced by your dedicated parenting role, such that I think it unlikely that you will offend again, and also the two year delay in this matter coming before the Court caused through no fault of yours. All of these matters, in my view, should mitigate the emphasis to be placed on general deterrence, denunciation and punishment to permit the sentence of imprisonment to be served in the community. In all of the circumstances, I consider it desirable to suspend the term of imprisonment. I find that such a sentence is capable serving the purpose of general deterrence whilst promoting the rehabilitation of yourself and best serving the welfare of the victim.[48]
76 It will be immediately apparent that this was not a case which could have provided any guidance to the judge in sentencing DW. The decision turned entirely on its own special facts. Obviously enough, it was only because of her Honour's concern for the welfare of the child that she took the most unusual course of wholly suspending what would otherwise have been a substantial term of imprisonment. Likewise, the imposition of a head sentence of three years' imprisonment must be seen to reflect her Honour's view that a suspended sentence was desirable (three years having been the longest sentence capable of being suspended).
77 The second decision relied on is equally distinguishable, though for quite different reasons. In Director of Public Prosecutions v Yarde,[49] the offender pleaded guilty to two charges of reckless conduct endangering a person and one charge of negligently causing serious injury. The victim in each case was his newborn baby son. The offender was 18 at the time. The judge described the offending as follows:
Charges 1 and 2 concern two occasions when you shook your son. On the first occasion, which is the subject of Charge 1, your baby son woke during the night. Your then girlfriend observed that the baby was crying. You were holding him by the upper arms and telling him to 'shut up'. You shook him so that his head was moving around and his lower arms and legs were flopping. He was crying.
The second occasion, which is the subject of Charge 2, was observed by a friend. Your baby was crying. You picked him up under the arms and shook him hard, yelling at him to 'shut up'.
The third occasion is the subject of Charge 3. You were caring for your baby when his mother was out. He was crying and you tried to settle him. You were getting agitated and became angry. Your baby continued crying. You admitted that you shook your baby. He stopped crying. He went limp. Your friend phoned the baby's mother, who spoke to you at some point. You said what was happening, she came home and an ambulance was called.
Your baby was then about four weeks old. He was admitted to hospital with subdural haemorrhages, as a result of head trauma and abuse. He also had a fracture in his ankle.
The brief medical report provided, says that he was assessed at ten months and at that stage, all appeared to be normal, although developmental and learning difficulties could occur over time.
...
Your offending is serious, especially the offending covered by Charge 3. Your son was a few weeks old and very vulnerable. You ought to have been protecting him. Instead you lost control of your own behaviour and shook him. Shaking is very dangerous for any baby, especially one so young. The shaking caused injury to his brain and to his ankle. It is to be hoped that he will suffer from no long term consequences. This is an example of what can happen when a person loses control of their behaviour and shakes a young baby. As I have said earlier, babies test the patience of parent[s]. No matter how difficult or stressful the situation is, people must not shake babies. It is incredibly dangerous.[50]
78 The judge then addressed the offender's personal circumstances:
I accept that you did not intend to harm your son and that you had tried to care for him. I accept that the situation you were in was generally stressful, due to the living circumstances and the young age of you and your partner. The situation was particularly difficult for you because of your depression, mood disorder and acquired brain injury.
...
I have considered the effect of your mental functioning. I consider that there is some reduction in moral culpability, because of your difficulties, but not to a significant degree. I do consider that there ought to be some moderation of the application of general deterrence and specific deterrence because of your impaired mental functioning. I also consider that imprisonment would be more difficult for you [than] it would be for others and that there would be a considerable risk that your mental health would deteriorate if you were imprisoned.
Your young age is a very significant factor in sentencing you. Your rehabilitation ought to be given very significant sentencing consideration. Your rehabilitation is not only in your interests but in the interests of the community. You have pleaded guilty and are remorseful. You have a very limited prior criminal history. You have a stable and supportive relationship. You have the support of your mother. You have the prospect of employment. You have stopped using cannabis. All of those matters give cause to be positive about your prospects for rehabilitation.
Given the matters set out in the reports, particularly [the psychologist's] report, I consider that you do need long term professional support and assistance, in order to be able to be a contributing and positive member of the community.
I consider that a Community Corrections Order would best meet the sentencing objectives of denunciation, just punishment, moderated general deterrence and specific deterrence, as well as providing support for your rehabilitation.[51]
79 As can be seen, the judge was satisfied on the basis of the expert evidence that, because of his mental condition, the offender was entitled to mitigation of sentence on the basis of almost all of the considerations referred to in R v Verdins.[52] Although issues of impaired mental functioning often arise in sentencing, it is most unusual for the full suite of Verdins considerations to be held to apply.
80 We note, in particular, the finding that there would be 'a considerable risk' of a deterioration in the offender's mental health if he were imprisoned.[53] That, together with the offender's youth and positive prospects of rehabilitation, serves to explain why a community correction order was seen as sufficient to serve the purposes of sentencing in the particular circumstances of the case.[54] Once again, it will be readily apparent why that decision provides no guidance on sentencing range in the present case.
81 Surprisingly, the Director's submission contended that the decision of this Court in Director of Public Prosecutions v Ripper[55] could provide a 'useful guide' to sentencing in the present case. As the submission itself acknowledged, however, that case concerned a different offence, that of recklessly causing serious injury, which carries a much higher maximum penalty than negligently causing serious injury (15 years' imprisonment as opposed to 10 years).
82 It would be a rare case where the sentence imposed on an offender for one offence could shed any useful light on the question of sentencing range for a person being sentenced for a different offence altogether. Moreover, the facts in Ripper were quite different from the present. The offender there had a more extensive criminal history, assaulted a victim who was already injured and had offended over a longer period. The only relevance of the decision for present purposes lies in the Court's having quoted with approval the statement in R v Thompson[56] that 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.[57]
83 The Director also relied on the decision in Director of Public Prosecutions v Arney.[58] Again, that decision concerned the offence of recklessly causing serious injury and could not assist in the resolution of the present appeal.
84 In our view, it is the decision in Mok[59] which provides most assistance. As noted earlier, that is not because of its similarities with the present case but rather because of its relevant and instructive differences. Put shortly, the fact that this Court concluded that two years' imprisonment was appropriate in the particular circumstances of that case demonstrates why it was not reasonably open to the judge in the present case to impose the same sentence in these - quite different - circumstances.
85 As already noted, the view of the majority in Mok was that the negligence there was
constituted of momentary inattention, ... the result of nothing more egregious than immaturity, inexperience and inattention.[60]
The objective gravity of the offending was 'in the low to medium range' and the offender's moral culpability was 'towards the lower end of the scale'. Moreover, the nature of the offending was such that, in the Court's view, general deterrence was not a major consideration.
86 The present case could hardly be more different. This was high level negligence, and DW knew full well what he was doing. He mistreated the infant victim despite having been repeatedly counselled not to. This was a grave breach of duty, and DW's culpability must be viewed as very high.[61] And, in contrast to Mok, the circumstances of the offending made general deterrence a significant issue.
Moreover, unlike the offender in Mok, DW had highly relevant prior convictions. He had breached two community-based orders, had seven convictions for violence and three convictions for breaching intervention orders. We agree with the Director's submission that, although these prior convictions did not relate to children, they reflected DW's disposition to resort to violence and demonstrated 'a lack of respect for the physical integrity of others and in particular family members'.
87 This offending breached a suspended sentence imposed for breach of an intervention order. DW's counsel conceded that this was an aggravating factor. In the circumstances, specific deterrence also loomed large.
88 Taking into account all of the relevant features of the offending, and of the offender, and having regard to the guidance provided by the decision in Mok, we consider that the sentence imposed was outside the range reasonably open to the judge in the circumstances of the case. The appeal should be allowed and DW resentenced as follows:
89 I have had the advantage of reading, in draft form, the joint reasons of Maxwell P and Osborn JA. I agree, for the reasons their Honours give, that the appeal should be allowed and that DW should be re-sentenced in the manner their Honours direct.
[4] This and other names used in the judgment (apart from the name of the respondent) are pseudonyms. They are used in order to protect the victims' privacy.
[5] DPP v Scholes (Unreported, County Court, Judge Kelly, 27 March 1998).
[6] R v Scholes [1998] VSCA 17; [1999] 1 VR 337, 341 [9] ('Scholes').
[8] Scholes [1998] VSCA 17; [1999] 1 VR 337, 343 [15].
[14] Scholes [1991] 1 VR 337, 349 [23].
[15] (2015) 74 MVR 58, 69 [44].
[16] DPP v Weston [2015] VCC 1790 [10], [21] ('Reasons').
[23] [2011] VSCA 247 ('Mok').
[26] [2007] VCC 282 ('Rallis') (decision not published).
[27] Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, 506 (Windeyer J).
[28] Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94, 113 (Taylor J).
[29] [2010] VSCA 350; (2010) 31 VR 634 ('Karazisis').
[30] Ibid 662-3 [127] (Warren CJ and Maxwell P agreed) (citations omitted).
[32] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535 [49] ('Hili').
[33] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, 333-4 [104]-[106] ('Boulton').
[34] Hili [2010] HCA 45; (2010) 242 CLR 520, 537 [56].
[36] Ibid 537 [54] (emphasis altered), quoting Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28, 98 [304].
[37] DPP (Cth) v KMD [2015] VSCA 255 [53].
[39] [2011] VSCA 247 [4]-[8] (emphasis added).
[40] Ibid [30]-[32] (citations omitted) (emphasis added).
[41] DPP v Frewstal Pty Ltd (2015) 254 IR 423, 433 [49].
[42] [2001] HCA 64; (2001) 207 CLR 584, 608 [65] (emphasis in original).
[52] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').
[53] See R v Vardouniotis [2007] VSCA 62; (2007) 171 A Crim R 227.
[54] See Boulton [2014] VSCA 342; (2014) 46 VR 308, 349 [186].
[55] [2006] VSCA 282 ('Ripper').
[56] (Unreported, Court of Appeal of Victoria, Phillips CJ, Tadgell and Ormiston JJA, 21 April 1998).
[60] Mok [2011] VSCA 247 [4]-[5].
DPP
Weston [2016] VSCA 243
(2010) 243 FLR 28
(2015) 254 IR 423
(2007) 16 VR 269
(2015) 74 MVR 58
(1963) 108 CLR 491
(1966) 115 CLR 94
(2010) 31 VR 634
(2014) 253 CLR 58
(2010) 242 CLR 520
(2014) 46 VR 308
(2001) 207 CLR 584