Citation: R v Cao [2019] NSWDC 829
Court: District Court of NSW
Date: 24 July 2019
Judge: Norrish QC DCJ
Background
The offender, a young woman aged 23 at the time of the offence, pleaded guilty to assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900. The victim was her own four-month-old daughter. The offence occurred on 25 July 2018 when the offender slapped the infant repeatedly on the face and buttocks, causing visible bruising and swelling.
The offender had a documented history of serious mental illness and was living largely without domestic support. The child's father had separated from her around the time of the birth, and although the offender's mother lived nearby, the offender was substantially isolated. She was receiving monthly injections for what appeared to be psychotic illness and was on medication at the time of the offence.
The offender called her own mother at 3am to report what she had done and asked for help, describing the call as a frank admission and a cry for assistance. Emergency services were contacted, the child was taken to hospital for treatment, and the offender was subsequently assessed at a mental health facility. The child was removed from the offender's care and an apprehended violence order was made prohibiting contact.
Legal Issues
- What sentence was appropriate for an offence of assault occasioning actual bodily harm committed against a four-month-old child by her mother, who suffered from severe and chronic mental illness?
- To what extent did the offender's mental illness reduce her moral culpability and the weight to be given to general deterrence?
- What sentencing disposition best balanced the seriousness of the offence, the offender's mental health needs, and the relevant sentencing principles?
Decision
His Honour characterised the offence as serious in context, noting the extreme vulnerability of a four-month-old victim and the nature and extent of the injuries. The offender had slapped the child at least twelve times on the buttocks and six or seven times on the face, causing bruising and swelling that remained visible the following day.
Despite the seriousness of the offending, the court placed significant weight on the offender's mental illness in mitigation. She had been diagnosed with schizoaffective disorder, schizophrenia, and bipolar disorder. His Honour found that her whole life had been profoundly affected by her chronic mental condition, that she lacked the mental capacity to properly care for the child, and that her moral culpability was substantially reduced by her illness. The court drew on the established principle in R v Engert that mental illness can diminish the relevance of general deterrence and retribution in sentencing.
The court also took into account the offender's guilty plea, her lack of prior convictions (noting two earlier matters dealt with under s 32 of the Mental Health Act in the Local Court, which did not result in convictions), her frank admission to police and her mother, her evident remorse and recognition that she could not care for her child, and her cooperation with authorities. The pre-sentence report assessed her as medium to low risk of reoffending.
His Honour concluded that a community-based order with conditions directed at mental health treatment and supervision was the appropriate disposition, rather than full-time imprisonment. The court found that imprisonment would not serve the purposes of sentencing in circumstances where the offender's mental illness was the dominant feature of the case and where structured supervision and ongoing treatment offered the best prospects for the community and the offender.
Orders Made
- The offender was sentenced to a community corrections order for a period of two years.
- Conditions included: compliance with directions from Community Corrections, attendance upon treating doctors and receipt of ongoing mental health treatment, and participation in any courses directed by Community Corrections.
- The offender was required to be of good behaviour for the duration of the order.
Key Takeaways
- The District Court applied the principle from R v Engert that where severe mental illness substantially reduces an offender's moral culpability, general deterrence and retributive considerations carry significantly less weight in sentencing.
- A chronic and serious psychiatric diagnosis, here schizoaffective disorder, schizophrenia, and bipolar disorder, can be a dominant mitigating factor even where the offence involves a highly vulnerable victim.
- Prior matters dealt with under s 32 of the Mental Health Act in the Local Court did not constitute prior convictions, though the court was entitled to consider them as part of the offender's background.
- Frankness in admitting the offending to both family and police, combined with demonstrated recognition that the offender could not safely care for her child, was treated as reflecting genuine remorse and cooperation rather than mere utilitarian calculation.
- Community-based dispositions with supervision and mandatory treatment conditions can be appropriate even for offences involving serious physical harm to children, where the offender's mental illness is both the primary cause of the offending and a factor making imprisonment a disproportionate response.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health Act 2007 (NSW), s 32
Cases
- R v Engert (1995) 84A CrimR 67
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Hemsley v R [2004] NSWCCA 228