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District Court 5 April 2018

R v Bodnar

[2018] NSWDC 76

Other
CRIMINAL LAW SENTENCE ACCESSORY TO THAT OFFENCE NATUROPATH PROVIDES MISGUIDED ADVICE CHILD ALMOST DIES GENERAL DETERRENCE OF PRIME IMPORTANCE

Citation: R v Bodnar [2018] NSWDC 76
Court: District Court of New South Wales
Date: 5 April 2018
Judge: Berman SC DCJ

Background

A naturopath with over three decades of practice pleaded guilty to being an accessory to an offence of failing to provide a child with the necessities of life. The primary offender was the child's mother, who followed the naturopath's dietary advice while exclusively breastfeeding her infant son (referred to throughout the judgment by the pseudonym "Tony"). Tony had been diagnosed with eczema at approximately four months of age.

The naturopath advised the mother to abandon conventional medical treatment, adopt a raw food diet, and later a water-only fast, purportedly to address the underlying causes of the eczema. Both mother and child lost significant weight over the period from April to May 2015. The naturopath was aware of the weight loss but told the mother it was normal and that the baby was overweight.

By late May 2015, Tony was in a critical condition when admitted to the Children's Hospital. Medical opinion was that he could have died within days had he not received treatment. At seven and a half months of age he had lost 1.6 kilograms from an already vulnerable baseline, and his developmental assessment placed him at the equivalent of a three-month-old.

  • What sentence was appropriate for the offence of aiding, abetting, counselling or procuring a person with parental responsibility to recklessly fail to provide necessities of life to a child, resulting in danger of death?
  • What weight should be given to general deterrence in sentencing where the offender was a practitioner giving health-related advice that foreseeably caused serious harm to a vulnerable child?
  • How should the court balance the offender's personal circumstances, genuine remorse, and absence of prior relevant criminal history against the objective seriousness of the offending?

Decision

The District Court characterised the offending as objectively serious. Three features carried particular weight: the offending spanned approximately three months; the naturopath continued giving advice despite being aware of the weight loss suffered by both mother and child; and the victim was an infant entirely dependent on others for nourishment and incapable of seeking help.

Berman SC DCJ rejected the submission that the naturopath's failure to see Tony in person mitigated her culpability. Rather, the court treated that failure as part of the criminality itself. A practitioner giving advice with the potential to affect a child's health had an obligation to monitor its effects and cease where harm was apparent.

General deterrence was identified as the primary sentencing consideration. The court accepted that the naturopath acted without any intention to harm Tony, was remorseful, had no relevant criminal history, and had operated her practice for many years without prior incident. Nevertheless, the court concluded that no sentence other than imprisonment would adequately reflect the gravity of her conduct or deter others in similar positions from giving unverified medical advice that places vulnerable individuals at serious risk.

Special circumstances were found, arising from the offender's age, the fact this was her first time in custody, and evidence of anxiety and depression. This justified a longer ratio of parole to head sentence than would otherwise apply.

Orders Made

  • Non-parole period of 7 months, commencing 5 April 2018 and expiring 4 November 2018
  • Head sentence of 14 months imprisonment, commencing 5 April 2018
  • A 15% discount on sentence was applied in recognition of the guilty plea

Key Takeaways

  • The District Court confirmed that the criminal law extends to non-medical practitioners who give health-related advice, where that advice is followed by a person with parental responsibility and results in a danger of death to a child.
  • Genuine good intentions and absence of prior relevant criminal history did not displace the primacy of general deterrence where the victim was a vulnerable infant and the harm was near-fatal.
  • A finding of accessorial liability (aiding, abetting, counselling or procuring) was sufficient to attract a maximum penalty of five years imprisonment, the same maximum as the principal offence under the relevant provision.
  • Continuing to give advice after becoming aware of its harmful effects, without monitoring the subject of that advice, was treated as an aggravating feature rather than a neutral fact.
  • Special circumstances justifying an adjusted parole ratio can arise from the combination of first-time custody, age, and diagnosed mental health conditions, even where the offending is serious.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- The offence was charged under provisions of the Crimes Act 1900 (NSW) relating to failure to provide necessities of life and accessories to that offence (specific section numbers were not cited in the provided text)

Cases:
- No specific cases were cited in the judgment beyond a general reference to a single unreported District Court sentencing decision relied upon by defence counsel, which the court declined to treat as carrying significant weight.