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Court of Criminal Appeal 17 October 2018

BJ v R

[2018] NSWCCA 231

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDER FATHER OF CHILD SENTENCE OF OFFENDER NO LESSER SENTENCE WARRANTED IN LAW APPEAL AGAINST SENTENCE DISMISSED.

Citation: BJ v R [2018] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 17 October 2018
Judge(s): Hoeben CJ at CL; McCallum J; Beech-Jones J

Background

The applicant, the father of a six-month-old baby, was alone caring for his son when the infant sustained severe third-degree burns to his chest, face, genitalia, and other areas of his body. The sentencing judge found, beyond reasonable doubt, that the applicant had deliberately poured a very hot liquid onto the child. No satisfactory explanation for how or why this occurred was ever provided.

The applicant pleaded guilty in the District Court to reckless grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW), which carries a maximum of 10 years' imprisonment and a standard non-parole period of four years. A further offence of failing to provide adequate care to the child (s 43A(2)) was taken into account on a Form 1, a procedural mechanism by which a court factors an additional offence into the sentence for the primary offence without recording a separate conviction.

Following a Disputed Facts Hearing, Judge Sutherland SC sentenced the applicant to six years' imprisonment with a non-parole period of four years. The applicant sought leave to appeal that sentence on two grounds.

  • Whether the sentencing judge erred in his characterisation of the mental element (recklessness) required for the offence of reckless grievous bodily harm
  • Whether the sentencing judge erred by treating the commission of the offence "in the presence of a child" as a statutory aggravating factor, when the victim was himself the child

Decision

Ground 1: Mental element (recklessness)

The Court of Criminal Appeal found that the sentencing judge had made an error in his articulation of recklessness. The judge's reasons suggested that recklessness required only foresight of the possibility of causing actual bodily harm, whereas under s 35(2) the correct standard is recklessness as to causing actual bodily harm (not grievous bodily harm). However, the Court was satisfied that the error did not affect the outcome. Given the deliberate pouring of a very hot liquid onto an infant, the delicacy of a six-month-old's skin, and the extensive injuries that resulted, the finding of the requisite recklessness was plainly open on the facts. Although the error technically enlivened the Court's jurisdiction to conduct a resentence, no lesser sentence was warranted.

Ground 2: Aggravation by presence of a child

The Court accepted that the sentencing judge had erred by applying the statutory aggravating factor under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which applies where an offence is committed in the presence of a child. That provision is not engaged when the child in question is the victim of the offence itself. However, this error also did not affect the ultimate sentence. The vulnerability of the victim as a six-month-old infant was already a proper and significant factor in the assessment of objective seriousness, and the applicable vulnerability aggravating factor under s 21A(2)(l) remained available.

Resentence outcome

Despite identifying two technical errors in the sentencing judgment, the Court conducted an independent resentencing exercise and concluded that no lesser sentence was warranted in law. The Court emphasised the high objective seriousness of the offence, the extreme vulnerability of the victim, the gross breach of trust by a parent, and the complete absence of any account from the applicant explaining what had occurred. The Form 1 offence, involving a deliberate failure to obtain timely medical treatment and active concealment of the child's injuries from treating doctors, substantially increased the gravity of the overall conduct.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Two sentencing errors were identified on appeal (one relating to the mental element of recklessness, one relating to the wrong aggravating factor under the Crimes (Sentencing Procedure) Act), but neither produced a different outcome because the Court of Criminal Appeal conducted an independent resentencing exercise and found no lesser sentence was warranted.
  • Under s 35(2) of the Crimes Act 1900, reckless grievous bodily harm requires proof that the offender foresaw the possibility of causing actual bodily harm and proceeded regardless; it does not require foresight of grievous bodily harm specifically.
  • The statutory aggravating factor for offences committed "in the presence of a child" (s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999) does not apply where the child is the victim of the offence.
  • A Form 1 offence, while not attracting a separate sentence, can justify a meaningful increase to the head sentence for the primary offence where the Form 1 conduct substantially aggravated the harm caused; here, a 12-month uplift was upheld.
  • In dismissing the appeal, the Court confirmed that an unexplained deliberate act causing serious injury to a highly vulnerable victim, combined with an egregious breach of parental trust, will properly support a sentence at the upper end of the mid-range of objective seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(1), 35(2), 43A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(ea)

Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398
- Blackwell v The Queen [2011] NSWCCA 93 (cited in the sentencing judgment on the definition of recklessness)