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Court of Criminal Appeal 23 August 2005

R v Smith

[2005] NSWCCA 286

Assault & violence
CROWN APPEAL

Citation: R v Smith [2005] NSWCCA 286
Court: New South Wales Court of Criminal Appeal
Date: 23 August 2005
Judge(s): Brownie AJA, Buddin J, Latham J (Latham J delivering the principal judgment)

Background

The respondent was the de facto partner of a six-year-old boy's mother. While caring for the child alone, the respondent caused severe scalding and permanent scarring to both the boy's legs through contact with hot water. The precise manner in which the injuries were inflicted was disputed, but the respondent pleaded guilty to one count of maliciously inflicting grievous bodily harm under s 35(1)(b) of the Crimes Act 1900, and that plea was accepted in full discharge of the indictment.

The sentencing judge in the District Court at Campbelltown imposed a total term of ten months imprisonment with a non-parole period of five months. The maximum penalty for the offence is seven years imprisonment.

The Director of Public Prosecutions appealed, contending the sentence was inadequate and that the sentencing judge had failed to give proper weight to aggravating factors, particularly the respondent's position of trust over the child and the failure to seek any medical treatment after the incident.

  • Whether the sentencing judge erred in failing to find that the respondent intentionally (rather than recklessly) applied hot water to the victim.
  • Whether the sentencing judge failed to give proper weight to relevant aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, including the breach of trust and the failure to obtain medical care.
  • Whether the sentencing judge erroneously characterised the offence as "relatively minor" by comparison with other cases.
  • Whether the sentence failed to meet the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.
  • Whether, even if sentencing error was established, the Court should exercise its discretion to decline to intervene and re-sentence.

Decision

Latham J (with whom Brownie AJA and Buddin J agreed) found that the sentencing judge had erred by failing to accord sufficient weight to two significant aggravating factors: the respondent's position of trust as the child's carer at the time, and the complete absence of any medical treatment sought after the injury. Expert evidence established the burns were severe and would have required specialist burns unit treatment had the victim been brought to hospital at the time. Instead, no medical care was obtained for approximately three months, and the respondent falsely claimed the child had been seen by a family doctor.

On the first ground, Latham J declined to find that the sentencing judge erred in accepting the lesser factual basis of recklessness rather than intention. The victim's accounts were inconsistent across interviews and the sentencing judge was entitled to proceed on the finding that the harm was caused with reckless indifference rather than deliberate intent. However, even on the basis of recklessness, the objective gravity of the offence warranted greater weight on sentence.

Latham J observed that offences against young children carry particular weight because children cannot protect themselves or report mistreatment, and are wholly reliant on their carers. The Court noted that the deterrent function of sentencing is especially important in such cases, and that the sentencing judge had not adequately reflected these considerations.

Despite finding that sentencing error had been established on grounds relating to the aggravating factors, the Court exercised its discretion not to intervene. The respondent was due for release within approximately one month of the appeal judgment, was subject to restrictive custodial conditions (including being locked in his cell from 3:30pm to 8:00am daily), and re-sentencing in those circumstances would expose him to the additional hardship of double jeopardy. The appeal was accordingly dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's failure to give proper weight to a breach of trust and a failure to seek medical care for an injured child can constitute identifiable sentencing error, even where the offending is characterised as reckless rather than intentional.
  • A position of responsibility over a vulnerable child, combined with a prolonged failure to obtain medical treatment after causing serious injury, are significant aggravating factors that must be reflected in the sentence imposed.
  • In dismissing the appeal, the Court exercised its discretion under the Allpass principle not to intervene despite establishing error, giving weight to the double jeopardy the respondent would face, his restrictive custodial conditions, and his imminent release date.
  • Comparing sentences across cases involving different offences against children of varying ages is of limited utility, particularly where the category of offending is narrow and prosecutions are infrequent.
  • Under the principles affirmed in this decision, courts must treat the protection of young children who cannot advocate for themselves as a weighty consideration in sentencing, with general deterrence playing an important role.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33, s 35(1)(b), s 54
- Children and Young Persons (Care and Protection) Act 1998 (NSW), s 228
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 21A

Cases
- R v Coleman (1990) 19 NSWLR 467
- R v Stokes and Difford (1990) 51 ACrimR 25
- R v Livingstone [2004] NSWCCA 122
- R v Hooper [2004] NSWCCA 10
- The Queen v De Simoni (1981) 147 CLR 383
- R v Allpass (1993) 72 ACrimR 561
- R v Pitcher (NSWCCA, 19 February 1996, unreported)
- R v Dawes [2004] NSWCCA 363