R v Smith

R v Coleman (1990) 19 NSWLR 467; 47 ACrimR 306; R v Stokes and Difford (1990) 51 ACrimR 25; R v Livingstone [2004] NSWCCA 122). CASES CITED: R v Hooper [2004] NSWCCA 10, The Queen v De Simoni (1981) 147 CLR 383 R v Allpass (1993) 72 ACrimR 561

DPP- Appellant L Smith - Respondent PARTIES:

J Girdham - Appellant COUNSEL: A Francis - Respondent

S Kavanagh - Appellant SOLICITORS: S O'Connor - Respondent

IN THE COURT OF CRIMINAL APPEAL 2005/778

BROWNIE AJA BUDDIN J LATHAM J

23 AUGUST 2005 REGINA v LARRY SMITH Judgment 1 BROWNIE AJA: I agree with Latham J 2 BUDDIN J: I agree with Latham J 3 LATHAM J: The Director of Public Prosecutions appeals against the asserted inadequacy of a sentence imposed by his Honour Judge Goldring in the District Court at Campbelltown on 21 April 2005. On that day, the Respondent was sentenced to a total term of ten months imprisonment commencing 21 April 2005, with a non parole period of five months in respect of one count of maliciously inflicting grievous bodily harm, pursuant to s 35(1)(b) of the Crimes Act 1900. The maximum penalty for that offence is a term of seven years imprisonment. It should be noted that the Respondent pleaded guilty to count 2, which was expressed as an alternative to a count under s 33 of the Crimes Act. The plea of guilty was accepted in full discharge of the indictment. That indictment also contained a count that by negligent omission, the Respondent caused grievous bodily harm, contrary to s 54 of the Crimes Act. A further alternative count of failing to provide adequate and proper medical aid without reasonable excuse (contrary to s 228 of the Children and Young Persons (Care and Protection) Act 1998) was also included in the indictment. 4 The Crown presses four grounds on the appeal as follows:-

Ground 1 That his Honour erroneously failed to find that the Respondent intentionally applied hot water to the victim.

Ground 2 That his Honour erroneously failed to have proper regard to the relevant aggravating and mitigating factors pursuant to s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 and otherwise failed to impose a sentence that appropriately reflected the objective gravity of the offence, even upon the finding that the Respondent had acted with reckless indifference.

Ground 3 That his Honour erroneously determined that the offence was "relatively minor" by comparison with other cases to which the Crown had invited attention.

Ground 4 That his Honour erred by imposing a sentence that failed to meet the requirements of s 3A of the Crimes (Sentencing Procedure) Act 1999. 5 The Crown also contends that the sentence imposed is manifestly inadequate, having regard to the objective gravity of the offence and thereby in itself reveals error. 6 A consideration of the grounds of appeal requires some reference to the history of the matter and to the conduct of the sentencing proceedings. The victim's injuries consisted of severe scalding and consequent permanent scarring to both legs, caused by hot water. The precise circumstances giving rise to these injuries had not been determined. The following represents a distillation of the material tendered by the Crown on sentence. 7 The injuries to the victim, the six year old son of the Respondent's de facto spouse, were inflicted at some time between 28 September 2001 and 15 October 2001. It was not in dispute that on that occasion, the Respondent was responsible for the care of the child, his mother having left the home to go shopping. 8 The victim was absent from school on the last day of term being 28 September 2001. On resumption of the school term on 15 October 2001, the victim failed to return to school and remained absent until 19 November 2001. The explanation proffered to the school for the child's absence came from the child's mother who spoke of the child's natural father scalding the child's legs with hot water during an access visit. 9 As a result of a notification to the Department of Community Services, two officers of that Department went to the Respondent's home on 16 January 2002. Observations were made of extensive discolouration and scarring of the victim's ankles. The victim was wearing tracksuit pants and indicated that his legs had also been burnt when he was placed in a hot bath. The Respondent was questioned. He told the officers that he had put the child in the bath and then went to answer the phone. He said he then heard a scream and went back to lift the victim from the water. 10 The victim was examined the next day at Campbelltown Hospital. The examining paediatrician noted: Both Blaine's legs had significant severe purple keloid scarring consistent with burns. There was circumferential scarring on both his lower legs but his feet were spared from his ankles down. The top of both his knees as well as his buttocks and groin were spared. There was a small extension onto his right hip, but nothing on his left hip. … There was no evidence of infection or inflammation. … [Blaine has] evidence of medical neglect with delay or possible failure of presentation for treatment of significant burns which would have required specialist burns unit treatment had he presented at the time of the burns. 11 The victim was transferred to the Paediatric Burns Unit at Westmead Children's Hospital and placed into the care of the Department of Community Services. 12 The victim spoke of the scalding a number of times between 21 January 2002 and 13 August 2002. His accounts were consistent, to the extent that he was in the bathroom when his legs were burnt by hot water, whilst the Respondent was present. At various times, the victim referred to sitting in the bath when the water was too hot, having hot water poured on him with a bucket, and standing in the bath when the Respondent splashed him with hot water from the "hot tap" using his hand. The victim denied that he had touched the taps in the bath. 13 There was a reference by the victim to the Respondent answering the telephone while the victim was in the bath, on the first and second occasion the child was interviewed, that is, on 21 January 2002 and 5 February 2002. However, thereafter, the victim maintained that the Respondent had poured hot water on his legs from a bucket, that he had screamed and told the Respondent that blisters were forming (Interviews of 25 February 2002 and 13 August 2002). 14 The Respondent was interviewed on 22 January 2002. The Respondent's account was to the same effect as that given to the Department of Community services officers on 16 January 2002. The Respondent maintained that he had left the victim sitting in the bath, which the Respondent had filled, to answer the phone. The taps had been shut off prior to the Respondent leaving the bathroom. The Respondent and the victim had been talking before the phone rang. The Respondent suggested that the victim must have turned on the hot tap whilst the Respondent was talking on the phone. When the Respondent returned to the bathroom, the hot tap was running. The Respondent, who had partially completed a nursing assistant's course and completed a child care course, said he had checked the temperature of the water with his right hand before the victim got into the bath and it seemed a reasonable temperature. He did not notice any blisters on the victim's legs until the next morning. 15 The Respondent claimed that the victim's mother took the child to the "family doctor" a couple of weeks later and that the victim appeared "fine". Otherwise, no medical assistance was sought. The whole of this account was substantially repeated in another interview on 5 March 2002. 16 It was subsequently verified that no consultation with the "family doctor" took place and that no medical treatment of any kind was obtained. 17 The expert evidence contained in the Crown brief established the following:

(i) The burn pattern on the victim's legs was consistent with hot water being splashed onto the victim's legs, probably from behind, thus explaining the absence of burns on the victim's knees, genitalia and feet.

(ii) The burns on the legs varied in depth. Some would have healed within 10 or 14 days, leaving no scar. Other burns of greater depth took up to four months to heal and would have remained open and moist wounds. Those wounds would have been very painful.

(iii) The burns required the victim to wear a pressure suit until January 2004, covering his legs, buttocks and hips, all the time, but for bathing. Every two to three weeks, the victim was assessed at Westmead Hospital and underwent physiotherapy.

(iv) The distance of the spout of the faucet from the wall of the bathroom, over the bath, was inconsistent with hot water from the faucet falling onto the victim's legs whilst he was sitting or standing in the bath. 18 The Respondent was arrested and charged on 19 March 2002. He was committed for trial on 25 September 2003. He was to stand trial jointly with the victim's mother on 27 April 2004, following the failure of the latter's separate trial application on 12 February 2004. That trial date was vacated, for reasons which are not material. When the matter was mentioned on 29 April 2004, the Respondent's counsel indicated, for the first time, that the Respondent may be pleading guilty. The plea was not entered until 6 December 2004. 19 The matter did not come before his Honour for sentence until 21 April 2005. It proceeded by way of the tender by the Crown of a large volume of documentary evidence, absent any statement of facts. Before that occurred, there was some discussion between his Honour and counsel concerning the area of factual dispute. 20 The resolution of that factual dispute against the background of some imprecision in the formulation of the role that recklessness may have played in the commission of the offence is at the heart of Ground 1.

Ground 1 21 Before passing to a consideration of this ground, it is important to re-state the meaning of "maliciously" in the context of an offence under s 35(1)(b). S 5 of the Crimes Act relevantly provides: "every act … done without malice but … with intent to injure some person … and in any such case without lawful cause or excuse, or done recklessly …"

is done maliciously. When applied to the instant offence, "maliciously" does not mean an intention to cause grievous bodily harm. It means either that the offender intended to do the particular kind of harm that in fact was done (scalding), or recklessness as to whether such harm would occur (that is, a realisation that the particular kind of harm in fact done, might be inflicted, yet going ahead to take the risk of it). (See R v Coleman (1990) 19 NSWLR 467; 47 ACrimR 306; R v Stokes and Difford (1990) 51 ACrimR 25; R v Livingstone [2004] NSWCCA 122). 22 The Respondent's plea of guilty brought with it an admission as to the essential ingredients of the offence. Thus, he either intended to scald the victim by the deliberate application of hot water to the child's body or he deliberately (not accidentally) applied hot water to the child's body in the realisation that scalding might result, but went ahead and took that risk. Had there been any real issue as to the Respondent's intentional application of hot water, the Respondent's plea ought to have been rejected in favour of a plea to an offence under s 54 Crimes Act. 23 Returning then to the issue confronting his Honour, it is clear from a proper reading of the transcript of the discussion that the real dispute was the method by which the Respondent intentionally applied hot water to the child's legs. The Crown maintained that the Respondent had poured the hot water from a bucket, whereas the Respondent's counsel took issue with that submission. Whatever the means by which the hot water was applied to the child's legs, the following exchanges make it clear that the Respondent's counsel did not dispute that the Respondent's actions were intentional:- His Honour: The issue that I anticipated was whether in fact Mr Smith admitted to throwing a bucket of water into the bath. Crown: That's part of the problem in this case, … it appears there is still some reticence towards acknowledgment of the extent of the wrongdoing … His Honour: So am I going to have to make findings of fact Miss Evers Evers: Well, the difficulty in part is that I will be certainly going through some of the material …. Mr Smith is undergoing quite severe denial although he acknowledges … that he is responsible. So what he says to the Court is "I am responsible for what occurred" but the issue of whether it was by a bucket of water, there is [sic] major inconsistencies and that's not going to be admitted. His Honour: Well it seems to me either by a conscious act or by negligence and in either case the consequences are serious. …. Evers: We'd be relying on recklessness your Honour rather than maliciously inflict grievous bodily harm on the basis of recklessness. Certainly there was some conscious … His Honour: I think that's probably clear in any event. …. His Honour: What would you be pressing Mr Crown? …. Crown: It can't have occurred …. the way [Mr Smith] has suggested, that it occurred by the boy somehow turning on the hot water tap. Its just physically impossible for that to occur. [There followed a further discussion concerning the reliability of the victim's accounts] Crown: There's no other way that boy could have had the burns caused to his legs other than have water applied to them, in some fashion, whether it be by way of a bucket or some other device. He could not have suffered the burns by putting his legs under the tap as was alleged by the offender when he was interviewed by the police and we do not have any other version from this offender …. Evers: Your Honour, there is no way that my client pleaded guilty and is maintaining that version given to the police. It is clear that he does not adhere to that version. … There is an admission, quite clearly, that he is responsible for in some way, we say by recklessness, in the child being burnt. I can, unfortunately, not obtain a version now, but my client accepts that there is something he has done, either by splashing … he does deny that he threw a bucket of water on him, but he does concede that he somehow recklessly splashed the child in a fashion where there was at least a consciousness of throwing water at him . ( emphasis added) …. There is no denial [that it is very serious] and there is no submission by the defence that a full time custodial sentence is not appropriate.

(T 21/4/05 pp 2 - 7) 24 It was at this point that the Crown bundle of 47 statements and other documents were admitted without objection as Exs A and C. After some further discussion on an unrelated issue, the Crown returned to the issue of the method by which the hot water was applied to the victim. The Crown invited his Honour to reject the suggestion of splashing as inconsistent with the pattern and degree of scalding. The Crown maintained that the nature of the injuries required "the sustained application for a significant period of time of hot water". (T 21/4/05 p 20 ) 25 In response to this submission, the Respondent's then counsel said: I can't take issue with my friend … that there has been certainly some sustained application of water (T 21/4/05 p 25) 26 His Honour picks up this concession in his remarks on sentence: It is not clear what happened but it is agreed that there was a sustained application of hot water to this boy's legs for a prolonged period. It is clear from the opinion of Dr Martin, which is in evidence, that prolonged exposure of the skin of a child of this age to hot water can produce extremely serious burns, and that happened here. There is a lot of talk about other things that may or may not have happened. But it is clear on Mr Smith's own account that while the boy was in the bath he, Mr Smith, left the room and had a telephone conversation with the victim's mother. At that time the boy screamed and his mother heard that and Mr Smith then told her to return home. I am told by Ms Evers, who appears for Mr Smith, that he no longer adheres to the version of events that he gave to the police, but he has admitted that, as I have said, there was a sustained application of hot water to the boy's legs for a prolonged period which resulted in this very serious injury. (R/S pp 2 - 3) 27 Later his Honour says:- In this case the facts before me cannot convince me beyond reasonable doubt that Mr Smith did anything intentionally to cause injury to this boy, but he was recklessly indifferent to the condition of the boy and in the law that amounts to the same thing. ( R/S p 5 ) 28 And later still:- On the facts before me I have found that this is a crime of reckless indifference rather than one of intentional harm. (R/S p 8) 29 The Crown submits that his Honour failed to find that the Respondent intentionally applied hot water to the victim. According to this submission, his Honour's reference to "reckless indifference" on the part of the Respondent was a reference to the application of hot water to the child's legs, as distinct from an intentional application of hot water in the realisation that the child might be scalded, yet going ahead to take that risk. The Respondent, on the other hand, contends that his Honour referred to recklessness in the latter context, not the former, and that there is no error in that approach. 30 It is perhaps unfortunate that his Honour referred to the version put forward by the Respondent in his record of interview, in terms which may have suggested that it was a version of events capable of acceptance. His Honour compounded that impression when, in the context of "bad parenting", his Honour said "it is often said that good parenting requires that young children are not left alone in the bathroom with hot water" (R/S p 5). However, I would not construe the entirety of his Honour's remarks in the manner contended for by the Crown. Such a construction is not realistically open when one has regard to the plea of guilty, the abandonment of the version given by the Respondent in the record of interview and the repeated references throughout the submissions by counsel and in the remarks on sentence to a "sustained application of hot water to the boy's legs for a prolonged period" (R/S p 2). 31 A consideration of the whole of the remarks on sentence tend to confirm that his Honour was not suggesting that the Respondent did not intend to apply hot water to the child's legs. Thus, his Honour refers to the offence not being one of "intentional harm". 32 Moreover, it is difficult to reconcile the construction suggested by the Crown with the nature of the charge, the material before the Court, as to the circumstances of the offence, and with the acknowledgement by the parties and his Honour that nothing less than a full-time custodial sentence was called for. 33 In the result I am satisfied that, despite some infelicitous expression on his Honour's part, his Honour did find that the Respondent intentionally applied hot water to the child's legs, albeit he was reckless as to the possibility that the victim would be scalded.

Ground 2 34 Essentially, the Crown's complaints under this ground are that his Honour failed to find that hot water was effectively a weapon for the purposes of this offence (s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999), that his Honour failed to find that the offence involved gratuitous cruelty (s 21A(2)(f)), that his Honour placed too much weight on the finding that the Respondent was remorseful (s 21A(3)(i)) and that his Honour placed insufficient weight on the breach of trust by the Respondent and the vulnerability of the victim (s 21A(2)(k) and (l)). 35 The first two complaints may be dealt with comparatively briefly. The Crown's written submissions on sentence relied upon s 21A(2)(c) and (f), in addition to other factors not presently relevant. There was no discussion before his Honour of either of these factors; the Respondent's counsel simply took issue with the Crown's characterisation of the offence in these terms. 36 In the remarks on sentence, his Honour said:- I am not satisfied beyond reasonable doubt that this offence involved the actual use of violence or a weapon or that it was gratuitously cruel. (R/S p 6) 37 I can see no error in his Honour's failure to regard the intentional use of hot water as tantamount to the use of a weapon, nor in his Honour's failure to find that the offence involved gratuitous cruelty. The latter factor is less likely to be present where an intentional act gives rise to injuries which were contemplated by the offender as possible, but no more, as opposed to offences involving deliberate, calculated torture or where the type and degree of harm inflicted is part of the offender's desire to degrade and humiliate the victim. Of course, it is not possible to neatly define the categories of offences in which gratuitous cruelty will feature. However, it was open to his Honour to regard this offence as lacking that factor, particularly where his Honour had found the Respondent reckless as to the harm caused by his actions. 38 Whilst it cannot be disputed that many objects, not inherently answering the description "weapon", are nonetheless capable of being so regarded by virtue of their use as a weapon, I would not regard hot water to fall into that category in the circumstances of this offence. 39 His Honour was clearly unable to make a finding of fact, beyond reasonable doubt, that the Respondent intended to use hot water as a weapon with which to punish the child. In my view, there was a paucity of reliable material which was capable of supporting such a finding to that standard. 40 Turning to the next complaint, there is some support for the Crown's submission that his Honour placed undue emphasis on the Respondent's remorse. According to his Honour, the evidence of remorse came, in part, from the Respondent's answers in the course of the record of interview:- His Honour: I don't think there's any question of his remorse. … Because from an early stage there is ample evidence that he accepts responsibility for this child's condition. (T 21/4/05 p 25) 41 This is, with respect to his Honour, a rather generous interpretation of remorse. The Respondent was accepting responsibility to the extent that he maintained that he had left the child unattended in the bath (Q's 45, 46 of the Interview). Once the Respondent resiled from that account, it was hardly remorse for the purposes of the offence for which he stood to be sentenced. 42 In the absence of any evidence from the Respondent, his Honour was left with two reports by Dr Lennings' (Ex 1). The first report of 10 June 2004 was prepared prior to the change of plea and therefore prior to the abandonment of the version given in the record of interview. In the course of that report, Dr Lennings notes:- Certainly he does not accept any personal responsibility for either the hot water going into contact with B's legs or for the medical negligence that followed. 43 Not surprisingly, at the end of the report, Dr Lennings writes "the assessment [of] remorse could not be undertaken given the denial Mr Smith is currently exhibiting regarding the alleged offence". 44 That left the report of 2 April 2005, wherein the following appears:- Mr Smith appeared quite devastated by the situation that has arisen. He told me he feels terrible and was quite angry at himself. He said that he had caused 'the kids to lose a brother' … It seems that his perception of events is now so compromised by the myriad times he has been asked questions by investigators, lawyers, family and his children that he 'no longer knows what is right'. He continues to have difficulty accepting the version that he is alleged to have thrown hot water in [sic] his child, but accepts that he can no longer trust his judgment or memory of the events and accepts that his child's injuries are a result of his behaviour. He seems genuinely remorseful about this, both angry and disgusted that he could have brought about such a dire consequence as harm to his child. 45 It is apparent that the Respondent was, according to Dr Lennings, remorseful on the basis that he had somehow severely scalded the victim, without being able to acknowledge how that occurred, namely by an intentional act on his part. Whatever the validity of the Respondent's claims not to know what he had done, his remorse was most clearly expressed in terms of the serious injury to the child and the consequences to the family. 46 His Honour acknowledged this during the remarks on sentence:- Since the offence, he has expressed a great deal of concern about the boy and, indeed, not only did he plead guilty to this offence after a degree of negotiation, but he also has, on a number of occasions, expressed regret at the injuries that the boy has suffered. (R/S p 1) 47 Given that this was the totality of what his Honour said about the Respondent's remorse in the course of remarks on sentence, I am not persuaded that his Honour did place undue weight upon it, whatever may have been the tenor of the exchange during submissions. 48 The last complaint by the Crown is one which has considerable bearing on the asserted failure by his Honour to impose a sentence that appropriately reflected the objective gravity of the offence. 49 The most significant aggravating features of this offence were those which find expression under s 21A(2)(k) and (l) of the Crimes (Sentencing Procedure) Act. His Honour correctly found that: It was an offence which caused substantial injury and emotional harm. It was caused to a vulnerable victim because it occurred through the act or neglect of the stepfather. (R/S p 6) 50 However, the remarks immediately preceding this observation tend to suggest that his Honour failed to have appropriate regard to the abuse of the parental relationship, preferring instead to speak of the Respondent's culpability in this respect as a manifestation of poor parenting skills. After noting that "offences against children are regarded seriously", his Honour said:- It is also clear from all the evidence before me that Mr Smith …. needs to learn something about good parenting. It is often said that good parenting requires that young children are not left alone in the bathroom with hot water. And there are other clear instances where there is evidence of less than the desired standards of good parenting, including the failure to take this child for medical attention after he was burnt. However, Mr Smith is not convicted of any offence involving that. It simply indicates that bad parenting was a factor here. (R/S p 5) 51 These remarks were perhaps drawn from Dr Lennings' reports, in so far as his assessment of the Respondent was that he was "a very disorganised self-defeating person who has great difficulty in being able to manage his day-to-day requirements of living" (report of 16/6/04). In addition, there was material contained within the statements of the Department of Community Services officers, which were part of the Crown brief, relating generally to poor standards of hygiene within the home and inadequate food and clothing for the children. 52 As against this, the Respondent was 27 at the time of the offence, of average cognitive ability, who had been educated to Year 12, had no substance abuse issues, no verifiable disabilities and who had completed a course in child care. There was very little, if anything, which in my view could objectively justify an assessment of this offence as a product of poor parenting skills. 53 A further aggravating feature, namely the failure to seek medical treatment was also assigned to "bad parenting". It was conceded by counsel for the Respondent in this Court that the failure to seek treatment was an aggravating factor of the offence, albeit it was also an element of the charges preferred under s 54 Crimes Act and s 228 of the Children and Young Persons (Care and Protection) Act. The fact that the Crown accepted a plea of guilty to the charge under s 35 in full discharge of the indictment did not prevent consideration of that factor, nor could it be a breach of the De Simoni principle to take it into account, when to do so did not expose the Respondent to punishment for an offence carrying a greater maximum penalty: R v Hooper [2004] NSWCCA 10, The Queen v De Simoni (1981) 147 CLR 383. 54 Even when offences against children are committed as a result of momentary lapses of control (which was not the case here) this Court has stressed that appropriately severe sentences have an important deterrent function:- Young children cannot protect themselves from the acts of adults. They cannot lodge complaints about criminal behaviour perpetrated upon them. They are entirely reliant upon their parents … to care for them and protect them. [Where] that protective trust [is] abused … the only protection which society can give to young children is the protection afforded by the courts. R v Pitcher 19/2/96 NSWCCA unreported See also R v Dawes [2004] NSWCCA 363 55 For these reasons I am persuaded that his Honour failed to accord sufficient weight to these aggravating factors and failed to reflect the objective gravity of the offence in the sentence ultimately imposed.

56 Having reached this view, it is strictly unnecessary to consider Grounds 3 and 4. I note in passing that comparison with sentences imposed in other circumstances for quite different offences against children of varying ages are of limited use. Given the very low number of offences of this nature coming before the courts, no doubt because of the difficulties associated with their prosecution, it would be misleading to posit the existence of a range of sentences against which this offence should be measured. 57 It remains to determine whether, error having been established, the Court should refuse to intervene : R v Allpass (1993) 72 AcrimR 561. 58 The Court received an affidavit on the usual basis, concerning the Respondent's custodial conditions. The Respondent is classified C2, which allows association with other inmates in the Respondent's wing. The Respondent is locked in a cell between 3:30pm and 8:00am the following day. At other times, the Respondent has access to a yard. He has experienced some difficulty getting appointments with a psychologist, although he has seen a psychologist on two occasions. He has had one visit from his partner, who is unable to travel by public transport from Airds to Long Bay on weekends, whilst caring for four children. 59 Paying due regard to the double jeopardy faced by the Respondent, in particular, the restrictive nature of his custody and the fact that the Respondent is due for release in a month's time, I would exercise the discretion not to intervene. 60 Accordingly, I would dismiss the appeal.

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