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District Court 8 September 2020

R v AB and CD

[2020] NSWDC 671

Assault & violence
CRIME SENTENCE

Citation: R v AB and CD [2020] NSWDC 671
Court: District Court of New South Wales
Date: 8 September 2020
Judge(s): Bourke SC DCJ

Background

A jury at Parramatta found two parents guilty of serious offences against their infant son, EF, who was seven weeks old at the time of the relevant events. The father, AB, worked as a mechanic during the day, and the mother, CD, was the primary carer. The family lived together in Dundas with CD's older son from a prior relationship and CD's older sister.

The critical night was Saturday 14 April 2018. AB was responsible for EF during the overnight period. According to AB's account to police, EF woke screaming around 2am, remained unsettled for over an hour, and was eventually placed face-down in a bassinet before AB went outside for a cigarette. When CD's sister Monica came downstairs around 5am, she found EF face-down and raised concerns.

Later that day, when CD's mother Joanna visited around 6pm to return CD's older son, she observed EF's right hand twitching and his right arm tensed with a clenched fist. Both parents acknowledged they had noticed similar symptoms that morning but had not sought medical attention. Joanna insisted on attempting to feed EF, who would not take formula. An ambulance was subsequently called and EF was taken to hospital, where serious injuries consistent with non-accidental trauma were identified.

  • What factual basis was appropriate for sentencing each offender, consistent with the jury's verdicts?
  • What was the objective seriousness of each offence committed by AB, including causing grievous bodily harm to a child with recklessness as to actual bodily harm (maximum 10 years, standard non-parole period of 4 years) and failing to provide a child with the necessities of life (maximum 5 years)?
  • What was the objective seriousness of CD's offence of recklessly failing to provide a child with the necessities of life (maximum 5 years)?
  • What were the appropriate individual and aggregate sentences, having regard to totality, special circumstances, and the personal circumstances of each offender?

Decision

Judge Bourke SC DCJ made independent factual findings for sentencing, drawing on the Crown's agreed facts document supplemented by findings from the trial evidence. Any aggravating matters required proof beyond reasonable doubt; mitigating matters required proof on the balance of probabilities.

The court treated the two offences committed by AB as largely distinct episodes of offending, warranting some accumulation of sentence rather than full concurrency. The judge found special circumstances justifying a variation from the standard ratio between the non-parole period and the head sentence, citing AB's first time in custody and the need for a lengthy supervisory period on parole.

In relation to CD, whose offending was limited to failing to provide EF with the necessities of life, the judge accepted that an appropriate sentence could be served in the community. CD received an intensive correction order rather than full-time imprisonment.

For AB, counsel conceded that full-time imprisonment was the only appropriate sentencing disposition for each offence. The judge imposed an aggregate sentence of six years and six months, with a non-parole period of three years and ten months.

Orders Made

AB:
- Convicted of causing grievous bodily harm to a child with recklessness as to actual bodily harm, and failing to provide a child with the necessities of life
- Indicative sentences: 5 years 6 months (non-parole period 3 years 3 months) for the s 35(2) offence; 2 years 3 months for the s 43A offence
- Aggregate sentence of 6 years 6 months imprisonment, with a non-parole period of 3 years 10 months, commencing 8 September 2020
- Head sentence to expire 7 March 2027; eligible for parole from 7 July 2024
- Copy of psychologist's report directed to be sent to Corrective Services

CD:
- Convicted of failing to provide a child with the necessities of life
- Sentenced to an intensive correction order
- Conditions to include: compliance with Community Corrections directions, counselling or psychological treatment as directed
- Required to report to Community Corrections Office at Penrith within seven days

Key Takeaways

  • The District Court treated two offences against the same victim as warranting separate, partially accumulated sentences where they represented distinct episodes of offending, rather than a single course of conduct.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be supported by the combination of an offender being a first-time custodial prisoner and the identified need for extended post-release supervision.
  • Where co-offenders are convicted of different offences arising from the same factual circumstances, significantly different sentencing outcomes can result: here, one offender received full-time imprisonment and the other an intensive correction order, reflecting the distinct nature and gravity of each person's offending.
  • Agreed facts documents prepared by the Crown for sentencing proceedings can form the primary factual basis for the judge's findings, provided defence counsel concedes their accuracy, and the judge supplements them with findings drawn from the trial evidence.
  • Failing to seek medical attention for a seriously injured infant, where warning signs such as twitching and abnormal limb posture were observed, formed part of the factual basis for the necessities-of-life offence assessed against both offenders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 43A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases cited: None stated in the judgment.