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District Court 10 September 2021

R v Hemsworth

[2021] NSWDC 638

Assault & violencePublic order & justice offences
CRIME VIOLENT OFFENCES CAUSE GRIEVOUS BODILY HARM WITH INTENT PARENTAL RESPONSIBILITY FAILURE TO PROVIDE NECESSITIES OF LIFE PUBLIC JUSTICE OFFENCES

Citation: R v Hemsworth [2021] NSWDC 638
Court: District Court of New South Wales
Date: 10 September 2021
Judge: Buscombe DCJ

Background

A jury convicted the offender of causing grievous bodily harm with intent (s 33(1)(b) Crimes Act 1900) and of intentionally failing, as a person with parental responsibility, to provide a child with the necessities of life in circumstances that caused a danger of death (s 43A(2) Crimes Act 1900). The offender also pleaded guilty before the jury to doing an act with intent to pervert the course of justice (s 319 Crimes Act 1900).

The victim, SH, was a girl under two years of age. The offender was in a relationship with her mother and acted as SH's stepfather. On the evening of 9 March 2019, at holiday premises in Iluka, the offender inflicted severe injuries on the child. He refused to call an ambulance, prevented SH's mother from summoning help, and the child received no medical treatment for approximately two days.

When SH was finally taken to hospital, the offender and others told staff she had fallen down stairs. That account was false. SH was ultimately airlifted to the Queensland Children's Hospital, where the true severity of her injuries became apparent. The offender was arrested on 21 May 2019 and extradited to New South Wales.

Legal Issues

  • What sentence was appropriate for the offence of causing grievous bodily harm with intent to a very young child by her stepfather?
  • What sentence was appropriate for the failure to provide medical care over approximately two days, in circumstances that caused a danger of death?
  • What sentence was appropriate for creating and maintaining a false alibi to pervert the course of justice?
  • What discount, if any, should apply to the perverting the course of justice count for the utilitarian value of the early guilty plea?
  • Whether the offender's claimed drug intoxication, mental health history, or difficult upbringing mitigated the sentence.
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.

Decision

Issue 1: Findings of fact and the nature of the injuries

His Honour was required to find facts consistent with the jury's verdicts, and any facts adverse to the offender had to be established beyond reasonable doubt (at [3]). The jury rejected the offender's evidence that he was heavily intoxicated, had no memory of events, and did not know how SH was injured. His Honour found that account implausible and false (at [22], [45]).

Dr Beak's unchallenged medical evidence established that SH suffered very significant subdural haematomas, extensive cerebral oedema, pneumomediastinum, bilateral pneumothoraxes, subcutaneous emphysema, retinal haemorrhages, and a spinal subdural haematoma (at [23]-[24]). The injuries were consistent with acceleration and deceleration forces of the magnitude of a high-speed motor vehicle collision or a fall of at least one storey, and were not consistent with a fall down stairs (at [25]-[26]). SH survived but suffered permanent, severe impairment of her limbs and trunk, blindness, epilepsy, complete dependence on adult care, and an increased risk of early death (at [27]-[28]).

Issue 2: Objective seriousness of the offences

His Honour assessed count 1 as falling within the high range of objective seriousness, but not the worst case category (at [32]). Relevant features included the extreme vulnerability and young age of the victim, the large disparity in size and power between victim and offender, the breach of a position of trust by a person standing as the child's father, the attack occurring in the child's home, the considerable force involved, and the catastrophic and permanent consequences (at [29]-[30]). The attack was unprovoked and, while the offender appears to have "snapped" rather than planned the assault, the absence of planning did not reduce the objective gravity (at [31]).

Count 3 was assessed as well above midrange but a little below the high end of the range (at [34]). The offender withheld medical care for approximately two days, motivated by fear of detection, actively prevented the child's mother from summoning help, and confined her to the premises (at [34]). Count 4 was assessed towards the bottom end of the midrange, noting it was the offender who created and propagated the false alibi, though the perversion of justice operated for a limited time (at [37]).

Issue 3: Subjective factors and mitigation

His Honour accepted that the offender had a somewhat difficult upbringing, including an abusive father, but found that the circumstances did not reduce his moral culpability in the manner contemplated by Bugmy v The Queen [2013] HCA 37 (at [52]). The mental health diagnoses of persistent depressive disorder and substance use disorder did not attract significant mitigation under DPP v De La Rosa [2010] NSWCCA 194, as there was no real suggestion that mental health was causative of the offending (at [49]).

The offender maintained his innocence and blamed the child's mother for the injuries, demonstrating no remorse and almost no insight into the impact of his conduct (at [50]-[51]). His Honour assigned a 15% discount to count 4 for the utilitarian value of the guilty plea, noting that the utilitarian benefit was limited because the evidence on that count still needed to be called at trial (at [53]). No finding of special circumstances was made to vary the non-parole period ratio (at [55]).

Issue 4: Aggregate sentence

His Honour applied the aggregate sentencing provisions, noting that a modest degree of accumulation would have been appropriate across the individual counts, as each offence involved distinct conduct (at [58]). The court recorded indicative sentences of 16 years for count 1 (with an indicative non-parole period of 12 years), three and a half years for count 3, and three years for count 4 (at [62]). The resulting aggregate sentence was 18 and a half years' imprisonment with a non-parole period of 13 years and 10 months, commencing 21 May 2019 (at [62]).

Orders Made

  • The offender was convicted of counts 1, 3, and 4.
  • An aggregate sentence of 18 years and 6 months' imprisonment was imposed, with a non-parole period of 13 years and 10 months.
  • The sentence commences on 21 May 2019 and expires on 20 November 2037.
  • The non-parole period expires on 20 March 2033, being the earliest date of eligibility for release to parole.

Key Takeaways

  • The District Court confirmed that a conviction for causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900 carries an intention that is itself sufficient to establish the mental element of murder, making all such offences inherently serious. Factors including the victim's extreme vulnerability, abuse of a parental position of trust, and the severity of permanent consequences placed this offence in the high range of objective seriousness (at [29]-[32]).

  • Where a person with parental responsibility withholds medical care from an injured child for an extended period, motivated by self-interest in avoiding detection, and actively prevents others from summoning help, those circumstances will elevate the objective seriousness of the s 43A(2) offence well above the midrange (at [34]).

  • A difficult or abusive upbringing does not automatically reduce moral culpability under Bugmy v The Queen principles; the sentencing court examined the evidence and found it did not reach the threshold required for meaningful mitigation in this case (at [52]).

  • An early guilty plea to a count of perverting the course of justice attracted only a 15% utilitarian discount where the evidence in support of that count was still required to be adduced at trial and the scope of the false alibi remained contested (at [53]).

  • Sentencing courts applying aggregate sentencing provisions are not required simply to add individual indicative sentences; rather, the aggregate is reached by instinctive synthesis of all objective and subjective factors, including the degree of accumulation appropriate to offences arising from distinct conduct within the same episode (at [58]-[62]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) , ss 33(1)(b), 43A(2), 319,
- Crimes (Sentencing Procedure) Act 1999 (NSW) , ss 3A, 21A, 25F

Cases
- R v Nolan [2017] NSWCCA 91
- Nasrallah v The Queen [2015] NSWCCA 188
- DPP v De La Rosa [2010] NSWCCA 194
- Bugmy v The Queen [2013] HCA 37