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District Court 5 June 2017

R v BJ

[2017] NSWDC 234

Assault & violence
CRIMINAL LAW SENTENCE RECKLESSLY CAUSE GRIEVOUS BODILY HARM SIX MONTH OLD CHILD VICTIM

Citation: R v BJ [2017] NSWDC 234
Court: District Court of New South Wales
Date: 5 June 2017
Judge: Sutherland SC DCJ

Background

The offender, a father, pleaded guilty to recklessly causing grievous bodily harm to his six-month-old son on 11 October 2013, contrary to s 35(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is ten years imprisonment. The victim sustained severe third-degree full-thickness burns to his chest, with lesser burns to his face, arm, genitals, and thighs, while alone in the care of his father during a morning at home.

Following the injury, the father took the child to a general practitioner later that morning but deliberately withheld information about the chest burns, presenting only a facial rash. The burns went untreated by any doctor until the following Tuesday, four days after the incident. A second charge, that the offender had failed in his parental duty to provide the necessities of life (specifically medical care) after causing the harm, was placed on a Form 1 to be taken into account at sentencing.

The cause of the burns was disputed, and the court conducted a contested facts hearing over several days before imposing sentence. The offender's identity, and those of the child and family members, were suppressed in the published remarks.

  • What were the circumstances of the burning, and what findings should the court make on the disputed facts hearing about the cause of the child's injuries?
  • What weight should be given to mitigating and aggravating factors, including the offender's background and the vulnerability of the victim?
  • How should the Form 1 offence (failure to provide necessities of life, specifically adequate medical care) be reflected in the sentence for the principal offence?
  • What was the appropriate head sentence and non-parole period for the offence of recklessly causing grievous bodily harm?

Decision

His Honour conducted a detailed disputed facts hearing to determine the cause of the burns, noting that the competing explanations remained contested. The sentencing remarks traversed the timeline carefully, including the offender's text messages and photograph to the child's mother, his visit to her parents' home where the burns were visible, and the misleading presentation at the medical centre.

The court found that the offender had taken the child to a general practitioner on the day of the injury but had deliberately concealed the chest burns from the doctor, directing attention only to a facial rash. The child consequently received no treatment for his severe burns until the following Tuesday. This deliberate withholding of medical information, and the multi-day delay in obtaining appropriate care, significantly aggravated the overall criminality.

On the Form 1 offence, His Honour acknowledged the caution expressed in case law about precisely quantifying the effect of Form 1 matters on a principal sentence. Nonetheless, drawing on the plurality's observation in Markarianv The Queen (2005) 228 CLR 357 that it is not erroneous to identify the extent of any increase, the court nominated a twelve-month increase to the head sentence attributable to the Form 1 conduct. His Honour emphasised that this represented an increase to the penalty for the principal offence, not the imposition of a separate penalty for the Form 1 matter.

The court imposed a head sentence of six years imprisonment, with a non-parole period of four years. One day of pre-sentence custody was taken into account and the sentence dates adjusted accordingly.

Orders Made

  • Head sentence of six years imprisonment for recklessly causing grievous bodily harm (s 35(2), Crimes Act 1900)
  • Non-parole period of four years, commencing 5 June 2017 and expiring 4 June 2021
  • Additional term of two years, expiring 4 June 2023
  • One day of pre-sentence custody taken into account, with sentence dates adjusted accordingly

Key Takeaways

  • The District Court confirmed that where a Form 1 offence constitutes the direct sequelae of the principal offence (here, a failure to obtain medical care following the causing of serious injury), it can properly increase the gravity of the principal offence for sentencing purposes.
  • Nominating a specific quantum of increase attributable to a Form 1 matter is permissible, following Markarian v The Queen, provided the sentencing court makes clear it is increasing the principal penalty rather than imposing a separate penalty for the Form 1 offence.
  • Deliberate concealment of a child victim's injuries from a treating doctor, combined with a multi-day delay in obtaining appropriate medical care, were treated as significant aggravating features that elevated the overall seriousness of the conduct.
  • Where disputed facts bear on the degree of criminality, a contested facts hearing is the appropriate mechanism for the court to make findings, even after a plea of guilty has been entered.
  • The extreme vulnerability of a six-month-old victim and the offender's position of parental responsibility were central considerations in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2) (recklessly causing grievous bodily harm)

Cases
- Markarian v The Queen (2005) 228 CLR 357
- Abbas v R (2013) 231 A Crim R 413
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Blackwell v The Queen [2011] NSWCCA 93
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Engert (1995) 84 A Crim R 67
- R v Fernando (1992) 76 A Crim R 58
- Kennedy v R [2010] NSWCCA 260
- R v Lolesio [2014] NSWCCA 219
- R v Nolan [2017] NSWCCA 91
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270