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District Court 21 January 2021

R v Bird-Walton (A pseudonym)(no 2)

[2021] NSWDC 23

Assault & violenceDomestic & family violence
CRIMINAL LAW JUDGE ALONE TRIAL GUILTY VERDICT SENTENCE INTENSIVE CORRECTION ORDER RECKLESS GRIEVOUS BODILY HARM

Citation: R v Bird-Walton (A pseudonym) (No 2) [2021] NSWDC 23
Court: District Court of New South Wales
Date: 21 January 2021
Judge: Grant DCJ

Background

Following a judge alone trial, the offender (referred to by pseudonym) was convicted of recklessly causing grievous bodily harm to a 13-month-old child in her care between 26 and 29 October 2018 at Merungle Hill. The offender was the child's foster mother and stood in the position of a parent towards the child. The conviction arose from blunt force trauma to the child's skull causing a non-displaced linear fracture.

The factual findings from the earlier trial judgment established that the offender had become frustrated and highly emotional after the child vomited repeatedly, requiring repeated bathing and changes of clothing. The court found she acted recklessly, realising the possibility of actual bodily harm but not intending to cause grievous bodily harm. She did not intend the injury.

This judgment dealt with the sentencing hearing that followed the guilty verdict.

  • Whether other injuries to the child (corneal abrasions, lip laceration, bruising) should be taken into account in sentencing, given the offender was not charged with any offence relating to those injuries
  • Where the offending fell on the scale of objective seriousness for the offence of reckless grievous bodily harm under s 35(2) of the Crimes Act 1900 (maximum: 10 years; standard non-parole period: 4 years)
  • Whether an intensive correction order (ICO) was appropriate, having regard to the offence being classified as a domestic violence offence and the requirement to be satisfied that the victim would be adequately protected

Decision

Uncharged injuries. The Crown submitted that the court should treat the corneal abrasions and lip laceration as part of an extended course of conduct and factor them into the sentence. The court accepted the defence submission that the principle in De Simoni v The Queen (1981) 147 CLR 383 precluded punishment for offences for which the offender had not been convicted. The court added that even if that principle did not strictly apply, any additional penalty attributable to those minor injuries would in any event be subsumed within the sentence imposed for the skull fracture.

Objective seriousness. The court assessed the offending as falling below the mid-range of objective seriousness. While a skull fracture undoubtedly constitutes grievous bodily harm, this was an undisplaced linear fracture with no underlying brain injury, no surgical intervention, and no long-term consequences. Any pain resolved within a week or two. The court acknowledged the breach of trust inherent in the offender's role as foster carer and identified general deterrence as an important consideration, but did not accept the Crown's submission that foster parenthood necessarily attracted a greater need for general deterrence than biological parenthood.

Subjective features. The offender presented a strong subjective case. Aged 39 with no prior criminal history, she held extensive community ties, strong references, employment, volunteer work, and had previously served in the Navy. The court found her prospects of rehabilitation to be excellent. The court also noted that the conviction carried collateral consequences, including potential jeopardy to her Army Reserve position and the permanent removal of her foster children.

Intensive correction order. The court applied the three-step process required for ICOs under the Crimes (Sentencing Procedure) Act 1999. It was satisfied that a two-year term of imprisonment was warranted, that an ICO was an appropriate way to serve that sentence, and that the victim would be adequately protected. The court noted that the child had already been removed from the offender's care. It also acknowledged the Crown's concern that the offender had not accepted responsibility and lacked insight, and concluded this made community-based supervision and treatment more, not less, appropriate than a custodial term.

Orders Made

  • The offender is convicted.
  • A sentence of two years imprisonment is imposed, to be served by way of an intensive correction order commencing 21 January 2021 and expiring 20 January 2023.
  • Conditions of the ICO:
  • No further offences to be committed
  • Submission to supervision by a Community Corrections officer
  • Participation in a rehabilitation program or receipt of treatment as directed
  • Report to the Griffith Community Corrections office within seven days

Key Takeaways

  • The District Court confirmed that the De Simoni principle operates to prevent a sentencing court from punishing an offender for uncharged conduct, even where that conduct is circumstantially connected to the proven offence. The prosecution retains the option of charging such conduct separately.

  • A non-displaced linear skull fracture in an infant, while constituting grievous bodily harm, may be assessed as falling at the lowest end of that category where there is no brain injury, no surgical intervention, and no lasting consequences. This placed the objective seriousness below the mid-range.

  • Reckless grievous bodily harm committed by a foster parent in the domestic setting constitutes a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007, engaging the additional requirement under s 4B of the Crimes (Sentencing Procedure) Act that the court be satisfied the victim will be adequately protected before an ICO is made.

  • An absence of remorse or insight does not automatically preclude an ICO. The District Court reasoned that mandatory supervision and treatment conditions under an ICO could better address those deficits than incarceration.

  • Strong subjective features, including an unblemished record, extensive community ties, good rehabilitation prospects, and collateral consequences of conviction, can together weigh heavily in favour of a non-custodial mode of serving a term of imprisonment, even where the offence involves a vulnerable child victim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7(1), 4B, 17D(1)(a)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 5(1)(d), 11

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- De Simoni v The Queen (1981) 147 CLR 383
- Markarian v The Queen (2005) 228 CLR 357
- R v Bird-Walton (A pseudonym) [2020] NSWDC 730 (the trial judgment)
- R v Fangaloka [2019] NSWCCA 173
- Wany v DPP [2020] NSWCA 318