R v Dillon [2018] ACTSC 164

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2018] ACTSC 164

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - pleas of guilty to two series of offences - first series of offences - by an unlawful or negligent act or omission, cause grievous bodily harm - two counts of recklessly inflict grievous bodily harm - two counts of intentional and unlawful threat to kill - assault occasioning actual bodily harm - act of indecency without consent - other offences to be taken into account

Second series of offences - Murder - circumstances of the offence - two counts of recklessly inflict grievous bodily harm - multiple counts of intentionally inflict grievous bodily harm - assault occasioning actual bodily harm - two counts of choke rendering insensible or unconscious - act endangering health - two counts of intentional and unlawful threat to kill - other offences to be taken into account - caused death by assaults, and at the time intended to cause serious injury - assessment of level of culpability - whether case falls within the worst case category - limited criminal history - report of consultant forensic psychiatrist - victim impact statements - whether the plea of guilty could justify a lesser sentence than life imprisonment

R v Rappel [2017] ACTSC 38

SCC 186 of 2016; SCC 195 of 2017; SCC 196 of 2017

1. Graham Stuart Dillon, you have entered pleas of guilty to two series of offences. The first series chronologically occurred between 31 May 2011 and 31 December 2013. These offences are found in an indictment on Supreme Court file SCC 195 of 2017. The second, and more serious, series of offences occurred between 7 December 2014 and 16 February 2016. These offences are found on an indictment on Supreme Court file SCC 186 of 2016. In addition, you ask that I take into account in sentencing you with respect to some of these offences, other offences contained in a number of lists of additional offences. I will refer to these in greater detail in the course of these sentencing remarks and in so doing I will identify them by reference to the charge number allocated in the Magistrates Court.

2. I propose dealing with the two series of offences in chronological order.

3. Count 1 on the indictment of 13 February 2018 on file SCC 195 of 2017 alleges that between 31 May 2011 and 31 October 2011 you, by an unlawful or negligent act or omission, caused grievous bodily harm to a person who I will refer to as UN. The short particulars of this charge are that you threw a knife at your then partner, UN, which embedded in her knee, leaving a scar. The maximum penalty for this offence is five years imprisonment. In sentencing you for this offence you ask that I take into account an offence of common assault constituted by you hitting the victim on the head and pushing her while she was in hospital after she had given birth to twin girls on 11 April 2012 (CC 2017/5685). The maximum penalty for the offence of common assault is two years imprisonment.

4. Count 2 alleges that between 1 May 2013 and 1 June 2013 you recklessly inflicted grievous bodily harm on UN. On this occasion you threw a pair of tongs at the victim during an argument, which hit her hand, cutting it and leaving a small scar. At that time, the victim was holding one of her twin daughters. The maximum penalty for this offence is 13 years imprisonment. In sentencing you for this offence you ask that I take into account two offences of common assault. The first such offence (CC 2017/5691) involved you grabbing the victim by her neck and pushing her, and chasing her. This occurred as part of the incident which formed the basis of Count 2 on the indictment. The second charge of common assault (CC 2017/5687) involved you pushing the victim into a wall, punching her to her face and ribs.

5. Count 3 alleges that between 1 May 2013 and 1 June 2013 you made an intentional and unlawful threat to kill UN. On this occasion you threatened to slit her throat with a knife during an argument while in the kitchen of your residence. The maximum penalty for this offence is 10 years imprisonment. In sentencing you for this offence you ask that I take into account an offence of common assault (CC 2017/5710) constituted by you holding the victim's head to the floor with your foot, slapping her to the head and pushing her into a wall.

6. Count 4 alleges that between 1 May 2013 and 1 June 2013 you recklessly inflicted grievous bodily harm on UN. On this occasion, you and the victim were having an argument in the kitchen when you cornered her next to the kitchen sink. You grabbed a paring knife out of a knife block and swung the knife in anger near to the victim's face. She held up her hands. The knife slashed her finger when she did this, leaving a scar. In sentencing you for this offence you ask that I take into account two offences of common assault. The first such offence (CC 2017/5678) was constituted by you pinning the victim against a wall with a table, grabbing hold of her hair, punching her, pushing her into walls and choking her. At this time the victim was pregnant with her twin daughters, and during part of this incident she was holding another child. The second offence of common assault (CC 2017/5701) involved you pushing a chair towards the victim, causing her to fall over and then pinning her against a wall using a table.

7. Count 5 alleges that between 1 July 2013 and 31 August 2013 you assaulted UN thereby occasioning to her actual bodily harm. On this occasion you slammed the victim's head into a wooden door, leaving a hole in the door. As she tried to escape from you, you grabbed her by the neck and squeezed. You then punched her in the stomach, winding her. You continued to hold the victim around her neck, and slammed her against a wall causing a hole in the plaster. The victim's head hit a light switch causing pain and large lumps. She also received scratches and marks around her neck. The maximum penalty for this offence is 5 years imprisonment.

8. Count 6 alleges that between 4 November 2013 and 11 November 2013 you made an intentional and unlawful threat to kill UN. On this occasion you attacked the victim with a hammer and threatened to put it through her head. In sentencing you for this offence you ask that I take into account an offence of common assault (CC 2017/5703) in which immediately following the making of the threat to kill, you hit the victim on the knee with the hammer causing her pain. You then continued to hit her on other parts of her body.

9. Count 7 alleges that on 31 December 2013 you committed an act of indecency on UN without her consent, being reckless as to whether she was consenting. On New Year's Eve 2013 you asked the victim to have sex with you. She declined and eventually went to sleep on the couch in the lounge room. She woke up to find you with your hands down her pants and trying to kiss her stomach. The maximum penalty for this offence is 7 years imprisonment.

10. It is necessary to provide some context to these offences. The Agreed Statement of Facts stated that you met the victim in about August 2006, when she was 14 and you were 28 years old. Soon after meeting you commenced a casual sexual relationship. In 2009 the victim moved in with you and your brother at an address in New South Wales. Around this time you began to be violent, possessive, jealous and controlling towards the victim, and your behaviour became more violent and controlling as the relationship continued. You and the victim moved between Queensland and New South Wales for several years, and in late 2010 the victim gave birth to your son. In July 2011, you, the victim and your son moved to Canberra and temporarily resided with the victim's father. As I have already noted, in April 2012 the victim gave birth to twin girls as a result of her relationship with you. At the time of your offences against her, the victim would have been aged somewhere between 18 and 21 years old.

11. In sentencing you for these offences, I take into account that the victim was relatively vulnerable because of her age and, where appropriate, the fact that she had children in her care or was pregnant. These offences reveal a pattern of violence by you over a significant period of time, directed towards controlling the victim, who was much younger and weaker than you. I accept that the harm done with regard to those offences involving grievous bodily harm does not fall into the category of the most serious harm of this type.

12. These offences occurred in the context of an intimate relationship between you and the victim, which commenced when the victim was very young and vulnerable. Courts have repeatedly stressed the seriousness of offences of violence within intimate relationships, and that such offences call for sentences strongly denouncing that conduct, and which are designed to deter such offences. Courts have repeatedly stressed that such offences, almost inevitably engaged in by men who are physically stronger than their victims, are brutal, cowardly and inexcusable and that sentences imposed for such offences must have a strong element of personal and general deterrence.

13. You originally entered pleas of not guilty to these charges in the Magistrates Court, and you were committed for trial on 18 July 2017. A number of directions hearings were conducted before the Registrar until on 14 December 2017 it was indicated that pleas of guilty would be entered. No trial date had been set at that time. While your pleas of guilty were not entered at the earliest opportunity, they nevertheless had a very significant utilitarian value. Not only was the community saved the cost of a trial, but your victim was not required to give evidence. On the limited material which has been placed before me, it is difficult to determine the extent to which your pleas may reflect any remorse on your part. I will reduce by approximately 15 per cent the sentences that would otherwise have been appropriate in order to reflect your pleas of guilty.

14. The Agreed Statement of Facts provides an overview of these offences, and states that you are the father of the victims, Bradyn Stuart Dillon and JL. I made an order prohibiting publication of JL's name, and as I am aware that parts of what I am to say may be reported by the media I will refer to her as JL throughout these reasons. I will refer to Bradyn by his first name. Bradyn was born in October 2006, while JL was born in November 2005. You had sole custody of the children and they lived with you at an address in Jacka ACT. From December 2014 to February 2016 you repeatedly, violently assaulted JL and Bradyn, the violence becoming more acute in late 2015 and early 2016. You regularly inflicted serious injuries on both children including multiple bruises, abrasions, lacerations, burns, scars, fractured teeth and broken bones. When you originally moved into the house, the children attended school and regularly played in front of the house and in the backyard. As time went on, they ceased attending school and were no longer seen playing outside the house.

15. Within an 8 week period before 15 February 2016, you assaulted Bradyn, with intent to do serious harm to him. This assault included blows to his head, which caused a subdural haemorrhage on Bradyn's brain. Autopsy findings suggested that following that assault, and prior to 15 February 2016, there was another episode involving trauma to Bradyn's head which caused further bruising to his brain.

16. At around midday on 15 February 2016, you again assaulted Bradyn. You struck him to the head multiple times, which caused fresh brain injuries and also caused the older brain injuries to re-bleed. These aggregated brain injuries caused Bradyn's death on the evening of 15 February 2016.

17. I will not recite in detail all of your brutal, cowardly and callous conduct towards your children. The Crown prosecutor read aloud the full Statement of Facts at your sentence hearing. Your conduct towards your children could aptly be described as torture. When Bradyn's body was examined at autopsy, some 86 bruises, abrasions or wounds were identified covering virtually all of his body. When JL was medically examined, she was found to have bruising, abrasions and wounds covering most of her body. She was found to have suffered a fractured pelvis, five fractured ribs and chipped teeth. Both children exhibited wounds where you had put lit cigarettes out on their skin, causing their skin to burn and scar. I will now turn to the individual offences.

18. Count 1 on the indictment alleges that between 1 December 2015 and 16 February 2016 you murdered Bradyn Dillon. The maximum penalty for this offence is life imprisonment. The Agreed Statement of Facts states that during the Christmas holiday period of 2015/2016 your violence towards your children escalated. You kept the children inside the house constantly, and the neighbours no longer saw them. During this period you assaulted Bradyn and JL. You later claimed that this was for perceived misbehaviour by the children, including stealing lollies and lying. I will return to your expressed explanation for your conduct in due course. Numerous blood spatter stains were observed throughout the house with JL and Bradyn the source of the majority of those stains. At that time Braden was 125.5 cm tall and weighed approximately 25.5 kg. You were 32 years old, about 180 cm tall and of a muscular build. At the time that you were taken into custody you weighed 70 kg.

19. Eight weeks prior to Bradyn's death on 15 February 2016, you assaulted Bradyn with at least moderate force. That assault involved, amongst other things, striking Bradyn to the head. The assault generally was committed with intent to cause him serious harm. The autopsy findings suggested that the observed injury to Bradyn's brain was consistent with impacts to his brain occurring within 8 weeks of the date of death. Trauma to the brain resulted in scattered subarachnoid haemorrhage and subdural haemorrhage. Autopsy findings also suggested that following that assault, but before 15 February 2016, there was another episode of trauma to Bradyn's head which resulted in further bruising to his brain.

20. At about midday on 15 February 2016, you came out of your bedroom with a white belt and told the children to bend over the marble coffee table in the living room. Bradyn was naked and JL was wearing her nightgown. You told JL to take off her nightgown. You struck them both three times with the belt whilst they were bent over the marble table, causing them pain and leaving bruises on their buttocks. Bradyn then told you that he did not want to live with you anymore and that the belt did not hurt. You became furious and said "That's enough, you're not getting the belt". While Bradyn was still bent over the marble table you kicked him in the abdomen and said "That one hurt didn't it". The force of the kick caused Bradyn to bend further down, and then he stood up again. You then hit him a number of times with force to his face and head. These blows caused subdural and subarachnoid haemorrhages to Bradyn's brain, which may have represented fresh injury but may have involved a re-bleeding of old injuries. In the course of this assault, Bradyn also sustained three fractures to two of his front teeth, accompanied by bruising to his inner lip.

21. Following this assault, Bradyn lapsed into unconsciousness, and died without regaining consciousness. You apparently made some unsuccessful attempts to revive Bradyn, but you did not call for emergency assistance. From 12:11 pm on 15 February 2015 you conducted Google searches relating to treating people who had been knocked unconscious and how to ascertain whether someone had a punctured lung. It is clear from the searches which you undertook that Bradyn did not regain consciousness after your assault on him, and that you feared that he may be seriously injured. You nevertheless left the house at about 3:45 pm that afternoon and went to the house of a friend approximately 900 m away. You appeared distressed at that time, and complained of having a broken finger. Your little finger was wrapped in a white bandage, but later photographs revealed that your hands were uninjured. Your complaint of having a broken finger, which was later reported to police, was probably an attempt to garner sympathy. At your friend's house you sold an Xbox 360 for $20. After about 20 to 25 minutes you left.

22. At about 3:57 pm you telephoned another friend, who I will refer to as BT. You told BT that your children had been stealing stuff from you lately, and they had tried to kill you. You said that you caught Bradyn that morning trying to take something from your wallet. You lied to BT and told her that you had given Bradyn a clip on the ear and a slight backhander to the chest, causing him to stumble back and sit on the lounge. You said that Bradyn then lay down, and closed his eyes. You said that he was asleep and wouldn't open his eyes, and wouldn't make any response. You said that he was just making a funny noise like he had something on his chest, like he needed to cough. You told BT that you had asked JL whether you had blacked out and done something that you didn't remember, but JL told you that you had not blacked out, that you hadn't done anything wrong and that you didn't hit him hard. BT said that she would try to come to your house, but she needed to find a babysitter and transport. You clearly lied to BT about what you had done to Bradyn, and you even pressed JL into corroborating your false story. After this telephone conversation you then conducted further Google searches into unconsciousness, and a further search inquiring how long it would take for someone to not breathe if they had a hole in their lung.

23. At 4:21 pm you again telephoned BT who suggested that you call for an ambulance or that you take Bradyn to an after hours doctor's service. You told her not to stress too much, and you didn't want to involve "CPS", which I understand to mean Child Protection Services. You again pressed JL into service to confirm your assertion to BT that you had not hit Bradyn hard, and he had not been knocked out. You suggested that you would go and get some ice blocks for Bradyn to have when he woke up. You then made Internet searches about Hoyts gift cards, and attempted to contact various acquaintances. At 5:05 pm you called BT again and said that you were going to the shops to get some ice blocks. You suggested that Bradyn was improving. You again required JL to confirm your story.

24. At 5:22 pm you began photographing trainers in your bedroom, apparently with the intention of posting the photographs online in order to sell the shoes. You then had various contacts with acquaintances. At 6:01 pm you began photographing the shoes again, and you then made Internet searches about shoe prices. At 6:15 pm you had a further telephone conversation with BT. She said she had organised the babysitter, and had also organised a lift to your place. You told her that Bradyn was much better and that JL was sitting with him. You told BT that you thought your children hated you, that they kept stealing from you and they had tried to kill you. You were at pains to deny ever hurting your children, which was a blatant lie. You again said that you were going to the shops to purchase ice blocks.

25. At 6:25 pm, you rode away from your home on a pushbike. At 6:55 pm you entered Woolworths at Bonner and purchased some fruit drinks and ice blocks.

26. At 7:47 pm JL called 000 from your mobile phone and requested an ambulance. During this call, she told the operator that her brother was dying and that they needed help. During the call, you said in relation to Bradyn: "He's got blood coming out of his nose and he's white and he can't breathe by himself, he got in trouble earlier today. I - I - I kicked him a bit, maybe in the gut, but I was angry and I shouldn't have and there's a lot of stuff going on, he was awake, he went to sleep, I come home and my daughter was with him and he wasn't breathing... and there's blood". You told the operator that you didn't mind if the police came, "I just want my son done".

27. An ambulance arrived at 7:56 pm. JL was waiting out the front of the house and told the ambulance officers that she thought her brother was dead. The ambulance officers entered the house and went into a bedroom where Bradyn was on the bed and you were performing chest compressions on him. You appeared to be quite anxious and said "I think he's dead". The ambulance officers noticed extensive finger marks, punch marks, bruises, lacerations, marks consistent with an assault with a belt and cigarette burns on JL. An initial examination of Bradyn revealed that he was unconscious, not breathing and had no pulse. He was also observed to have bruising of varying ages all over his body. The ambulance officers carried Bradyn to the ambulance. You pushed past the ambulance officers and said "I didn't do anything wrong".

28. Police arrived at your house at 7:59 pm. You were arrested and cautioned. Bradyn was conveyed to Calvary Hospital and arrived at 8:25 pm. CPR was ceased at 9:54 pm and he was declared dead. Upon admission into the AMC, you were subjected to a blood test which revealed the presence of cannabis, methylamphetamine and amphetamine.

29. Count 2 on the indictment alleges that between 7 December 2014 and 16 February 2016 you recklessly inflicted grievous bodily harm on Bradyn Dillon. The maximum penalty for this offence is 13 years imprisonment. The Statement of Facts states that you regularly punched Bradyn to the abdomen very hard with a closed fist. This caused one of his ribs to break, and he was unable to breathe fully. At autopsy there were extensive widespread injuries, mainly in the form of bruises to the front and back of Bradyn's torso, some of which were associated with extensive subcutaneous contusions. There were two fractures to the left tenth rib, one of which was at least a few months old, while the other was more recent. This is a "rolled-up" count, encompassing conduct that you engaged in on more than one occasion. In other words, it is a collection of offences into a single charge. This approach advantages you as it restricts the maximum available sentence to that prescribed for a single offence.

30. In sentencing you for this offence of recklessly inflicting grievous bodily harm, you ask that I take into account three charges of assault occasioning actual bodily harm (XO2017/30993; XO2017/30994; XO2017/30995). Each such offence carries a maximum penalty of five years imprisonment. Each such offence involved you striking Bradyn and causing him a black eye, or black eyes.

31. Count 3 alleges that between 7 December 2014 and 16 February 2016 you intentionally inflicted grievous bodily harm on Bradyn Dillon. This offence carries a maximum penalty of 20 years imprisonment. This is also a rolled-up charge. On a number of occasions, you smoked cigarettes in the bath. You would call Bradyn into the bathroom and stub your cigarette out on his skin, causing his skin to burn and scar.

32. Count 4 alleges that between 7 December 2014 and 16 February 2016 you assaulted Bradyn Dillon and thereby occasioned to him actual bodily harm. This is also a rolled-up charge. The Statement of Facts states that on a number of occasions you told Bradyn to stand up against a wall. You would then pick him up and throw him against the wall. This happened everywhere in the house and often near the garage door. It would mostly hurt him in the back of his head or his shoulders. This left bruising and tenderness in these areas. The Statement of Facts attributes to this conduct many of the bruises and abrasions to which I earlier referred.

33. In sentencing you on Count 4, you ask that I take into account two further offences of assault occasioning actual bodily harm. The first such offence (XO2017/30991) involved you on one occasion hitting Bradyn on his lower back and buttocks with excessive force using a white leather belt. Injuries were identified on his buttocks region including a number of bruises and abrasions on both the left and right buttocks. The second such offence (XO2017/30992) involved you assaulting Bradyn by hitting his legs, causing him to have "dead legs", and causing bruising to his legs.

34. Count 5 alleges that between 7 December 2014 and 16 February 2016 you choked Bradyn Dillon and rendered him insensible or unconscious. The maximum penalty for this offence is 10 years imprisonment. This also is a rolled up charge, encompassing conduct that occurred on at least two occasions. The Statement of Facts says that on a couple of occasions you told Bradyn to stand up against a wall. You stood in front of him and used both hands to take hold of his throat and squeezed so tightly that he was unable to breathe. Bradyn was rendered unconscious.

35. In sentencing you for this offence you ask that I take into account one charge of committing an act endangering health (XO2017/30996) contrary to s 28(2) of the Crimes Act 1900 (ACT), which carries a maximum penalty of five years imprisonment. This is also a rolled up charge, encompassing conduct that occurred on at least two occasions. On more than one occasion, you would fill the bath in the main bathroom with water and tell Bradyn to come into the bathroom. You would direct him to kneel down next to the bath, and you would push his head under the water, up to his shoulders. He was not able to breathe and was scared for his life. He would kick around and try to get away from you, but you would bring his head back up when you felt like it. This happened a couple of times.

36. Count 6 alleges that between 7 December 2014 and 16 February 2016 you made an intentional and unlawful threat to kill Bradyn Dillon. The Statement of Facts states that when you were angry and physically assaulting Bradyn, you would say that you were going to kill him. This is also a rolled-up charge.

37. Count 7 alleges that between 7 December 2014 and 16 February 2016 you intentionally inflicted grievous bodily harm on JL. This is a rolled up charge relating to cigarette burns which you inflicted upon JL, and is the counterpart to Count 3 concerning Bradyn. Two cigarette burn wounds were observed on JL's left-hand, one on her chest and a further wound on her back.

38. Count 8 also alleges that between 7 December 2014 and 16 February 2016 you intentionally inflicted grievous bodily harm on JL. The facts underlying this offence are that you kicked JL in the pelvic area with an upwards motion. You kicked her so hard with your right leg that you broke her pelvis. She was in so much pain that she was hardly able to walk without limping. You told her that she was not allowed to limp, so she tried to hide her limp when you were around. When JL was medically examined she was found to have faded bruising over the left pubis, a fracture through the right superior pubic ramis and the right sacroiliac joint was fractionally wider than the left suggestive of disruption of the joint.

39. In sentencing you with respect to Count 8, you ask that I take into account four further offences of assault occasioning actual bodily harm with regard to JL. The first such offence (XO2017/31020) concerns you, on one occasion, assaulting JL to her neck causing a full thickness wound measuring approximately 5 cm x 1 cm on the skin between her neck and chin, as well as two symmetrical full-thickness wounds, each measuring 0.5 cm x 0.5 cm, and multiple small superficial abrasions over the neck bilaterally. The second such offence (XO2017/31021) relates to a further occasion when you assaulted JL to her mouth region causing some of her teeth to chip and causing a line of petechial haemorrhages to the inside of her mouth, a linear sloughy wound to the inside of her mouth and a large abrasion to the inside of her cheek. The third offence of assault occasioning actual bodily harm (XO2017/31040) relates to a further occasion when you punched JL to her face a number of times, causing facial injuries. This assault caused soft tissue swelling involving the occiput, vertex and right temporal regions. This corresponded to a haematoma seen on a CT scan. JL also suffered multiple bruises over her forehead, both cheeks and under her chin and jaw. She suffered a bruise above her left eyebrow, and bruises over her left cheek. A bruise or abrasion adjacent to the left corner of her mouth was also noted, as was bruising, swelling and abrasion over her left forehead, within the hairline. This assault also caused bruising under her right cheekbone, over the right eyelid, under the right eye and within and over the ridge of the right eye socket. A small abrasion over the bridge of her nose was also observed. The final offence of assault occasioning actual bodily harm (XO2017/31019) involved you assaulting JL leaving her with a deep bruise across the right side of her face.

40. Count 9 alleges that between 7 December 2014 and 16 February 2016 you recklessly inflicted grievous bodily harm on JL. The Statement of Facts states that you regularly punched JL in the abdomen very hard with a closed fist. This is also a rolled-up charge. This caused five of her ribs to break and she was unable to breathe fully.

41. In sentencing you for this offence you ask that I take into account four further offences of assault occasioning actual bodily harm with regard to JL. The first such offence (XO2017/31014) is constituted by you throwing a metal box at JL's head. You directed JL to sit down in the living room area, and you repeatedly threw the metal box at her head, causing it to bleed profusely. JL sustained a wound approximately 4 cm long from this assault, and also sustained a lesion over the left scalp. The second such offence (XO2017/31017) is a rolled up offence constituted by you, on a number of occasions, requiring JL to stand against a wall, with you then at picking her up and throwing her against the wall. Many of the injuries observed on JL's scalp, back and shoulders are attributed to this conduct. The third such offence (XO2017/31012) is constituted by you hitting JL with a belt in the same manner as you hit Bradyn. This caused bruising to both buttocks, extending onto her right thigh. The final offence of assault occasioning actual bodily harm (XO2017/31013) involved you assaulting JL to her legs, causing her to have "dead legs", and causing bruising.

42. Count 10 alleges that between 7 December 2014 and 16 February 2016 you choked JL and rendered her insensible or unconscious. This is the corresponding charge to Count 5 regarding Bradyn, and involved you standing JL up against a wall, and using both hands to grab her throat and squeeze so tightly that she was unable to breath and was rendered unconscious. When she was being choked by you, JL felt like she was going to die.

43. In sentencing you for this offence you ask that I take into account one offence of committing an act endangering health (XO2017/31023). This is an offence corresponding to a similar offence regarding Bradyn, and involved you holding JL's head underwater in the bath as previously described. This occurred on multiple occasions.

44. Count 11 alleges that between 7 December 2014 and 16 February 2016 you made an intentional and unlawful threat to kill JL. The Statement of Facts states that when you were angry and physically assaulting JL, you would say to her that you were going to kill her.

45. During the period that you were physically abusing Bradyn and JL, and causing them significant injury, you never administered medical assistance to them or sought medical treatment for them. When JL was medically examined she appeared dirty and had signs of extensive and obvious bruising to her face, arms and legs. She had matted hair and dirt under her finger and toenails. Her clothes appeared to have dirt and dried blood on them. She was placed in the High Dependency Paediatric Ward at the Canberra Hospital until 2 February 2016, 15 days after admission. During her period in hospital it was noted that despite the presence of a fractured pelvis, JL denied any sensation of pain but walked with an intermittent slight limp. She stated that in the past when she had experienced pain she had learnt to "work through it" and the pain would go away. She also demonstrated unusual behaviours, demonstrating an overwhelming desire to please everyone. Despite your brutalisation of JL, she demonstrated a tendency to support you and minimise your conduct. I do not know whether this was because she was afraid of you, or because she felt a continuing obligation to you as her father; indeed, I do not know which is worse.

46. Dr Catherine Sansum, the medical director of the Child at Risk Health Unit, stated in a report dated 30 March 2016 that JL had multiple fractures of varying ages at multiple sites on her body. She had also suffered bruises, abrasions, blisters and lesions. She stated that at least four of the scabbed lesions on JL's body had features highly suggestive of burns. She was malnourished at the time she was admitted and was anaemic. Dr Sansum said that JL will suffer permanent scarring as a result of several of her injuries, and that she was highly likely to suffer severe psychological consequences which had the potential to be lifelong.

47. It need hardly be said that all of the offences against Bradyn and JL are extremely serious. With regard to the charge of murder, the blows which caused the death of Bradyn were inflicted on two or three separate occasions over a period of about eight weeks. The Crown concedes that it cannot be said that you intended to kill Bradyn or that you acted with reckless indifference to the probability of causing his death when you engaged in those individual assaults. Your plea of guilty to the charge of murder is based upon your acceptance that you caused Bradyn's death by these assaults, and at the time you intended to cause him serious injury. The maximum penalty of life imprisonment prescribed for the crime of murder reflects the community's regard for the sanctity of human life, and its abhorrence of the offence. The maximum penalty is only to be imposed for an offence that falls within the worst category of crimes of murder, which means that I must assess your level of culpability for this particular offence, and where it sits in relation to cases which would attract the maximum penalty. While you may not have intended to kill Bradyn, or been recklessly indifferent to causing his death, there is no principle that an offence of murder founded upon an intention to cause serious harm is necessarily less serious than an offence of murder founded upon an intention to cause death or reckless indifference to death. There is no principle that an offence of murder based upon an intention to cause serious harm cannot fall within the worst category of offences of murder.

48. Your abuse of Bradyn in the months prior to his death, although largely the subject of separate charges, provides context to the charge of murder. The truth is that the particular acts which caused Bradyn's death were not isolated or out of character. Those acts were simply the culmination of a brutal process of torture of Bradyn that you engaged in over many months. Your victim was nine years old and was isolated by you. I have no doubt that you ceased sending the children to school, and stopped them from playing outside the house, because you knew that the injuries which you had inflicted on them would be observed by others. You were afraid of suffering the consequences of your actions, and accordingly you isolated both Bradyn and JL within the home. As Bradyn's father, you were in a particular position of power over him. He was entitled to expect your protection and your love. You abused that relationship to inflict pain upon him.

49. In order to characterise a particular case as falling within the worst case category, it must be possible to point to particular features which are of very great heinousness, and it must be possible to postulate the absence of facts mitigating the seriousness of the crime, as distinct from the subjective features mitigating the penalty to be imposed. I am satisfied that a number of such features are to be found in the present offence of murder:

(c) you effectively isolated him from the world during this course of conduct;

(d) the acts which caused his death were part of a process of physical, mental and emotional torture of the victim extending over months;

(f) another child was present at the time of the offence; and

(g) after kicking and striking Bradyn you did not seek medical assistance for him, despite him being unconscious for hours and you being aware that he may have suffered a serious injury.

50. I reject utterly the proposition that your actions were motivated by wrongdoing by your children and were a misconceived form of punishment for perceived wrongdoing. One has only to read the Statement of Facts, and consider the period of time over which these assaults occurred, the nature of the assaults, and the pattern of injuries inflicted to reject that proposition. The inevitable inference is that you engaged in this behaviour either because you obtained gratification from inflicting pain, or because you obtained gratification from exercising power over your victims and observing their fear. When all of these considerations are taken into account, the offence of murder falls within the category of worst cases of murder.

51. In taking into account in assessing the objective seriousness of the offence of murder all of your conduct towards Bradyn, I accept that there must be significant concurrency between the sentence imposed for the offence of murder and the sentences imposed for the other offences against Bradyn in order to avoid you being punished twice for the same conduct.

52. All of the other offences involving Bradyn and JL are serious examples of the various offences with which you are charged. Special mention should be made of Count 8, involving the infliction of grievous bodily harm on JL in the form of a fractured pelvis. This offence is also towards the upper end of offences of this nature. JL was 10 years old at the time of these offences and was also entitled to expect your protection and love as her father. She also was isolated by you in order to conceal your offending. It is probable that JL will suffer the consequences of your offending for the rest of her life. The continuing effects of these events on JL are set out eloquently in the Victim Impact Statements prepared by JL, and by her mother SK.

53. It is also important to note that these offences occurred in the family home, where your children were entitled to feel safe. Because of the power that you were able to exercise over your children, the offences were also difficult to detect.

54. You have a very limited criminal history. It is of some significance that you have no prior history for offences of violence, except for an offence of assault for which you were dealt with without conviction in Tasmania in 1997. The lack of a significant criminal history for violence indicates that you are capable of controlling your anger when you choose to do so. The common circumstances between the offences which you committed against UN and those which you committed against Bradyn and JL were that each of your victims were in a family type relationship with you, were isolated by you, and were weaker than you. Your history suggests that you are perfectly capable of controlling yourself when dealing with others who may be able to defend themselves.

55. At your sentence hearing you relied upon a report from a consultant forensic psychiatrist, Dr Richard Furst. The report included information which you provided to Dr Furst about your background and the circumstances leading up to the commission of these offences. You told Dr Furst that you were raised by your mother in the Campbelltown area in New South Wales until you were about five years old. You subsequently attempted to live with your father and his new partner, however your stepmother had her own children and you were essentially rejected. You said that you and your brother became wards of the state in New South Wales from about eight or nine years of age. You claimed to have suffered significant childhood trauma, including being physically bashed on a regular basis. You also claimed that you and your brother had been molested by a neighbour while you were living with your parents. You said that you left school in Year 7 or Year 8, before moving to Adelaide and ending up in juvenile detention in South Australia after assaulting a youth worker and stealing a car from the youth shelter. I note that your criminal history from South Australia includes an entry for an offence of driving a motor vehicle without consent in 1994, but there is no record of any offence of assault. You said that you moved to Melbourne when you were 19 or 20 years of age, before moving to Tasmania. You said that you moved to Queensland in your late 20s, where you met UN.

56. You told Dr Furst that you had felt confused, angry and sad in your childhood. You stated that you experienced mood swings throughout your adolescence and adult life, that you had been quick to feel hurt and were easily angered. You described a lengthy history of deliberate self-harm, which was supported by documentary material from hospital admissions in Tasmania. You also told Dr Furst that you suffered a lot of blackouts when stressed, waking up and finding that things had been smashed up by you. You stated that you always feel empty, have unstable relationships that are intense, that you fear abandonment, you feel insecure and have low self-esteem. You described voices in your head of a derogatory nature often telling you to kill yourself. You said that you would work yourself into a rage, often hurting yourself and/or other people.

57. Dr Furst stated that there were no indications that you have a major mood disorder, such as bipolar disorder, or a psychotic disorder such as schizophrenia.

58. You gave Dr Furst a history of abusing cannabis and amphetamines from an early age. In his report, however, Dr Furst noted that your history of substance abuse given to him differed from that which you gave to another psychiatrist, Dr Anthony Barker, on 26 February 2016. In the history that you gave to Dr Furst, you described using significantly more cannabis and methylamphetamine in the period leading up to these offences than you suggested to Dr Barker. The history which you gave to Dr Furst also differed from that which you gave to Mr Peter Shiels, a registered nurse, on 17 February 2016.

59. Dr Furst said that you described being emotionally unstable in the period preceding the offences against Bradyn and JL in February 2016. You stated that things had been building up for a while and that you were "blanking out". You said that you were having trouble with a neighbour, who you accused of robbing you and trying to kill your dog. You said that you remembered thoughts of confusion, anger, uselessness and worthlessness, and stated that you wanted to end your life. You claimed that two days before you killed Bradyn, you poured petrol into a bath tub with thoughts of killing yourself. You said that you were fearful of leaving the house.

60. You told Dr Furst that you remembered assaulting Bradyn on the day that he died, stating you did this because he had stolen the night before and because you were really angry. You told Dr Furst: "I was having a nervous breakdown. I couldn't sleep. I lost it... Sometimes I feel like it wasn't me. Like I was watching it happen. I couldn't stop." You said that you recall hurting Bradyn and JL on other occasions, but stated that you could not recall all of the incidents set out in the Statement of Facts. You told Dr Furst: "I just lost it. I was hurting myself too. Smashing ornaments over my head. I would be in my bed crying."

61. You expressed some remorse to Dr Furst over the death of Bradyn.

62. Dr Furst stated that you denied any drug use on 15 February 2016, but said that you had used 0.2 - 0.3 g of "ice" the previous night and heaps of cannabis.

63. You told Dr Furst that you had previously been sentenced in Tasmania in 2006 for seriously assaulting a male, apparently causing grievous bodily harm, who you suggested raped a girl at a party. A criminal history was obtained from Tasmania, but there is no entry on that criminal history which could possibly relate to such an event.

64. In addition to the history provided by you, Dr Furst also had access to information contained in ACT Corrective Services Case Notes and the medical records of ACT Health. To the extent that the medical records of ACT Health referred to incidents or opinions that predate these offences, significant weight may be attributed to them. Less weight may be attributed to the documents which record observations of you, and statements made by you, after these offences. Similarly, in my opinion little weight can be given to statements made by you to Dr Furst. I will give my reasons for reaching these conclusions.

65. Immediately after you were arrested by police on 15 February 2016, you participated in a recorded interview with them. I have very carefully considered the contents of that interview. It is very clear to me that from the outset you attempted to minimise your responsibility for Bradyn's death. You dishonestly stated that Bradyn had regained consciousness and was coherent when you went to the shops that afternoon. You also lied to the police when you told them that you had never abused your children. You lied again, attempting to minimise your responsibility, when you said that you had only slapped Bradyn's face, and denied having punched him. The blows which you inflicted to Bradyn's face were of sufficient force to cause three fractures to two of his front teeth. You also attempted to minimise the force of the kick that you inflicted upon Bradyn. It must have been obvious to you by the time JL called 000 that you could no longer hide what you had done to her and Bradyn. In your interview with police you attempted to give an account apparently accepting responsibility, but at the same time attempting to manipulate the interview to minimise your responsibility. You attempted to justify what you had done and to garner sympathy for yourself. You suggested that you had carefully cared for Bradyn during the day, whereas in reality you callously ignored the obvious signs that he had sustained a serious injury and made no attempt to call for assistance until it was clear that Bradyn was dead or dying. You attempted to place some blame on 10 year old JL, by suggesting that she had told you that Bradyn did not need to go to hospital. Your initial interview with police was calculated to convey the impression that you had been concerned for Bradyn's welfare on 15 February 2016, but you did not think that his condition was as poor as it was.

66. I should add at this point that you also clearly lied to the ambulance officers on 15 February 2016 when you told them had done nothing wrong. You knew very well that you had been violently abusing your children for months, and that Bradyn had never regained consciousness after you assaulted him that day.

67. You participated in a second recorded interview with police on 16 February 2016 at the City Police Station. I am satisfied that you again attempted to manipulate the interview by blaming Bradyn and JL for making you angry. You told police that you had only hit Bradyn four times with an open left-hand before kicking him, and that he was conscious after those events. You went so far as to tell police that Bradyn told you that he deserved it after you kicked and smacked him. You continued with the lie that Bradyn was conscious after these events. You again behaved despicably by suggesting that JL had misled you throughout the afternoon of 15 February 2016 by telling you that Bradyn's condition was improving. Indeed, throughout this interview you attempted to distance yourself from contact with Bradyn on the afternoon of 15 February 2016, suggesting that you had left his care to JL.

68. Your attempts to mislead and manipulate the police commenced very soon after their arrival at your premises. This leads me to conclude that you had given thought as to what you would say to the police when they arrived. You lied to the police and attempted to minimise your culpability with respect to the death of Bradyn, commencing on 15 February 2016 and continuing into the following day. There is no reason to believe that you would have adopted a different course in your dealings with Dr Furst. You gave no evidence at the sentence hearing, and accordingly the assertions which you made to Dr Furst were not the subject of evidence, or subject to cross examination. Your demonstrated pattern of deceit with regard to your culpability leads to the conclusion that no weight can be given to the statements which you made to Dr Furst. Similarly, I am satisfied that no weight can be given to statements made by you to Dr Baker while you have been in custody. The statements that you made in custody, and the observations of your behaviour in custody, must be assessed against the background of your manipulation and lies designed to minimise your culpability, commencing from the moment that police became involved.

69. On the basis of the history taken from you, and the contents of the documents from ACT Corrective Services and ACT Health, Dr Furst expressed the opinion that you met the criteria for diagnosis of a Borderline Personality Disorder and a Substance Use Disorder. Whether he would have maintained these diagnoses without the history taken from you, which I am satisfied cannot be relied upon, is impossible to say. Dr Furst expressed the opinion that your personality disorder, including marked emotional dysregulation and poor control of your anger, coupled with your dysfunctional parenting style and escalating child abuse behaviour accounted for all of the offences which you committed against Bradyn and JL. For the reasons which I have already touched upon, I doubt whether your ability to control your anger is as poor as you have suggested to Dr Furst. I do note, however, that there is no suggestion by Dr Furst that you were unable to control your anger, or to recognise the harm that you were doing to your children.

70. The opinions of Dr Furst, even if accepted in full, do not significantly reduce your moral culpability with respect to these offences. There is also nothing in his opinions to suggest that you will find imprisonment more difficult than someone who does not suffer from the conditions which he diagnosed, or that appropriate treatment for these conditions cannot be provided in custody. The conditions diagnosed by Dr Furst provide no basis for moderating or eliminating specific or general deterrence as sentencing considerations.

71. I take into account the contents of the Victim Impact Statements that were tendered by the Crown. They speak of the pain which you have occasioned to your victims, and to those who love them.

72. It is difficult to determine to what extent you may feel remorse for what you have done. You have made expressions of remorse to doctors and others, but to what extent this is genuine is difficult to determine. Your immediate concern for yourself, and to minimise your responsibility for these events, gives me pause in accepting the genuineness of your expressed remorse. Your prospects for rehabilitation must be seen as guarded. It is probable, however, that you will only present as a danger to others in the future where you are in a relationship allowing you to exercise control over others.

73. With regard to the charges other than Count 1 on the indictment Supreme Court file SCC 186 of 2016 I will reduce the otherwise appropriate sentence by approximately 15 per cent to reflect your pleas of guilty. With regard to the charges on Supreme Court file SCC 195 of 2017 I will reduce the otherwise appropriate sentences by approximately 20 per cent to reflect your pleas.

74. I have already indicated that the offence of murder to which you have pleaded guilty falls within the category of the worst type of that offence. The only issue which arises is whether there is any reason why you should not be sentenced to life imprisonment for that offence. The report of Dr Furst does not provide such a reason. The one matter of substance which could justify a lesser sentence than life imprisonment for the offence of murdering Bradyn is your plea of guilty. By virtue of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) I am precluded from allowing any significant reduction in sentence for a plea of guilty where the Crown case is "overwhelmingly strong". That is an apt description of the Crown case with regard to the offence of murdering Bradyn. I am not satisfied that your plea of guilty evidences any significant remorse on your part for the offence of murder, or indeed for any of the other offences. I accept, however, that your plea of guilty to the charge of murder had a significant utilitarian value and evidenced a willingness to facilitate the course of justice. As I noted in R v Rappel [2017] ACTSC 38 at [138], even an overwhelmingly strong prosecution case requires an enormous amount of work if it is to be made out at a defended trial. As I there said, the community as a whole and the criminal justice system in particular are benefited by guilty offenders admitting their guilt and pleading guilty. An offender who pleads guilty saves the community the cost of preparing for and prosecuting a trial. Most importantly, a plea of guilty relieves the witnesses of the necessity to give evidence and provides victims and others with a degree of certainty about the outcome of the charge. If the benefits to the community is not recognised by an appropriate reduction in sentence, there will be less incentive for guilty offenders to plead guilty, to the disadvantage of the community, the criminal justice system, victims and witnesses. This is a case where your plea of guilty should be reflected by the Court declining to impose an indeterminate life sentence, and instead imposing a determinate sentence. Of necessity, such a sentence must be very lengthy.

75. Because of the approach that I have taken to the charge of murder, I will make the sentences for the other offences involving Bradyn wholly concurrent with the sentence for the crime of murder. Some degree of concurrency is also appropriate for the offences against JL, and between the sentences for offences involving Bradyn and offences involving JL as some of these offences were committed at the same time. The offences against UN are entirely separate, but in composing an aggregate sentence for all offences I take into account the need to ensure that the final result appropriately reflects the totality of your criminality.

78. The aggregate sentence which I have imposed is therefore one of 41 years 1 month imprisonment commencing 15 February 2016 and expiring on 14 March 2057. I set a non-parole period of 32 years commencing 15 February 2016 and expiring 14 February 2048.

I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.