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Court of Criminal Appeal 16 December 2008

R v BWJ

[2008] NSWCCA 333

Assault & violence
CRIMINAL LAW PROCEEDINGS FOR TRIAL SENTENCING CROWN APPEAL PLEAS OF GUILTY NO ALTERNATIVE TO FULL

Citation: R v BWJ [2008] NSWCCA 333
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2008
Judge(s): Campbell JA, Grove J, Howie J

Background

The respondent, a young father aged 19 at the time of the offences, pleaded guilty in the Local Court to two counts of maliciously inflicting grievous bodily harm and one count of assault. The victim was his infant son, born prematurely in March 2007. Medical investigations in July 2007 revealed the child had suffered two subdural haemorrhages of different ages and 17 rib fractures. Medical evidence attributed these injuries to the child being shaken and squeezed on two separate occasions.

The respondent initially denied shaking the child, but police lawfully recorded conversations in which he admitted shaking the infant twice. A psychologist's report described the respondent as emotionally immature and noted that substance use and domestic stress had contributed to his inability to manage his anger.

The matter came before Puckeridge DCJ in the District Court for sentencing. The judge imposed five-year good behaviour bonds for each of the two grievous bodily harm charges and a conviction with no sentence for the assault. The Crown appealed on the ground that those sentences were manifestly inadequate.

  • Whether the good behaviour bonds imposed in the District Court were manifestly inadequate for two offences of maliciously inflicting grievous bodily harm on an infant
  • Whether any alternative to full-time custody was available or appropriate on the facts
  • What sentence should be substituted if the Crown appeal were allowed

Decision

The Court of Criminal Appeal found the bonds were manifestly inadequate and allowed the Crown appeal. The Court accepted that the respondent's youth, lack of criminal record, genuine remorse, plea of guilty, and the progress he had made since the offending were all relevant mitigating factors. However, those factors were not sufficient to justify non-custodial sentences for offences of this gravity.

The Court emphasised that the offences involved repeated, serious violence against a premature and highly vulnerable infant by his own father. The respondent was an adult, had another child, and had access to support from extended family. The Court found he had no reasonable excuse for not seeking help rather than acting as he did.

Because neither community service nor periodic detention was available as an alternative (for reasons related to the nature of the offending and concerns about the respondent's safety in a periodic detention setting), the Court concluded there was no alternative to full-time custody. The sentences were set at the very bottom of the available range, backdated to the original sentencing date of 27 October 2008 to account for time already spent on the bonds.

The Court applied a 25 per cent discount for the early guilty plea and found special circumstances warranting a longer than usual non-parole period relative to the total sentence, given the respondent's need for extended supervision and support on release. Partial accumulation between the two grievous bodily harm sentences was imposed, reflecting that the two assaults were discrete events.

Orders Made

  • Crown appeal allowed; District Court sentences quashed
  • First grievous bodily harm charge: 9-month non-parole period and 9-month balance of term, commencing 27 October 2008 (non-parole period expiring 26 July 2009)
  • Second grievous bodily harm charge: 6-month non-parole period and 10-month balance of term, commencing 26 April 2009 (non-parole period expiring 25 October 2009); respondent to be released to parole on that date
  • Assault charge: 2-month sentence commencing 27 October 2008, expiring 26 December 2008

Key Takeaways

  • Good behaviour bonds for repeated, serious violent offences against a premature infant by a parent were held to be manifestly inadequate, even where the offender was young, remorseful, and had no prior criminal history.
  • Where neither community service nor periodic detention is available, full-time custody becomes the only sentencing option, and mitigating factors are addressed instead by imposing the minimum custodial sentence within the legitimate range.
  • Sentences imposed at the very bottom of the available range can still meet the threshold of adequacy; the Court imposed what it described as the least sentence that could not be characterised as manifestly inadequate.
  • Partial accumulation of sentences is appropriate where offences arise from separate and discrete acts of violence, even against the same victim.
  • A 25 per cent sentencing discount for a guilty plea entered in the Local Court was applied, and special circumstances were found where the respondent required a longer supervisory period on parole than the standard statutory ratio would provide.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35 (maliciously inflicting grievous bodily harm, maximum 7 years), 61 (assault, maximum 2 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 35

Cases:
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Wall [2002] NSWCCA 42
- R v Baker [2000] NSWCCA 85
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41