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Court of Criminal Appeal 17 October 2014

Regina v Lolesio

[2014] NSWCCA 219

Assault & violence
CRIMINAL LAW APPEAL SENTENCE CROWN APPEAL TWO OFFENCES CRIMES ACT 1900

Citation: Regina v Lolesio [2014] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 17 October 2014
Judges: Hoeben CJ at CL, McCallum J, Garling J (unanimous)

Background

The respondent was convicted by a jury of two offences of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900, in relation to deliberate injuries he inflicted on his infant daughter on two separate occasions in July 2011. The child was six weeks old at the time of the first offence. On both occasions, the respondent's wife had left the baby in his care and he was alone with the child.

The injuries were severe and deliberately inflicted. On the first occasion, the respondent fractured bones in the baby's lower limbs. On the second occasion, he fractured bones in her wrists and forearms, fractured four of her ribs through forceful squeezing, and caused a subdural haematoma (bleeding on the brain) by severely shaking her. Expert evidence established that significant force was required to produce each category of injury. The respondent weighed 170 kilograms; the baby weighed 4.6 kilograms.

At sentencing in the District Court on 20 December 2013, Blackmore DCJ imposed an aggregate sentence with a non-parole period of two years and a total term of four years. The Crown appealed, arguing that the sentence was manifestly inadequate and affected by multiple errors.

  • Whether the sentencing judge erred by reducing the respondent's moral culpability on the basis of a factual finding not reasonably open on the evidence (specifically, findings about the baby being noisy and difficult, and a parent's capacity to "lash out" in frustration at a crying infant).
  • Whether the sentencing judge erred by finding that the objective seriousness of the offences fell "well below the middle of the range."
  • Whether the sentencing judge failed to provide adequate reasons for how the aggregate sentence was structured under s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the sentence was manifestly inadequate.

Decision

The Court of Criminal Appeal upheld all of the Crown's principal grounds of appeal and allowed the appeal unanimously.

On the factual findings about the baby's behaviour, the Court found that the sentencing judge's remarks characterising the infant as "noisy and difficult" and acknowledging a parent's capacity to lash out at a crying baby were not reasonably open on the evidence. There was no evidence that the baby was particularly difficult or unsettled, and the sentencing judge's use of those findings to reduce the respondent's moral culpability was an error.

On objective seriousness, the Court found that the sentencing judge had placed too much emphasis on the physical injuries themselves and had failed to give adequate weight to the surrounding circumstances: the extreme vulnerability of a six-week-old infant, the respondent's position of trust as a parent, the significant disparity in size and strength between the respondent and the child, the deliberate nature of the conduct, the repetition of offending a week after the first incident, and the respondent's failure to seek medical help after the first assault. These combined circumstances meant the offences could not properly be characterised as falling well below the midrange of seriousness. The Court also found that the sentencing judge failed to adequately explain the structure of the aggregate sentence.

Having found error, the Court resentenced the respondent. It recognised special circumstances given his youth, the absence of prior significant offending, and his rehabilitation prospects, but held that any sentence had to reflect both general deterrence and the serious objective gravity of the offending.

Orders Made

  • Appeal allowed.
  • Sentences on Counts 1 and 2 imposed in the District Court on 20 December 2013 quashed.
  • Count 1 (offence between 21 June 2011 and 16 July 2011): imprisonment consisting of a non-parole period of 3 years commencing 16 September 2013, with a balance of term of 2 years (total: 5 years).
  • Count 2 (offence between 14 July 2011 and 23 July 2011): imprisonment consisting of a non-parole period of 3 years and 6 months, with a balance of term of 3 years (total: 6 years and 6 months), commencing 16 March 2014 (reflecting 6 months' accumulation).
  • Earliest parole eligibility date: 15 September 2017 (effective non-parole period of 4 years).

Key Takeaways

  • A sentencing judge's factual findings must be reasonably open on the evidence; where findings are made that lessen an offender's moral culpability without evidentiary foundation, those findings constitute a legal error warranting appellate intervention.
  • The Court of Criminal Appeal confirmed that assessing objective seriousness requires consideration of all surrounding circumstances, not merely the physical nature of the injuries. The vulnerability of the victim, the offender's position of trust, the degree of force applied, and the repetition of offending are all relevant factors.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge imposing an aggregate sentence must provide adequate reasons explaining how the aggregate was structured and how the overall length was reached. A failure to do so is a distinct ground of appeal.
  • Where a parent deliberately inflicts serious physical injuries on a defenceless infant on multiple occasions, failing to obtain medical assistance after each incident, a sentence with a two-year non-parole period is liable to be characterised as wholly inadequate.
  • Findings of special circumstances (which can extend the proportion of sentence served on parole) remain available on resentencing where an offender is young, has no significant prior record, and has strong rehabilitation prospects, even when the offending is very serious.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Mulato v Regina [2006] NSWCCA 282
- R v Koloamatangi [2011] NSWCCA 288
- R v Nykolyn [2012] NSWCCA 219
- SHR v R [2014] NSWCCA 94