R v Gardeniers [1998] VSCA 114

10. At the plea hearing, the applicant's grandmother, Agnus Hutchinson Rowson, gave sworn evidence of the applicant's troubled upbringing, his diagnosis of attention deficit disorder and his attitude towards his baby daughter. Evidence was also given by Ms Morris of the applicant's relationship with the victim and his behaviour towards her. In evidence before the learned judge was also a report by Dr A. Protassow, the applicant's general practitioner, of his consultation with the applicant on 20 September 1997 and his referral to a psychologist confirming the diagnosis of attention deficit disorder, lowered intelligence and an anti-social personality disorder. A further report was tendered from Claire Gillan, co-ordinator of the Family Violence Programme at Anglicare Victoria, confirming that the applicant had attended the Men's Family Violence Programme for 12 weeks commencing on 12 November 1997. A report from Mr Ian Joblin, a forensic psychologist, was received stating that he had viewed an EEG which indicated that the applicant had attention deficit disorder and reduced intellectual capacity. A

victim impact statement was also tendered from Dr Catherine F. Lynch, a paediatrician, as to the victim's prognosis.

13. On 10 June 1998 the learned judge sentenced the applicant to be imprisoned for a period of three months and to commence a community-based order upon his release from prison. The community-based order was to be of 21 months' duration and to contain, in addition to core conditions, programme conditions that the applicant perform 250 hours of unpaid community work, be under the supervision of a community corrections officer, attend for educational or other programmes as directed for not less than one month and not more than 12 months, and undergo assessment and treatment for alcohol or drug addiction, and submit to medical, psychological or psychiatric assessment and treatment as directed.

16. The applicant now seeks leave to appeal against sentence upon the following substituted grounds:

1. the learned judge failed to give sufficient weight to the rehabilitation of the applicant;

2. The learned judge erred in concluding that whatever disposition he adopted would be a compromise;

22. The circumstances giving rise to this offence were as follows. As I have already said, the applicant's de facto wife and their baby returned to live with the applicant on 28 August 1997 when the baby was three days old. Prior to her being born the applicant had told a neighbour that his daughter would be perfect, that she would not cry at night or have tantrums, but that if she did she would receive "a belting". After the baby was born, the applicant told the same neighbour that he could not handle the baby crying all night, and that when she did he squeezed her hand and feet tightly and felt like hitting. He also told another neighbour that he had told the mother to take the baby out of the room when she cried or he would "punch the baby through the wall". Two neighbours heard the applicant constantly yelling "Shut up", "Stop crying", and "If you don't fucking shut up, I'm going to smash your fucking head in you little bitch" after the baby arrived home from hospital. On 18 September 1998 these neighbours baby-sat the infant, four days before the last assault, and noticed bruising on the baby's face and arms. When one of them asked the applicant what had caused the bruising, he replied that he had been "a bit rough" with the baby.

25. The count to which the applicant pleaded guilty is representative of a number of occasions on which the applicant assaulted the victim over a four-week period, resulting in the fracturing of her arm on the last occasion. Approximately two weeks after the baby was born, the applicant became angry when she cried and held her face tightly with his hand. On another occasion at about the same time the applicant hit the baby to the face with his fist when she was again crying. One week later, the applicant was changing the baby's nappy on the floor in the loungeroom and the baby was crying. The applicant told her to shut up a couple of times and became angry when she continued to cry. He then placed one hand underneath her left ankle and one hand on top of it and squeezed the ankle with a considerable amount of force. Finally on 22 September 1997 the applicant was at home with the baby and the mother, and was giving the baby a bath at approximately 6.30 p.m. when the baby began crying. Again he yelled at her to shut up. Hearing this, Ms Morris went into the bathroom to find the applicant holding the baby by the arms in front of him at waist level and shaking her back and forth. The baby's head was moving backwards and forwards and she was crying. The applicant shook the baby hard for a couple of seconds until Ms Morris took the baby away from him, after which she telephoned an ambulance, which arrived with the police a short time later.

28. At the Box Hill Hospital the baby was examined by Dr Catherine Lynch. It is sufficient for the purposes of this judgment to say of her evidence that the baby was found to have bruising to her face, to her arms and hands and legs and buttocks, a fracture of the shaft of her left humerus and her left tibia and fibula and other possible but not confirmed fractures in her leg areas. These were, as the learned judge said, undoubtedly serious injuries. Dr Lynch said of them that the injuries were of different ages, not all caused in one incident but on a number of occasions, and consistent with non-accidental injury. A more recent medical report from Dr Lynch indicated that the bruising and fractures should heal without residual deformity or disability. The learned judge said that, given the baby's good physical recovery and her age, he could not be satisfied that there would be any long-term effects.

31. In a record of interview on 22 September 1997 the applicant said that he loved his daughter and was "pretty good" with her save when his attention deficit disorder made him snap. He said that the baby was taken to hospital with a broken left arm, but did not want to talk about how that happened. He admitted that he had caused the baby's other bruises and that he could recall causing only a couple of the bruises since he had momentary blackouts because of his disorder. He admitted squeezing the baby's ankle. He could recall vaguely holding the baby by both her arms and shaking her, at which time he heard a click. He said that he should not be charged over these incidents because he had attention deficit disorder and was seeking help for it.

34. Mr Salek, who appeared in this Court on behalf of the applicant, submitted in support of ground 1 that the essential purpose of sentencing should have been to reunite the family when the applicant could be trusted to play the role of a father without a recurrence of the offending behaviour. He put it that rehabilitation is the best means to achieve this end and that a three-month prison sentence would not only delay this aim but might also frustrate it. He relied on various conclusions drawn by the learned judge from the evidence, emphasising that the applicant looked forward to the birth of his daughter, loved her dearly and shared all the duties of nurturing and caring for her with the mother. Nevertheless both were young, immature and inexperienced and without family support. The offence had not occurred because of any resentment or ill-will felt by the applicant, but his unfortunate childhood had left him with a psychological deficit which, combined with reduced intellectual capacity, had been left to progress. Mr Salek referred to the applicant's early plea of guilty and clearly genuine remorse. Furthermore, the applicant had embarked upon his own rehabilitation with the assistance of counselling and anger management, and had succeeded to a considerable degree, so that the learned judge had concluded that it was doubtful that he would re-offend. He had learned more tolerance and self-control. Accordingly his Honour had himself said that a disposition which fostered the applicant's treatment and rehabilitation was what the court could do to ensure the safety of the child. As his Honour also said, the applicant's attention deficit disorder made him not an ideal subject for the operation of general deterrence. Mr Salek took us to the evidence which clearly justified all of these various conclusions of the learned judge, and submitted that the effect of these matters was that it was not open to his Honour to impose any immediate custodial sentence.

37. Under ground 2, Mr Salek made reference to a passage in the learned judge's sentencing reasons in which his Honour had said: "Whatever disposition I adopt, therefore, will be a compromise and necessarily imperfect." Mr Salek submitted that the learned judge might have been concerned that the sentence of imprisonment could not be served by way of an intensive correction order or be suspended (see the Sentencing Act 1991, s.36(2)(a) and (b)); and the argument continued that, whilst a sentence will have within it a number of different and competing aims, it ultimately should not be a compromise. He submitted that the learned judge should have determined to reflect his views about rehabilitation in a sentence that did not compromise these views by introducing effective imprisonment.

40. As to the first ground, I do not think it can be said that the learned judge failed to give sufficient weight to the rehabilitation of the applicant. His Honour in fact said on this question:

"You [the applicant] have embarked upon your own rehabilitation, with the assistance of counselling and anger management, and according to the evidence you have succeeded to a considerable degree. It is in the interests of the community that you overcome your anger and are successfully rehabilitated. Based on the evidence that I have heard, I doubt that you will re-offend, provided that you continue with your treatment. I also bear in mind your relative youth and immaturity."

44. The paragraphs that follow these comments amply demonstrate that the sentence was constructed upon a basis which was intended to ensure that the applicant's rehabilitation continued and was founded upon the judge's sympathetic consideration of the interests of the applicant, his de facto partner, and the baby who was the victim of these, as the learned judge correctly put it, grave offences.

47. As to ground 2, it is desirable that I set out the whole of the passage from which counsel quoted in support of this argument. The learned judge in fact said:

"There are occasions, and speaking for myself this is one, where a sentencing judge would like to have available more options than are available under the Sentencing Act: a greater capacity to blend or combine different dispositions. Insofar as it is appropriate in this case to denounce and adequately mark the seriousness of the offence, to punish the offender and to deter you and others, there are adequate options. Insofar as it is appropriate to protect and advance the interests of the community by fostering your rehabilitation by supervision and treatment, whilst at the same time providing a measure of punishment, there are available options. What is not available to me is a disposition which in my view, in the circumstances of this case, adequately or properly combines these aims without, for example, over-emphasising one and ignoring or under-emphasising another. Whatever disposition I adopt, therefore, will be a compromise and necessarily imperfect. I am satisfied that no sentence which did not involve some period of immediate incarceration would be proper."

51. In my view, no error is to be found in the passage I have just quoted.

54. The learned sentencing judge, and counsel both for the Crown and the applicant, all recognised during the plea that this was a very sad case. As his Honour said during argument, it presented "a terribly difficult problem for a sentencing judge". On the one hand, his Honour was faced with a grave crime which, if repeated, could well result in the death or very serious long-term injury to the child. As Mr Elston, who appeared in this Court for the Crown, submitted, it is one which occurs with regrettable frequency in the community. It was a crime which, as the learned judge said in sentencing reasons, was grave in itself, shocks the community, and calls for consideration of sentencing principles including just punishment, denunciation and deterrence, and a sentence designed to protect this child and other children from like behaviour. On the other hand, the response had to be carefully measured and balanced, not emotionally driven. Counsel for the Crown accepted that the applicant had demonstrated meaningful remorse and that there was a powerful argument having regard to the medical and other evidence that this was a case where a disposition which involved immediate incarceration was not warranted from the point of view of personal deterrence or general deterrence. Counsel for the Crown's concluding submission accepted that "a sentencing judge is not able to achieve perfection in society, but has to do his or her best to deal with this very sad situation all round".

57. Considerations of the kind to which I have just referred doubtless contributed to his Honour's description of the sentence as ultimately a compromise. As I have already said, I can find no error in his Honour having done so. The sentence was, in my view, in all the circumstances, a sympathetic and lenient one. Notwithstanding Mr Salek's able submissions, I certainly do not think that the sentence could be said to be manifestly excessive.

60. In my view the application should be dismissed.

75. The order of the Court is that the application is dismissed. The applicant will accordingly remain in custody.