CW v R

1. [1]

   JOHNSON J: I agree with Hamill J.

2. [2]

   ROTHMAN J: I agree with Hamill J.

3. [3]

   HAMILL J: The applicant seeks leave to appeal from a sentence imposed by Judge O’Brien in the District Court sitting in Wollongong on 8 September 2020. The victim is a child and there is to be no publication of their name. To protect the identity of the child, I will refer to the applicant as CW and will not refer to the child’s mother by name.

4. [4]

   CW pleaded guilty to one count of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). Two offences of assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act, were taken into account on a form 1.

5. [5]

   The applicant was sentenced to imprisonment for a period of 4 years and 6 months commencing on 1 October 2019 and expiring on 31 March 2024. Judge O’Brien made a finding of special circumstances, [1] and set a non-parole period of 2 years and 10 months (around 62% of the total term), expiring on 31 July 2022.

6. [6]

   The applicant relies on two grounds of appeal:

   1. (1)

      The sentencing Judge failed to consider the impact of the applicant’s background on his moral culpability.

   2. (2)

      The sentencing Judge failed to take the applicant’s youth into account in a meaningful way in assessing the criminality and as a factor in mitigation.

7. [7]

   I would grant leave but dismiss the appeal. The following are my reasons for those conclusions.

The facts of the offences

1. [8]

   The applicant was a young and inexperienced father, 20 years old at the time of the offences, with mental health and drug issues, a history of violent offending and a turbulent home life.

2. [9]

   He assaulted his infant daughter, who was not yet 12 weeks old, at some time prior to the detection of the child’s injuries in August 2019. The family were known to the Department of Family and Children Services (FACS) before the victim’s birth and were subject to monitoring due to concerns about drug use in the household. On 22 August 2019, the applicant attended a departmental office to discuss housing and FACS employees noticed bruising on the victim’s face. Police were notified and the child was removed for a full medical examination. The examination revealed multiple rib fractures in various stages of healing. These injuries constituted the grievous bodily harm alleged in the principal offence. The offence was described as a “rolled up charge” designed to encompass a number of occasions when the injuries were inflicted. The prosecution conceded it could not establish that the injuries occurred over more than two occasions. [2]

3. [10]

   The first offence on the form 1 resulted in bruising under the right eye and a bruise under the infant’s left forehead. These injuries were caused by two separate applications of blunt force.

4. [11]

   The second offence on the form 1 caused “a buckle fracture” to the victim’s right wrist and arose from the applicant “forcefully grabbing” her arm.

5. [12]

   The timing of the bruising was able to be more precisely fixed than the fracture injuries because they were not visible during the preceding FACS visit. This meant that the bruises must have been inflicted at some time between 15 and 22 August 2019.

6. [13]

   Police attended the applicant’s home on 26 August 2019 and made inquiries about the bruises. The applicant claimed the victim had hit their own head into a door frame when she threw her head back. That assertion was false. On 27 August 2019, a surveillance device was installed covertly in the home occupied by the applicant and the victim’s mother. The device captured various admissions including the applicant saying that he “karate chopped” and “squeezed” the victim’s ribs. On 28 August 2019 the applicant was interviewed at Wollongong Police station and made similar false statements to those he made two days earlier. The applicant was arrested on 1 October 2019 and has remained in custody since.

7. [14]

   The proceedings on sentence were conducted on 8 September 2020. Judge O’Brien delivered ex tempore remarks on sentence later that day. The prosecution sentence bundle included an agreed statement of facts and the applicant’s criminal antecedents. The applicant tendered a psychologist’s report prepared by Ms Laura Durkin dated 4 September 2020.

Psychological Assessment

1. [15]

   The applicant placed substantial reliance on Ms Durkin’s report in the sentencing proceedings and the parties made submissions to this Court based on the contents of the report and its relevance to the grounds of appeal.

2. [16]

   Counsel for the applicant summarised some of the salient aspects of the report in her written submissions:

3. [17]

   Ms Durkin did not provide an opinion as to the applicant’s risk of reoffending although she said his “anxiety” “contributes to his risk for offending”. [4]

4. [18]

   The applicant’s difficulties in fulfilling the role of a parent arose out of his own childhood of abuse, neglect and rejection. These were identified in the report as factors contributing to the offending:

5. [19]

   After discussing the applicant’s criminal history, his “consistent contact” with the police since 2014, and his breaches of bonds, apprehended violence orders (AVO’s) and failures to appear, Ms Durkin wrote:

6. [20]

   As to the applicant’s “anger regulation issues” Ms Durkin went on:

7. [21]

   Ms Durkin emphasised the applicant’s immaturity, his lack of insight and understanding and offered an opinion on the role of unequipped, immature parenting in the commission of the offences:

8. [22]

   The applicant’s resort to violence as a “maladaptive coping tool” and the dual contribution of this trait and a troubled background resulting in poor parenting skills in the subject offending was canvassed as follows:

9. [23]

   The applicant’s resort to violence as a solution was an ongoing concern, and Ms Durkin noted his report of conflicts with other inmates:

Proceedings on Sentence

1. [24]

   The applicant’s trial counsel raised the application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 in both written and oral submissions on sentence:

2. [25]

   The applicant’s trial counsel canvassed his early years of neglect and abuse, citing the well-known remarks in the joint judgment in Bugmy v The Queen at [43] before concluding:

3. [26]

   The Prosecutor did not address the issue of the offender’s moral culpability in light of his deprived background, or the application of Bugmy principles explicitly.

4. [27]

   The applicant’s written submissions on sentence relied on the opinions of Ms Durkin extracted above as follows:

5. [28]

   The prosecution disputed these submissions and focused on deliberateness of the applicant’s conduct, evidenced by the admissions he made while he was under covert surveillance:

6. [29]

   The prosecution made the following submissions in respect of the applicant’s youth:

7. [30]

   In reply, applicant’s trial counsel sought to clarify the relevance of the psychologist’s opinion as explaining the “loss of control” involved, rather than suggesting an “accidental” injury:

Remarks on Sentence

1. [31]

   His Honour took into account the breach of trust arising from the applicant’s relationship with the child and the “quintessential” vulnerability of the infant victim. He also appreciated that the offence involved multiple acts. These matters elevated the seriousness of the offending. [17]

2. [32]

   His Honour found that the offence was “impulsive” and the lack of planning was a mitigating feature. [18] He allowed a 25% discount for the utilitarian value of the guilty plea, but was not satisfied there was any other evidence of remorse. [19]

3. [33]

   The sentencing Judge acknowledged the applicant’s youth and dysfunctional childhood and held:

4. [34]

   Judge O’Brien found the applicant’s criminal history and the fact the crimes were committed while he was on conditional liberty were aggravating features. [21] Based on the applicant’s disregard for sanctions in the past, his Honour found his prospects of rehabilitation to be “guarded at best”. [22]

5. [35]

   His Honour held that the offence fell at around the mid-range of objective seriousness for offences of this kind. The following passage provides insight into the approach the Judge took to the seriousness of the offending:

6. [36]

   The applicant was 20 at the time of the offending and it was his first time in custody. However, he had a history of violent offending, most of which was acquired when the applicant was a juvenile. The two most recent convictions were both offences involving domestic violence.

7. [37]

   The applicant reported a childhood and early adolescence marred by violence, transience, and dysfunction:

8. [38]

   There was also a history of attempts at self-harm:

9. [39]

   Judge O’Brien had regard to the offender’s troubled upbringing and diagnosed disorders. His Honour found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 based on the applicant’s youth, drug issues, compromised mental health and the fact it would be his first time in custody.

10. [40]

    As to the applicant’s personal circumstances and background, his Honour said:

11. [41]

    At the heart of the arguments under both grounds in the present appeal is the failure of the sentencing Judge to make express reference to the applicant’s moral culpability and the impact of his youth, and personal history of dysfunction, on that issue.

The grounds of appeal

1. [42]

   The grounds of appeal raise similar and related issues. Counsel for the applicant presented the applicant’s arguments succinctly and convincingly, and with a minimum of duplication. Each of the grounds require the Court to consider whether, the extent to which, and how, the sentencing Judge took into account the compellingly sad personal circumstances of the applicant. Ground 1 was directed to his dysfunctional childhood and its impact on his moral culpability while ground 2 was concerned with his youth and immaturity and the extent to which it affected, or mitigated, a proper assessment of his criminality.

2. [43]

   The essence of the applicant’s argument is distilled in the following submission made on the hearing of the appeal:

Ground 1: The sentencing Judge failed to consider the impact of the applicant’s background on his moral culpability

1. [44]

   The applicant submitted that Judge O’Brien’s failure to refer to the impact of his dysfunctional and disrupted childhood in the context of an assessment of his moral culpability was indicative of a legal error infecting the sentence. Reliance was placed on the observations of the High Court in Bugmy v The Queen and the comments of Rothman J in TF v R [2020] NSWCCA 248 at [81]:

2. [45]

   A related complaint was that the sentencing Judge failed to indicate that he was not persuaded the “Bugmy principles” applied. This argument assumes that those principles were not applied and was, again, based on the absence of any explicit reference to them or any finding of reduced moral culpability in the judgment. It was submitted that this resulted in procedural unfairness. The applicant referred to Chong v R [2017] NSWCCA 185 at [5]:

3. [46]

   The respondent argued that the sentencing Judge’s remarks, at least implicitly, made it clear that the applicant’s background and the psychologist’s opinions were taken into account in an appropriate and principled manner. The sentencing Judge referred to the applicant’s background and personal difficulties and to the contents of Ms Durkin’s report. It was submitted that no further comment was required in the circumstances and that the evidence was taken into account in an appropriate way.

4. [47]

   As to the allegation of procedural unfairness, the respondent submitted that the authorities were concerned with the situation where a sentencing judge “gives a positive indication that he or she is disposed to adopt a particular argument or approach” [28] and then finds against the applicant. Reliance was placed on Toole and Toole v R. [29] The respondent submitted that there was no relevant unfairness because the Judge did not give any indication that he was minded to make a favourable finding in relation to the issue.

5. [48]

   I accept that it would have been preferable for the sentencing Judge to have engaged more clearly with the principles reiterated by the High Court in Bugmy v The Queen and to identify the extent to which he took the applicant’s childhood dysfunction and history of dislocation and deprivation into account in evaluating his moral culpability. However, the sentencing judgment was delivered ex tempore and the ground must be determined by undertaking “a fair reading of the reasons as a whole” [30] without engaging in an overly critical textual analysis. [31]

6. [49]

   In Prince v R [2020] NSWCCA 268 Beech-Jones J said at [47]:

7. [50]

   In referring to this passage, I do not suggest that counsel’s submissions in the present application was concerned with the use of appropriate labels. I accept the force in the complaint as it was articulated both in written submissions and on the hearing of the appeal. However, a fair reading of the whole of the ex tempore judgment leaves me with little doubt that Judge O’Brien accepted the evidence of the applicant’s childhood and gave it appropriate weight, albeit that it had the capacity both to reduce moral culpability while, at the same time, increase concerns as to the protection of the community.

8. [51]

   The remarks of Rothman J in Donald (a pseudonym) v The Queen [2021] NSWCCA 198 are also apposite:

9. [52]

   See also Egan v R [2017] NSWCCA 206 at [37], Wood v R [2019] NSWCCA 309 at [123] (Hoeben CJ at CL) and Dellow v R [2020] NSWCCA 301.

10. [53]

    The sentencing Judge was cognizant of the material in the report and its relevance to various aspects of punishment. His Honour referred to the applicant’s background at some length before referring to the impulsivity of the offending and noting the applicant’s lack of self-control and self-regulation, and his propensity to respond violently. While couched in less refined language, this reflected the competing considerations discussed in Bugmy v The Queen:

11. [54]

    I am unable to accept the applicant’s submission that the judgment suggests that the sentencing Judge took the applicant’s dysfunctional background into account as a risk “exacerbating feature going to protection of the community” rather than to ameliorate his moral culpability. [33] A fair reading suggests that the matter was taken into account in relation to both of those sentencing considerations. I would add that the sentence actually imposed, given the severity of the assaults on a helpless infant, also points in that direction.

12. [55]

    The complaint concerning procedural fairness does not arise. I would reject ground 1.

Ground 2: The sentencing Judge failed to take the applicant’s youth into account in a meaningful way in assessing the criminality and as a factor in mitigation

1. [56]

   In a sense, ground 2 was argued either as an alternative to ground 1, or as complementary to it. It was submitted that, if Judge O’Brien balanced the contradictory forces discussed in Bugmy v The Queen at [44], [34] and found that moral culpability was diminished but that community protection was the preeminent consideration, such a finding would disclose a superficial or lack of engagement with the principles applicable to young offenders. [35]

2. [57]

   The applicant raised two matters in the sentencing judgment which were said to indicate that the factors of immaturity and deprivation were not taken into account in an appropriate manner, that is to reduce objective gravity of the offence and/or to reduce the applicant’s moral culpability. [36]

3. [58]

   The first was a reference to prior offences of violence, “bearing in mind he is only 21 years of age”. [37] The second was the conflation of immaturity and a lack of remorse said to be exposed by the following statement:

4. [59]

   The respondent relied on similar arguments to those made in response to Ground 1. It submitted that there is no requirement for a sentencing Judge to make a separate finding as to the mitigatory impact of youth or immaturity on culpability where it has clearly been adverted to, particularly in the delivery of ex tempore remarks on sentence. It was suggested that given the applicant’s history of violence, the fact that he was no longer a juvenile, and the gravity of the offending conduct, the sentencing Judge’s approach to the applicant’s youth might be viewed as generous, rather than deficient. [39]

5. [60]

   There was some argument between the parties as to whether the offending “manifest[ed] the immaturity associated with young offenders” required to invoke the relevant principles and warrant reduction in sentence. [40] This dispute arose out of differing interpretations of Ms Durkin’s report, or by placing emphasis on different parts of that report. Most of the relevant portions of the report have been reproduced above.

6. [61]

   There was no real issue between the parties as to the appropriate principles to be applied when a young and immature offender is being sentenced. They were discussed, in not dissimilar factual circumstances, by Adams J R v Dalton [2004] NSWSC 446:

7. [62]

   In submitting that the sentencing Judge failed to take the applicant’s youth into account as a matter reducing his moral culpability and the importance of retribution in the sentencing exercise, the applicant relied on the judgment of Hodgson JA in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379, which was endorsed by Rothman J in Yildiz v R [2020] NSWCCA 69 at [58]:

8. [63]

   There is no “bright line” – that is, an offender’s 18th birthday – that determines the application of sentencing principles relating to young offenders. [41] However, an offender who is a child at law is subject to the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987, while an adult offender is not. Nevertheless, as Hodgson JA made clear in the passage extracted at [62] above, chronological age does not dictate maturity. In Howard v R [2019] NSWCCA 109 at [13] Fullerton J confirmed that it is:

9. [64]

   In R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 the Court stated the general proposition in the following terms at [25]:

10. [65]

    The relative importance of youth as a factor in sentencing is determined by the circumstances of the individual case. [42] Consideration must be given to the evidence of the offender’s “mental state and circumstances of the offender at the time of offending”. [43] The nature of the offending may have some relevance, including whether the offender “has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity” or “engaged in ‘adult behaviour’’, and whether it involved planning and premeditation. [44] Precisely what constitutes “adult behaviour” in this context is difficult to define as the judgments in BP v R, KT v R and R v Hearne demonstrate. However, it is clear that:

11. [66]

    None of the preceding analysis is ground-breaking or new. The principles are entrenched and well known. I am unable to accept that Judge O’Brien was not familiar with them or failed to apply them. His Honour’s judgment suggests the opposite. He accepted the applicant was immature and that the offence was impulsive. He set out parts of Ms Durkin’s report. His Honour did not discount the relevance of the applicant’s youth and immaturity by reference to the serious nature of the offending. This is clear from the remark (earlier referred to) that:

12. [67]

    This observation demonstrates that the dispute that played out at first instance, and which is described at [27]-[30] above was resolved in the applicant’s favour.

13. [68]

    I do not accept that the parts of the judgment relied on by the applicant and set out at [58] above suggest that his Honour misapplied the principles or failed to take into account the applicant’s youth and immaturity “in a meaningful way”. Nor am I satisfied that the sentencing Judge disregarded the issue in assessing the objective criminality of the offence. As with ground 1, the sentence imposed on the applicant does not support the proposition contended for and the language employed in the judgment must be considered in light of the fact that the sentence was imposed, and judgment delivered, on the same day the case was argued.

14. [69]

    For those reasons, I am unable to uphold ground 2.

Conclusion and orders

1. [70]

   The sentence imposed on the applicant was a stern one in view of his age and the evidence contained in the psychologist’s report. However, I am satisfied that the sentencing Judge took those matters into account in accordance with proper principle and am unable to uphold either of the grounds contending otherwise. The criminality involved repeated assaults on a helpless infant and a stern sentence was inevitable.

2. [71]

   I would make the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.