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District Court 11 December 2015

R v Youkhana

[2015] NSWDC 314

Assault & violence
CRIMINAL LAW SENTENCE CAUSE GRIEVOUS BODILY HARM WITH INTENT VICTIM WAS CHILD OF THE OFFENDER VULNERABILITY OF VICTIM OFFENDER IN POSITION OF TRUST

Citation: R v Youkhana [2015] NSWDC 314
Court: District Court of New South Wales
Date: 11 December 2015
Judge: Knox SC DCJ

Background

The offender, a mother of three, was convicted by a jury of intentionally causing grievous bodily harm to her two-year-old daughter between 30 March and 2 April 2013, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The child was brought to Westmead Hospital Emergency Department on Easter Monday 2013 in a near-death state. Medical staff found multiple acute and serious injuries inconsistent with the accidental fall the offender described.

The child suffered a severe traumatic brain injury, bilateral subdural haematomas, retinal haemorrhages causing cortical blindness, spinal cord bleeding, liver and splenic lacerations, rib fractures, and bruising consistent with fingertip pressure. As a result, she developed spastic quadriplegic cerebral palsy, requires full-time care in a wheelchair, cannot feed herself, is not toilet trained, and has severe vision impairment.

The case proceeded to a five-week trial on a strong circumstantial Crown case supported by detailed medical evidence. The offender maintained total denial throughout and, following conviction, continued to blame others. The sentencing remarks also addressed a prior assault conviction from 2011 involving the same child, as well as additional offences on a s 166 certificate arising from further incidents of violence against the child.

  • What sentence was appropriate for an offence of intentionally causing grievous bodily harm under s 33(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum of 25 years and a standard non-parole period of 7 years?
  • What weight should be given to the victim's vulnerability as a young child and the offender's position of trust as her mother?
  • How should the offender's prior assault conviction involving the same victim be treated in the sentencing exercise?
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total sentence?
  • How should the s 166 certificate matters (additional charges arising from related incidents of violence) be determined and sentenced?

Decision

Knox SC DCJ identified the offence as objectively very serious. The victim was two years old at the time, entirely dependent on and vulnerable to the offender, and the offender stood in the position of her primary caregiver and mother. The court placed considerable weight on these factors, finding both the vulnerability of the victim and the gross breach of trust among the most significant features of the offending.

The offender's prior 2011 assault conviction involving the same child, as well as the pattern of prior conduct revealed by the tendency evidence at trial (including forced feeding, slapping, and throwing the child), were treated as relevant to the sentencing exercise. The court noted the offender's continued denial and lack of remorse, and the absence of any utilitarian benefit from a guilty plea.

The court found special circumstances to justify a non-parole period below the standard ratio, citing the extent of supervision the offender would require on release and the need for significant rehabilitation, including psychiatric and psychological treatment. The court also directed that the pre-sentence and psychologist's reports accompany the offender into custody, noting serious concerns about her mental state expressed by forensic psychologist Mr Watson-Munro.

On the s 166 certificate matters, the court found several additional offences proven, including assault occasioning actual bodily harm on 26 March 2013, contravening an AVO, and two counts of common assault. All terms were ordered to run concurrently with the principal sentence. Two further matters on the certificate were dismissed.

Orders Made

  • The offender was sentenced to 12 years imprisonment, comprising a non-parole period of 7 years and 6 months commencing 5 October 2015 and expiring 4 April 2023, with an additional term of 4 years and 6 months expiring 4 October 2027.
  • Special circumstances were found, justifying the departure from the standard non-parole period ratio.
  • The sentence was backdated to 5 October 2015, reflecting 74 days already spent in custody referable to the offence.
  • On the s 166 certificate matters, all running concurrently from 5 October 2015:
  • Assault occasioning actual bodily harm (26 March 2013): 3 months fixed term
  • Contravene AVO (hitting victim's head onto ground twice): 1 month fixed term
  • Common assault (kicking victim's stomach): 1 month fixed term
  • Common assault (slapping victim on the beach): convicted, no further order under s 10A
  • Common assault (force-feeding): 1 month fixed term
  • Two further certificate matters dismissed
  • A recommendation was made that the offender be subject to ongoing psychiatric and psychological counselling on release to parole.
  • The court directed that the pre-sentence report and psychologist's report accompany the offender into custody.

Key Takeaways

  • The District Court treated the victim's age and total dependence on the offender, combined with the offender's position as the child's mother and primary caregiver, as the most aggravating features of the offending.
  • Where an offender maintains complete denial and shows no remorse following a jury conviction, the sentencing court will not extend leniency on account of rehabilitation prospects, and the absence of a guilty plea removes any entitlement to a utilitarian discount.
  • A pattern of prior violent conduct toward the same victim, including a recorded conviction and tendency evidence adduced at trial, can inform the sentencing exercise as relevant background, even where the principal charge relates to a single incident.
  • Special circumstances within the meaning of the relevant sentencing framework can be established by reference to the extent of supervision and treatment an offender will require on release, permitting an extended parole period relative to the head sentence.
  • Under s 166 of the Crimes Act 1900 (NSW), a sentencing court may determine and sentence additional related offences as part of the one proceeding, with those sentences ordered to run concurrently with the principal term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33 (intentionally causing grievous bodily harm)

Cases
- Cheung v R (2001) 209 CLR 1; [2001] HCA 67
- Heron v R [2006] NSWCCA 215
- Josefski v R [2010] NSWCCA 41
- R v Hill [2014] NSWSC 1010
- R v JCW [2000] NSWCCA 209
- R v Lolesio [2014] NSWCCA 219
- R v Luu (unreported, 12 March 1998, NSWCCA)
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- R v Olbrich [1999] HCA 54
- R v Pitcher (unreported, 19 February 1996, NSWCCA)
- R v Ross Martin (unreported, 6 May 2011, NSWDC)
- R v Williams (2004) 148 A Crim R 325
- R v Zhang [2004] NSWCCA 358