R v BJ

SUBJECTIVE FACTORS

I turn now to the subjective features of the offender's case. A Pre‑Sentence Report was prepared for the assistance of the Court by the Community Corrections Officer at Campbelltown dated 20 April 2017. It described the family and social circumstances of the offender at present as residing with his grandmother in the Appin area. He had been residing with his grandmother for approximately one week at the time of the preparation of the Report. The offender's grandmother verified that on occasion she is responsible for caring for the victim of the offence her great-grandson (the victim) in her own home. This is apparently the arrangement on occasions that the child's now principal carer, namely the offender's mother, herself works and on occasion leaves the child with her own mother. The Report noted that, "Although being aware that (the offender) is prohibited from having unsupervised contact with the victim by way of an apprehended violence order, she has reported that by co-residing with her, (the offender) would have a support network of other relatives whom (sic) live in the local area". The author of the Report noted that, "Whilst it appears that this change of residence is viewed as a form of stability for (the offender) it appears that some of his immediate family members have seemingly minimised the offender's involvement in the current offences and the seriousness of his current position".
The offender was reported as having completed Year 12 at school and having then transitioned into a TAFE course which gained him his present status as a qualified mechanic. He had been reported as consistently employed and his current employer confirmed that he had been working as a mechanic for them since August 2016. He was assessed by the author of that Report as having a low risk of re-offending. The Community Corrections Officer assessed the offender in her Report as presenting "as guarded and emotionally distant during the preparation of the Report, appearing to have no insight into his current circumstances".
She described: "The offender's apparent unwillingness to consider any factors that could have contributed to the offences in addition to how his actions caused significant injury to the victim, suggests a lack of responsibility and remorse by (him). While the offender's family appear to provide a supportive environment to him, it is unclear how influential they are in providing positive role modelling for (him)".
That assessment by the author of the Report is consistent with the presentation of the offender in evidence before me. As I have indicated earlier in these Remarks, I am satisfied that he was untruthful in the account which he gave in evidence as to the mechanism of the cause of the injuries sustained by his infant child. He persistently and consistently lied to his partner and to all members of his extended family, to the nursing staff and medical staff at the Children's Hospital, to the police and to officers of the Child Protection Unit who variously spoke with him and interviewed him. He then gave the account which I have found to be completely false in evidence before me.
He is not to be punished more severely because he has chosen to lie. He does, however, thereby lose any benefit of genuine remorse or contrition. He entered into a disputed facts hearing whereby much of the expert medical evidence which would have been called in a trial by the Crown was required to be called on the sentence hearing and cross-examined and he then gave evidence which, as I have said, I have found to be false. This substantially diminishes the utilitarian value of his plea.
A psychological report by the consulting psychologist Mr Raymond Hudd dated 20 April 2017 was tendered on behalf of the offender. With one qualification to which I have already alluded, the contents of the report were confirmed to be true by the offender when he gave evidence before me. The one area of correction was the proposition, described in the psychological report, that the offender had attempted to commit suicide when he was 16. The offender said that he had never attempted to commit suicide and that any suicidal thoughts that he may have had have only arisen since the present offence. It remains unclear as to what the psychologist was told that led him to incorporate such references and attribute them to the offender being 16. I will, however, ignore the reference to attempted suicide in the report.
The psychological report set out the personal history of the offender. He is now 25 years of age and he grew up with his family in Appin. He was the eldest of four children and has good relationships with all of his siblings. His parents separated when he was in Year 8 or 9. He had attended Primary School at Appin Public School and then High School to Year 12 at John Therry High School. He won an apprenticeship as an automotive mechanic with Mercedes Benz. He described having been a good student up to Year 10 but to have put no effort into his school work after that stage as he: "Just could not be bothered anymore".
He had been in a relationship for three and a half years with (the child's mother). The relationship had started when he was 20 although they had known each other since school, and the child victim was born into that relationship. Apparently half-way through the relationship, and according to the psychological report, his partner started staying away overnight and in due course the offender found out that she had been cheating on him. I note that the offence occurred in October 2013 shortly before he turned 22 years of age. Whether there was any connection between the circumstances of the present offence and difficulties in the relationship was explored only lightly in the course of his evidence. The psychological report also refers to constant domestic violence within his parents' home for about a year and a half before the offender's parents separated. The offender described his father being verbally and psychologically abusive to him.
At 16 years of age he had joined the Appin Volunteer Bush Fire Brigade, and was active in that organisation for some three years. He described various fatalities and other traumatic incidents which he witnessed in the course of that time in the Rural Fire Service. He described a motor accident fatality near Appin which he attended at 16 years of age in which he saw the driver of one of the vehicles impaled on the steering column. It was the first time he had ever seen a deceased person. The offender described to the psychologist a sense of numbness at what he had witnessed. The psychologist recounted that in the course of describing the domestic violence and the incident involving the deceased person being impaled on the steering column, there was: "A quality of clear disassociation in his presentation".
The offender described to the psychologist a further two fatalities as well as several other major motor vehicle accidents and also bush fires and house fires which he attended. He had declined an offer of counselling while he was still in the Rural Fire Service. The offender described to the consulting psychologist the suicide of a close friend when he, the offender, was still a teenager. He told the psychologist that he did not feel much when told of that tragedy and viewed it as: "Just another fatality". The offender told the consulting psychologist that he does not use drugs and only occasionally has a social drink. For some time he has attended church regularly and most recently attends the Potter's House Christian Church as well as the Catholic Church. At times he has attended Hillsong Church.
The psychologist's observations of the offender included that his mood appeared to be depressed and at times he appeared to be disassociating. His demeanour and many of his responses were viewed as stoic, and at times, "trance-like". He appeared to have frequent mood fluctuation, suffered insomnia and disruptive sleep, nightmares, flash-backs, loss of interest in many things, a disinterest in food and a perception of a foreshortened future. A series of tests pursuant to the Trauma Symptom Inventory were administered. He had elevated scores for anxiety arousal and significantly elevated scores for depression and anger/irritability. He had an elevated score on the tension reduction behaviour scale, which is a scale used to measure an individual's tendency to externalise distress through suicide ideality, aggression, inappropriate sexual behaviour, self-mutilation and activities intended to forestall the feelings of abandonment and loneliness. An elevated score on this scale is said to be often associated with a diagnosis of borderline personality disorder.
Mr Hudd analysed the various elevated scores. Some of his findings included a profile consistent with de-personalisation, de-realisation and cognitive disengagement. Other aspects that the psychologist indicated included difficulty understanding or expressing feelings and an inability to predict the person's own reactions and behaviour in certain circumstances of stress. It is, according to the psychologist's report, not uncommon for such people to feel overwhelmed by stress. Other features which were identified reflected an individual's attempts to avoid extreme internal, often post-traumatic, distress.
An elevation on one of the scales tested was suggestive of reducing contact with painful features. Other elevated scales indicated externalising the internal distress. Elevation on the particular scales in combination suggested that a person might behave in a dissociated state. The psychologist ultimately concluded that the offender's symptoms were consistent with chronic complex post-traumatic stress disorder and also a persistent depressive disorder.
In examining a link between his diagnosis and the offending behaviour the consultant psychologist referred to features in the response of children who had been exposed to domestic violence. Having been exposed to domestic violence may result in a complex array of emotions and behaviours. The behavioural responses can include acting-out behaviour, amongst other features. Children exposed to domestic violence might also use violence to express themselves and display increased aggression towards others. They also become self-injuring. Where young people have experienced a number of traumas the effect may be cumulative, making them more vulnerable to stress reaction.
In the opinion of Mr Hudd, at the time of what he described as "the alleged offence", the offender was suffering from post-traumatic stress disorder and was also depressed. He was of the view that the offender was suffering from an impairment of judgment: "The area of impaired judgment greatly affects the ability to effectively and accurately perceive a situation and then to make the appropriate decisions about a particular situation immediately".
The psychologist also expressed the opinion that it would be not unreasonable for the offender, given the history given to the psychologist, for the offender to hold a fear that he could be seen as an abuser similar to what he himself had experienced from his father. The psychologist thought it was reasonable that one of the reasons he did not assist the doctor in providing accurate information about the child and his injuries, "was his confusion about what information the doctor required and the fear of losing his son".
Mr Hudd ultimately expressed the opinion that the offender required ongoing psychological counselling to assist him to resolve the severity of the symptoms which had been described. He proposed to act as a supervising practitioner for such period as determined by the Court and to inform the Court of any non-compliance. He believed that it was unlikely the offender would receive what he considered to be the appropriate treatment that was required to overcome these psychological issues and thus change his behaviour in the event of him being incarcerated. I should note, in passing, that the proposition that there was confusion about what information the general practitioner required, in the circumstances of the attendance upon Dr Mirza, is not something which sits comfortably with my impression of what took place.
In giving appropriate consideration to the opinions of the consulting psychologist, and to his description of the domestic violence to which the offender was apparently exposed in his teenage years, having been in Years 8 and 9 at school at the time, I am cognisant of the principles articulated by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. The plurality, French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ, said, at [37] in reference to the principles set out by Wood J in R v Fernando (1992) 76 A Crim R 58: "An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence, in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence." In this respect, Simpson J in Kennedy v R [2010] NSWCCA 260 has correctly explained the significance of the statements in Fernando. Her Honour said, "Properly understood Fernando is a decision not about sentencing Aboriginals but about the recognition in sentencing decisions of social disadvantage that frequently, no matter what the ethnicity of the offender, precedes the commission of crime." The High Court in Bugmy went on to observe at [44]: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
The difficulty adverted to by the plurality in Bugmy was further reinforced by the observations of Gageler J in Bugmy at [56]: "Consistently with the statement of sentencing principle by Brennan J in Neil v The Queen [1982] HCA 55; 149 CLR 305 at 326, the weight to be afforded to the effects of social deprivation in an offender's youth and background, is in each case for individual assessment."
The balancing exercise adverted to by Gageler J between competing aspects of the sentencing process had also been specifically adverted to by Gleeson CJ in Engert (1995) 84 A Crim R 67 at 68.
The psychological conditions identified by Mr Raymond Hudd and their relationship to the commission of the present offence, must necessarily be tempered to some degree by the fact that there is no evidence as to the factual basis upon which Mr Hudd was instructed regarding the commission of the offence. It is likely that he understood the mechanism of the cause of the injury to have been the child being left naked on a rug, although it is to be observed that he does not identify what action or actions by the offender he was contemplating with regard to the connection between the actions and the mental state of the offender.
In all of the circumstances I am not of the view that this material warrants any substantial reduction in criminal culpability, particularly when balanced against the need for personal deterrence and general deterrence underlying the need for the protection of members of the community who are intrinsically and inherently vulnerable, such as a six-month-old child.
In addition to the offender's own evidence, oral testimony was called from his mother which verified the circumstances of the family breakup. His mother, who is now the primary carer of the child, gave evidence and produced some photographs which were relied upon in support of the proposition that the child has essentially made a full recovery and now has a healthy and loving relationship with his father.
An overtone of the offender's mother's evidence appeared to me to be suggestive of some blame being placed on (the child's mother) for the state of affairs regarding the victim and there was an undercurrent of suggestion both in evidence and in discussion with the Bar table, regarding the nature of the mother's relationship with her child. Such considerations play no part in my determination of the offender's culpability for the offence in respect of which he has pleaded guilty and also that which is included in the Form 1. In addition to the subjective material to which I have referred, a reference was tendered from the Pastor of the Potter's House Christian Centre at Campbelltown indicating the involvement of the offender with that Church since January 2017.
There has been some delay in this matter being brought to final conclusion and I should make reference to that. The offender was originally charged with the principal offence and also that on the Form 1 on 27 November 2013. That charge was by way of service of a future court attendance notice. He came before the Campbelltown Local Court and in due course it was indicated the matter was to be defended and whilst waiving the right to a committal he was ultimately committed for trial to this Court on 21 May 2014. The matter came before the Court for arraignment in June 2014 and the trial was given at that stage a two-week estimate.
In due course it was fixed for trial in June 2015. At that time the matter was not able to proceed after being adjourned over a number of days due to the unavailability of judges here at Parramatta at that time. It was stood over for further mention to fix a new trial date. In April 2016 when the matter came before Parramatta District Court for trial, it was adjourned as a consequence of representations which had apparently been made on behalf of the accused to the New South Wales DPP. I have been advised by Mr Doyle that there was also, again, a lack of available courts at Parramatta. As a consequence of those representations not being able to be dealt with urgently, and, as I am informed, the lack of a court, the trial date was vacated. In May 2016 a further trial date was fixed for February 2017.
In February 2017 it was indicated, presumably as a consequence of the representations made the year before, that there was the possibility of the matter becoming a plea. The original Count 2 on the indictment was placed on the Form 1 and as a consequence a plea of guilty was entered to Count 1. That occurred on 28 February 2017 and a Pe‑Sentence Report was directed to be obtained.
The matter ultimately came before me for sentence on 24 April 2017 with the Pre-Sentence Report having been obtained, and the sentence proceedings took place on 24, 26 and 27 April on which occasion I reserved. It is to be regretted that delay, to an extent brought about by an apparent lack of resources at this Court complex, has resulted ultimately in the matter falling to be determined some four years, or approaching four years, after the commission of the offence.
With respect to the Form 1 offence of failing to provide appropriate medical care, in the sense of not taking the child to the doctor, I note the decision of Spigelman CJ who delivered the judgment of the Court comprising of the Chief Judge at Common Law, Wood J, Groves, Sully and James JJ agreeing, in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146. The sentencing court, in this instance myself, is sentencing only for the principal offence. It is not part of my task to determine an appropriate sentence for the offence listed on the Form 1. However, the appropriate penalty in respect of principal offence is increased by giving greater weight to the need for personal deterrence and to the community's entitlement to exact retribution for a serious offence.
In relation to mitigating factors upon which the offender is entitled to rely and which I must, of course, take into account, I do note that he has in the circumstances that I have outlined, entered a plea of guilty. It cannot be said that that was at the first opportunity or at the earliest opportunity, and for the reasons that I have expressed earlier the utilitarian value of that plea is diminished to some degree. In my view, whilst taking into account the plea of guilty, that would entitle him to a reduction of in the order of 10% of an otherwise appropriate sentence.
In relation to mitigating factors set out in the Crimes (Sentencing Procedure) Act, I note, self-evidently, that the offence was not part of a planned or organised criminal activity. The offender does not have a relevant record of previous convictions, although I do note that he has a number of matters touching upon his compliance, or more to the point non-compliance, with the regulatory and specified requirements of driving a motor vehicle. He is previously in general terms a person of good character notwithstanding the matters of driving whilst disqualified and similar ilk. He has been assessed as unlikely to re-offend although that is a matter in respect of which, given the contents of the psychological report, one would hold a degree of reservation depending upon his ultimate prospects of rehabilitation which overlap with the potentiality of re-offending. It is clear that at some stage he is going to need to attend to the psychological aspects addressed in that Report which seem to me to equate not only with disassociation but perhaps a lack of appropriate empathy.
The question of remorse, I have already indicated in the course of my Remarks, has been tempered by the findings which I have made regarding his expressions of explanation for what he says occurred. I concur with the views in the Pre-Sentence Report and do not believe that he has appropriately accepted responsibility for his actions, nor has he acknowledged the extent of the injury, loss and damage caused by his actions. The glossing of the state of the child's health and present position and prospects for the future by both the offender and his mother, are quite at odds with the opinion expressed by Professor Maitz. In relation to aggravating features it is clear that the offence, obviously, was in the presence of a child under 18 years of age and in the home of the victim. The offender was clearly in a position of both trust and authority in the sense that he was the child's father. The victim was clearly vulnerable because he was a six-month-old baby.
With respect to statistics and comparatives, nothing has been provided to me. I have looked at cases that might have in principle some observations that might be of assistance, and it is to be observed that individual cases clearly turn on their own facts. I have perused R v Lolesio [2014] NSWCCA 219, and also the recent and very different case of R v Nolan [2017] NSWCCA 91. It is clear that the circumstances of the complete vulnerability of a victim who, in the case of Lolesio was a six-week-old baby, and in the present case, of course, a six-month-old baby; the position of trust occupied by a father; what was described in Lolesio as the enormous physical disparity in size and strength (which is so self-evident as to not even require articulation in my view); are factors which are highly relevant to an appropriate disposition of the proceedings. The threshold has manifestly been crossed and it had been put to me by Mr Doyle, on behalf of the offender, that an appropriate outcome might be attained by consideration of either a suspended sentence or an Intensive Corrections Order. That would require a finding of the length of an appropriate term of imprisonment that would open the gateway to a consideration of those factors (i.e. 2 years or less). In my view that would be an inappropriate disposition of the matter.
I find that the offender falls within what I would describe as the mid to high range, that is, the upper end of the mid-range of objective seriousness. I take into account the maximum penalty and as I say, I have taken into account the Form 1 in the way in which the authorities require it to be taken into account. I should, perhaps controversially but I trust not, make this observation. That the circumstances of the failure to take the child for appropriate medical care, in the context as I have dealt with in detail, of actually taking the child to a doctor but then deliberately withholding the information and causing a situation where the doctor did not have the opportunity to look at the child's chest on the Friday and then doing nothing about taking the child to a medical practitioner until the following Tuesday, has an effect in increasing the gravity of the outcome of the primary offence for which I am sentenced.
In my view, these factors would increase an appropriate head sentence for the principal offence by twelve months. In identifying that increase I am conscious of the reserve which has been discussed about whether it is really appropriate for a sentencing judge to attempt to quantify the effect of a Form 1 offence: see Abbas v R (2013) 231 A Crim R 413 at [14]. However, I am conscious of the observations of the plurality in Markarian v The Queen (2005) 228 CLR 357 in which Gleeson CJ, Gummow, Hayne and Callinan JJ, said: "It may be useful and certainly not erroneous, for a sentencing court to make clear the extent to which the penalty for the principal offence has been increased on account of further offences to which an offender has admitted guilt".
In that case, the offences on the Form 1 and the increase to the penalty had been specifically identified by the learned sentencing judge. I should make it clear, as a matter of principle, that I am not imposing a separate penalty for the Form 1 offence, but I am increasing the penalty for the principal offence. In the present matter the offence on the Form 1 might be properly viewed as the sequelae of the principal offence and the ultimate serious injury itself, which was aggravated accordingly. In my opinion an appropriate head sentence in the present matter is six years and a minimum term of imprisonment that is required will be a period of four years. Just stand up please. I sentence you to serve a non‑parole period of four years which will commence today and expire on 4 June 2021. There will be an additional term of two years from that date which will expire on 4 June 2023. There are no further orders, Madam Crown? KNOWLES: It's of no consequence that there was only one day spent in custody I think. HIS HONOUR: In that event, for what it is worth, I shall back-date, take the one day in custody into account and the dates will be adjusted accordingly.

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