Citation: R v DG [2024] NSWDC 194
Court: District Court of New South Wales
Date: 9 May 2024
Judge: Anderson SC DCJ
Background
The offender, DG, an Aboriginal woman, pleaded guilty to causing grievous bodily harm with intent to a 10-week-old child, her biological daughter, between 23 and 25 March 2021 at Turramurra. The charge was brought under s 33(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years.
The victim was born at 34 weeks gestation, weighed only 1.7 kilograms, and was diagnosed with foetal alcohol syndrome, a cleft palate, and a cleft lip. DG had experienced severe domestic violence and homelessness during the pregnancy, including being physically assaulted while pregnant. The offender and the victim were living at the Sydney home of a general practitioner, Dr Boes, who had arranged to care for both of them and had been given guardianship of the child by statutory declaration shortly before the offending occurred.
The injuries were discovered by Dr Boes on the evening of 24 March 2021 when she noticed a "cracking feeling" to the right side of the infant's skull, a haematoma on the right eyelid, and abnormal eye movement. The child was rushed to Westmead Children's Hospital and required emergency treatment, including intubation and CPR en route.
Legal Issues
- What was the appropriate sentence for causing grievous bodily harm with intent to a 10-week-old child, having regard to the objective seriousness of the offence and the vulnerability of the victim?
- To what extent did the offender's deprived Aboriginal background reduce her moral culpability, consistent with the principles in Bugmy v The Queen [2013] HCA 37?
- Whether the standard non-parole period should be departed from, given the guilty plea and the strength of the subjective case.
- Whether special circumstances existed justifying a reduction in the non-parole period below the statutory proportion.
Decision
Anderson SC DCJ characterised the offence as objectively serious, given that the victim was a 10-week-old infant with significant pre-existing vulnerabilities. The judge treated the child's age and fragility as significant aggravating factors. The offender was in a primary carer role at the time of the offending, which heightened the gravity of the conduct.
The court applied Bugmy v The Queen and concluded that DG's profound personal history, including childhood deprivation, exposure to violence, chronic alcohol abuse, and the severe disadvantage associated with her Aboriginal background, substantially reduced her moral culpability. The judgment emphasised that these factors do not diminish the seriousness of the offending in the abstract but bear directly on the offender's personal culpability.
The court departed from the standard non-parole period of seven years, in part because of the 25% discount applied for the early guilty plea (entered in the Local Court) and in part because of the compelling subjective case. The total sentence imposed was six years and six months.
Special circumstances were found to exist on the basis that DG suffered from ongoing mental health conditions and alcohol abuse. A lengthier supervision period on parole was considered necessary to support her reintegration into the community and to enable continued participation in any programs commenced during custody. The non-parole period was fixed at just under 65% of the total sentence, rather than the standard 75%.
Orders Made
- DG was formally convicted of causing grievous bodily harm to a person.
- Sentenced to a total term of imprisonment of six years and six months, comprising a non-parole period of four years and two months commencing 7 November 2022 and expiring 6 January 2027, with a balance of term of two years and four months expiring 6 May 2029.
- DG is eligible for consideration for release on parole on 6 January 2027.
- A suppression order was made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting publication of the names of the offender and the victim, or any identifying features.
- An order was made that DG be advised of the existence and effect of s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) by her legal representatives.
Key Takeaways
- The District Court confirmed that an offender's deprived Aboriginal background, including exposure to chronic violence, alcohol, and disadvantage from childhood, can substantially reduce personal moral culpability even where the objective seriousness of the offending is significant, consistent with Bugmy v The Queen [2013] HCA 37.
- A 25% discount on sentence applied where the guilty plea was entered at the Local Court stage, reflecting the utilitarian value of an early plea under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Special circumstances justifying a non-parole period below the standard 75% proportion were established where the offender suffered from ongoing mental health conditions and alcohol dependency requiring extended supervision and rehabilitation support on parole.
- Departure from the standard non-parole period of seven years was warranted by the combination of the early guilty plea and a powerful subjective case, even in an offence involving a highly vulnerable infant victim.
- Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the court directed that DG be informed of that provision by her legal representatives, an order that can arise in sentencing proceedings for serious violent offences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Cases
- Bugmy v The Queen [2013] HCA 37
- R v Lolesio [2014] NSWCCA 219
- DS v R; DM v R [2022] NSWCCA 156
- Lupton v R [2024] NSWCCA 26
- R v MJ [2023] NSWCCA 306
- Camilleri v R [2023] NSWCCA 106
- R v Eaton [2023] NSWCCA 125