R v Nolan

Court of Criminal Appeal (NSW)|2017-04-24|Before: Hoeben CJ, Price J, Fullerton J

Judgment

HOEBEN CJ at CL: I agree with Price J and the orders which he proposes. I particularly endorse his Honour's observation at par [72] of the judgment.
PRICE J: This is a Crown appeal brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on Andrew John Nolan ("the respondent") by Ingram SC DCJ ("the judge") on 8 December 2016. The notice of appeal was signed on behalf of the DPP on 21 December 2016 and served on the respondent on the following day.
The respondent pleaded guilty to one count of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for the offence is imprisonment for 25 years. There is a standard non-parole period of 7 years imprisonment.

Facts

An agreed statement of facts was tendered which the judge incorporated in his sentencing remarks. The agreed facts may be summarised as follows:
On 23 September 2014, the respondent was babysitting Bobby Webber ("Bobby"), the nephew of his de facto partner, Casey Watts. Bobby was seven months old at the time and was being cared for in Bobby's parents' home. The respondent had previously minded Bobby, both in the company of Ms Watts and on his own. He had the complete trust of Bobby's parents.
Bobby had been in the sole care of the respondent from 5pm. At 10:30pm, Ms Watts returned to the home and found the respondent asleep on the couch. She woke the respondent, who told her that during the evening Bobby had been playing with the respondent's mobile phone and dropped it on his head and started to cry, but there was no cause for alarm.
Ms Watts went to Bobby's cot and found him tucked under a sheet, "sobbing in his sleep". She picked Bobby up to find him limp and unresponsive. Bobby had two marks on his forehead with butter applied to them. Upon removing Bobby's nappy, she saw swelling and redness around his genital area. Bobby's eyes remained closed and he continued to sob.
Ms Watts called out to the respondent, pointing out a bite mark on Bobby's hand and asked what had happened, to which the respondent replied "I don't know". The respondent said that he had given Bobby some Phenergan. Ms Watts believing that Bobby was having an allergic reaction, took him straight to Wyong Hospital. Upon arriving at the hospital, Bobby required immediate resuscitation and stabilisation, after which he underwent a CT scan. He was then transported to the Sydney Children's Hospital and placed on life support.
Bobby presented with multiple unexplained injuries which were detailed in the tendered statement of Dr Kieran Moran, Paediatrician and the Director of the Child Protection Team at Sydney Children's Hospital which was handed up to the judge. The child's various injuries were summarised in the agreed facts as follows: "1. Eyes Both eyes suffered extensive retinal bruising involving all layers of the retina and extending to all four quadrants of the retina. These are extremely severe injuries consistent with severe shaking or severe impact such as seen in motor vehicle accidents or falling from a significant height. 2. Head i. Multiple bilateral fractures of the skull - due to impact of considerable force either against an object or with an object. Not possible with a single impact. ii. Two abrasions similar to carpet burn on right forehead iii. Pink petechial haemorrhage on middle of forehead iv. Bruising and swelling to some parts of both ears - caused by pinching or blows to the ears. 3. Brain i. Extensive hypoxic-ischaemic injury to the brain structure ii. Bleeding on the surface and around the skull Due to severe rotational force to the brain and brainstem. 4. Torso i. Bruise to right rib cage ii. Patterned petechial bruising to the penis accompanied by swelling and bruising iii. Posterior rib fractures 5. Limbs i. Bruising to left and right lower limbs ii. Bruise to left wrist iii. Impacted fractures to both ankles iv. An adult bite mark on Bobby's left hand, with attendant swelling."
On 27 September 2014, Bobby's parents were advised to authorise the termination of life support. This was done. However, Bobby continued to breathe independently. Bobby was transferred from ICU to a paediatric ward where his parents were asked to complete an End of Life Care Plan, so that if Bobby went into cardiac arrest during the transfer, he would not be resuscitated.
Ultimately, Bobby improved enough so that the End of Life Care Plan was ceased and he was discharged to his parent's home on 18 November 2014.
As a result of the offence Bobby has permanent debilitating and life-threatening conditions. Subsequent to the traumatic brain injury, Bobby developed encephalomalacia, a permanent loss of brain tissue. As a result, he has acquired a seizure disorder, a movement disorder (abnormal posturing of the arms and legs), cerebral palsy and cortical blindness.
A full description of Bobby's prognosis, his ongoing therapeutic needs, and the impact of his injuries on his development were contained in the statement of Dr Michael Cardamone, Paediatric Neurologist.
Dr Cardamone opined that the prognostic implication of Bobby's permanent brain injury was poor. Further, recurrent chest infections can be life-threatening in children with mixed dystonic spastic quadriparetic cerebral palsy and Bobby's epilepsy and developmental issues put him at increased risk of sudden, unexpected death from epilepsy. Dr Cardamone reported that Bobby's seizures, whilst better controlled by three anticonvulsant medications, could be life-threatening events, which could shorten his life span. Bobby would have epilepsy most likely throughout his life.
Dr Cardamone stated that the encephalomalacia affected all lobes of the brain, leading to significant degrees of physical, visual, language and cognitive impairments which were already apparent on examination. This will have a detrimental impact on his physical, psychological, emotional social development and well-being.
As to the child's future rehabilitation and therapeutic needs, Dr Cardamone wrote that Bobby will require ongoing rehabilitation including long-term regular physiotherapy, occupational therapy and other interventions through the Brain Injury and Rehabilitation Unit at Sydney Children's Hospital. He would require carers and intensive structures long-term with regular neurological review.
The respondent provided four different accounts of what occurred during the evening of 23 September 2014:
First, in a police interview on 24 September 2014, the respondent said that the only thing of note that happened while Bobby was in his care was that Bobby accidentally hit himself with the respondent's mobile phone three times. He said that he had given Bobby his mobile phone to play with and that later when he fed Bobby he noticed marks on Bobby's forehead and put butter on them to "bring out the bruises". The respondent also noted that Bobby was "snuffy" from his cold but otherwise well. Police asked if he could account for any of Bobby's injuries and he said that he could not.
The second account was during a two hour walkthrough interview of Bobby's parents' home with police on 29 September 2014. The respondent re-enacted his movements on the evening of 24 September 2014. In particular, he re-enacted the carrying of Bobby in an upright position with his head unsupported into the bathroom to steam the room up to ease his congestion. The respondent expressed a belief that someone must have entered the house through the unlocked door and injured Bobby while he was asleep on the couch. At the conclusion of the walkthrough, the respondent said: "I did not do this to Bobby and whoever did this I hope you find them before I do. What's happened here is disgraceful and we need to find what's happened."
The third account was on 20 October 2014. The respondent told Kristy Chidgey that he had been babysitting and that the baby had been hit on the head while he was asleep. He said that he had left the front door unlocked but did not hear anything. The respondent took a photo of the baby on his phone and told Ms Chidgey that the baby "didn't look right" and that he was going to send the photo to Casey but must have forgotten. A download of the respondent's phone revealed a photograph of Bobby taken at 7:44pm on 23 September 2014.
The fourth account was on 15 February 2016 through his legal representatives. It was as follows: "About 5pm started babysitting Bobby Webber He was in his bouncer I gave him my mobile phone to play with. Twice, Bobby raised his arm above his head and dropped the phone onto his head from a distance of about 30cm (the length of his arm) A third time there was a tug of war over the phone between Bobby and myself, resulting in Bobby pulling the phone away and the phone hitting Bobby in the forehead. There were marks on Bobby's forehead after the above three incidents, as a result of which I put butter on his forehead, thinking it would bring out a bruise. No loss of consciousness due to the above incidents. Short time later, Bobby was on the carpet having his nappy changed. He rolled onto his stomach while I disposed of the old nappy. He did not have a fresh nappy on at this stage, therefore was naked from the waist down. I placed my foot on Bobby's back with some force and rubbed his body up and down on the carpet. Bobby was then crying. I gave him 2 drops of Phenergan to settle him Put him in his cot Bobby kept crying I hit him twice with an open hand to the back and side of his head - Once forehand and once backhand I then picked Bobby up under the arms, and dropped him into the cot. Bobby's head hit the side of the cot's bars (on the inside of the cot) on the way down. He landed on his back I left the room and Bobby was still in the cot crying Sometime later I took Bobby into the bathroom. Bobby was conscious and not crying at this stage. No memory of what happened thereafter Next memory is of being woken by my wife on her return at about 10:30pm. I bit Bobby's hand in the car on the way to the hospital as I believed this may 'bring him around' from the state of depressed consciousness he was then in."
This last account was provided to Dr Kieran Moran for his opinion.
Dr Moran opined that the respondent's account could account for all documented injuries except for the two fractured ankles which could have been caused by slamming the child's feet against a hard surface. The degree of force behind the two open-handed hits to the head must have been very significant. Dr Moran was of the opinion that two 'closed fist' punches were more likely, as the force of an open-handed hit is dispersed, but open-handed is a possible scenario if administered with "very significant force". The two hits to the head could account for the bilateral skull fractures, the subdural haemorrhages, the retinal haemorrhages and the bruising to the ears.
Dr Moran noted that retinal haemorrhages of the severity seen in Bobby usually occur in cases of severe shaking. Outside that, the documented cases arise from motor vehicle accidents, falls from a very significant height (the only documented case related to a fall from 11 metres to a hard surface) and severe crush injuries.
In relation to the dropping of Bobby into the cot, Dr Moran stated that this is unlikely to have caused the above injuries, though if Bobby were flung into the cot with force that could also be an alternate or additional mechanism of the fractured skill and attendant injuries.
The respondent placing his foot on Bobby's back and moving his body up and down on the carpet could account for the bruising to his penis (if sufficient force were applied to the back of the pelvis), fractured ribs and various bruises on the torso.
Dr Moran maintained that following the infliction of the head injuries, Bobby's level of consciousness would have decreased significantly, if not totally. At some stage during the night his depressed level of consciousness would have been noticeable to his carer. Bobby also would have been limp, and the damage to the brain shows that he did stop breathing for a period of time. The assertion that Bobby was conscious and not crying in the shower was possible but unlikely. He was not likely to have been able to hold his head up. It was much more likely to have needed to be cradled like a new born.

The respondent's subjective case

The respondent was 32 years old at the time of the offence and 34 years old when sentenced. He did not give evidence before the judge but Mrs Noelene Chapman gave oral evidence in the respondent's case that she had known the respondent for some 17 years. In his sentencing remarks, the judge recounted that Mrs Chapman had described the respondent as a "gentle giant" who was easy going, always had a smile on his face and was generous of spirit. The judge noted that Mrs Chapman had observed a dramatic change in the respondent since he had been charged and that while the respondent attempted to put on a good face appeared to be very down.
Written material was placed before the judge on the respondent's behalf which included a letter written by him to the judge, a pre-sentence report dated 20 April 2016 prepared by Mahmoud Elsayed, a further pre-sentence report dated 29 November 2016 prepared by Ms Jendy Ellen, a report from Professor Susan Hayes, a forensic psychologist dated 11 August 2016, character testimonials from the respondent's mother, his sisters and a niece and extracts from two police statements.
In referring to Mr Elsayed's report, the judge noted in his sentencing remarks that the respondent was the youngest of five children, his older siblings being much older than he is. The respondent's father passed away when he was three years old. He was raised by his mother in a home which was free from domestic violence and drug or alcohol issues. The respondent had completed year 10 at school certificate level at a special needs school due to his intellectual disability. The judge recounted that Corrective Service records confirmed that the respondent was "not found to be functioning in the range of intellectual disability or low cognitive functioning".
The judge said that the respondent told Mr Elsayed that he had been unemployed for approximately three years at the time of the commission of the offence. He reported to Mr Elsayed that he had a history of depression from the age of 18 years when he was diagnosed with that condition. He was being medicated for depression whilst in custody.
His Honour noted that Mr Elsayed indicated that the respondent appeared to have limited insight into his offending behaviour by reporting that police did not do a good job in investigating the offence and that he disputed the majority of the agreed facts. The respondent initially denied that he had bitten Bobby, but when challenged agreed that he did bite the child on the way to the medical centre for the purpose of initiating a response.
Mr Elsayed reported that the respondent denied shaking Bobby and said rather that he "playfully threw him in the air". He also claimed that the head injuries suffered by the child were the result of him "dropping" the child into his cot. Finally, the respondent did not accept responsibility and claimed that an intruder was responsible for the injuries inflicted on the child. The judge noted that Mr Elsayed reported that the respondent articulated that he was sorry for the child and the child's parents. The respondent had been assessed as having a medium risk of re-offending by Mr Elsayed.
The judge referred to the report of Professor Hayes in some detail. His Honour said that the respondent reported to Professor Hayes that he attended special education classes throughout his education and had been diagnosed with Attention Deficit Disorder. On leaving school, he obtained an apprenticeship as a cabinet maker. Thereafter, he had more than 20 jobs and at the time of his offence, he was in the process of starting his own furniture making business. The respondent told Professor Hayes that his relationship with Ms Watts was under stress as a result of money troubles and interpersonal issues. He and his partner were on the verge of splitting up but had stayed together for the sake of their daughters.
His Honour noted the respondent's concession to Professor Hayes that he had given inaccurate earlier versions of the events, but claimed that was because he was "in denial" and could not believe what he had done. The respondent told Professor Hayes that there was "no excuse" for his actions and he took "full responsibility" for them. The judge recounted that after a traumatic event in 2000, the respondent was diagnosed with depression and prescribed medication for three to five years. He had ceased taking medication but had recommenced in about 2002 at the instigation of Ms Watts. The respondent told Professor Hayes that at the time of the offence, he had not taken antidepressant medication for a few weeks and was feeling depressed whilst in custody with suicidal ideation.
The judge observed that testing conducted by Professor Hayes indicated that the respondent functions in the range of borderline intellectual disability at level less than 97 per cent of his age peers. The respondent's functional age equivalent levels were similar to those of an individual in primary school and were very well below his chronological age. His adaptive behaviour skills fell into the range of mild intellectual disability at a level lower than 99 per cent of his age peers. He has particular deficits in communication skills, especially receptive language. Professor Hayes opined that the respondent currently had diagnoses of depression, anxiety disorder and panic anxiety attacks and was receiving medication. She considered that the respondent's depression could be regarded as chronic.
Professor Hayes was of the opinion that the respondent presented as a low risk of re-offending. He showed sincere remorse for his actions, as indicated in the letter to the judge and during his interview. He was able to express empathy for the child and his parents. Professor Hayes reported that since the report of Mr Elsayed in April 2016, the respondent's insight into his offending behaviour and assumption of responsibility for his actions had changed and therefore his risk of re-offending was lower.
The judge referred to the character testimonials and to the other written material that had been tendered. His Honour noted that initially the respondent was placed in protective custody which involved no association with other protective custody inmates. When referring to the further pre-sentence report dated 29 November 2016, the judge said that the respondent was currently housed in the Integrated Support Unit where he associates with other protection inmates. It was envisaged that the respondent's "protection status" would remain in place for the entirety of his incarceration.
As to the respondent's prior criminal history, the judge remarked that the respondent's very limited criminal history had no particular relevance to the present proceedings. In 2004, he was fined in relation to a driving incident which gave rise to three offences, namely, driving whilst his license was suspended, driving an uninsured motor vehicle and driving an unregistered vehicle. In 2008, he was fined for offences of failing to appear, resisting an officer in the execution of their duty and destroying or damaging property.

Some findings by the judge

The judge accepted that the nature and scope of the constellation of injuries, the ongoing and permanent nature of their sequelae and the grave risk of death that arose from those injuries were each aggravating factors for the purposes of ss 21A(2)(g) and 21A(2)(ib) Crimes (Sentencing Procedure) Act 1999.
His Honour also accepted that the offence involved a grave breach of trust in relation to Bobby who was particularly vulnerable because of his tender age for the purposes of subsections 2(k) and 2(l) Crimes (Sentencing Procedure) Act. His Honour accepted that the offence was not pre-meditated.
The judge stated that while the evidence disclosed that Bobby was uninjured at about 5pm but injured to the extraordinarily severe extent disclosed in the facts by 10:30pm, very little could otherwise be concluded about the precise circumstances of the attack by the respondent upon Bobby, except to observe that the photograph taken at about 7:44pm by the respondent suggested that Bobby may have been unconscious at that time.
The judge said that the precise circumstances in which the injuries came to be inflicted upon Bobby could not be established beyond reasonable doubt. His Honour remarked that it was apparent from the constellation of injuries, their distribution and their extent that the range of all the medically likely causes necessarily involved the respondent having engaged in a significant physical attack upon Bobby, who was an entirely defenceless seven month old.
The judge did not accept, on the balance of probabilities, the respondent's account of 15 February 2016 (the fourth account) of the facts and circumstances resulting in Bobby's injuries.
His Honour said that in all the circumstances he was unable to make the necessary factual findings that the respondent's actions in the commission of the offence were sufficient to warrant a conclusion that the offence was within the worst case category. The judge observed that Bobby's injuries were catastrophic and very nearly proved fatal. Despite surviving the initial attack, Bobby had been left with lifelong catastrophic sequelae as a consequence of the injuries (primarily the brain injuries) that were caused by the respondent.
His Honour said that if the child's injuries and their sequelae were considered alone, they would be consistent with an offence within the worst case category. However, having regard to the objective circumstances of the offence which were established beyond reasonable doubt, his Honour was satisfied that the offence fell "squarely within the high range of objective seriousness by comparison with an offence in the middle range of objective seriousness" (ROS 46).
The judge accepted that the respondent did not have any record of relevant previous convictions and found that he was a person of prior good character. His Honour also accepted that the respondent was unlikely to re-offend and had good prospects of rehabilitation. Furthermore, the judge accepted that the applicant was "genuinely, but belatedly, remorseful". All of these matters were taken into account as mitigating factors by the judge pursuant to s 21A(3) Crimes (Sentencing Procedure) Act.
The judge accepted the opinions of Professor Hayes that the respondent functioned with cognitive reasoning in the borderline intellectual disability range and adaptive skills in the mild intellectual disability range. He accepted that the respondent suffered from chronic depression, anxiety disorder and panic anxiety attacks.
The judge found that the respondent "well knew" what he was doing and the gravity of his actions when he attacked Bobby, despite any compromise of his level of intellectual functioning or depressive or other related disorders.
The judge was not satisfied that the respondent's intellectual functioning and/or his depressive or related disorders contributed materially to the respondent's commission of the offence or that the moral culpability of the respondent was thereby significantly reduced. The judge said that he was not satisfied that there was any warrant for any amelioration of the sentence by reason of a reduced need for denunciation or general deterrence. The judge considered, notwithstanding the offender's level of intellectual functioning and/or his depressive and related disorders that "some emphasis upon specific deterrence" was warranted.
The judge accepted that the sentence to be imposed will likely be somewhat more onerous on the respondent and that such consideration warranted reflection in a degree of amelioration of the sentence.
The judge found special circumstances by reason of the need to provide for a longer period of parole in order to facilitate rehabilitation and properly ensure the respondent's reintegration into the community upon release from custody.
Before discounting the sentence by 10 per cent for the guilty plea, the judge assessed that the appropriate sentence was 14 years imprisonment.

Crown Appeals

The principles relating to Crown appeals pursuant to s 5D of the Criminal Appeal Act were helpfully summarised by Hoeben CJ at CL in R v Barker [2016] NSWCCA 193 as follows: "[52] Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a "limiting purpose" for such appeals and, by contrast with the Court's jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is 'plainly unjust' by reason of its manifest inadequacy) for the mere 'correction of error in the individual sentencing proceedings' Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8). [53] Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is "plainly unjust") the Crown must: (i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]); (ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]); (ii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed). … [55] Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is 'plainly unjust' and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R."

Ground 1: the sentencing judge erred by finding that the objective seriousness was in the high range.

Argument

The Crown referred to submissions made to the judge as to the objective seriousness of the offence. The Crown observed that the judge found that the injuries suffered by the child and their sequelae, if considered alone, would be consistent with an offence within the worst case category. However, his Honour found that he was unable to make the necessary factual finding that the actions of the respondent in the commission of the offence were sufficient to warrant a conclusion that the offence was for that reason within the worst case category.
The Crown submitted that a finding that the respondent's actions were themselves at a level that was the worst case or approaching it was not necessary in order to find the offence within the worst case. The Crown argued that the judge erred by determining he needed to be satisfied of the mechanism by which the child was injured before he could conclude that case fell within the worst category.
It was further argued that the mechanism by which Bobby came to be injured was by no means lacking in seriousness. As the judge found it was a "significant physical attack". The Crown contended that his Honour's reluctance to find that the offence fell within the worst category because he could not make factual findings with respect to the respondent's actions was akin to conceiving of an even worse instance of the offence.
The Crown submitted that it was not open to the judge to find that the objective seriousness only fell into the high range of objective seriousness. The Crown said that the proper conclusion should have been that the offence fell in or near to or approaching the worst category of offence.
The respondent reminded the Court that the assessment of the objective seriousness of the offence is quintessentially a matter for the judge. The question for this Court was whether the judge's assessment of being "squarely within the high range" was open to his Honour. The respondent submitted that whilst s 33(1) of the Crimes Act offences are result based, the manner in which the injury was caused, the reason for it, the surrounding circumstances and the mode of attack were relevant to the assessment of objective seriousness. As the judge could not be satisfied beyond reasonable doubt as to how the injuries came to be inflicted upon the child, there was no error in the assessment of objective seriousness.
The respondent referred to R v Kilic (2016) 339 ALR 229; [2016] HCA 48 ("Kilic") in which the High Court directed attention to avoiding the expression "worst category" and to whether the offence was so grave as to warrant the maximum prescribed penalty.

Consideration

The proceedings on sentence before the judge preceded the judgment of the High Court in Kilic. The Crown put to the judge that the objective seriousness of the offence fell into the worst category of an offence contrary to s 33(1) of the Crimes Act. Counsel for the respondent had argued although the offence was extremely serious and it could be accepted that the child's injuries were at or approaching the worst type of injuries, that did not mean the offence was of the worst category. The submissions of the parties as to the offence being within the worst category focussed upon the objective gravity of the respondent's offending and were made in accordance with authorities such as Little v R [2010] NSWCCA 210 and R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unrep).
In Kilic, the High Court (Bell, Gageler, Keane and Gordon JJ) said: "[18] What is meant by an offence falling within the 'worst category' of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the 'worst category', it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence. [19] Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty - as the offending was agreed to be here - a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being 'within the worst category'. It is a practice which should be avoided." [Emphasis added.]
Both the nature of the offence and the circumstances of the respondent are to be considered in determining whether the offence is so grave as to warrant the imposition of the maximum penalty of 25 years imprisonment.
The Crown did not challenge in this Court, the favourable findings made by the judge as to the respondent's subjective case.
Notwithstanding, the horrific nature of Bobby's injuries and continuing disabilities, the high vulnerability of a seven month old child and the respondent's breach of trust, the offence was not planned; the respondent was a person of prior good character; was unlikely to re-offend; has good prospects of rehabilitation; has shown remorse and is likely to serve his sentence in protective custody. Having regard to the nature of the offence and circumstances of the respondent, the offence is not so grave as to warrant the maximum penalty. The judge did not err by rejecting the Crown's contention that the offence fell into the worst category.
The Crown criticised in this Court the judge's reasoning that he was "unable to make the necessary factual findings that the actions of the [respondent] in the commission of the offence were sufficient to warrant a conclusion that the index offence was for that reason within the worst category" (ROS 45).
His Honour had for good reason rejected the respondent's fourth account of what had occurred. None of the respondent's accounts explained how Bobby sustained the impacted fractures to the left and right ankles. In Dr Moran's opinion, the two fractured ankles could have been caused by the child's feet being slammed against a hard surface. The respondent plainly lied when he said that he bit Bobby's hand to "bring him around" from the state of depressed consciousness on the way to the hospital. It was an agreed fact that Ms Watts had seen the bite mark when she returned home. She had called out to the respondent, pointing to the bite mark and asked what had happened, to which the respondent replied "I don't know" (see [11] above).
The fourth account also contained the implausible explanation that the injuries to the child's forehead were caused by the child dropping the respondent's mobile phone on his forehead on three occasions.
Notwithstanding the deficiencies in the respondent's accounts of what had occurred, it was not necessary for the judge, when assessing the objective seriousness of the offence to be satisfied beyond reasonable doubt as to precisely how Bobby's injuries were sustained. In many instances of violent offending, it is not possible for a court to determine the precise mechanism by which an offender injured the victim. There was ample evidence before the judge that the respondent had used considerable force. In any event, his Honour recognised that the injuries inflicted upon Bobby were catastrophic as were the lifelong sequelae. His Honour found that the respondent had engaged in a significant physical attack upon Bobby and that he "well knew" both what he was doing and the gravity of his actions.
It was open to his Honour to find that the offence was squarely within the high range of an offence contrary to s 33(1) of the Crimes Act. Ground 1 of the appeal has not been established.

Ground 2: The sentence imposed is manifestly inadequate

Argument

The Crown submitted that the sentence imposed by the judge was so far below the range of sentences that could be imposed for the offence, consistently with appropriate sentencing practices, that it was "plainly unjust" and likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders.
The respondent submitted that notwithstanding the high objective seriousness of the offence, including the catastrophic outcome for Bobby, the judge's "considered, thorough remarks elucidate circumstances justifying the sentence ultimately imposed" (RWS 2).
The respondent referred to the mitigating factors found by the judge which included his prior good character, low risk of re-offending and good prospects of rehabilitation. Reference was also made to his Honour's finding as to the increased onerousness of his time in custody as a result of his borderline intellectual disability and other conditions, and his placement in protective custody. The respondent submitted that, as the judge found, there was a limited role for specific deterrence. Furthermore, a finding of special circumstances was supported by the respondent's intellectual deficits, other conditions and protective custody.

Consideration

In order to succeed on this ground, the Crown must establish that the judge imposed a sentence that was well below the range of sentences that could be justly imposed for the offence, consistent with sentencing standards. Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24].
Neither party brought to the Court's attention comparative sentencing decisions or Judicial Commission sentencing statistics. However, manifest inadequacy may be shown by consideration of all of the matters that are relevant to fixing the sentence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [60].
The sentencing guideposts were the maximum penalty of 25 years imprisonment and standard non-parole period of 7 years. As the objective gravity of the offence fell within the high range, the standard non-parole period, although not irrelevant, has less significance as a guidepost than the maximum penalty in determining the appropriate sentence: R v Mitchell, R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296 at [37].
The undiscounted starting point of his Honour's sentence is 14 years imprisonment which is 56 per cent of the maximum penalty.
The respondent intentionally and with considerable force inflicted life-threatening injuries upon Bobby, a defenceless 7 month old. Upon arrival at Sydney Children's Hospital, the child was placed on life support. His parents, upon advice, subsequently authorised the termination of the support, but Bobby continued to breathe independently.
As a consequence of the respondent's offending, the child is severely disabled. He sustained permanent brain injury, the prognosis of which is poor. The plethora of other serious disabilities could shorten his life expectancy. All of his continuing disabilities detrimentally impact upon his physical, psychological, emotional social development and well-being. The child's prospects of enjoyment of life have been destroyed.
Although the respondent's subjective case and protective custody required a reduction in sentence, these considerations were not such to justify an undiscounted starting point of 14 years imprisonment. The sentence falls well short of adequately reflecting the gravity of the offence, the need for general deterrence and the denunciation of the respondent's conduct. Serious physical abuse of infants is abhorred by the community and general deterrence is of great importance in sentencing such offenders.
In the circumstances of the offence, I am satisfied that such a starting point is manifestly inadequate. This conclusion is not founded upon the view that if I had been the sentencing judge, a greater sentence would have been imposed in the exercise of my sentencing discretion: Lowndes v The Queen (1999) 195 CLR 655; [1999] HCA 29 at 671-672.
The Crown has established Ground 2.

The residual discretion

The question remains whether this Court should intervene and re-sentence the respondent. There is a residual discretion to decline to intervene even though the sentence is manifestly inadequate. The Crown is obliged to satisfy the Court that the residual discretion should not be exercised: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". Their Honours described the primary purpose of laying down principles as a "limiting purpose" and said: "[36] It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion."
Their Honours observed that other circumstances may combine to produce injustice if a Crown Appeal is allowed. Their Honour's said: "[43] They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."
The Crown contended that the sentence imposed by the judge significantly fails to reflect the criminality encompassed in the respondent's offending and has the capacity to undermine public confidence in the proper administration of the justice system. The Crown pointed to the following matters that were said to be relevant to the exercise of the residual discretion: 1. the imposition of the manifestly inadequate sentence was not caused or perpetuated by the Crown; 2. there has been no delay in the institution of the Crown appeal, or in the service of the notice of appeal; and 3. there was no post-trial evidence relevant to the exercise of the sentencing discretion.
The respondent submitted that the Crown should exercise the residual discretion in his favour, considering that his intellectual and other conditions already make his time in custody more onerous than it otherwise would have been. The respondent referred to his affidavit sworn 6 April 2017, in which he deposed to his protective custody in the Integrated Support Unit at Long Bay Correctional Centre. He understood that his protection status was "non-association" but was uncertain if that was correct. He understood that he may be moved to Goulburn Correctional Centre ("Goulburn").
The anticipated transfer to Goulburn has occurred. On the hearing of this appeal, the respondent appeared by way of audio visual link from Goulburn.
In my view, the Crown has demonstrated that the discretion to re-sentence should be exercised by this Court. The proper administration of justice does not support the exercise of the residual discretion. The Crown has neither contributed to the manifest inadequacy of the sentence nor delayed the appeal. Guidance to sentencing judges that may be provided by this decision includes the need to protect infants from physical attacks by persons who have been entrusted with their care. Public confidence in the justice system would not be served by allowing a manifestly inadequate sentence to stand.
For the purposes of re-sentencing, the objective and subjective considerations to be taken into account are clear from what has been written to this point. Neither party has challenged his Honour's findings as to the respondent's subjective case. Accordingly, I intend to adopt all of these matters in re-sentencing the respondent.
It appears that the respondent will serve his sentence in protective custody. It is appropriate to take this into account, as his Honour did, in determining the length of the sentence.
The undiscounted starting point of the sentence should be 17 years imprisonment. The judge discounted the total sentence by 10 per cent for the utilitarian value of the plea. I propose to apply the same discount. This will provide a total sentence, rounded slightly, of 15 years 3 months.
I am not persuaded to find special circumstances as the balance of term provides ample time to facilitate the respondent's rehabilitation and reintegration into the community.
Accordingly, I propose the following orders: 1. Crown appeal allowed. 2. Sentence imposed in the District Court of New South Wales on 6 December 2016 is quashed. 3. In lieu therefore, the respondent is sentenced to imprisonment for 15 years 3 months consisting of a non-parole period of 11 years 6 months commencing on 24 October 2014 and expiring on 23 April 2026, with a balance of term of 3 years 9 months commencing on 24 April 2026 and expiring on 23 January 2030. 4. The earliest date that the respondent will be eligible to be released on parole is 23 April 2026.
FULLERTON J: I agree that the Crown appeal should be allowed for the reasons Price J has identified. I also agree with the orders proposed.

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