WEDNESDAY 14 DECEMBER 2005
REGINA v APM
Judgment
1 HODGSON JA: The Court is in a position to give judgment. I will ask Justice McClellan to deliver the first judgment.
2 MCCLELLAN CJ at CL: The respondent pleaded guilty to one charge of maliciously inflicting grievous bodily harm upon BH (also known as CH) contrary to s 35(1)(b) of the Crimes Act 1900. He also asked that a charge of neglecting to provide adequate and proper medical aid to BH contrary to s 228 of the Children and Young Persons (Care and Protection) Act 1998 be taken into account on sentencing. Both matters arose from an incident that occurred on 20 December 2003.
3 The maximum penalty for the charge pursuant to the Crimes Act is seven years imprisonment. The maximum penalty in relation to the failure to provide adequate and proper medical aid is a fine of $22,000.
4 The sentencing judge imposed a sentence of two years with a non-parole period of one year, the sentence to be served by periodic detention. The charges arose from an incident which occurred on 20 December 2003. At that date the victim was approximately ten weeks old, having been born to the respondent's wife's sister. Three days after his birth the victim had been removed by the Department of Community Services from his mother who apparently suffered a psychiatric illness. The victim was placed in the foster care of the respondent and his wife. The respondent and his wife also had their own daughter, Angela, who was fourteen months old at the time of the offence.
5 On the relevant day the respondent was caring for both young children by himself at home while his wife was at work. In his records of interview conducted on 23 December 2003 the respondent told police he fed the victim in the afternoon and put him down to sleep. He was playing with Angela in another room when the victim awoke. The respondent went into the victim's bedroom and changed his nappy. Angela began to cry and demanded attention while he did this. After changing the victim's nappy the respondent lifted him into his arms. He then went to Angela to calm her down. While he was doing this, the victim fell about 1.5 metres from the respondent's arms onto the carpeted floor of the bedroom. The respondent reached down, while still holding Angela, and picked up the victim by his arms.
6 The victim cried while on the floor. However, the respondent said that, when he picked up the victim, he was unresponsive. The respondent described the victim's head as "bobbing" and said that one of the victim's eyes was open and the other closed. The respondent put Angela down. He then clicked his fingers near the victim's face and called the victim's name. The victim did not respond and his arm was floppy. The respondent said that the victim was "I think, I dunno he was unconscious but I think he fall into a state of coma." The respondent said that he began to shake the victim and then, with the palm of his hand, the respondent first tapped and then hit the victim over the back of his head. The respondent said he did not know how much force he applied in doing this although it is apparent, and he told the police, that he shook the victim "fairly hard because I didn't want to lose him because he looked different."
7 The respondent then wrapped the victim in a baby blanket and called the family's general practitioner. He was told that the doctor was unavailable for a house call. The respondent felt unable to travel to the doctor's surgery because (apparently) he did not have a car and he had the care of his fourteen month old daughter. The respondent was also expecting that his wife would soon return home from work. The respondent gave the victim a bottle of milk and he appeared to settle.
8 When the respondent's wife returned home at about 6 pm she asked the respondent how the children were. The respondent told her they were fine. He told the police that he did not tell his wife about the incident with the victim because "it wasn't that I didn't want to tell her, actually I was scared of my wife, you know, because she will start to tell me, you know, what could happen, the consequence that it could happen is they know that the baby have an accident." The respondent's wife, however, checked the victim and told the respondent that there was a mark on him and that she noticed something strange about his face. The respondent told his wife that he had not seen the mark. He later told the police that he did not know whether he had caused the mark when he had picked up the victim from the floor.
9 The victim cried a lot during the night. Further attempts were made to feed him and he was given some Panadol. At about 5 am the respondent's wife insisted on taking the victim to the hospital. The respondent still had not, by this stage, told his wife of the incident the previous afternoon.
10 The victim was admitted to Royal Prince Alfred Hospital with fitting and a decreased level of consciousness. Because his fits were difficult to control, he was transferred to the Sydney Children's Hospital at Randwick. The victim remained in hospital for eighteen days.
11 Medical investigations have revealed that the victim suffered:
· Subdural haematoma in the posterior fossa, on the tentorium and in the left middle cranial fossa;
· Hypoxic ischaemic injury to both cerebral hemispheres, involving the frontal, parietal and occipital lobes bilaterally; and
· A large pre-retinal haemorrhage covering the macula, many small pre-retinal haemorrhages and many (almost confluent) intra-retinal haemorrhages extending as far as could be seen into the retinal periphery.
12 As a consequence of his injuries the victim has suffered permanent brain damage and sight loss.
13 At the sentencing hearing evidence was called from three doctors, Dr Moran, Dr Donald and Dr Hilton, concerning the likely cause of the injuries sustained by the victim and the likely effect of the victim's initial fall to the floor.
14 In summary, the oral evidence of the Crown expert, Dr Moran, was that:
"I think the only question that arises [is] about the fall [-] everybody agrees that the fall did not produce the injuries. I guess the only point is did the fall produce some level of unconsciousness or decreased level of consciousness which was then exacerbated by the fact that the carer of the child inflicted further injuries in whatever capacity … "
15 The first of the defence experts, Dr Donald, said that the victim's fall to the floor could have caused either unconsciousness or an alteration in consciousness. He noted that a comprehensive examination was needed to determine the state of consciousness because "[you] can't discern the difference by looking" and he agreed that it would be "doubly difficult" for an untrained person to discern the difference in a ten week old child. In cross-examination, Dr Donald said:
"I mean there certainly did seem to be some evidence of alteration in [the victim's] responsiveness which would fit with fluctuating conscious state."
16 Dr Donald was of the opinion that the fact that the victim cried when he was picked up off the floor was more consistent with him having suffered an altered state of consciousness than unconsciousness. Dr Donald agreed that the subdural haematoma and retinal haemorrhages were caused by the respondent shaking the victim but said that the hypoxia (the ischaemic injury to both cerebral hemispheres) could have resulted from the victim's subsequent fitting.
17 The second of the two defence experts, Dr Hilton, said that the victim was likely to have suffered a transient alteration in consciousness in the fall. In cross-examination Dr Hilton said it was possible that some of the injuries suffered by the victim were sustained in the fall, but said he "would accept that that brain damage in its totality was not caused by the fall." He further said:
"I think there are two aspects to this with respect your Honour. There's the shaking and there's the impacts. I cannot differentiate between what might have happened from the shaking or what might have happened from the impacts. What I have said is that this activity is a, inappropriate and b, is likely to have at least aggravated the chemical or physiological process which was already instituted by the initial impact on the floor."