AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 11 February 2022

R v Ryan (a pseudonym) (No.4)

[2022] NSWDC 14

Assault & violenceDomestic & family violence
CRIME SENTENCE RECKLESS GRIEVOUS BODILY HARM (DV)

Citation: R v Ryan (a pseudonym) (No.4) [2022] NSWDC 14
Court: District Court of New South Wales
Date: 11 February 2022
Judge(s): Colefax SC DCJ

Background

The offender, referred to by the pseudonym Ms Ryan, appeared for sentencing on two counts relating to serious harm caused to her infant son, Richard (also a pseudonym), in June 2019. Richard was just over five weeks old at the time of the offending. The proceedings carried a long procedural history, including an unsuccessful application by Ms Ryan for the sentencing judge to disqualify himself.

On 19 June 2019, Ms Ryan shook Richard from side to side, jolted him up and down, hung him upside down by his feet, and then threw him onto a bed. The rotational forces and impact caused substantial brain damage and nearly cost Richard his life.

Following the injury, Ms Ryan and her then-partner Mr George (a pseudonym) failed to seek timely medical attention despite Richard displaying clear and worsening symptoms over several days. Even after receiving explicit advice from a grandparent and a general practitioner to take Richard to hospital immediately, that advice was not followed promptly. Richard was eventually transferred by helicopter to Sydney Children's Hospital, where he underwent emergency brain surgery and required massive blood transfusions.

  • Whether the offender's conduct on 19 June 2019 constituted reckless grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW).
  • Whether the failure to provide adequate medical care in the days following the injury constituted a failure to provide a child with the necessities of life causing serious injury, contrary to s 43A(2) of the Crimes Act 1900 (NSW).
  • What aggregate sentence was appropriate, having regard to the objective seriousness of the offending, the offender's personal circumstances, mental health, prospects for rehabilitation, and the guilty pleas entered.
  • Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period.

Decision

The court accepted the agreed facts on sentence and found that the physical assault on 19 June 2019 was serious, deliberate conduct that caused catastrophic harm to a wholly defenceless infant. The failure to seek medical attention in the days following the assault compounded that harm, with multiple opportunities to act on clear medical advice going unheeded.

The court applied a 10 per cent discount to the indicative sentences for each count to reflect Ms Ryan's pleas of guilty. The court indicated it was not satisfied, on the balance of probabilities, that the pleas reflected genuine remorse, but acknowledged that the absence of remorse was likely attributable to Ms Ryan's significant mental health issues rather than indifference alone.

The court found that Ms Ryan's prospects for rehabilitation were guarded. It noted her mental health difficulties, the fact that she would serve her sentence in protective custody, and the need for support upon release. On that basis, the court found special circumstances existed under the applicable sentencing framework, justifying a variation to the standard ratio between the non-parole period and the balance of the sentence.

No sentence other than full-time imprisonment was considered appropriate for either offence. The court imposed an aggregate sentence and backdated it to 14 December 2021, reflecting the revocation of bail and the two days Ms Ryan had spent in custody following her arrest.

Orders Made

  • Aggregate sentence of 5 years imprisonment imposed.
  • Non-parole period of 3 years, commencing 14 December 2021 and expiring 13 December 2024.
  • Balance of term of 2 years, commencing 14 December 2024 and expiring 13 December 2026.
  • Special circumstances found, varying the standard ratio between the head sentence and non-parole period.

Key Takeaways

  • The District Court treated the shaking and throwing of a five-week-old infant as objectively serious offending warranting full-time imprisonment, with no alternative sentence considered appropriate for either count.
  • Under s 35(2) of the Crimes Act 1900 (NSW), reckless grievous bodily harm carries a maximum of 10 years imprisonment and a standard non-parole period of 4 years; the court applied those benchmarks in calibrating the indicative sentence before discount.
  • A guilty plea discount of 10 per cent was applied, but the court's assessment of remorse remained relevant to rehabilitation prospects even where the absence of remorse was attributable to mental illness rather than deliberate indifference.
  • Special circumstances were established where the offender would serve her sentence in protective custody, had significant mental health needs, and would require structured support upon release, justifying a longer balance of sentence relative to the non-parole period.
  • Consistent with Bugmy v The Queen (2013) 249 CLR 571, the court's approach acknowledged the relevance of the offender's background and mental health to the weight given to subjective factors at sentence, without those factors displacing the seriousness of the objective criminality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2) (reckless grievous bodily harm)
- Crimes Act 1900 (NSW), s 43A(2) (failure to provide necessities of life to a child causing serious injury)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v George (a pseudonym) [2021] NSWDC 18
- R v Ryan (a pseudonym) (No.1) [2021] NSWDC 727
- R v Ryan (a pseudonym) (No.2) [2021] NSWDC 733