R v Youkhana

R v Youkhana - [2015] NSWDC 314 - NSWDC 2015 case summary — Zoe

[4]

Facts

At 3pm on 1 April 2013, the child, A, was driven to Westmead Hospital Emergency Department by the offender. There, the offender presented the child, A, to the medical staff. When A was presented to hospital, the clinical opinion was, at that time, that she was close to death (Dr Marks' evidence on 16 September 2015).
The first person the offender spoke to was Registered Nurse ('RN') Julie Austin, the rapid triage assessment nurse. RN Austin noted that A was pale, her lips were a bluey colour, and her body was cool. She asked the offender "what's wrong with her?" The offender replied "I'm not sure what's wrong with her, I think she fell, but I didn't see it."
RN Austin escorted the offender and A through to the resuscitation area of Emergency to be seen immediately. She asked "How long has she been like this for?" The offender paused before answering, "I don't know". The offender did not answer RN Austin's further questions.
Immediately, a number of doctors and nurses began treating A. Dr Thosar asked the offender what had happened to A and the offender responded with words to the effect that A "… had a fall while playing about half an hour prior to arrival", and since then had been turning blue, going in and out of consciousness.
The offender told Dr Paul Tait that A was "…playing with her brother AY in the house" while she, the offender, was in the kitchen and "…she heard running and then a thud followed by A crying". When the offender went to investigate, A was lying on the floor crying. The offender said that she then drove A to the hospital.
A had sustained multiple injuries and more than one acute serious injury. In this context, 'acute' meant sustained within a maximum of 12-24 hours of her presentation to hospital and very likely within the approximately 1 hour time frame as described by the offender - but not by the mechanism described by the offender.
The child had earlier been seen on 26 March 2013. On that occasion, an ambulance took her to the hospital. She, A, was in varying states of consciousness over the journey. When seen by the doctor, she was fully examined and was found to have no apparent bruising other than that which was fully consistent with the history given. That formed the basis of the Crown case that whatever had occurred, occurred after 26 March 2013, and between that date and, most likely, 1 April 2013.

[15]

Dr Terence Donald

In the opinion of Dr Terence Donald, Paediatric Forensic Physician, the incident which led to A's admission to hospital on 1 April 2013 involved high impact force to both her head and her abdomen. Dr Donald's opinion is set out in detail in his report dated 9 September 2014 (exhibit S 9). The report annexes Dr Donald's curriculum vitae. He has also had experience in case review matters - which is essentially what he carried out here.
Dr Donald said that the force required to cause the head and abdominal injuries could not be generated by another similarly aged child unless it involved A being pushed from a significant height, much greater than her standing height, and more of the order of 3 or 4 metres. This opinion contradicted the suggested version proffered by the offender, being either an accidental fall or a push by the offender's older child AY (then aged 3).
Further, Dr Donald stated that, in considering whether A's injuries could have been inflicted by the older child AY, it was first necessary to consider which injuries were likely to have occurred at the same time as the head injury.
Dr Donald said the abdominal and head injuries could have been caused by the same incident or, possibly two incidents at the same or similar time. The injuries described in all the medical and hospital reports were quite rare, and were not consistent with minor impact injury. Dr Donald had never seen such injuries nor read of any such injuries being explained by the account given by the offender in this instance. The injuries could have occurred or been caused by a short fall (less than 1.5 metres) but almost always when the fall was onto a hard surface.
The medical evidence established, in my view, that A suffered at least two high impact forces, one to the head and one to the abdominal region, within a short period of time prior to her presentation at the hospital. The extent of the force required to cause the injuries was indicative of deliberate force inflicted by an adult, either by direct blows or by impact with a wall or with furniture when thrown with force.
The child A's CT scans showed the force applied to her head was high (strong) rather than low (weak). Dr Donald could not quantify the level of force save in qualitative and comparative terms as being a significant fall with a high velocity impact.
In the opinion of both medical specialists, even if A had suffered a head injury on 26th March 2013, such an injury could not have resulted in the acute traumatic brain injury with which she presented on 1 April without an additional high force impact. That is, the hypothesis that an accidental fall in the circumstances described by the offender on 1 April 2013 exacerbated a pre-existing head injury from 5 days earlier, was not adopted as a reasonable possibility by either Dr Marks or Dr Donald.
The Crown relied upon the medical opinions to establish that the history given by the offender could not explain the extent and nature of the injuries suffered by A. In turn, the Crown relied upon the false accounts, given by the offender to explain the injuries, as lies, which were told deliberately and with knowledge that the truth would implicate the offender in the offence charged.

[17]

The abdominal findings are highly suspicious for one or more severe, forceful blunt impacts (direct blows) to A's abdomen and, in the absence of any history that could explain these findings, the abdominal injuries are highly suspicious for inflicted injury."

Dr Marks' opinion was that there could be no explanation for the nature and location of the injuries being other than due to the application of force. They were not consistent with a child either falling over or being pushed over on to a piece of furniture. Dr Marks' evidence was that there needed to have been the direct application of force to the areas manifesting the injuries as set out. She did not accept that the injuries could be caused by a short fall, nor were the injuries consistent with being caused by a motor vehicle accident.
In relation to the spinal subdural haemorrhage identified, Dr Marks explained the mechanisms which could have given rise to those matters, and the areas where the blood was located, as well as why in this case, the location of the blood was highly suspicious. In particular, an alternative hypothesis was suggested, as to the cause for the bleeding/blood found in the lumbar thoracic region (lower spine) area, namely, that the bleeding could have commenced in the head then flowed down to the lower spine region. However, Dr Marks said (on the voir dire) that she did not consider that explanation to be particularly likely, because, whilst there was bleeding in the head, and then in the lumbar thoracic region, there was no blood found in between, i.e. in the upper thoracic region. That, according to Dr Marks, indicated that the blood found in the lower spine was not caused by a flow of blood from the head.
Further, Dr Marks outlined the typical injuries suffered by children who have suffered suspicious injuries as compared with children who have been involved in motor vehicle accidents. Dr Marks said that children involved in road accidents do not typically present with any spinal bleeding, whereas up to 50% of children who have sustained suspicious injuries have presented with spinal bleeding.
Details of the head and eye injuries suffered by A were set out at [58], [60] and [61] of Dr Marks' report. There was no evidence of any predisposing medical condition for the subdural bleeding. The possible explanation was the change in the direction of the forces being applied to the head, and the repetitive application of such forces. A fall or a push would not cause such injuries with those symptoms.
According to Dr Marks' earlier report dated 19 August 2015 (which was since amended), the injury that was sustained by A on 1 April 2013 was highly suspicious. The opinions of Dr Marks were consistent with Dr Tait and Dr Donald, that the injuries involved "high impact force".
A's presentation with bilateral subdural haemorrhages and profound hypoxic/ischemic brain injury were highly suspicious of a severe head injury including an acceleration-deceleration (shaking) injury, rather than an impact injury, although she said an impact injury could additionally have been inflicted on the head area. Dr Donald's evidence was that shaking would not have caused sufficient force. However, even if there had been impact injuries to her head, they would not explain the specific subdural haematoma.
The injuries to A's eyes included retinal haemorrhages. Dr Marks' findings indicated direct forceful impact trauma to A's right eye but modified her views in cross-examination. In regards to A's abdominal trauma, Dr Marks referred in her report to the one or more severe forceful blunt impacts to her abdomen, which were highly suspicious of inflicted injury.
Furthermore, the bruises on A (rib fractures and other bone injuries) were not consistent with normal activity and play. Dr Marks' findings were that A's multiple injuries were not explained by the history provided. The presentation was highly suspicious of severe inflicted injuries including both impact injuries and acceleration-deceleration injuries. Dr Marks confirmed that A's head injuries were life-threatening.
The Crown case was that the injuries were inconsistent with a fall onto a linoleum floor, even when being pushed by another 3 year old child. Further, that those injuries nor the extent of them were not consistent with being caused by long term injuries even from the events of the previous week. The jury verdict indicated that the case put forward by the defence was not accepted.

[26]

Authorities

I accept the Crown submission that the facts upon which an offender comes to be sentenced after trial is a matter for the assessment of the sentencing judge, provided those facts do not controvert the jury's verdict: Cheung v R (2001) 209 CLR 1; [2001] HCA 67. I have also borne in mind that facts and circumstances that are adverse to the offender to be taken into account must be established beyond reasonable doubt, whereas circumstances favourable to the offender must be established on the balance of probabilities: R v Olbrich [1999] HCA 54.
This becomes relevant in relation to the issue of intention where, in my view, the jury's verdict mandates a finding that the offender acted intentionally.
Defence counsel submits that the Court is to only have regard to the consequences of an offence that was intended or could have reasonably been foreseen: Josefski v R [2010] NSWCCA 41 at [4] and [39] and that the offender is not to be sentenced for harm which was not intended or could not have reasonably have been intended. In light of the jury's verdict however, I do not accept that the offender could not have reasonably foreseen that her actions could have resulted in grievous bodily harm occurring. Not only is that an element of the offence, but I also cannot be satisfied, on the balance of probabilities, that the offender did not foresee that she, a grown adult woman, could have inflicted that force on a child of A's age, without causing those injuries, or at least injuries of that nature.
BW v R (2011) 218 A Crim R 10 was a case of manslaughter whereby the offender, the father of the victim, his seven year old autistic daughter, was sentenced to a head sentence of 16 years with a non-parole period of 12 years. This case was not one of manslaughter. However, the actions leading to the grievous bodily harm were of a protracted and continuous nature, and stemmed from an apparent disregard by the offender for her daughter's health and wellbeing.
I have had regard to R v Lolesio [2014] NSWCCA 219 which was a factually similar case and a recent outline by the Court of Criminal Appeal of relevant sentencing principles. There, the offender was convicted of two counts of intentionally causing grievous bodily harm to his six week old child. The first offence (of two) involved him inflicting injuries on the child including fractures to the ankle and other bones in the foot, bruising and swelling. That offence was committed when the offender was alone with the baby and, after inflicting these injuries, the offender did not take any steps to have the baby taken to a hospital or have her examined. The expert evidence in that case determined two possible causes of the injuries - either the pulling and twisting of the lower limbs, causing a shearing at the end of the bone; or the offender flailing the baby in a forceful way, causing a crushing injury, or by holding the baby's feet and bending them in hyperflexion.
The second offence occurred only a week later. That involved injuries to the baby's arms and wrists, further foot fractures, as well as the fracturing of four of the baby's ribs, and a subdural haematoma. The expert evidence found that forceful squeezing was involved, resulting in the rib fractures. Further, significant or severe forces involving repetitive rotational movements caused the subdural haematoma.
Those offences arose out of the offender's anger regarding financial stress. He, like this offender, was not forthright with the version he gave others as to how these injuries could have occurred.
It was found to have been aggravating in those offences that the offender abused his position of trust, and that the victim was a vulnerable person given her age.
The Court of Criminal Appeal held that the initial finding of the sentencing judge of a below mid-range of objective seriousness based on the limited injuries caused was erroneous, and held that it was in the middle range of objective seriousness.
In that case the Court of Criminal Appeal imposed sentences of: 1. Head sentence of five years, with a non-parole period of three years; 2. Head sentence of six years and six months, with a non-parole period of three years and six months.
While both cases involved cruel and unwarranted violence, I consider the injuries in the current case to be more serious and permanent than those in Lolesio.
In assessing the objective criminality of a s 33 offence, the Court is to have significant regard to the extent of the injuries sustained by the victim: Regina v Mitchell, Regina v Gallagher [2007] NSWCCA 296, although this is not the only factor to take into account.
In Lolesio, the matters which were evaluated to determine criminality were set out at [75]: 1. The injuries caused, including the seriousness and permanency; 2. The vulnerability of the victim; 3. The position of trust which the offender occupied; 4. The physical disparity in size and strength between the offender and the victim; 5. The deliberateness of the conduct which was wholly unrelated to anything which the baby had done, and the intention with which the conduct was engaged in, namely, an intention to cause grievous bodily harm; and 6. The cruelty of the manner in which the injuries were caused, and the force and violence perpetrated by the offender on the baby.
Here, the victim A was aged two at the time. She was completely vulnerable by reason of her age, the fact that she was the child of the offender, and the size, weight and strength disparity between the offender and her child, increase the objective seriousness of this offence.
Clearly, the offender, as the baby's mother, was in a position of trust. On the medical evidence - in particular, that of Dr Marks, it is difficult to conclude that the conduct, was anything other than deliberate. The jury's verdict also mandates the finding that the injuries were caused intentionally. Further, the injuries as detailed earlier were serious, permanent, and far-reaching.

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Cases Cited (10)