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District Court 15 December 2023

R v MA

[2023] NSWDC 567

Assault & violence
CRIME S 43A( 2) OF THE CRIMES ACT 1900 (NSW) FAILURE TO PROVIDE NECESSITIES OF LIFE ALTERNATIVE CHARGE TO MANSLAUGHTER GUILTY VERDICTS FOLLOWING TRIAL CITIZENSHIP AND MIGRATION

Citation: [2023] NSWDC 567
Court: District Court of New South Wales
Date: 15 December 2023
Judge(s): J Smith SC DCJ

Background

The offender, a citizen of Iran residing in Australia, was tried on three counts relating to the death of his two-year-old stepson, AF, on 3 August 2018. AF died from severe abdominal injuries inflicted by his mother (the offender's wife, DF) during a violent assault at the family home. The offender was not charged with inflicting any physical harm himself but was charged with failing to provide the child with necessities of life, specifically timely medical care.

The jury acquitted the offender of manslaughter by criminal negligence (Count 2) but found him guilty of two offences under s 43A(2) of the Crimes Act 1900 (NSW). Count 1 related to the offender's failure, between 28 June and 2 August 2018, to obtain medical treatment for AF's fractured right tibia, causing a danger of serious injury. Count 3 related to the offender's failure on 3 August 2018 to obtain medical attention for AF after a fatal assault by DF, causing a danger of death.

The offender held a bridging visa. A significant issue at sentencing was the relevance of the offender's likely immigration detention following the expiry of his sentence, given his visa would almost certainly be cancelled.

  • What was the objective seriousness of each offence under s 43A(2), assessed against the statutory maximum of five years' imprisonment?
  • Whether the offender demonstrated remorse, and what mitigating or aggravating factors applied.
  • Whether the prospect of immigration detention following the sentence should reduce the sentence imposed, and if so, by how much.
  • Whether immigration detention constitutes "punishment" or "quasi-custody" for the purposes of sentencing.
  • The appropriate aggregate sentence and non-parole period.

Decision

The sentencing judge found the offences to be objectively serious at a high level. On Count 1, the offender knew AF had sustained a broken leg, was clearly aware the child could not walk properly, and failed for over a month to seek any medical treatment. His excuse that he gave money to DF to take AF to a doctor was rejected. The court found the offender worked for himself, could take time off, and that AF had a Medicare account making treatment free of charge. The untreated fracture caused misalignment, the risk of re-fracture, and potential long-term deformity.

On Count 3, the court was satisfied beyond reasonable doubt that the offender heard DF's violent assault on AF on the evening of 3 August 2018. The family unit was compact, there was no music playing, and the sounds of the assault (yelling, crying, coughing) would have travelled clearly. The offender's failure to intervene or seek medical help created a danger of death. Consistent with the jury's acquittal on manslaughter, the court accepted a reasonable doubt as to whether the failure to obtain medical attention actually caused AF's death, but was satisfied it created a risk of death.

The court found no remorse. The offender maintained his innocence throughout and at no point expressed sorrow for AF's death, even during his evidence at trial. There were limited mitigating factors: the offender had no prior criminal history and had experienced a difficult upbringing.

On the immigration detention issue, the court carefully considered whether the near-certain prospect of post-sentence detention under the Migration Act 1958 (Cth) warranted a reduction in sentence. Relying on authorities including R v Pham, Hatahet v The King, and NZYQ v Minister for Immigration, the court accepted that immigration detention, while not legally characterised as "punishment," constitutes an additional burden and hardship that can make a sentence more onerous. The court also noted that immigration detention in Australia has been found to involve conditions more restrictive than prison in some respects. Ultimately, the court applied a modest discount to the sentence to account for the likely period of immigration detention. However, the court emphasised the uncertainty inherent in this exercise, since visa cancellation had not yet occurred and the ultimate outcome (deportation or release) remained unknown.

Orders Made

  • The offender was convicted of both Count 1 (s 43A(2), danger of serious injury) and Count 3 (s 43A(2), danger of death).
  • An aggregate sentence of imprisonment was imposed (the specific terms were set out in the portion of the judgment beyond the truncated text provided, but the court indicated sentences at the higher end of the range for offences of this nature, with a modest reduction for the immigration detention factor).
  • The sentence was structured with a non-parole period reflecting the objective seriousness of the offending.

Key Takeaways

  • A high objective seriousness finding attached to both offences, particularly where a parent was aware of serious injuries to a young child over an extended period and took no steps to seek medical treatment despite having the means and opportunity to do so.
  • Under s 43A(2) of the Crimes Act 1900 (NSW), a failure to provide necessities of life need not be shown to have caused the ultimate harm (here, death) to sustain a conviction. It is sufficient that the failure caused a danger of serious injury or death.
  • Immigration detention following the completion of a sentence, while not legally classified as "punishment" under Australian law, can be treated as a relevant hardship factor at sentencing that makes the overall experience of the sentence more onerous.
  • The absence of remorse, including maintaining innocence through trial and expressing no sorrow for the child's death, was treated as a neutral to negative factor. The court drew a distinction between the right to plead not guilty and a complete absence of concern for the victim.
  • Findings of fact for sentencing purposes must be consistent with the jury's verdicts, and adverse findings against the offender must be proved beyond reasonable doubt, following Cheung v R and R v Isaacs.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 43A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)
- Migration Act 1958 (Cth)

Cases:
- Cheung v R (2001) 209 CLR 1
- R v Isaacs (1997) 41 NSWLR 374
- R v Pham [2005] NSWCCA 94
- Hatahet v The King [2023] NSWCCA 305
- NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
- DG v R (No 1) [2023] NSWCCA 320
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Al-Kateb v Godwin [2004] HCA 37
- Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
- Alexander v The Minister for Home Affairs (2022) 96 ALJR 560
- Afful v R [2021] NSWCCA 111
- R v Latumetan and Murwanto [2003] NSWCCA 70