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Court of Criminal Appeal 11 March 2022

CW v R

[2022] NSWCCA 50

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE VICTIM A 9 WEEK OLD INFANT FRACTURED RIBS “KARATE CHOP”

Citation: CW v R [2022] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 11 March 2022
Judges: Johnson J, Rothman J, Hamill J (reasons by Hamill J, others agreeing)

Background

The appellant (identified by the pseudonym CW) was a 20-year-old father who pleaded guilty in the District Court at Wollongong to recklessly causing grievous bodily harm to his infant daughter, who was under 12 weeks old at the time of the offending. Two counts of assault occasioning actual bodily harm were taken into account on a Form 1. The principal offence was a "rolled up charge" reflecting multiple occasions on which the appellant inflicted rib fractures on the child. The Form 1 matters involved bruising to the child's face and a buckle fracture of the wrist.

The offending came to light in August 2019 when Department of Family and Community Services workers noticed bruising on the infant's face during an unrelated visit. A subsequent medical examination revealed multiple rib fractures in various stages of healing. Covert surveillance captured the appellant admitting he had "karate chopped" and "squeezed" the child's ribs.

Judge O'Brien sentenced the appellant to 4 years and 6 months' imprisonment with a non-parole period of approximately 2 years and 10 months, commencing 1 October 2019. The appellant sought leave to appeal on the basis that the sentencing judge had erred in addressing his background and his youth.

  • Whether the sentencing judge failed to properly consider the impact of the appellant's personal background, including his history of trauma, abuse and dysfunction, on his moral culpability (the "Bugmy principles").
  • Whether the sentencing judge failed to take the appellant's youth and immaturity into account in a meaningful way, both in assessing the degree of criminality and as a mitigating factor.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on both grounds. Hamill J (with whom Johnson and Rothman JJ agreed) found that, despite the sentencing judge having delivered ex tempore remarks, the judge had adequately engaged with the relevant sentencing factors.

On the first ground, the Court considered whether the sentencing judge had applied the principles from Bugmy v The Queen (2013) 249 CLR 571, which require a sentencing court to assess how a background of deprivation or disadvantage may bear on an offender's moral culpability. Hamill J found that the judge had considered the psychologist's report by Ms Durkin, which documented the appellant's exposure to abuse, neglect and violence during childhood, and had taken this material into account when assessing culpability. No error was established in that process.

On the second ground, the Court examined whether the sentencing judge had given meaningful weight to the appellant's youth and immaturity as mitigating factors. The Court acknowledged that youth is a well-recognised mitigating consideration, particularly because of its bearing on impulse control and decision-making. Hamill J concluded, however, that the sentencing judge had considered these matters and that no appellable error was demonstrated.

Hamill J noted that the criminality involved repeated assaults on a helpless infant and that a stern sentence was, in the circumstances, inevitable. The sentence and non-parole period were upheld.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing judges must genuinely engage with the Bugmy principles, but that engagement does not require lengthy or elaborate treatment; acknowledgment and consideration of the relevant material in an ex tempore judgment can be sufficient.
  • A psychologist's report documenting childhood abuse, neglect and emotional dysfunction is relevant to the assessment of moral culpability, but its weight will depend on the full sentencing context, including the nature and gravity of the offending.
  • Where a sentencing judge considers youth and immaturity as part of the sentencing analysis, the mere fact that the sentence is severe does not, of itself, establish that those factors were not meaningfully applied.
  • In dismissing the appeal, the Court signalled that the gravity of repeated violence against a wholly vulnerable infant will inevitably weigh heavily in the sentencing exercise, even where significant personal mitigating factors are present.
  • No error was established in the sentencing judge's approach to either moral culpability or the treatment of youth, despite the sentence having been delivered ex tempore on the day of the proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d), 21A(2)(j), 44(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 6

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353
- Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; (2014) 247 A Crim R 272
- Grant v R [2014] NSWCCA 67
- Tuncbilek v R [2020] NSWCCA 30
- R v Speechley [2012] NSWCCA 130; 222 A Crim R 175
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
- R v AN [2005] NSWCCA 239
- Yildiz v R [2020] NSWCCA 69
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- TF v R [2020] NSWCCA 248
- Donald (a pseudonym) v The Queen [2021] NSWCCA 198
- Prince v R [2020] NSWCCA 268
- Dellow v R [2020] NSWCCA 301
- Chong v R [2017] NSWCCA 185
- Egan v R [2017] NSWCCA 206
- Howard v R [2019] NSWCCA 109
- Wood v R [2019] NSWCCA 309
- R v Dalton [2004] NSWSC 446