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Court of Criminal Appeal 14 December 2005

REGINA v APM

[2005] NSWCCA 463

Assault & violence
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE BRAIN DAMAGE INJURY INFLICTED RECKLESSLY IN PANIC REMORSE GUILTY PLEA

Citation: REGINA v APM [2005] NSWCCA 463
Court: NSW Court of Criminal Appeal
Date: 14 December 2005
Judge(s): Hodgson JA, McClellan CJ at CL, Hall J

Background

The respondent was a foster carer who, on 20 December 2003, was looking after a ten-week-old infant and his own fourteen-month-old daughter alone at home. While managing both children simultaneously, he accidentally dropped the infant approximately 1.5 metres onto a carpeted floor. Finding the infant unresponsive afterwards, he panicked and shook the child and struck him on the back of the head in an attempt to revive him.

The respondent did not immediately seek medical attention. He gave the infant milk and Panadol through the night, and it was only when his wife returned home and later insisted on hospital attendance at around 5 am the following morning that the child received care. The infant was admitted to hospital with fitting and decreased consciousness, and ultimately suffered permanent brain damage and sight loss.

The respondent pleaded guilty to maliciously inflicting grievous bodily harm contrary to s 35(1)(b) of the Crimes Act 1900, on the basis that he acted recklessly. He also asked that a charge of failing to provide adequate and proper medical aid be taken into account on sentencing. The District Court sentenced him to two years imprisonment with a one-year non-parole period, to be served by periodic detention. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentence of two years by periodic detention was manifestly inadequate given the objective seriousness of the offence
  • Whether the sentencing judge gave insufficient weight to the gravity of the harm caused, namely permanent brain damage to an infant
  • Whether the fact that the matter fell within the Local Court's jurisdiction was an irrelevant consideration taken into account by the sentencing judge
  • Whether the sentence was incorrectly formulated under s 44 of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal allowed the appeal, but on a narrow basis. McClellan CJ at CL found that the sentencing judge had erred in the technical formulation of the sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999, and that error justified intervention. The overall two-year term, however, was considered to be within the appropriate sentencing range, given the mitigating factors including the guilty plea, genuine remorse, and the reckless rather than deliberate nature of the harm.

On the question of whether periodic detention was appropriate at all, McClellan CJ at CL acknowledged that periodic detention carries an element of leniency compared with full-time custody, and expressed a personal inclination toward ordering full-time custody had he been the original sentencing judge. However, applying the principles governing Crown appeals, the Court was reluctant to convert a sentence already being served to full-time imprisonment, particularly as the respondent had complied with his periodic detention obligations and was rebuilding his life.

The Court therefore re-sentenced the respondent to a non-parole period of one year with an additional term of one year, correcting the technical s 44 error, but preserved periodic detention as the mode of serving the non-parole period. The respondent was ordered to continue reporting to the Metropolitan Periodic Detention Centre to complete the balance of his sentence.

Orders Made

  • Appeal allowed
  • Sentence quashed
  • Respondent re-sentenced to a non-parole period of one year with an additional term of one further year
  • Non-parole period to be served by periodic detention
  • Respondent ordered to continue reporting to the Metropolitan Periodic Detention Centre, Parramatta Correctional Centre, to complete the balance of the sentence

Key Takeaways

  • A Crown appeal against sentence requires more than a finding that the sentencing judge might have imposed a different penalty; the Court confirmed that the principles governing Crown appeals set a high threshold for intervention, particularly where a sentence has already been partly served.
  • Correcting a technical error in the formulation of a sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be a sufficient basis for allowing a Crown appeal, even where the overall sentencing range is accepted as appropriate.
  • The Court of Criminal Appeal confirmed that periodic detention is not equivalent to full-time custody and carries an element of leniency, making it a more significant sentencing choice in serious matters.
  • Where a respondent has already commenced serving a sentence and has complied with its terms, the disruption of converting that sentence to full-time imprisonment is a relevant consideration on a Crown appeal.
  • Reckless conduct causing permanent serious injury to a vulnerable infant was treated as requiring a custodial sentence to mark the seriousness of the offence, notwithstanding substantial mitigating factors including remorse and a guilty plea.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(1)(b)
- Children and Young Persons (Care and Protection) Act 1998 (NSW), s 228
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- 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
- 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