Citation: R v Tepania [2017] NSWDC 435
Court: District Court of New South Wales
Date: 2 November 2017
Judge(s): Sutherland SC DCJ
Background
The offender was living with his girlfriend and her ten-month-old baby son at a unit in Penrith. On the afternoon of 21 November 2015, he embarked on an extended binge involving large quantities of alcohol and tablets he believed to be ecstasy. His behaviour that night was severely disinhibited: he assaulted his girlfriend, bit a friend hard enough to draw blood, smashed household items, and attempted to eat a baby's bracelet.
The following afternoon, still affected by what he had consumed, the offender was left alone with the infant after his girlfriend went out to buy cigarettes. When the baby vomited and cried, the offender took him to the bathroom, placed him in the bath, and turned on the hot water tap without inserting the plug. He then left the bathroom with the water running. The infant sustained extensive second-degree burns to approximately 40% of his body. After the child was removed from the bath, the offender also inflicted further physical injuries on him.
The offender was originally charged with intentionally causing grievous bodily harm (GBH), which carries a maximum of 25 years and a standard non-parole period of 7 years. On the first day of trial, he pleaded guilty to the alternative count of recklessly causing GBH (maximum 10 years, standard non-parole period 4 years) and to a further count of assault occasioning actual bodily harm. The Crown accepted those pleas in full satisfaction of the indictment.
Legal Issues
- What was the appropriate sentence for recklessly causing GBH to a ten-month-old infant, taking into account the objective seriousness of the offence?
- What weight, if any, should be given to the offender's profound background disadvantage and deprived upbringing under the principles in Bugmy v R and R v Fernando?
- What discount applied for the guilty plea, entered on the first day of trial rather than at an earlier opportunity?
- Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and head sentence.
- How the two offences should be structured, including whether an aggregate sentence was appropriate.
Decision
His Honour placed both offences in the broad mid-range of objective seriousness. The burning of a ten-month-old infant producing 40% body surface burns was plainly very serious, but the charge before the court was recklessness rather than intent, and the facts had to be assessed accordingly. The court drew on comparable scalding cases, including R v BJ [2017] NSWDC 234 and R v Nolan [2017] NSWCCA 91, noting that each case turns on its own facts.
The court gave significant weight to the need for general deterrence in cases of violence against young children. His Honour quoted Cole JA in R v Pitcher (unreported, NSWCCA, 19 February 1996) to the effect that courts must signal through their sentences that criminal violence against young children will not be tolerated, and that appropriately severe sentences serve a protective function.
On the subjective side, the court considered the offender's profoundly disadvantaged background and deprived upbringing, applying the principles established in Bugmy v R (2013) 249 CLR 571 and R v Fernando (1999) 76 A Crim R 58. These matters reduced the weight given to personal deterrence without eliminating the need for a substantial sentence. Some discount was allowed for the guilty plea, though its late timing limited the extent of that reduction.
His Honour found that special circumstances existed, justifying a greater proportion of the head sentence being allocated to the balance of term (that is, the period on parole). An aggregate sentence was imposed across both offences.
Orders Made
- Indicative sentence for recklessly causing GBH (count 2): 4 years 6 months, with an indicative non-parole period of 2 years 8 months (after guilty plea discount).
- Indicative sentence for assault occasioning actual bodily harm (count 3): 12 months.
- Aggregate sentence imposed: head sentence of 5 years, with a non-parole period of 3 years.
- Non-parole period backdated to commence 22 November 2015, expiring 21 November 2018.
- Balance of term of 2 years, expiring 21 November 2020.
Key Takeaways
- Both offences were assessed as falling within the broad mid-range of objective seriousness, notwithstanding the severity of the infant's injuries, because the relevant charge was recklessness rather than intent to cause GBH.
- General deterrence carries particular force in cases of violence against young children. The District Court applied the principle from R v Pitcher that sentencing courts must signal that such offending will attract appropriately severe penalties.
- A profoundly deprived or disadvantaged background, assessed under Bugmy v R and R v Fernando, can reduce the weight placed on personal deterrence in sentencing, but does not displace the need for a substantial sentence where the offending is serious.
- Special circumstances were established on the facts, permitting a non-parole period representing a lesser proportion of the head sentence than the statutory default, to allow for adequate supervised release.
- An aggregate sentence across multiple counts is available in the District Court and requires the sentencing judge to nominate indicative sentences for each count as part of the sentencing process.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(2), 59(1), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Blackwell v R [2011] NSWCCA 93
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v BJ [2017] NSWDC 234
- R v Dashti [2016] NSWCCA 251
- R v Egan [2016] NSWCCA 285
- R v Fernando (1999) 76 A Crim R 58
- R v Lolesio [2014] NSWCCA 219
- R v Nolan [2017] NSWCCA 91
- R v Pitcher (NSWCCA, unreported, 19 February 1996, Gleeson CJ and Ireland J agreeing)
- R v Smith [2005] NSWCCA 286