REGINA v APM

Crimes Act 1900 LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 Crimes (Sentencing Procedure) Act 1999

Dinsdale v The Queen (2000) 202 CLR 321 R v Baker [2000] NSWCCA 85 R v Clark, unreported, NSWCCA, 27 March 1995 R v Cramp [2004] NSWCCA 264 R v Dunn unreported, NSWCCA, 6 November 1995 R v Hallocoglu (1992) 29 NSWLR 67 CASES CITED: R v Pangallo (1991) 56 A Crim R 441 R v Pitcher (unreported, NSWCCA, 19 February 1996 R v Potter (1994) 72 A Crim R 108 R v Rainbow unreported, NSWCCA, 20 December 1996 R v Remilton [2001] NSWCCA 546 R v Royal [2003] NSWCCA 275 R v Wall [2002] NSWCCA 42

J Bennett SC (Crown/Appl) COUNSEL: J Manuell (Resp)

Director of Public Prosecutions (Crown) SOLICITORS: Legal Aid Commission of NSW (Resp)

IN THE COURT OF CRIMINAL APPEAL 2005/1568

HODGSON JA McCLELLAN CJ at CL HALL J

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."

Remarks on sentence 18 The sentencing judge made the following findings of fact.

1. As the consequence of the assault on him, the victim suffered serious brain damage that has left him with "significant and substantial difficulties"; 2. The respondent is genuinely remorseful for his mistreatment of the victim, as evidenced by his admission when interviewed by the police and his guilty plea; 3. The admissions made by the respondent to the police were truthful and accurate; 4. The respondent's guilty plea had "real utilitarian value" because it saved the victim's family members from giving evidence and it showed the respondent's remorse; 5. The victim slipped from the respondent's arms and landed face down on the carpeted floor. The distance of the victim's fall was likely to have been 1.2 metres rather than 1.5 metres. 6. The victim was likely to have been concussed by the fall, and appeared "different" to the respondent; 7. The bruises on the victim's left forearm were caused by the respondent when he lifted the victim off the floor. The bruises on the victim's left thumb and right hand were unrelated to the respondent's mistreatment of the victim; 8. The initial fall was unlikely to have caused any of the victim's injuries; 9. The respondent shook the victim "sufficiently often and sufficiently hard" to have caused his injuries; 10. The respondent's slaps to the victim's head probably compounded the victim's injuries; 11. The victim's injuries have left him with multiple severe permanent disabilities; 12. The respondent's actions were serious. He knew that a baby should not be shaken or slapped about the head; and 13. The respondent's actions were not premeditated or planned. The respondent "did not set out to deliberately or intentionally injure" the victim. Rather, the respondent panicked and acted unthinkingly and recklessly toward the victim.

The sentence 19 His Honour sentenced the respondent to two years imprisonment. He found special circumstances and provided a non-parole period of one year. His Honour ordered that the sentence be served by way of periodic detention.

The appeal 20 The Crown appeals against the sentence and says that it was manifestly inadequate. In particular, it is said that his Honour erred by: · Giving insufficient weight to the objective seriousness of the offence and wrongly omitting to give consideration to the Crimes (Sentencing Procedure) Act 1999, s 21A(2)(g); · Giving irrelevant consideration to the availability of Local Court jurisdiction; and · Incorrectly formulating the sentence as his Honour was required to do pursuant to the Crimes (Sentencing Procedure) Act 1999, s 44.

Principles governing Crown appeals 21 This Court has had occasion in many cases to confirm the principles which must be applied when the Crown brings an appeal against sentence. They were summarised by Justice Wood in R v Wall [2002] NSWCCA 42 at [70]: "… it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 449, applies to crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; Wong & Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere; R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle " for the governance and guidance of courts having the duty of sentencing convicted persons ": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong & Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder & Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62." 22 Wood CJ at CL referred to R v Baker [2000] NSWCCA 85 where Spigelman CJ said at [19]:

"The authorities make it clear that Crown appeals should be rare. It may be that the present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred."[19] 23 In Dinsdale v The Queen (2000) 202 CLR 321 Gaudron and Gummow JJ said at [329]:

"In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been "upon the facts …. unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." Was the sentence 'manifestly wrong'?" (footnotes omitted)

Insufficient weight given to injuries; omissions of aggravating features under the Crimes (Sentencing Procedure) Act 1999 s 21A(2)(g) 24 The Crown emphasised that the victim has suffered extremely serious and permanent injuries as a result of being shaken by the respondent. It is submitted that the present case is similar to R v Clark, unreported, NSWCCA, 27 March 1995 in which the Court allowed a Crown appeal against a minimum term of six months and an additional term of eighteen months and re-sentenced the respondent to a minimum term of twelve months with an additional term of eighteen months. In that case Levine J said that the injuries "were extremely serious and to a great extent permanent." His Honour described the six month minimum term imposed by the learned sentencing judge as falling "within that class of sentence brought to this Court for review by the Crown, which can be characterised as in fact manifesting by its very terms an error having occurred in some way on the part of the sentencing judge." His Honour said that the six month minimum term "does so very much offend against all sensible community attitudes in a relationship of trust to children, [and] is manifestly inadequate." 25 The Crown points out that the injuries suffered by the victim exceed those which were found to have existed in R v Remilton [2001] NSWCCA 546, R v Rainbow unreported, NSWCCA, 20 December 1996 and R v Dunn unreported, NSWCCA, 6 November 1995. In Remilton the victim was the offender's eight week old daughter who suffered facial bruising and skull fractures when she was struck very hard across the head by the offender who, out of frustration, had attempted to stop the child crying and screaming. In Rainbow the offender, became annoyed at a child's crying and applied a hot steam iron to the victim's body, causing the child to suffer burns of first and second degree severity to the abdomen which produced permanent scarring. The offender also struck the child some blows to the head. In Dunn the victim was being thrown into the air, at increasing heights, when her father failed to catch her causing serious injuries. 26 It is submitted that in failing to give sufficient weight to the nature of injuries in the present case, the sentencing judge specifically erred by failing to find that the offences were aggravated under subpara (g) of the Crimes (Sentencing Procedure) Act 1999 s 21A(2), "the injury, emotional harm, loss or damage caused by the offence was substantial." 27 The Crown pointed out that in the present case because the injuries were permanent this case should have been viewed as a somewhat more serious case than Remilton. Instead the sentencing judge found that the present case was "somewhat less serious". 28 His Honour refers to Remilton but the reference is not confined to the nature of the injuries. His Honour said: "Although this case is similar to, but somewhat less serious than, R v Remilton [2001] NSWCCA 546, I consider that I should not suspend execution of the sentence. However, taking everything into account, I have decided that the non-parole period of the sentence should be served by periodic detention." 29 To my mind, his Honour's observations that the present case was "somewhat less serious" were directed, not so much to the injuries which occurred but rather the manner in which they were inflicted. As the cases to which I have referred indicate, where criminal charges are brought for injuries to a small child the offender usually inflicts injury out of a sense of anger or frustration which causes a loss of control. This will often be a misguided attempt to punish the child in an attempt to calm it. 30 In this respect the present case is most unusual. The sentencing judge found that the initial fall was an accident following which the respondent, apparently out of concern to revive the child, inflicted further injury. Although the stupidity of the respondent's actions cannot be under estimated, his Honour did not find that he intended to inflict harm upon the child. Quite the contrary. His Honour said: "I do not doubt the seriousness of the offender's actions towards BH. I do not doubt that the offender knew that a baby should not be shaken or slapped about the head. However, I doubt that the offender's actions were premeditated or planned. I believe that he did not set out to deliberately or intentionally injure BH, rather I believe that he panicked in the situation in which he found himself and then acted unthinkingly and recklessly towards BH." 31 I am not satisfied that his Honour has erred in the conclusion he reached in relation to this aspect of the matter.

Irrelevant consideration of Local Court jurisdiction 32 His Honour made reference to the concurrent jurisdiction of the Local Court and said "I consider that the offender is entitled to have this factor taken into account in his favour, resulting in a discount, albeit small, in penalty." 33 The Crown submits that, given the seriousness of this case, his Honour was in error by awarding any reduction in penalty because the Local Court would have had jurisdiction to sentence the respondent see R v Royal [2003] NSWCCA 275 at [38]. It is submitted that it could never have been the situation that it was appropriate to deal with this matter in the Local Court. The respondent accepts that the sentencing judge may have erred in this respect. It is acknowledged that his Honour said that a small discount should be applied for this factor although the respondent emphasised that no indication was given of what that discount would have been. 34 To my mind the critical issue in this case is not the term of the sentence that was imposed but rather the fact that his Honour provided for the sentence to be served by periodic detention. The error which his Honour may have made is not reflected in his decision as to the manner in which the sentence is to be served.

Section 44 of the Crimes (Sentencing Procedure) Act 1999 35 When determining the appropriate sentence his Honour identified and answered a number of questions. The first question he identified was whether a term of imprisonment should be imposed. His Honour was satisfied that a prison term was appropriate. 36 The second question was the term of the sentence. His Honour indicated that he had determined that "the sentence should be imprisonment for two years six months, which period I reduce by 20%, that is by six months to two years." 37 His Honour then asked the question whether there were special circumstances which warranted departure from the otherwise statutory apportionment of the period of the sentence into a non-parole period and a parole period. His Honour indicated that, having regard to the respondent's unblemished character, his remorse, the likelihood that he will not re-offend and the excellent prospects of his rehabilitation "I have determined to apportion the period of the sentence into a non-parole period of one year and a parole period of one year." This process of analysis was reflected when his Honour finally came to impose the sentence. He said, when carrying out that task having addressed the respondent: "I sentence you to imprisonment for two years. I fix a non-parole period of one year and a parole period of one year. I order that the non-parole period of the sentence be served by periodic detention. I order that you report to the Metro Periodic Detention Centre, Parramatta Correctional Centre, at 8.30 am on Saturday 20 August 2005 to commence serving the sentence. In sentencing you for this offence, I have taken into account the additional offence itemised on the annexure to the Form 1 Crimes (Sentencing Procedure) Act document." 38 In proceeding in this way his Honour has erred. Section 44 of the Crimes (Sentencing Procedure) Act 1999 required his Honour to first fix the non-parole period and then determine that whether the parole period should exceed the statutory proportion. It is submitted by the Crown that this error contributed to the fixing of a manifestly inadequate non-parole and overall term. 39 I do not accept this submission. Although as I have indicated his Honour incorrectly formulated the sentence I am satisfied that this was a technical error with "little or no practical significance" see R v Cramp [2004] NSWCCA 264 at [39]. This is particularly the case when, as I have already indicated, the critical question in this matter is the manner in which the sentence was to be served. However, error having occurred, it is necessary for this Court to re-sentence the respondent.

Manifest inadequacy 40 Apart from the specific matters to which I have referred the Crown submitted that, having regard to the length of the sentence and non-parole period and the manner in which the sentence is to be served by way of periodic detention, the sentence is manifestly inadequate. It is submitted that the sentence fails to pay sufficient regard to the objective seriousness of the offence. 41 The Crown submitted that the respondent's actions in slapping the back of the child's head and shaking him thereby causing very severe injuries and leaving him permanently and profoundly impaired, conduct which the respondent knew was wrong, was conduct so clearly offensive to the standards expected of persons entrusted with the care of very young children, that it can only be described as gravely serious. 42 Moreover, aware that the child was in distress and in need of medical intervention, after allegedly making an unsuccessful attempt to telephone a doctor, he chose not to inform his wife of what had occurred out of fear of consequences to himself, in disregard of the welfare of the child. The respondent chose not to disclose what had occurred, notwithstanding the development of symptoms that caused his wife concern, until the stage was reached early the following morning when she insisted that the baby be taken to the hospital. 43 In these circumstances it is suggested that his Honour has underestimated the gravity of the offence and made too great an allowance for the respondent's subjective features. It is pointed out that this Court has recognised that periodic detention has a strong element of leniency built into it and that a term of periodic detention cannot be mathematically equated with a period of full time custody. The punitive element of periodic detention is reduced by administrative arrangements allowing prisoners to perform part of their sentences by way of community service: R v Pangallo (1991) 56 A Crim R 441; R v Potter (1994) 72 A Crim R 108; R v Hallocoglu (1992) 29 NSWLR 67. 44 Finally, it is submitted that there is a strong need for general deterrence in cases of physical violence against infants (see R v Pitcher (unreported, NSWCCA, 19 February 1996)). The offence was aggravated by reason of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 subpara (g): "the injury, emotional harm, loss or damage caused by the offence was substantial", (k) "the offender abused a position of trust or authority in relation to the victim", and (l) "the victim was vulnerable, for example, because the victim was very young."

Conclusion 45 The case is an extreme tragedy. In his remarks on sentence the sentencing judge, who has very considerable experience in the sentencing of offenders, carried out a detailed analysis of all of the evidence. His Honour was careful to identify the objective seriousness of the offence and the nature of the serious and permanent injuries which the victim has suffered. His Honour found that the respondent was a committed and caring foster father who did not deliberately shake or hit the victim with the intention of harming him but, rather, did so recklessly and in panic after the victim had suffered injury. 46 None of the cases to which the Crown has referred, all of which I am aware, involve circumstances similar to the present. In many of the cases which have been previously considered the respondent has acted in anger or frustration and with an apparent intention to inflict pain in order to either vent frustration or quieten the infant. In the present case the respondent acted out of panic in an attempt to revive the victim who, his Honour found, had accidentally fallen. 47 The respondent's guilty plea was entered and accepted by the Crown on the basis that he committed a dangerous act and was reckless as to the possibility of injury to the victim. 48 The respondent's actions were stupid and appropriate punishment required that the seriousness of the offence be marked with a term of imprisonment. The term which his Honour imposed was in my opinion within the appropriate sentencing range. However, the only question is whether or not his Honour erred by providing that the sentence should be served by periodic detention. As this Court has recognised periodic detention is not the same as full time custody and contains an element of leniency. 49 If I had been called upon to sentence the respondent I would have been inclined to provide that the sentence be served by a term of full time custody. However, having regard to the principles which apply to a Crown appeal, it is important to have in mind the very considerable impact upon the respondent if the sentence which he has already commenced serving by periodic detention was now to be converted in whole or in part to a period of full time custody. The evidence indicates that the respondent has complied with the terms of his prison sentence and is attempting to rebuild his life. Although I have carefully considered the Crown submissions I have come to the conclusion that to now provide for the respondent to serve a term of full time imprisonment would not be appropriate. 50 Accordingly, having regard only to the difficulties in relation to s 44, the appeal should be upheld to the extent necessary to correct the relevant error. 51 The orders I propose are that the appeal be allowed and the sentence quashed. In my opinion the respondent should be sentenced to a non-parole period of one year with an additional term of a further year. I order that the non-parole period portion of the sentence be served by periodic detention. I order the respondent to continue reporting to the Metropolitan Periodic Detention Centre, Parramatta Correctional Centre, to complete the balance of the term of the sentence. 52 In sentencing for this offence I have taken into account the additional offence items on the annexure to the Form 1 Crime (Sentencing Procedure) Act document. 53 HODGSON JA: I agree with Justice McClellan. 54 HALL J: I agree. 55 HODGSON JA: The order is as proposed by Justice McClellan. **********

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