Tasmania v Lowe [2004] TASSC 62

Judgment Number: [2004] TASSC 62

1 Shelley Maree Lowe has pleaded guilty to the crime of ill-treatment of a child, contrary to the Criminal Code, s178.

2 On 17 July 2003, Ms Lowe brought her son Jayden, aged 19 months, to the Launceston General Hospital in a "depressed conscious state" having developed significant fitting. Examination showed the baby to be pale, thin, and poorly nourished. He had suffered subdural haematomas of differing ages, significant brain injury and haemorrhages over both retina. A bone scan indicated skeletal injuries to the left upper arm, right leg, thigh and forearm, through deep bruising, rather than fracture. In addition, there was extensive bruising to the forehead, legs, torso and thighs.

3 The nature, extent and varying ages of the injuries were not consistent with accidental injury or one occurrence. The bruising suggested an ageing process of between 18 hours and 4 days, although the examining physician is unable to determine whether they were inflicted at differing times. The head and retina injuries were consistent with blunt trauma of high velocity onto a soft surface and the body and bone injuries were indicative of abusive injury caused by punches, kicks or being thrown to the ground.

4 The explanation given by the mother as to the injuries suffered by the child was contradicted by the medical findings.

5 On 18 July Ms Lowe was interviewed by police. She told them that she "might have smacked [her child] once or twice on the bum" and that she had fainted while holding the child who fell and sustained a couple of bumps on the head. She was charged on 7 August 2003.

6 Jayden has suffered severe and permanent injury. Portion of his brain has atrophied, he has "diabetes insipidus post head injury" damage to the occipital lobes and likely permanent epilepsy. He is at risk of developing cerebral palsy. At the sentencing hearing, her counsel, in accordance with his instructions, advanced in the plea of mitigation an explanation which accounted for the injury which, in turn, contradicted the medical evidence. It was suggested that the bruising was a result of a "couple of slaps" and the head injury caused under the following circumstances:

"The journey to Hobart from Bicheno was stressful, she was frightened that her ex-partner might find her, she was also exhausted and distressed, she recalls her son incessantly crying in the back seat of her car, and she instructs that she acknowledges that she lost her temper, and slapped and hit him on the legs and bottom in an attempt to stop him crying. When she reached Hobart she pitched a tent in an inner city park and the family lived there, Ms Lowe and her children lived there for two or three days. This is immediately prior to the boy's admission to hospital. During those two or three days the family lived in the tent, they had two air mattresses and the family washed in a local public toilet. She had very little money, she instructs she was unaware that non-government agencies may have been able to help her. The children, particularly Jayden, were behaving badly as they were no doubt tired and upset at the living conditions. I'm instructed Jayden was prone to having tantrums at the time. On the 17th of July 2003, at around six pm, Jayden refused to go to bed and started screaming. Ms Lowe spontaneously grabbed her son's arms and shook him hard. She also struck him. She was extremely upset, Jayden went to the ground, and I suspect your Honour, although I don't have specific instructions because Ms Lowe doesn't know, but I suspect the injury that Mr Coates was referring to may have been caused by hitting a bed may well have been caused by him hitting his head on the ground at the base of the tent. He slumped to the ground and couldn't stand up. Your Honour my instructions are that Ms Lowe behaved as she did to stop Jayden from crying."

7 The ensuing report from the assessing physician states:

"From the transcript provided I note Ms Lowe states that Jayden's head injuries occurred as a result of her grabbing him by his arms and shaking him hard, she also struck him and then he fell to the ground.

This boy suffered very significant head injuries and has had very marked neurological sequelae as a result, he almost died and required a prolonged period in Intensive Care. If they had occurred only as a result of shaking this would have had to have been extremely violent, particularly as this boy is older than a baby who is usually brain damaged from a shaking injury. His supporting structures in his neck would be much more developed than a younger infant. In view of the severity of his injuries it is also likely that if he did have a direct impact injury in association with the shaking injury that this most likely was related to a degree of velocity rather than a fall to the ground, in other words being pushed with quite significant force onto a surface.

This boy also suffered very significant bruising to his body, this is not the type of bruising that one would see with normal slapping as a result of discipline. The bruises noted on his admission, particularly on the lateral aspects of his thigh have been executed with a degree of quite considerable force rather than the usual slapping that occurs during a disciplinary act as indicated by Ms Lowe when she stated that she slapped him on the legs and bottom in an attempt to stop him crying when he was in the car.

It is my opinion in view of the injuries noted this implies there has been considerable loss of control and violence associated with this child's injuries."

8 On the resumed hearing, counsel did not dispute the opinions expressed and restated that Ms Lowe accepted responsibility for her conduct and the injuries suffered by the infant.

9 This history of the offender and the circumstances preceding the infliction of the injury are tragic. Ms Lowe, aged 25, has no relevant previous convictions. At the time of these events, her two children were aged 18 months and 3 years respectively. She had formed a relationship with the father of the children in 1998. The relationship was volatile and abusive. Through the relationship she became a user of morphine and amphetamines, ceasing her use in April 2003. She had become estranged from her family. In May 1993, the relationship with the father broke up under traumatic circumstances and Ms Lowe attempted to avoid her former partner, steps which included the taking out of a restraint order. She stayed with the children in a caravan park at Bicheno and moved to Hobart where she stayed, with little money, in a tent in another caravan park. It is during this period that the injuries were caused. Ms Lowe was distressed, exhausted and bereft of resources. She says that she caused the harm through "temper". She says that during this period, both of her children were frequently upset, difficult and often cried. In her pre-sentence interview with a probation officer, Ms Lowe stated that she believed:

"... the contributing factors leading to her offending behaviour were withdrawal symptoms from morphine, her lack of accommodation and her lack of support: she was living in a car and pitching a tent, her shame preventing her from turning to her parents when she found herself struggling alone with two small children in adverse conditions ...".

"The accused presented as her mother described her: someone who is bright but has failed to reach her full potential, largely due to her relationships. Both her partners, Peter Carlson and David Lyden, have been known to this Service. Her expression of remorse appeared sincere, yet one questions why she is not living closer to her children for easier access and if her past peripatetic lifestyle is going to be a difficult habit to break. Her long-term stability, at this stage, is uncertain. Additionally, victims of abusive relationships frequently are susceptible to 'history repeating itself', of moving from one abusive relationship to the next. Her present partner came under notice of this Service for similar charges as the accused. Her mother acknowledges that her daughter will now have to prove she is a fit mother before she can have her children returned to her care and that she will have to undergo tests to prove she is drug free. She has many future challenges to overcome and difficult decisions to make in relation to her life and that of her children. At present, the accused's self-esteem is low and the risk/needs assessment utilised by this Service indicates that she could benefit from a high level of intervention. As she is unknown to this Service, there is no impediment to her performing community service hours and projects are available. Should Your Honour deem supervision to be appropriate, case management would include monitoring her stability in relation to her accommodation, her current relationship, contact/relationship with her children, substance use/abuse, and her debts. A primary goal would be to regain her self-esteem."

11 Both children have been removed from her care and at present are being looked after by their maternal grandmother.

12 Studies undertaken after the Second World War drew attention to the occurrence of head injuries to young children found together with other forms of injury, notably fractures of arms or legs (Multiple Fractures of the Long Bones of Infants suffering from Chronic Subdural Haematoma (1946) 56 Am Jo Roentgenology 163).

13 The term first entered the medico/legal lexicon in the 1960s (Kempe, C H, The Battered Baby Syndrome JAMA, 181:17, 1962) and the first reference to the term was made in Australian literature in 1964 (Storey, The Battered Child, Medical Journal, Aust II:789). Specialist agencies have attempted to develop general strategies to deal with what, in human experience, is an historic problem, but one only recently analysed through scientific method. Traditional application of the criminal law through doctrines of assault, physical harm to the person, parental rights of discipline and the like were not well suited to the complexity. Specialist agencies attempted to deal with strategies designed to identify the characteristics of perpetrators' identification and forms of intervention and treatment (see generally The Battered Child, Longshaw, Australian Journal of Forensic Sciences, 1970, Vol 3, at 60; The Battered Child Syndrome - Psychiatric Aspects, Katz, Australian Journal of Forensic Sciences, 1970, Vol 3, at 71). In the former work Longshaw concludes, at 69:

"Management of cases of the battered child begins with a correct diagnosis and will often need to be followed by a separation of the child from the battering parent on a temporary or permanent basis. Along with any necessary treatment of the child must also go treatment of the parent and action to prevent or reduce the likelihood of further episodes. Another reason for the reporting of cases to a central authority even where injury may have been accidental is to check whether there has been any previous history of trauma. Such knowledge will provide valuable clues for a new approach to the parent while centralised reporting may also overcome the problem of hospital jumping, reported from time to time in the literature."

"The actual assault on the child may be precipitated by a crisis which puts and extra strain on the already inadequate individual. This may be some criticism, rejection or desertion, which results in an overwhelming hostility to the world in general and to the baby in particular. On the one hand, the unfortunate child cannot meet the intense need of the moment and, on the other, it may represent the undesirable aspects of the parent, which she resents in herself; punishing baby in effect means punishing her 'bad self'.

A child's 'badness' in the form of persistent soiling, wetting or crying may also precipitate an attack, as may other crises of a financial or social sort."

14 As Australian statistics began to be compiled, certain characteristics of the perpetrator and factors causing violence were identified, which included models of causation defined as social learning, family structure, environmental stress and mental illness. (An Overview of the Battered Baby Syndrome, Professor S M Smith, Australian Journal of Forensic Sciences, 1980, Vol 12 at 91.) Some of those characteristics and factors are here present. Management was focused on the treatment of the child by removal or placement into the care of another and a team or holistic approach directed to the modification of future conduct. As Professor Smith stated at 102 - 103:

"Most parents, if skilfully handled, gain confidence and understanding of the specialized medical team's approach. When this stage is reached, the parents will relax sufficiently to allow for a detailed explanation of their family, marital and other problems. The psychiatrist, assisted by an experienced social worker, should arrive at a diagnosis with an understanding of the family dynamics, in a space of two or three weeks. Coupled with background information obtained from a variety of sources, immediate long-term management of the child and his family can then be planned. In approximately one-third of cases, a detailed psycho-diagnostic evaluation will establish that the likelihood of parents responding to treatment will be remote. In such cases, strong consideration must be given to permanent removal of the child from his parents' care. The paediatrician or psychiatrist, as leaders of the medical team, should notify the statutory agency of his opinion and be prepared to provide written or oral evidence to substantiate his opinion. He should not shirk this important duty. Separating an abused child from his family is usually considered a last resort that is harmful to the 'therapeutic situation'. The converse is, however, often the case. Removal from a battering situation is usually beneficial, provided substitute foster care that provides adequately for the child's needs, can be obtained. Attempts should not be made to rehabilitate the parents at the expense of the safety of the child. This unfortunately frequently occurs. Supervision by social workers, whether it is voluntary or by Court Order, does not overcome the inherent difficulty in managing the hard - core group of cases - namely, that no supervisor can be with a child or his family for more than a fraction of the time. One needs to overcome a reluctance by medical and social welfare agencies to inform legal agencies that in their opinion the child should be removed. Such reluctance, which is often coupled with unilateral decision-making by a particular agency, deprives a child of his legal rights of protection.

Child-abusers share a striking similarity with other behavioural deviants. If this is accepted, a great deal of disappointment and wasted effort in treating the phenomenon might be saved. Among child-abusers there is a small nucleus of individuals who will be difficult or impossible to help. These are overlapped by a larger group, shading into the community as a whole, in which simple methods of treatment and support will be eminently satisfactory. Because there is no universal type of abusing parent, there is, of course, no one common cause or factor that needs to be eradicated. In many cases (approximately two-thirds), and with skilled help, child-abusers can be managed by identifying and modifying those factors that cause and release their anger. Apart from the usual professional services - supportive individual or group psychotherapy, social case work and custodial treatments that have been reviewed elsewhere (Smith, 1975), a number of community organizations have been established to help abusing parents. These include Mothers Anonymous, Homemaker Services, 24-Hour Life-Line Services and Parents' Aid. Such self-help groups, if provided with professional leadership and utilizing carefully selected and trained volunteers, will provide an effective means of improving the relationship between the parents and their children, and of parents with each other. Many abusive parents can benefit from therapy, in terms of their own personality, their self-esteem, their capability to adapt to stress, and their ability to utilize people and agencies for their own needs. With support also, the parents' attitudes and behaviour towards their children can be substantially modified."

15 The role of the criminal law, as distinct from protective legislation, was not regarded as being paramount. The Tasmanian Parliament responded to the problem by its enactment of the Child Protection Act 1974 which included protection from the law of defamation and departure from certain standards of professional conduct in the event of reporting suspected abuse (see generally The Battered Baby and Limits of the Law, Professor J D McClean, Wilfred Fullagar Memorial Lecture, Monash University Law Review 1978, Vol 5 at 1). Sanction, as retribution, or general deterrence, did not seem to afford an effective form of control or response to a complex problem (Child Abuse and Neglect; Critical First Steps in Response to a National Emergency, US Department of Health and Human Services, Washington DC, 1990; Child Abuse and Neglect, a Report to the Canadian House of Commons, Ottawa 1976). Criminal prosecution and treatment was regarded as the fifth stage of response, both in Australia and the United States (The Importance of Child Abuse, its Consequences, its Cost and how it can be Addressed, Krugman, Australian Journal of Forensic Sciences, 1992, 48), although such might not be the case where the form of abuse is sexual (Krugman (supra) at 50 - 53). The lack of emphasis on the response through the criminal law was also pragmatic given the evidentiary and procedural difficulties in its application (The Progress of 500 Referrals from the Child Protection Response System to the Criminal Court, Hood and Boltje, 1998 31 Aust & NZ Journal of Criminology 182). Those limitations were a factor in a low percentage of prosecutions commenced after identification (13 per cent) and convictions obtained (4 per cent) of a South Australian study (National Association for the Prevention of Child Abuse and Neglect, Working Party Report 1975; see also Child Sexual Assault: The Court Response, Cashmore and Horsky, Attorney-General's Department NSW 1987). Hood and Boltje (supra) observed, at 185:

"In the late eighties, it became clear throughout Australia that successful criminal prosecution of child abuse cases held major difficulties. Those attempting to prosecute, as well as those defending the accused, directed criticisms towards the investigation process and to improving evidence collecting procedures, interviewing techniques, and inter-agency cooperation between health, welfare and police. Various states held inquiries into their systems of child abuse investigation and made recommendations for change. In South Australia, an inquiry recommended a joint investigation procedure in which FACS manage the investigation, but formal interviewing of children to take statements for use in criminal prosecution, is done either by specialist police or, in the case of children under 6 years, by staff at one of the two hospital-based Child Protection Services, the latter with police observers. All interviews are video-taped and the police officers, psychologists and social workers involved are aware of the legal requirements. Some recommendations were also made for changes at the prosecution end of the process, in particular to courtroom procedure and layout, including screens or video-links to shield the child from the accused while giving evidence. (See for example, Vernon (1988), Cashmore (1992) and Davies (1992) who spoke in South Australia on a number of occasions). The Vulnerable Witness Amendments' to the Evidence Act 1929 in 1993 made screens, closed circuit television and court companions possible in South Australia.

It was assumed that such changes to the investigation and interviewing procedures would lead to an improvement in the evidence able to be presented in prosecution of child abuse allegations and, coupled with the measures to support the child's performance in court, would dramatically increase the rate of cases criminally prosecuted and the number of convictions achieved. There must now be doubt about that assumption. As well, evaluating the efficacy of prosecution of child abuse allegations without taking into account the attrition rate across all levels of the system (from reporting and investigation to criminal prosecution) is flawed. As all investigations are required to be geared towards gathering evidence for criminal court just in case prosecution is possible, the effort and resources expended in this must be included in the evaluation of the system. The disappointed expectations of many parents and children when they are told prosecution is not possible, must also be a major consideration."

"This low prosecution and conviction rate should prompt a re-evaluation of whether the policy goal of criminal prosecution of all child abuse cases is realistic, whether some different kind of legal sanction should not be developed for some cases, and whether investigation protocols should not be more openly discriminating between types of cases. Gathering evidence to the criminal court standard on all cases is resource intensive. More importantly it can interfere with a sensitive and possibly more useful long term response to the child victim and the family, including, although falsely raising, family expectations of 'justice being seen to be done' with a conviction. Improvements in interviewing practice, evidence collection, and personal interagency relationship should not be ignored. Efforts should also continue to implement 'child friendly' criminal court arrangements for those that do reach that arena. However, it is suggested by this study that the more fundamental differences between the systems need to be addressed in order to find an intervention and legal process which has goals that are more often achievable, and can be more responsive to the realities and preferences of the children and families involved."

16 In their study of 500 cases, 63 cases proceeded to prosecution, with 17 convictions after trial and 14 pleas of guilty and 8 led to cautions and protective orders. Twenty-four were withdrawn, dismissed or acquitted. Their analysis of the outcome of the 39 "convictions" by reference to the perpetrators is of interest:

17 The analysis might suggest that male step-parents and others more removed from the immediate family ought be more liable to criminal sanction. The difference in the figures for pleas of guilty as between mothers and fathers might be of interest, but the numbers considered in the research might not be sufficient to have a conclusion at this stage. However, they substantially differ from the figures compiled in respect of relatives and acquaintances. Central to any strategy involving parental abuse is acknowledgement of responsibility of the perpetrator.

18 The above consideration of and reference to some of the opinions and conclusions stated in the literature is relevant to disposition. Many of the attributes leading to the harm here caused to the child are consistent with the studies undertaken. Those attributes include:

(1) the former dependence of the perpetrator on an abusive partner and exposure to violent conduct;

(2) lack of life skills, an immediate supportive network and economic resources;

(3) environmental factors including absence of accommodation, money, stress, fear and a sense of helplessness;

(4) the possible reaction of the helpless infant to the circumstances in which he was placed in the sense referred to by Katz (supra) at 75 "in the form of persistent soiling, wetting or crying".

19 To these considerations ought be added the nature and course of the plea. Ms Lowe pleaded guilty to the crime and admitted the extent of the harm caused to her child. However, in her plea in mitigation, put properly by counsel through his instructions, she was unable to acknowledge the extent or severity of her conduct. Her account was inconsistent with the form and extent of the physical signs of injury and the opinion of the assessing and treating physician. That avoidance and possible reconstruction is understandable in that full acceptance intrudes into the core of a mother/child relationship and might explain one aspect of the statistical analysis, conducted by Hood and Boltje (supra), relating to the percentage of pleas entered by the mother. If it is acknowledgement of responsibility which is central to the process of modification through insight and treatment, then the imposition of an inevitable sanction of immediate custody will operate, not as a form of subjective deterrent, but reflect only the retributive arm of punishment. It is likewise in any consideration of the application of general deterrence in a case involving the mother placed in the circumstances here shown by the evidence. The complexity of the problem involving at least a mother, affords little scope for the desired aim of general deterrence.

20 Application of the above analysis to the facts of this case have caused me to approach disposition by reference to the following:

(1) The harm caused, irrespective of the absence of relevant convictions, requires the imposition of a custodial sentence as a form of retribution and statement of community response to injury to an infant. In R v Bailey 77/1972, Burbury CJ was required to apply the principles of the criminal law and sentence on a case where the "carer" had caused the death of one child and harm to another. His Honour stated:

"Ill-treatment of children by parents and foster parents is, of course, not new, but in recent tines it has been identified as a serious social problem and a great deal has been written about its incidence in the community; its causes and methods of preventing it. See 'The Battered Child Syndrome' an article by Cameron, Johnson & Camps in 6 Medicine, Science and The Law, p2, [counsel] has also referred me to a number of articles on the subject in America, the United Kingdom and Australia in a number of medical, law and sociological journals.

Some psychiatrists and others have suggested that prosecution and punishment of parents is useless because it is unlikely to alter their behaviour. [Counsel], properly, does not put it as high as this, and concedes that a tern of imprisonment is the appropriate punishment. But he submits that this crime of ill-treating children is in a special category and that the general principle of deterrence is not applicable with the same force as in the case of other crimes. But in this crime, as well as in all other crimes, the primary avowed purpose of the criminal law in punishing people is to deter other people from committing similar crimes. See The King v Porter 55 CLR (Sir Owen Dixon) at p182_._ And in the process of sentencing the Courts assume that punishment achieves this purpose, although no doubt it does so with varying degrees of success. I am certainly not persuaded that the crime of ill-treating children should be placed in a special category and dealt with differently. I am not impressed that assaults on children of the kind with which I am concerned here may be described in terms of a 'syndrome'. And although the purpose of punishment of such crimes may generally be stated to be deterrent, the revulsion of the public to ill-treatment of small children, and the community requirement that the Court, as the community's instrument of justice, should denounce such conduct by punishment, are important factors. This, of course, is not to say that the Court should allow itself to be a vehicle for the expression of feelings of primitive vengeance and retribution by well-meaning members of the community. But the restrained moral sense of the community as a whole is not to be disregarded, and the Courts' sentencing policy may properly be influenced by that moral sense. (See Whitecombe (1971) CLR p51; R v Donaldson (1968) 1 NSWR 642)."

A similar approach was taken by Underwood J in his sentence of Horner imposed on 17 April 2003, but a different outcome, involving abuse with a less serious injury, was that reached by Crawford J in Parker, 28 February 1996. In more general terms I would not follow the approach taken by the learned Chief Justice. My difference reflects the results of subsequent research and the adoption of a utilitarian approach, rather than one of historic principle. In any event in cases where death is the consequence and manslaughter the verdict, the principles of retribution ought have greater import.

(2) Principles governing the aims of general and personal deterrence have little import in cases such as this.

(3) The criminal justice system, or at least the options permitted by it, is not well equipped to deal with this form of problem. Coercive response might provide satisfaction, but it is difficult to describe the outcome as utilitarian.

(4) The primary aim of the criminal law in a case such as this is to provide safety for the child and prevention of future harm to others.

(5) A secondary aim is to encourage an acceptance of responsibility on the part of the perpetrator, public acknowledgement through plea and the use of insight and treatment as a means of modifying conduct.

(6) A secondary aim is to permit, through the application of statutory power and assistance by officers of the State, a possible re-unification of a family unit whilst retaining a form of control over the perpetrator.

21 Tasmania possesses protective legislation which ought provide the means of future safety for the child. The mother of the perpetrator of harm has already provided a resource for the care of the child and his sibling. The plea shows some acknowledgement of responsibility but, as is indicated through the plea in mitigation, it remains limited. The absence of contact with the children, through distance and the entry into another relationship, suggests that the capacity of the offender to face the consequences of her conduct and develop insight requires ongoing treatment and attention. Some resources, through the provision of accommodation, have already been provided. Further detention might fracture the process of modification.

22 The outcome will be the imposition of a significant term of imprisonment suspended on compliance with a range of conditions. In one sense that imposition contradicts the above statement concerning personal deterrence, but it is intended to provide a form of future control. Even the threat of its activation made by responsible officers of the State might be an effective form of modification.

23 (1) Shelley Maree Lowe be convicted of the crime of ill-treating a child.

(2) Shelley Maree Lowe be sentenced to a term of imprisonment for a period of 15 months, such sentence to commence as and from 16 June 2004.

(3) That the further operation of such sentence be suspended on condition that:

(a) for a period of four years, Shelley Maree Lowe commit no crime or offence involving violence to or abuse of a person under the age of 18 years;

(b) for a period of four years, Shelley Maree Lowe not have custody, care or control of a person under the age of 18 years, without the written approval of a probation, child protection, or social welfare officer;

(i) submit to the supervision of a probation officer;

(ii) attend such education and other programs as directed by a probation officer;

(iii) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;

(iv) reside at an address approved by a probation officer and not change that address without the written approval of such officer.

The victims of crime compensation levy of $50 is to be paid within 3 months.